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The Lege

First new SBOE map proposed

That’s two down, two to go.

The Texas Senate on Monday released its first draft of a new map for the State Board of Education, which attempts to reinforce the GOP majority within the 15-member, Republican-dominated entity that determines what millions of public school students in the state are taught in classrooms.

The map is likely to change as it makes its way through the legislative process, which began formally Monday as the Legislature kicked off its third special session of the year. Lawmakers have been tasked with redrawing district maps for the board, the state House and Senate as well as the state’s congressional seats. They will craft those maps using the latest census data, which showed that people of color fueled 95% of the state’s population growth over the past decade. The proposals will have to be approved by both chambers and signed by Gov. Greg Abbott.

Nine Republicans and six Democrats currently make up the State Board of Education. During the 2020 general election, seven of those 15 districts went to President Joe Biden — though, under the Senate’s proposed map, only five would favor Biden and one would be considered a toss-up seat.

Districts 6, held by Republican Will Hickan of Houston, and District 12, held by Republican Pam Little of Fairview, both went to Biden narrowly in the 2020 election. Those two districts would be retooled under the Senate’s draft to include more Donald Trump voters and give Republicans a more comfortable majority. District 2, which favored the Republican former president in 2020 by a few percentage points, would be evenly split among Biden and Trump voters. That district is currently held by Ruben Cortez Jr., a Brownsville Democrat.

The special session, which can last up to 30 days, is expected to focus largely on redrawing the state’s political maps, along with a host of other issues set by Abbott. Since the GOP holds majorities in both chambers, the redistricting process will be in the hands of Republicans, who will work to best position their party for the next decade.

You can see an image of the proposed map in the story, and in this Twitter thread, or you can get all fancy and look in the District Viewer, which lets you zoom as far in as a Google map would. You can see the current map here for comparison, and my 2020 precinct analysis is here. This person projects that the split would remain 9-6 based on 2020 data, though SBOE2 is close, with the Dems having about a four or five point advantage. SBOE5, the district we picked up in 2020, becomes more solid blue, while districts 6, 10, and 12 become redder.

The strategy, based on the shrinking rural areas plus the booming – and blueing – suburbs, is combining rural districts with pieces of suburban, and in some cases urban, counties. Look at SBOEs 9 and 14, for example, both of which now include pieces of Dallas County, with SBOE14 picking up much of Denton as well. Dallas County wins the “prize” of having the most districts in it with five – Harris only has three. On the other end is SBOE6, which is following the SD07 plan of carving out a piece of Montgomery County to fend off the blue tide in Harris. SBOE8 cedes most of Montgomery to SBOE6 and picks up a piece of Fort Bend in return. SBOE12 went from being all of Collin County and about a fifth of Dallas and nothing else to being all of Collin, a much smaller piece of Dallas, and a bunch of mostly Red River counties that had previously been in SBOE 9 and 15. I have think that SBOE9 incumbent Keven Ellis, who hails from Lufkin, is not too pleased to see so much of his district now in the Metroplex.

Anyway, this is the first map. The House will surely have its own maps on offer, and there will be revisions. I don’t see any other files on the Texas Redistricting site right now, but I’m sure they will appear soon enough. In the meantime, at least at first glance, this is more of a status quo map than anything else, in that the most likely scenario is the same 9-6 mix we have now. But SBOE2 could fall in a bad year or if the 2020 trends continue, and SBOE3 is more Republican at 43% than any of the currently red districts are Democratic (they all top out at 40 or 41), so the short-term potential for flips favors the GOP. We’ll see what happens from here.

First “heartbeat” lawsuit filed

Didn’t take long.

A San Antonio physician is facing a lawsuit after he admitted performing an abortion considered illegal under Texas’ new law.

Why it matters: The civil suit, filed by a convicted felon in Arkansas, against Alan Braid is the first such suit under the law that allows private citizens to sue anyone who helps a pregnant person obtain an abortion after six weeks.

What he’s saying: Braid said he acted “because she has a fundamental right to receive this care.”

  • “I fully understood that there could be legal consequences — but I wanted to make sure that Texas didn’t get away with its bid to prevent this blatantly unconstitutional law from being tested,” he wrote in a column in the Washington Post.

Driving the news: Oscar Stilley, a former lawyer from Arkansas who was convicted of tax fraud in 2010, said he does not personally oppose abortion but decided to file the suit to test the Texas law’s constitutionality.

  • “If the law is no good, why should we have to go through a long, drawn-out process to find out if it’s garbage?” Stilley after filing the complaint in state court in Bexar County, Texas, according to the Post.

See here for the background, and here for a copy of the lawsuit. Oscar Stilley is certainly the plaintiff the forced birth crowd deserves. If I’m reading his comment correctly – the WaPo article is paywalled, so I’m somewhat limited in what I can see – it sounds like he wants to give SB8 opponents a chance to get it thrown out. There’s nothing funny about any of this, but for the first lawsuit under this atrocity to be an utter farce would be entirely fitting.

One other angle, which I noticed in the stamp of the Bexar County District Clerk. This lawsuit was assigned to the 438th Civil Court in Bexar County, whose judge is a Democrat. Judges are compelled to follow the law, of course, but to whatever extent she has discretion, I would think she might not be terribly inclined to give any such plaintiff the benefit of the doubt. Do keep in mind, this law enables the bounty hunters to file their garbage lawsuits in any state court in Texas. For sure, the reason for that was to allow all of the greedy little fortune seekers the opportunity to file in Republican counties, where they can expect a higher level of service. I don’t think any of this was according to the plan these jackals had in mind, but it’s still chaos and attention for them, and I’m sure they’ll take it. Best wishes, and I hope a good supply of Advil and Maalox, to the judge. CBS News and NBC News have more.

UPDATE: Per the Trib, there are actually now two lawsuits against Dr. Braid.

At least two lawsuits have been filed against Braid, both by disbarred attorneys. One was filed by Illinois resident Felipe N. Gomez, who identified himself as a “Pro Choice Plaintiff” and aligns himself with Braid in the lawsuit, KSAT reported. Gomez does not ask for monetary damages in the suit, but asks “the Court to declare that the Act is Unconstitutional, and in violation of Roe v Wade,” according to the TV station.

There’s more in there about Oscar Stilley, whose motivations are all over the place. Gomez’s lawsuit was also filed in Bexar County, but the copy that was included in that KSAT story did not indicate which court. The lawsuit is also one page long and it’s not clear to me it meets the legal definition of a “lawsuit”. I guess the lucky judge will get to make that call. As they say, play stupid games, win stupid prizes.

“Heartbeat” lawsuit bait

Something like this was going to happen sooner or later.

A Texas doctor stepped forward Saturday to say he had performed an abortion that is illegal under the state’s restrictive new law to force a test of its legality.

“I understand that by providing an abortion beyond the new legal limit, I am taking a personal risk, but it’s something I believe in strongly,” Alan Braid, a San Antonio OB/GYN, said in an op-ed in The Washington Post. “I have daughters, granddaughters and nieces. I believe abortion is an essential part of health care. . . . I can’t just sit back and watch us return to 1972.”

Braid said he performed a first-trimester abortion on Sept. 6, just a few days after the law known as Senate Bill 8 went into effect in Texas, making nearly all abortions illegal after a woman is about six weeks pregnant ­— with no exceptions for incest or rape. The doctor said he acted because he had “a duty of care to this patient, as I do for all patients.”

[…]

John Seago, legislative director for Texas Right to Life said that group “is exploring all of our options to hold anyone accountable who breaks the (Texas) law.”

“This is obviously a stunt to move forward with other legal attacks on the law,” he said of Braid’s column. “This was always something that we expected — that someone would essentially try to bait a lawsuit. So we’re just moving into the next phase of Senate Bill 8 right now.”

But the leader of another Texas-based anti-abortion-rights group, said it has no plans to sue Braid at this time.

Braid “is willfully conducting illegal abortions right now,” said Chelsey Youman, national director of public policy for Human Coalition, which operates crisis pregnancy centers across the country. “He knows he’s currently incurring liability and he may face repercussions for that . . . but for the most part that’s a choice the larger abortion clinics have not made. They’re saying they’re going to comply. We should celebrate that lives are being saved in the interim.”

Abortion rights advocates, meanwhile, praised Braid for stepping forward.

“The situation has become untenable,” said Kristin Ford, acting vice president of communications for NARAL Pro-Choice America, an abortion rights advocacy group. “Roe v. Wade has been rendered meaningless in the second biggest state in the country, and we can’t continue in that limbo,” she said.

The op-ed is here, if you have access to it. This was in fact the scenario that was predicted after SB8 was passed, that to gain a legal foothold in court a provider would need to be sued to effectively challenge the law in court. It’s a common path for such action – the groundbreaking Lawrence v Texas case began as an arrest and conviction for sodomy, which was then appealed until SOCUTS invalidated Texas’ law banning gay sex. There are other paths being taken now, from the state lawsuits that have gained injunctions on behalf of specific plaintiffs and against particular groups to the initial federal lawsuit that named defendants other than Greg Abbott and Ken Paxton – you know, the one that the Fifth Circuit stopped before it could get a hearing and which SCOTUS punted on – and the lawsuit filed by the Justice Department that names the state of Texas as defendant. The first as noted is limited in scope while the other two have yet to be tested in court.

Any or all of these could work, or not. We don’t know yet, and the two federal cases are novel in their own way. The point is that this was the path that legal experts were able to visualize from the beginning. It too may not work – SCOTUS is still SCOTUS, after all – but no one would question the ability of the provider who was targeted by the action authorized by SB8 to fight it by challenging the legality and/or constitutionality of the law.

And here in this story, we see the limit of this approach, which is that it required someone to sue the doctor (or other “abetter”) in order to get it into court in the first place. The thing is, the pro-forced-birth advocates who pushed SB8 don’t need to sue Dr. Braid. Strategically, they don’t really care if there are individual doctors who do one-off abortions. That’s a small piece of the pie. Their goal was to shut off abortion access at the big clinics, the Planned Parenthoods and Whole Women’s Health and so on. And they’ve succeeded! The number of abortions being performed in Texas is near zero. People have already internalized the idea that abortion is functionally illegal, or at least nearly impossible to get, in Texas. Sure, they want that number to be zero, but this was such a huge step in that direction they can afford to coast.

To that extent, filing those $10,000 bounty lawsuit doesn’t serve their purposes at all. They just introduce the risk that SB8 could someday be thrown out, in the same way that the omnibus TRAP law of 2013 (it was HB2 in that session and often referred to as HB2 in stories of the lawsuit against it) was eventually tossed. The thing is, though, that long before HB2 was thrown out, it had caused half of all clinics that offered abortion services to quit doing so, and thus greatly reduce access in the state. They lost their big hammer, but by then they’d pounded in so many nails it hardly mattered.

I hadn’t really thought about it before writing this post, and I haven’t seen anyone else touch on this, but I think this explains the very laid-back reaction that Texas Right to Life has had to the state lawsuit Planned Parenthood filed against them, and why they’re basically shrugging their shoulders here. The status quo at this point suits them just fine. The bounty lawsuits were never the main point of SB8. They were a means to an end, and they have already achieved that end. Why mess with success?

Now, someone who hasn’t gotten this memo could still sue Dr. Braid, and that will kick all the legal machinery that people had expected into gear. Once there is a case for the courts to act on, all of the high-powered lawyers from all of the main players will get involved, and on to SCOTUS we will march. Similarly, if one of the big clinics decides to go back to business as usual, the forced birthers will take action, because they will have to. Until then, they’re happy to wait and see what happens with the existing lawsuits. They’re playing with house money, and they know it. Slate has more.

The electoral dress code lawsuit

Still interesting.

A U.S. magistrate judge this week recommended striking down parts of Texas law that prohibit wearing political apparel within 100 feet of a polling place as unconstitutionally vague — but upholding a narrower provision that specifies that clothing bearing messages related to what’s on the ballot can be banned.

The issue first arose in 2018 when Harris County resident Jillian Ostrewich wore a Houston firefighters T-shirt to a polling place and election workers told her to turn it inside out because it related to Prop B, a pay parity measure for firefighters on that ballot that year. Claiming she was unconstitutionally censored and her right to free speech infringed upon, she sued Harris County and state officials.

The case puts to the test a U.S. Supreme Court ruling from June of that year in which the justices struck down a Minnesota law that banned voters from displaying “issue-oriented” apparel at the polls for being overbroad. The Texas suit was brought by Pacific Legal Foundation, the same California-based libertarian public interest law firm that won the Minnesota case.

[…]

U.S. Magistrate Judge Andrew M. Edison in his report on Tuesday said the election judge had a constitutional basis for rejecting Ostrewich’s shirt because it had a clear relationship to the ballot measure, even if it did not explicitly say to vote for that measure. Under that law, Edison said, Ostrewich had not been harmed and therefore was not entitled to damages.

Other parts of the law, however, which define “electioneering” as advocating “for or against any candidate, measure, or political party” through “posting, use, or distribution of political signs or literature” leaves room for misunderstanding, he said. Ostrewich would have no way of knowing whether wearing that same shirt in a future election, even if the measure weren’t on the ballot then, could also be considered illegal electioneering.

Those parts of the law “do not give Texas voters notice of what is expected of them in the polling place, and they do not provide election judges with objective, workable standards to rein in their discretion,” Edison wrote. “This is impermissible under the First Amendment and these statutory provisions should be struck down as unconstitutional.”

See here for the background. Seems reasonable to me to say that you can be barred from the restricted area for wearing a shirt that directly addresses the current election, but barring a shirt that’s not about that election may be too broad. The plaintiffs are claiming a victory, even though their main actor was denied any relief; I think the defendants can be reasonably satisfied with this as well. This was a recommendation and not a ruling – the parties have two weeks to hammer out an agreement of some kind, which will then need to be approved by the judge. I’ll be honest, I had no idea that was a thing, but here we are. The lawyers out there, what do you think about this?

A kinder, gentler voter purge

How nice.

Still the only voter ID anyone should need

Two years after Texas officials fumbled an effort to double-check the voting rolls on a hunt for non-citizens — and instead threatened the voting rights of nearly 60,000 eligible Texans — similar efforts to purge non-citizen voters are now the law of the land, thanks to provisions tucked into the massive elections bill enacted earlier this month.

The Secretary of State will once again be allowed to regularly compare driver’s license records to voter registration lists in a quest to find people who are not eligible.

But while Republicans are determined to make another run at the controversial purge that alarmed civil rights groups two years ago, they insist they’ve made key changes to prevent a repeat of the same mistakes.

“They blew it last time,” acknowledged Republican State Sen. Paul Bettencourt, R-Houston.

So much so, then-Secretary of State David Whitley resigned his position in the aftermath and triggered a public apology from his office. Civil rights groups also sued his office and blocked the state from continuing the purge at the time.

Starting by December of this year, the Secretary of State will review Department of Public Safety records every month looking for potential non-citizens. But this time lawmakers have put in a provision that intentionally bars the Secretary of State from going too far back in time as it scours drivers’ license records, something that led to some of the problems in 2019.

In some instances, the state flagged legal voters who had become naturalized citizens since the time they first applied for a driver’s license a decade or more earlier. Non-citizens, including those with visas or green cards to stay in the U.S., are able to get Texas driver’s licenses. The state’s 2019 analysis flagged those drivers, but it never accounted for the fact that about 50,000 Texans become naturalized citizens each year.

The result was many legitimate voters receiving letters warning they were at risk of being knocked off the voter rolls and facing potential legal action because of faulty data.

By hastening to send out the written warnings, civil rights groups said the state caused a lot of fear and confusion, particularly for naturalized citizens.

“Definitely this is substantially better than what they were doing before,” said Joaquin Gonzalez, an attorney with the Texas Civil Rights Project.

But Gonzalez said he’s still worried about the reliability of Department of Public Safety drivers’ license databases and the inherent pitfalls of trying to compare millions of records against millions of other records. He said there is just too much room for error.

“There are still concerns that they will be falsely flagging people,” he said.

There’s too much to even sum up, so just go here for all things David Whitley. The provision the Democrats fought for should limit the damage, and for that we can be thankful. But there’s still no reason to trust anything the state is likely to want to do to “clean up” the voter rolls. They have not earned any benefit of the doubt. I will be delighted to be pleasantly surprised by this, but we very much need to keep a close eye on the process, because again, the state cannot be trusted.

A gold-plated dud

Just a dumb story all around.

When state lawmakers decided in 2015 that Texas needed to be the only state to have its own precious metals depository, supporters said there were plenty of reasons the project would be a gold mine.

The University of Texas/Texas A&M Investment Management Co., which handles the schools’ endowment, owned hundreds of millions of dollars-worth of gold as an investment, stored for a fee in a New York City vault. A state-owned depository “will repatriate $1 billion of gold bullion from the Federal Reserve in New York to Texas,” Gov. Greg Abbott said.

Citizens, too, were clamoring for an independent-minded location they could trust with their valuables. “When I first presented this, to be honest with you, we got hundreds and hundreds of people from all over the world, really, who wanted to be able to put their gold in something that has the Texas banner above it,” said Rep. Giovanni Capriglione, R-Southlake, the bill’s author. “This doesn’t work in Wisconsin, it doesn’t work in Idaho.”

Best of all, because the state would find a private partner to build and own the physical depository, it would cost taxpayers nothing. The enterprise would even reap a big profit for Texas. “We estimate that we could raise tens of millions of dollars in fees,” Capriglione testified.

More than three years after the depository opened, none of those things has happened. Yet earlier this year state lawmakers quietly voted to let the state borrow millions of dollars to bail out a project created to fix a problem that didn’t exist, and which they had vowed would cost nothing.

“It’s ridiculous,” said Sen. Kel Seliger, R-Amarillo, one of only two senators to oppose the bill. “I don’t think the State of Texas should be in the commercial real estate business, or the gold bullion business.”

The UT/A&M investment company liquidated its gold more than a year ago without moving any bullion back to Texas. A spokeswoman said the agency currently owns no precious metals and so has no need for storage. No other state entity has metal at the Texas depository.

In the time since state leaders created the Texas facility, two large private competing depositories have also opened, in Shiner and Dallas. Officials said Texas Bullion Depository is currently less than 10 percent full. Taxpayers, meanwhile, have yet to see a penny from the enterprise.

Worse, the state’s partner, Lone Star Tangible Assets, recently revealed it is looking to sell the new facility, placing the state at risk of losing control of the entire enterprise. In response, two months ago legislators gave Comptroller Glenn Hegar permission to borrow up to $20 million to buy it.

How a project touted as a golden opportunity for taxpayers devolved into a bait-and-switch that could instead cost millions is a classic tale of government mission creep. It also raises new questions about the odd-couple partnership between the State of Texas and the high-volume precious metals sales industry, a sector that has inspired numerous warnings and enforcement actions from federal and state regulators, including the Texas attorney general.

“When I saw this, I thought, ‘This is going to be embarrassing for the State of Texas,’” said Paul Montgomery, a precious metals dealer and appraiser who has worked with regulators to bring cases against coin dealers who scam investors.

I don’t think you can claim that people were “clamoring” for this without citing some evidence of said clamor. There are enough gold bugs in the state that I can believe some people wanted this, but in the big picture that would be little more than a murmur. Be that as it may, here we are. I remember this as it was happening, and I definitely remember thinking it was deeply dumb, but I figured it was the mostly harmless kind of dumb. I never bothered to blog about it because once you link to the story and say “this is dumb”, there’s really nowhere else to go.

This will cost us a few million bucks, but in the grand scheme of things that’s a rounding error in the budget. Compared to Greg Abbott’s border wall extravaganza, this is peanuts. Everyone should mock Rep. Capriglione for the rest of his life because of this, but beyond that it’s not worth the effort. Honestly, in some ways this is almost charming, like the kind of old-school dumbassery that powered a million Molly Ivins bon mots. We’d be in a much better place if this were the biggest outrage of the 87th legislative session.

Get ready for redistricting

The next special session starts Monday, and we should expect to see proposed redistricting maps. It’s going to be a rough few weeks, in part because the guardrails are gone, which will allow Republicans to run amuck.

The 2020 census captured a Texas that does not exist in its halls of power: a diverse state that is growing almost exclusively because of people of color and where the Hispanic and white populations are nearly equal in size.

But when the Texas Legislature convenes Monday to do the work of incorporating a decade’s worth of population growth into new political maps, the Republicans in charge — nearly all of whom are white — will have a freer hand to cement their power and try to shield themselves from the change that growth represents.

The 2021 redistricting cycle will mark the first time in nearly half a century that a Legislature with a lengthy record of discriminating against voters of color will be able to redraw political districts without federal oversight designed to keep harmful maps from immediately going into effect.

And now, once those maps are enacted, the voters of color and civil rights groups that for decades have fought discrimination in the courts may face a federal judiciary less willing to doubt lawmakers’ partisan motivations — even if they come at the expense of Hispanic and Black Texans.

“I hate to be an alarmist. I want to look for the silver lining, but I don’t see one,” said Jose Garza, a veteran civil rights attorney who has represented the Texas House’s Mexican American Legislative Caucus for a decade. ”I think that this is a time of great opportunity for the Republicans.”

You can read the rest – none of it is unfamiliar. Tensions are already high due to the quorum break plus the general unhinged racism from state leadership. The early word is that State Senators have already seen a draft map, which will be drawn to be 20-11 for the Republicans, a net loss of two seats for the Dems if it works out that way. The Cook Political Report expects the eventual Congressional map to add two Republican seats to the existing total. It’s going to be fun, just wait and see.

All this assumes that the Lege is allowed to draw non-Congressional maps, which remains a matter of dispute.

Texas Attorney General Ken Paxton has asked a federal judge to dismiss a lawsuit filed by two Democratic state senators against Gov. Greg Abbott over his plan to redraw political districts during an upcoming special session of the Legislature.

In a Wednesday motion, the attorney general’s office argued that the lawsuit is “wrong about Texas law” and is “inconsistent with past practice and judicial precedent.” It asks that the lawsuit be dismissed or suspended until after the redistricting process is concluded.

The lawsuit — filed Sept. 1 by Sens. Sarah Eckhardt, D-Austin, and Roland Gutierrez, D-San Antonio — argues that the state constitution explicitly requires political districts in the state to be redrawn during the first regular session after the publication of the U.S. census.

[…]

The lawsuit argues that a federal judge has the “exclusive obligation” to draw temporary maps to be used in the 2022 elections and that the legislative redistricting process should wait until 2023, when the next regular session is scheduled to occur.

The senators’ “theory — which seeks to exploit delays in the federal census caused by the COVID-19 pandemic — turns the Texas Constitution on its head,” reads the motion from the attorney general’s office. “That provision prescribes what the Legislature must do, but neither it nor any other provision prohibits the Legislature from redistricting at other times when circumstances call for it.”

See here for the background. I have to assume some kind of ruling is close at hand, if only to prevent future messes. I have not seen any indication of a hearing date, however, so who knows. In any event, enjoy your last weekend before new maps get drawn.

The wrong track

Interesting, but there are some key questions left unasked.

According to a poll conducted by Texas 2036, at least 92 percent of Texas voters said they were concerned about the future of the state, with 58 percent also stating they felt extremely concerned about it.

The Texas 2036 is a nonprofit organization that aims to build long-term, data-driven strategies to secure Texas’ prosperity. They recently commissioned a poll to longtime GOP pollster Mike Baselice’s firm, and who has worked with both Trump and Lt. Gov. Dan Patrick in the past.

The poll results, which were released on Tuesday, paint a grim picture of what Texans feel right now and their hopes for the future. It had 1,001 participants and was made 43% by cell phone, 23% by landline, and 34% through the web. It has a margin of error of +/- 3.1%.

The report shows that for the first time in the six years the question has been asked, more Texas voters (26%) said they feel financially worse off than they did the year before. Only 20 percent of the people being polled said they believe they are better off.

52 percent of voters said they believe that Texas is worse off than it was this time last year, a truly concerning fact considering last year the pandemic was at a considerable height and vaccines were not yet released. Only 13 percent said they thought the state was headed in a better direction.

The overwhelming majority of Texas voters agree with using federal COVID-19 relief money to fund large-scale projects and promote the state’s economy. This is something that state lawmakers can actually do in the upcoming third special session of the legislature.

The poll landing page is here, the press release for it is here, and all the data provided can be found here and here. It’s interesting and easy to read, so go check them out. The main thing that I came away thinking is “but who will the voters blame for their negative feelings?” I’ve noted the flip side of this question before, when I’ve asserted that the best hope for Democrats in general and Texas Democrats in particular is a strong performance by President Biden and a good economy to go with it. That works to a point, but only to the extent that the President gets the lion’s share of the credit for those good things. You can be sure Greg Abbott and his minions will do everything they can to grab that credit, and it will be up to the voters to decide who deserves it. The same is true for the blame – do you pin it on the Governor or the President? I can’t answer that question, and the pollsters don’t ask.

There are no electoral questions, and this is the first poll of its kind, so we don’t have any bases for comparison. One can certainly argue that this is a tricky spot for statewide Republican incumbents to be in, since they’re the closest ones to the situation and the ones that voters can take out their frustrations on in 2022. But again, they get to have a say in that, and they will do what they can to redirect and distract, as anyone in their position would. This is the kind of place where having a gubernatorial candidate would really help, since there would be a natural conduit for the message that the blame should apply to the guys in charge of the state. We don’t have that yet, so that task needs to be diffused outward for the time being. The point here is that this kind of data can be used by anyone, and so there needs to be a coherent message and a recognized messenger to get the viewpoint you like out into the discourse. For now at least, that’s on all of us. Robert Rivard has more.

Planned Parenthood gets injunction against Texas Right to Life

It’s a start.

Right there with them

A district court in Travis County granted a temporary injunction on Monday, which will stop an anti-abortion group from being able to sue Planned Parenthood centers under SB 8, the so-called “heartbeat bill.”

Planned Parenthood affiliates in Texas filed a request for a temporary injunction on Sept. 2 against Texas Right to Life, an anti-abortion nonprofit and its associates. Planned Parenthood wanted to stop the group from suing abortion providers and health care workers at its centers in Texas.

The court ruled Monday that Texas Right to Life has “not shown that they will suffer any harm if a temporary injunction is granted” and that Planned Parenthood has “shown that they have a probable right to relief on their claims that SB 8 violates the Texas Constitution.” Planned Parenthood also has “no other adequate remedy at law,” the court said.

The court said the injunction will remain in effect until a final ruling; a trial on the merits of the case was set by the court for April 2022.

See here for the background. CNN has some more details.

This order applies only to Texas Right to Life and is part of a larger — and piecemeal — approach by abortion rights advocates to try to blunt the effect of the law. Other short-term temporary restraining orders are in place against other anti-abortion advocates, and more permanent injunctions are being sought in those cases.

[…]

In a court hearing Monday, Julie Murray, the attorney for Planned Parenthood Federation of America, told the judge that the organization is currently “complying with SB8 precisely because of the overwhelming threats of litigation” and that a temporary injunction “will not restore abortion services … but it will prevent and reduce the litigation exposure and constitutional harms that [Planned Parenthood] will experience.”

The parties spent nearly two hours coming to an agreement about the terms of the injunction.

I would like to know more about the “other short-term temporary restraining orders in place against other anti-abortion advocates”. I was going to suggest a massive wave of litigation by pretty much every provider, doctor, affiliate, advocate, and anyone else who felt threatened by SB8, but maybe that is already happening. Obviously, we want to get a sweeping federal injunction against this travesty, which would cover all of the contingencies, but who knows how long that could take, and it would be at the mercy of the Fifth Circuit, so fire away on all cylinders in the meantime. If these guys want to live by the lawsuit, let’s see how they like being on the other end of it. Axios has more.

Justice Department files its motion for an injunction against SB8

Let’s hope they get a quick win.

The Justice Department has asked a federal judge to grant a temporary restraining order or injunction that would prevent Texas from enacting a law that bans nearly all abortions in the state, heating up a battle between the Biden administration and Texas Republicans, led by Gov. Greg Abbott.

The department argued in a court filing late Tuesday that Texas had adopted the law, known as Senate Bill 8, “to prevent women from exercising their constitutional rights.”

The move comes less than a week after the Biden administration sued Texas to try to block the nation’s most restrictive abortion law, which bans the procedure as early as six weeks into pregnancy and allows private citizens to take legal action against anyone who helps someone terminate their pregnancy.

In Tuesday’s emergency filing, the department argued that even though the Supreme Court has ruled that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,” Texas has banned abortions months before viability — at a time before many people even know they are pregnant.

The brief said Texas had devised “an unprecedented scheme that seeks to deny women and providers the ability to challenge S.B. 8 in federal court. This attempt to shield a plainly unconstitutional law from review cannot stand.”

See here for the background, and here for a copy of the motion. For those of you who’d like to get the highlights, here you go:

By all accounts, the arguments being made by the Justice Department are strong. We’ll just have to see what the courts – specifically, the Fifth Circuit and SCOTUS – make of it. There was no indication as of the time of those tweets when the court would hear arguments or issue a ruling, but now there is:

After the United States Department of Justice filed a preliminary injunction/restraining order against Texas in another attempt to halt Senate Bill 8, a federal judge granted the Biden administration a hearing on Oct. 1 to review temporarily banning the anti-abortion law.

In the signed statement, Judge Robert Pitman stated that Texas shall file in response to the motion no later than Sept. 29, 2021 and the U.S. shall file its reply in response no later than the morning of the hearing.

Mark your calendars. You can see a copy of the judge’s order here, and as Steve Vladeck notes doing it this way rather than granting a temporary restraining order prevents the state from running to the Fifth Circuit and getting the TRO halted. The Trib, the Chron, and the Current have more.

UPDATE: 24 Dem AGs File Amicus Brief Backing DOJ Challenge To Texas Abortion Ban. Good.

Republican County Commissioners ponder another quorum break

It’s a thing they can do, and have done in recent times. They shouldn’t, not for this, but they can.

The three Democrats on Harris County Commissioners Court on Tuesday proposed cutting the overall property tax rate for the third year in a row, though the two Republican members left open the possibility they may force the adoption of a lower rate by skipping the vote in two weeks.

County Administrator David Berry warned that option would leave the county scrambling to pay for essential services, including debt service for the $2.5 billion flood bond program. Republican commissioners Tom Ramsey and Jack Cagle, however, see an opportunity to compel the Democratic majority to cut what they view as wasteful spending.

“We are having a budget challenge because of wasteful spending, not because of tax rates,” Ramsey said, citing the creation of new county departments and hiring outside consultants for various studies. “So, when we adopt a tax rate, it should be in that context.”

Each year, Harris County sets the tax rate for the county government, flood control district, hospital district and Port of Houston; the first three together comprise an overall rate that is used to calculate each property owner’s annual tax bill.

Berry proposed an overall rate of 58.6 cents per $100 of assessed property value. This would save the owner of a home valued at $200,000 with the standard 20 percent homestead exemption $27 since their last tax bill.

The three Democrats on Commissioners Court have expressed support for that rate.

Cagle’s pitch of 57.5 cents per $100 of assessed value, which included lower county and hospital district rates, would save this same homeowner $48.

The Precinct 4 commissioner said residents who still are struggling through the COVID-19 pandemic deserve more property tax relief.

“When we do the tax rate hearings, we need to be very careful that we make sure we don’t keep just the tax-spender mindset,” Cagle said. “The taxpayers, right now, are going through a rough season in their lives.”

[…]

The pair of Republicans have rare power over the tax issue because while they frequently are out-voted 3-2 by the Democratic majority on the court, Texas law requires a quorum of four members to set tax rates.

That means they simply can skip the Sept. 28 meeting when the vote is scheduled and thwart the Democrats’ plan; Cagle and then-commissioner Steve Radack did this in 2019 to block a tax hike the majority had proposed.

If the court does not approve new tax rates before Oct. 15, by law they revert to what is called the no new revenue rate, a steeper cut than even Cagle had proposed.

Berry said that would leave the county unable to fully fund the budget Commissioners Court unanimously approved in February. It also would constrain the county budget in coming years under a Texas Legislature-imposed revenue cap, which limits annual growth to 3.5 percent unless approved by voters.

“Over time, going to no new revenue rates are going to be very, very difficult for the county, given what we see in terms of rising health care and pension expenses,” Berry said.

He cautioned that reverting to the bottom rates would leave the county flood control district without enough to pay debt service on the bond program voters approved in 2018. That also could spook creditors and threaten the county’s robust AAA bond rating.

All five court members agree falling behind on debt payments would be foolish.

See here and here for more on the previous quorum break. If everyone agrees that a Cagle and Ramsey walkout would lead to a bad fiscal outcome for the county, then the very simple and logical solution is for them to not do that. They’re getting some of what they want, which is not a bad outcome for a political minority, and they have the option of campaigning for their alternate vision in an attempt to win back a majority position on the Court for next year. Done and dusted, let’s move on.

But if they choose to break quorum to force an even lower tax rate, in the name of “cutting spending”, then it is incumbent on the Democratic majority to respond. They can’t change the quorum requirement, which is a quirk of the state constitution, but like the Republican majority in the Legislature there are things they can do to make the price of breaking quorum higher. I would endorse two things to do in response: One, rewrite the budget so that the full cuts that would have to occur come entirely from Cagle and Ramsey’s apportionment. Do whatever it takes to make them feel the pain, since they were the ones who wanted the pain in the first place. And two, absolutely go for a maximalist redistricting map, to eject one of them from their current positions. Don’t play nice, don’t let bygones be bygones, just respond in kind and let them absorb the lesson that their actions have consequences. It’s basic stuff.

Now again, none of this has to happen. Commissioners Cagle and Ramsey can show up and vote how they see fit, and still get a lower tax rate even if it’s not as low as they would like. You can’t always get what you want, especially when you’re outvoted. Or they can go their own way and force their will onto the county, and see if the Dems have it in them to do payback. We’ll know on September 28 what they choose.

Once again with the religious objection to a Texas anti-abortion law

Stepping up again.

The Satanic Temple has joined the legal wrangling to block or overturn Texas’ severe new abortion law. That law, which the U.S. Supreme Court refused to block this week, bans the medical procedure after six weeks, including in cases of rape and incest.

The Salem, Massachusetts-based Temple filed a letter with the U.S. Food and Drug Administration arguing that its Texas members should have legal access to abortion pills. The group’s attorneys contend that its status as a non-theistic religious organization should ensure access to abortion as a faith-based right.

In the letter, the Temple argues that abortion pills Misoprostol and Mifepristone should be available for its use through the the Religious Freedom Restoration Act, which protects Native Americans’ use of peyote in religious rituals. The Temple says those the same rights should apply to the drugs it uses for its own rituals.

“I am sure Texas Attorney General Ken Paxton — who famously spends a good deal of his time composing press releases about Religious Liberty issues in other states — will be proud to see that Texas’s robust Religious Liberty laws, which he so vociferously champions, will prevent future Abortion Rituals from being interrupted by superfluous government restrictions meant only to shame and harass those seeking an abortion,” said Lucien Greaves, the Temple’s spokesman and co-founder, in an emailed statement.

“The battle for abortion rights is largely a battle of competing religious viewpoints, and our viewpoint that the nonviable fetus is part of the impregnated host is fortunately protected under Religous Liberty laws,” Greaves added.

The U.S. Supreme Court last year declined to hear a case brought by the the Temple to overturn Missouri abortion laws.

I can’t find a copy of the letter, so it’s not clear to me if this is an attempt to challenge SB8, the so-called “heartbeat” bill, or the bill restricting access to medical abortion that was passed during the second special session. The Temple’s own website has some general language about its actions, but not much more than that. They had previously objected to the “fetal remains” law, though I don’t know if they took any legal action about it, and earlier this year they filed a lawsuit over the sonogram law; you can see their statement about that here. I think it’s an overbid to call this the last hope to stop SB8, and I don’t know of any past successes by the Temple in stopping anti-abortion laws, but I applaud their efforts.

Going after the snitch sites

I approve of this.

When an anti-abortion group last week created a “pro-life whistleblower” website encouraging people to anonymously report violations of Texas’ new six-week abortion ban, a group of politically active Texans noticed one potentially fatal flaw.

“They’re trying to use the internet to retaliate against people who were raised on the internet,” said Olivia Julianna, an 18-year-old student and activist from Sugar Land who is among the leadership of a group called “Gen Z For Change.” The group was formerly known as “TikTok for Biden.”

Olivia, who goes by only her first and middle names on social media due to safety concerns, said the goal was clear: “This website, if we can mess with them in any way, if we can stop even one woman from having a lawsuit filed against her or waste even a second of their time, we need to do it.”

The tip site was meant to help enforce Senate Bill 8, the Texas law that went into effect at the start of this month that prohibits abortions after six weeks of pregnancy, before most women know they’re pregnant.

The law has so far avoided being blocked by the courts because the government does not enforce it. Instead, it puts enforcement in the hands of any private citizen who wishes to sue an abortion provider or others who “aid or abet” someone getting an illegal abortion, with a possible reward of at least $10,000 per successful suit.

Olivia was one of several young left-leaning activists who immediately took to social media to sabotage the site by flooding it with false reports and other information — some suggested anti-Gov. Greg Abbott sayings. Others recommended off-the-wall responses or nonsense.

She and other members of Gen Z For Change — Generation Z is typically defined as those who are now 18 to 24 — quickly got to work.

“It would be really, really bad and morally wrong of all of you to go to ProLifeWhistleblower.com and send in an anonymous tip that is fake,” Olivia sarcastically told her more than 137,000 followers in an Aug. 23 video she posted on TikTok. “It would be even worse if your anonymous tip was about Greg Abbott.”

Another popular content creator and Deputy Executive Director of Gen Z for Change, Victoria Hammett, 22, saw her video and found it “absolutely brilliant” and encouraged her followers to do the same.

“Wouldn’t it be so awful if we send in a bunch of fake tips and crashed the site?” she said in a TikTok that’s been liked over 240,000 times.

Create a morally reprehensible website, you’re going to face some consequences. Three cheers for the activists who are giving them the response they deserve.

And it’s not just the Gen Z activists, too.

After a Texas law restricting abortion went into effect Wednesday, an antiabortion organization had hoped to out those involved in unlawful procedures by collecting anonymous tips online.

But Texas Right to Life’s website, ProLifeWhistleblower.com, which invited people to inform on those obtaining or facilitating abortions, has not stayed up for long, as website registration providers have said the online form to submit “whistleblower” reports violates their rules. On Monday, the organization confirmed that the website redirects to its main page as it seeks to find a new digital home for the form.

“We’re exploring various long-term plans for the domain registration,” the group’s spokeswoman, Kimberlyn Schwartz, told The Washington Post. “For now, ProLifeWhistleblower.com is redirecting to TexasRightToLife.com only while we move hosts.”

After hosting provider GoDaddy booted the group from its platform last week, the site’s registration changed to list Epik, a Web hosting company that has supported other websites that tech companies have rejected, such as Gab and 8chan. The site went offline Saturday, however, after the domain registrar told the Texas organization that lobbied for the abortion ban that it had violated the company’s terms of service.

After speaking with Epik, which never hosted the site, Texas Right to Life agreed to remove the form, Epik general counsel Daniel Prince said Monday. By late Saturday, the website had redirected to Texas Right to Life’s main page.

But Schwartz said the group still hopes to solicit tips.

“It will be back up soon to continue collecting anonymous tips,” she said, adding that the group is reviewing its options, including seeking another company to register the site’s domain.

Prince said Epik would no longer offer its services if the group continues to collect private information about third parties through its digital tip line.

I’m sure they will eventually find a hosting company that is sleazy enough to allow them to use their services. Putting all of the politics aside for a moment, however, that bit about “[collecting] private information about third parties” should raise some serious data privacy red flags. I guarantee you, the owners of the snitch site have no plan to protect any of that data, and any information they do get will be at serious risk of being abused. Merrick Garland, as you formulate your response, please take note of that as well. The Current has more.

Justice Department sues over “heartbeat” law

Good.

The Justice Department sued Texas on Thursday over its new abortion restrictions law, Attorney General Merrick Garland told reporters, a week after the U.S. Supreme Court refused to block the law.

Garland announced the lawsuit, filed in a federal district court in Austin, after abortion rights advocates, providers and Democratic lawmakers called for the Biden administration to act. Other legal challenges have been stymied due to the design of the law, which opponents say was engineered to flout a person’s right to an abortion established by Roe v. Wade in 1973.

“This kind of scheme to nullify the Constitution of the United States is one that all Americans, whatever their politics or party, should fear,” Garland said.

The Texas statute, which went into effect Sept. 1, is considered one of the most restrictive abortion laws in the nation. It prohibits abortions once a “fetal heartbeat” — a term medical and legal experts say is misleading — can be detected, which can be as early as six weeks into pregnancy, before many people know they’re pregnant. Providers say that the law prevents at least 85% of the procedures previously completed in the state.

Garland said Texas’ statute is “invalid under the Supremacy Clause and the 14th Amendment, is preempted by federal law and violates the doctrine of intergovernmental immunity.” He called the law a “statutory scheme” that skirts constitutional precedent by “thwarting judicial review for as long as possible.”

Previous laws aimed at restricting or stopping abortions have been struck down over the years by the Supreme Court. But this law uses the novel mechanism of relying on private citizens filing lawsuits to enforce the law, not state officials or law enforcement. This makes it especially difficult to strike down in court because there is not a specific defendant for the court to make an injunction against.

The law empowers any private citizen in the nation to sue someone found to be “aiding and abetting” an abortion, including providers, doctors and even Uber drivers.

The law has seemingly brought most abortions to a halt in the state. Major clinics canceled appointments, fearful of being inundated with lawsuits in which they’d have to pay a penalty of at least $10,000 if they are found to be in violation of the law. Some clinics have even stopped performing abortions allowed under the new restrictions — before fetal heart activity is detected — out of fear of getting hit with lawsuits.

“The United States has the authority and responsibility to ensure that Texas cannot evade its obligations under the Constitution and deprive individuals of their constitutional rights,” the lawsuit stated. “The federal government therefore brings this suit directly against the State of Texas to obtain a declaration that S.B. 8 is invalid, to enjoin its enforcement, and to protect the rights that Texas has violated.”

[…]

Abortion providers and advocates applauded the Justice Department joining the legal battle to overturn the statute.

“It’s a gamechanger that the Department of Justice has joined the legal battle to restore constitutionally protected abortion access in Texas,” Nancy Northup, president of Center for Reproductive Rights, said in a statement. “Right now, and every day this law is in effect, patients are being denied access to essential health care, and the hardest hit are people of color, those struggling to make ends meet, undocumented immigrants and others with pre-existing obstacles to access healthcare.”

Alexis McGill Johnson, Planned Parenthood Federation of America president, said in a statement the lawsuit was “a needed announcement” and thanked Biden and the federal government for the action.

Prior to Thursday’s announcement, legal experts expressed doubts as to how a federal lawsuit might work or how successful it might be. Because of the way the law is constructed, experts have been dubious about how the legal saga will play out in courts and those same challenges could impede efforts by the Justice Department. Federal lawmakers have also vowed to overturn the new restrictions by codifying Roe v. Wade in federal law, but those efforts likely face their own political challenges.

See here and here for some background, and here for a copy of the lawsuit. I am of course no legal expert, but I see this case in terms of two simple principles. One is that a state cannot abrogate a constitutional right. I think we all agree on that basic principle. Given that, and given that abortion is still a constitutional right under current law and precedent, this should be a slam dunk, despite SCOTUS’ cowardly and scurrilous hiding behind the “it’s too clever and complex for our wee little brains” dodge. And two, the targeting of completely unrelated people like Uber drivers is such an egregious overreach that it could be argued as an unconstitutional taking of their property. This law would still be unconstitutional if it didn’t put Uber drivers at risk, but their inclusion makes it extra special unconstitutional.

But really, we shouldn’t even be having this argument. This law is “clever” in the way that a grade schooler claiming that they can’t be made to do homework because it violates their religion is “clever”. It’s time that a court treated it with the contempt it deserves. The 19th, Mother Jones, Slate, Daily Kos, and the Chron have more.

Mayor Turner orders unvaxxed city employees to get tested twice a week

So maybe get vaccinated, and avoid all the hassle.

Mayor Sylvester Turner

Unvaccinated city workers must get tested for COVID-19 twice a month and report their results to the human resources department, Mayor Sylvester Turner announced Wednesday.

Turner signed an executive order implementing the policy,which takes effect Oct 8. It will allow some exemptions for religious and medical reasons.

The plans come as the city regularly has had more than 300 active cases of the virus among its workforce, Turner said. The latest numbers showed 342 workers with the virus, including 129 police, 161 municipal and 52 fire department employees.

Those cases hamper city operations, the mayor said.

“When you have 129 police officers with COVID, they’re not able to perform their jobs. Same thing with municipal workers, and, for example, permitting, that slows things down,” Turner said. “Simply don’t want them to get sick and don’t want anybody, anybody to die.”

[…]

The policy will apply to all police, fire and municipal staff who have not been fully vaccinated. It will not apply to elected officials or appointed members to the city’s boards and commissions.

The fire, police and municipal workers unions did not respond to requests for comment on Turner’s plan.

Turner said staff will face disciplinary action if they do not comply.

“It could even cost you your job,” the mayor said.

The mayor in recent weeks had teased a policy to encourage vaccinations, saying many city workers have not gotten their shots.

Mayor Turner implemented a mask mandate for city employees in early August. As far as I know, that executive order has not been involved in any of the lawsuits over mandates and Greg Abbott’s ban on them. This is a step up from that – it’s not a vaccine mandate per se, but it’s pretty close and I doubt Greg Abbott or Ken Paxton will split hairs. (They already have a reason to be whipped into a frenzy about this.) Whether or not cities can issue vaccine mandates is on the agenda for the next special session. What I’m saying is, I don’t know how long I expect this policy to last. And that’s before we hear of the inevitable resistance from the police and firefighter unions – police unions around the country have been staunch resisters of vaccine mandates, and we know how well the Mayor and the HPFFA get along. I support what the Mayor is doing here – if anything, I’d want to see the testing be more frequent – I just doubt he’ll be able to fully implement it. I’ll be happy to be proven wrong.

More on the AG response to the “heartbeat” bill

Yes, like this.

Democrats on the U.S. House Judiciary Committee are calling on U.S. Attorney General Merrick Garland and the Department of Justice to prosecute people who are now empowered to file lawsuits against abortion seekers under Texas’ new abortion law.

In the letter signed by all Democratic members of the committee, including Texas Reps. Sylvia Garcia, Sheila Jackson Lee and Veronica Escobar, Committee Chairman Jerrold Nadler of New York urged the department to take legal action against “would-be vigilantes” and reiterated Supreme Court Justice Sonia Sotomayor’s dissent in the ruling.

“The Department of Justice cannot permit private individuals seeking to deprive women of the constitutional right to choose an abortion to escape scrutiny under existing federal law simply because they attempt to do so under the color of state law,” the Democrats’ letter said. “Indeed, the Department is fully empowered to prosecute any individual who attempts, ‘under color of any law,’ to deprive a United States citizen of ‘any rights, privileges, or immunities secured or protected by the Constitution.’”

The members went on to call the new Texas law a clear violation of women’s right to choose an abortion under the landmark Roe v. Wade decision.

[…]

This call for action comes after Garland issued a statement Monday saying law enforcement officials were exploring options to challenge the law “to protect the constitutional rights of women and other persons, including access to an abortion.”

Garland said DOJ officials have contacted U.S. attorneys and FBI field offices to “discuss our enforcement authorities,” but did not go into detail on specific enforcement measures.

That’s in line with what I wanted. There’s plenty of ideas out there. We need to see them get translated into action. Sooner rather than later would be nice. The Chron has more.

Special election set for HD118

The last of the vacancies to be filled at this time.

Rep. Leo Pacheco

Gov. Greg Abbott has picked Sept. 28 as the date of the special election to replace former state Rep. Leo Pacheco, D-San Antonio.

The candidate filing deadline is Monday, and early voting starts Sept. 20.

Pacheco resigned effective Aug. 19 to take a job with San Antonio College.

House District 118 is anchored in San Antonio and covers parts of Bexar County south and east of the city. It is a Democratic-friendly district, though Republicans have already made clear they are eyeing it in the special election.

See here for some background. I did not note the HD10 special election that happened earlier this month and is now headed for a runoff. As this moment, the count is 82 Republicans and 66 Democrats, with the former about to tick up. As we know, a Republican won the last HD118 special election, but it was one of those weird early-in-an-even-year races where there was basically nothing at stake, and turnout was dismal. Now-former Rep. Pacheco easily won it back in the regular 2016 election. HD118 is slightly more Democratic as of 2020 than it was in 2016, though it remains potentially competitive in another weird turnout situation. The next special session will be in full swing when this race happens, but the same may not be true for the runoff, which is all but assured with at least two Dems and two Republicans so far running. This one could go any number of ways.

Three more lawsuits filed against the voter suppression law

It’s a law now, and the legal machines are humming to do something about it.

Though delayed by Democratic quorum breaks, Texas has officially joined the slate of Republican states that have enacted new voting restrictions following the 2020 election.

Gov. Greg Abbott on Tuesday signed into law Senate Bill 1, sweeping legislation that further tightens state election laws and constrains local control of elections by limiting counties’ ability to expand voting options. The governor’s signature ends months of legislative clashes and standoffs during which Democrats — propelled by concerns that the legislation raises new barriers for marginalized voters — forced Republicans into two extra legislative sessions.

SB 1 is set to take effect three months after the special legislative session, in time for the 2022 primary elections. But it could still be caught up in the federal courts. Abbott’s signature was both preceded and followed by a flurry of legal challenges that generally argue that the law will disproportionately harm voters of color and voters with disabilities.

On top of two federal lawsuits filed last week, three new lawsuits, including one in state district court, were filed Tuesday shortly after it became law.

[…]

The law already faces two legal challenges from Harris County and a coalition of community and advocacy groups that argue SB 1’s rewrite of Texas voting laws creates new hurdles and restrictions that will suppress voters and violates the U.S. Constitution and numerous federal laws.

Abbott’s signature Tuesday drew three more lawsuits that also argue the changes to elections in SB 1 are unlawful because they will disproportionately burden voters of color and voters with disabilities.

“SB 1 is an arduous law designed to limit Tejanos’ ability to exercise their full citizenship,” said Maria Teresa Kumar, CEO of Voto Latino, which is a plaintiff in a federal lawsuit filed in Austin on Tuesday. “Not only are we filing suit to protect the right to vote for all people of color, and the additional 250,000 young Latino Tejanos who will reach voting age in 2022, but to protect every Texan’s right to vote.”

Another legal challenge was filed in state district court in Harris County and raises claims that the law runs afoul of the the Texas Constitution, including its protection against racial discrimination.

[…]

As it worked toward getting the legislation across the finish line, the House also made changes Democrats had been pushing for, including requiring training for poll watchers. Republicans also ditched controversial provisions that would have restricted Sunday voting hours and made it easier for judges to overturn elections — both of which they tried to walk away from after Democrats first derailed the legislation in May during the regular legislative session.

Even with some of those changes, a group of plaintiffs in another federal lawsuit filed Tuesday in San Antonio, including Houston Justice and the Arc of Texas, say the legal intervention was needed to “ensure that the State does not continue to erect barriers” that have both the “intent and effect” of suppressing the votes of marginalized Texans.

“These provisions will harm all Texas voters, but consistent with Jim Crow era tradition, the burdens will be disproportionately borne by Black and Latino voters and voters with disabilities,” the plaintiffs said in their complaint. “S.B. 1 intentionally targets and burdens methods and opportunities of voting used by and responsive to the needs of voters of color, particularly Black and Latino voters, and other vulnerable voters, as evidenced by the 2020 elections.”

There are also questions on whether the U.S. Department of Justice will sue Texas over the new law, as it did Georgia earlier this year after lawmakers there passed a new law to tighten elections.

It remains unclear what, if any, Congressional action could affect the new law.

See here for more on the first two lawsuits. Before I get to the others, let me just say that if the John Lewis Act doesn’t have any effect on the new law, then either the authors of the bill are incompetent or the federal courts really have it in for us. But that assumes the damn thing can overcome the stupid filibuster, so let’s put that question off for later.

For the other lawsuits, here are the basics:

– The first lawsuit referenced is here, and it’s probably best just to print the announcement about it for the relevant details.

Minutes after Gov. Greg Abbott (R) signed voter suppression bill Senate Bill 1 into law on Tuesday, voting and civil rights groups sued to challenge the bill’s most disenfranchising provisions. The complaint, filed by LULAC Texas, Voto Latino, Texas Alliance for Retired Americans and Texas AFT, alleges that the new law imposes an undue burden on the right to vote in violation of the First and 14th Amendments, purposely intends to limit minority voters’ access to the ballot box in violation of Section 2 of the Voting Rights Act (VRA) and disproportionately impacts voters with disabilities and limited language proficiencies in violation of Section 208 of the VRA. The suit asks the court to prohibit the suppressive provisions from being enforced. This is the third lawsuit challenging S.B. 1, as two cases were filed last Friday before the bill was even signed into law.

The provisions challenged in this lawsuit include: criminalizing public officials’ efforts to encourage the submission of absentee ballot applications; additional ID requirements for absentee voting; the effective elimination of drop boxes, drive-thru voting and 24-hour early voting; new obstacles for voters to receive assistance to vote absentee or in person; and the empowerment of partisan poll watchers.

The complaint argues that the passage of S.B. 1 is in direct response to increased voter turnout in the 2020 election, particularly among voters of color, and is meant to “stem the growing tide of minority voter participation.” The lawsuit argues that “by surgically targeting election practices employed in Texas’s largest and most diverse jurisdictions—methods on which the State’s Black and Hispanic populations disproportionately rely—the [challenged provisions] were intended to disproportionately restrict access to the franchise for Black and Hispanic voters.” Furthermore, the suit alleges that certain provisions place an undue burden on the right to vote for elderly voters, voters with disabilities and voters with limited language proficiencies.

Read the complaint here.

All that is courtesy of Democracy Docket, which had promised litigation the minute that SB1 passed in the House.

– The other federal lawsuit comes from the NAACP Legal Defense and Educational Fund:

Today, the NAACP Legal Defense and Educational Fund, Inc. (LDF)Reed Smith LLP, and The Arc filed a federal lawsuit on behalf of the Houston Area Urban League, Houston Justice, Delta Sigma Theta Sorority, Inc., and The Arc of Texas challenging S.B. 1, a new Texas law targeting voting rights.  S.B. 1 includes a series of suppressive voting-related provisions that will make it much harder for Texas residents to vote and disenfranchise some altogether, particularly Black and Latino voters and voters with disabilities.The lawsuit, which was filed in the United States District Court for the Southern District of Texas, argues that S.B. 1 violates the First, Fourteenth, and Fifteenth Amendments of the United States Constitution and Section 2 of the Voting Rights Act by intentionally targeting and burdening methods and means of voting used by voters of color.

The Plaintiffs also claim that the law violates the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, and Section 208 of the Voting Rights Act by imposing voting barriers that will discriminate against voters with disabilities and deny people with disabilities full and equal opportunities to participate in the state’s voting programs.

The lawsuit challenges multiple provisions in SB 1, including:

  • Limitations on early voting hours and a ban on 24-hour voting.
  • The elimination of drive-thru voting centers.
  • The prohibition of mail-in ballot drop-boxes.
  • Limitations on the distribution of mail-in ballot applications.
  • Limitations and possible penalties for voter assistants, including criminal felonies.

Read the lawsuit challenging S.B. 1.

You can read the press release for statements from the plaintiffs.

– The state lawsuit comes from another group we’ve heard from before.

The Texas State Legislature’s SB 1 legislation violates provisions of the Texas Constitution that protect the right to vote, the right to freedom of speech and expression, the right to due process, and the right to equal protection under law, according to a lawsuit filed Tuesday by civil rights advocates against Gov. Greg Abbott, Attorney General Kevin Paxton, Deputy Secretary of State Joe Esparza, and the future secretary of state, once that position is filled.

Despite the hardships of voting during a global pandemic, during the 2020 general election, Texas saw one of its highest voter turnouts in decades, particularly among Black voters and other voters of color.  SB 1 was passed on the heels of the successful 2020 election, with the intent to suppress these votes. The legislation includes provisions that expand the power of partisan poll watchers, limit county election officials’ discretion to adopt safe and secure methods of voting, make it more difficult for voters to receive assistance, and place restrictions on absentee ballots, ballot drop boxes, and early voting.

The lawsuit, Texas State Conference of the NAACP et al. v. Abbott et al., was filed in state district court in Harris County, Texas. The Lawyers’ Committee for Civil Rights Under Law and Dechert LLP are representing the Texas State Conference of the NAACP, Common Cause Texas, three election judges, one voter assistant, and one registered voter in Harris County.

“The scourge of state-sanctioned voter suppression is alive and well, and Texas just became the most recent state to prove it,” said Damon Hewitt, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “With the passage of this bill, Texas legislators know exactly what they are trying to do – use brazen tactics to disenfranchise Black voters, Latinx voters, and other voters of color who are a growing part of the electorate and who turned out and made their voices heard in 2020. This bill violates Texas’ own state constitution and does not advance any legitimate state interests that would justify this wide-ranging attack on the right to vote.”

SB 1 expands the power of partisan poll watchers by instituting criminal penalties for election officials who obstruct their actions, stripping local election officials of the power to take executive action in emergency situations, and exposing voter assistants to increased surveillance and administrative complexities. Furthermore, the legislation restricts nearly every method of voting overwhelmingly used by voters of color in 2020: It limits early voting and ballot drop boxes, curbs how absentee ballots can be distributed and who can vote by mail, and bans drive-thru voting. While the provisions of SB 1 will hinder the ability of all Texans to vote, these new restrictions intentionally and disproportionately impact communities of color.

“Texas’s new voting restrictions targeting voters of color are an affront to our democracy,” said Neil Steiner, partner with Dechert LLP. “We remain committed to ensuring that all eligible voters have a true opportunity to participate in our elections by casting a ballot safely, securely and conveniently, with confidence that their votes will be counted.”

I have only given a brief glance to each of these lawsuits – as you know, I Am Not A Lawyer, I just occasionally try to interpret lawyer-y things on the Internet for other non-lawyers. All of them are quite long and will take me some time to try to understand. I do not offhand know why this one was filed in state court, or why that might be a more promising avenue for redress. That has been a successful tactic in some other states, mostly but not entirely for the battle against partisan gerrymandering, but as far as I know it has not been used in this context here before, other than the unsuccessful challenges to Texas’ age restrictions for voting by mail in the runup to the 2020 election. It’s worth a shot – let a thousand flowers bloom and all that – but I cannot articulate a reason why this way and not that way. If someone else can, I’d love to hear it. I will make an effort to read through these documents and try to answer that myself, but you know how that goes. The Current, the Texas Signal, and the Chron have more.

Special session 3.0

Yeah, we knew it was coming. Still too soon.

Gov. Greg Abbott on Tuesday announced a third special legislative session that will begin on Sept. 20 and tackle redistrictingrestrictions on transgender student athletes and the ongoing COVID-19 pandemic.

“The Texas Legislature now has the opportunity to redraw legislative and congressional districts in accordance with the new census numbers,” Abbott said in a statement. “In addition to redistricting, there are still issues remaining that are critical to building a stronger and brighter future for all Texans.”

Lawmakers, who will meet in Austin for the fourth time this year, will also be tasked with allocating $16 billion in federal COVID-19 relief funds and with deciding whether state or local governments can mandate COVID-19 vaccines. Abbott also included on his five-item agenda a bill that would ban the tethering of dogs outside with heavy chains, which he had vetoed earlier this year. Abbott asked lawmakers to address concerns he had about the specificity of the bill and “over-criminalization.”

The Legislature just wrapped its second overtime round on Thursday, delivering on major conservative priorities like an elections law that restricts how and when voters cast ballots, a ban on how teachers can talk about race and history in classroomsbillions of dollars in additional border security funding and further restricting abortion access.

But lawmakers failed to deliver on two issues pushed by the GOP base: requiring transgender student athletes to play on teams based on the gender assigned to them at or near birth, and banning COVID-19 mandates.

Abbott had asked lawmakers to ban mask mandates in schools during the second special session but lawmakers could not get that proposal over the hump. Now, Abbott is asking the Legislature to decide whether state or local governments can mandate COVID-19 vaccines.

The bills about transgender student athletes and COVID-19 mandates will likely turn up the heat on an already contentious 30-day session. Lawmakers will take up their decennial redrawing of the state’s political maps, meaning some legislators will be fighting for their political lives. (Redistricting usually takes place during the first legislative session after the census, but it was delayed this year because of setbacks spurred by the coronavirus and the Trump administration’s handling of the census data.)

Like I said, we knew it was coming. I don’t know if the lawsuit that was filed by two State Senators to stop legislative redistricting will be successful, but I have to assume there will be a ruling of some kind before this session gets underway. The continued assault on trans kids is sadly unsurprising; the lack of a fraudit item is at least temporarily hopeful. I mean look, none of us want another special session. I’m sure that wearing us all down is part of the plan. But here we are anyway. Oh, and Abbott et al will try to do a bit of cleanup on the so-called “heartbeat bill” since none of them know how to talk about the lack of a rape or incest exemption. So we have that to look forward to as well.

The federal response to the “heartbeat” bill

I hope it amounts to something, and I hope they’re quick about it.

U.S. Attorney General Merrick Garland said Monday the Department of Justice is “urgently” exploring ways to challenge Texas’ strict new abortion law, but did not specify what options were being considered.

Garland’s statement in a press release comes days after the U.S. Supreme Court denied Texas abortion providers an emergency injunction against the new law banning abortions after fetal cardiac activity can be detected, which can occur as early as six weeks into pregnancy, when many don’t know they are pregnant.

The Supreme Court stated it was not ruling on the constitutionality of the law but was refusing to block it at this point.

Twenty abortion providers originally filed the lawsuit against the state in July to try and shield themselves from the law, which allows private citizens to sue providers and others suspected of helping women get what are now illegal abortions. Gov. Greg Abbott signed Senate Bill 8 into law in May, after abortion providers already began sounding alarms about its potential impacts.

In his statement Monday, Garland also said that federal officials will rely on the decades-old Freedom of Access to Clinic Entrances Act to “protect those seeking to obtain or provide reproductive health services.” That federal law bans threats of force or physical obstruction against those seeking such health services.

“The department will provide support from federal law enforcement when an abortion clinic or reproductive health center is under attack,” the statement said.

Garland said DOJ officials have contacted U.S. attorneys’ offices and FBI field offices to “discuss our enforcement authorities.”

[…]

President Joe Biden denounced the Texas law in a statement released on Wednesday, also without specifying a course of action.

“My administration is deeply committed to the constitutional right established in Roe v. Wade nearly five decades ago and will protect and defend that right,” Biden said.

We don’t know what the specifics of this will be, so let me state a general principle that I hope they follow: Roe v Wade remains the law of the land, abortion remains a constitutionally protected right, and any interference in the expression of that right will be met with the full force of the federal government. Bring the pain, scorch the earth, and don’t back down. Talking tough is easy, we need to see action. Slate and Daily Kos have more.

The tab for voter ID

Impressive.

Still the only voter ID anyone should need

Texas remains responsible for nearly $6.8 million in legal fees and costs owed to the collection of parties who sued over its voter ID law.

Though the state ultimately won the long-winding fight to keep the voter ID law on the books, a panel of the U.S. 5th Circuit Court of Appeals on Friday upheld a lower court ruling that found the state is on the hook for that sum — the last vestige of the legal battle over the 2011 restrictions the state set on what forms of photo identification are accepted at the polls.

The Texas attorney general’s office had appealed that lower court ruling, which found the plaintiffs in the litigation — Democratic U.S. Rep. Marc Veasey of Fort Worth, individual voters, voting and civil rights groups, the NAACP-Texas and the Texas House’s Mexican American Legislative Caucus, among others — were the “prevailing parties.”

“It seems obvious that they are,” the 5th Circuit judges on Friday. “Plaintiffs successfully challenged the Texas photo ID requirement before our en banc court, and used that victory to secure a court order permanently preventing its enforcement during the elections in 2016 and 2017.”

Just a quick recap, the original voter ID law that was passed in 2011 was ruled to have had discriminatory intent by a district court judge in 2014, but the Fifth Circuit allowed it to stand while the appeal was made. Both the three-judge panel and the full Fifth Circuit ultimately upheld the district court ruling, but as it was close to the 2016 election by then, a modified version of the law that mitigated some of the harm was implemented. After the 2017 Lege codified those changes, the law was challenged again, and despite another ruling by the same district court judge that the law was still discriminatory, this time the Fifth Circuit ruled in favor of the state, and here we are now. (Yes, SCOTUS was involved in both of these cases, but this has gone on long enough.) The state may press on again with this appeal, but at this point it would seem unlikely they’d win. Perhaps by now we have had more than enough money spent on this cursed thing.

The silence of the businesses

What if they passed a law that effectively nullified Roe v Wade and no one reacted? And by “no one”, I mean the businesses that had previously stood up for abortion rights in 2019 when multiple state legislatures were trying to pass other onerous restrictions?

In 2019, almost 200 corporate leaders stood up for abortion rights. Amid a rash of antiabortion legislation throughout the U.S. South, they said: no more. Abortion restrictions are bad for business.

On Wednesday, Texas enacted an abortion ban stricter than the ones that proliferated two years ago, thanks to its unprecedented “bounty hunting” clause that allows private citizens to sue anyone who “aids and abets” an abortion conducted after six weeks of pregnancy. And yet this time around, the business backlash is missing.

“Their silence is shameful,” says Shelley Alpern, director of shareholder advocacy for Rhia Ventures who has worked to galvanize companies around reproductive rights. “Their very integrity is at stake.”

So why aren’t companies speaking up?

[…]

One reason companies have stayed silent is that—like their employees—firms have a lot on their plate in 2021. Their workforces are scattered remotely; the Delta variant is delaying return-to-office plans; COVID cases continue to rise. News about abortion bans didn’t dominate the news cycle leading up to this law in a way that pressured corporate leaders to respond. Texas’s abortion ban going into effect at midnight Wednesday—and the Supreme Court’s official decision not to intervene almost 24 hours later—took many people by surprise. “The overall level of corporate awareness around Texas is very slim,” says Jen Stark, senior director of corporate strategy for the Tara Health Foundation, an organization that advocates for gender equity and access to reproductive health care. “Some of this is pure bandwidth and capacity.”

But now that the Texas law is in effect, will companies finally speak up? Fortune reached out to about a dozen companies—from startups to Fortune 500 businesses—with a significant employee presence in Texas, including those that moved operations to the state over the past year. Most did not respond to a request for comment.

Bumble, the dating app business based in Austin, declined to comment but posted on Instagram that the company had created a “relief fund” to support people who seek abortions in Texas amid what the company called a “regressive law.” Bumble, led by CEO Whitney Wolfe Herd, is known for its outspokenness on issues of gender equity and has engaged in the Texas political process in the past, lobbying for legislation to penalize the unsolicited sending of lewd images.

The strongest Texas corporate response came from dating app competitor Match Group, which is headquartered in Dallas. Tinder, a Match company, signed the 2019 letter advocating against abortion restrictions. Match CEO Shar Dubey told employees on Wednesday that she would “set up a fund to ensure that if any of our Texas-based employees or a dependent find themselves impacted by this legislation and need to seek care outside of Texas, the fund will help cover the additional costs incurred.”

“The company generally does not take political stands unless it is relevant to our business,” Dubey wrote in a note to employees. “But in this instance, I personally, as a woman in Texas, could not keep silent.”

Employers are engaged on issues of gender equity; the challenge ahead for reproductive rights activists is to get companies to see abortion rights as part of their gender equity commitments. That’s a view already shared by large shares of their workforces; according to a new survey conducted in August by research firm PerryUndem, two-thirds of the college-educated workforce says Texas’s SB 8 would discourage them from taking a job in the state.

Companies that spoke out in favor of abortion rights in 2019 said that restricting access “threatens the health, independence, and economic stability of our employees and customers.”

Stark, of Tara Health, rallied companies to sign the 2019 letter on abortion bans but has had mixed success in the years since getting businesses to speak up for reproductive rights at subsequent junctures. “If they don’t feel the squeeze, they try to run out the clock as long as they can,” Stark said of the challenges of getting companies to join these efforts.

There’s a Times story along the same lines. Companies respond to pressure, and right now they’re not feeling enough of it. There’s a lot of other news out there – 2019 was before COVID, after all, so the environment was different – and people are dealing with a lot. But we could also talk about the lack of response following the passage of the voter suppression bill, whose introduction earlier this year generated a lot of pushback as well but nary a peep this time around. (Same for the various anti-trans bills, though at least they still have not passed.) It’s hard to maintain energy and focus against an enemy that never quits. It’s never too late to start responding – we will have elections next year, remember – and of course the federal government could respond as well – like the business community, they also act when they feel the heat. But we do need to put that heat on all of them, because the next thing you know we’ll be onto whatever the next thing is. Daily Kos has more.

New felony court coming

Your 2022 ballot is about to get longer.

A new Harris County felony court will open Sept. 1 after decades of population growth and no new criminal district judges.

The addition comes as judges, prosecutors, administrators and defense attorneys battle a massive backlog in the criminal courts, with almost 98,000 docketed cases near the end of July. Almost 54,000 of those cases were felonies, according to the Harris County District Attorney’s Office.

The 22 existing felony judges are each juggling an average of 2,392 cases on their dockets, county data shows.

Gov. Greg Abbott on June 18 signed the existence of the 482nd district court into law. He has not yet selected a judge, and the 11th Administrative Judicial Region of Texas will make a jurist available until an official appointment takes place, said Harris County district court administrator Clay Bowman.

All of the current felony judges are elected Democrats, meaning Abbott could appoint a lone Republican to the bench.

“Will appoint a Republican”, you mean. That person will very likely be voted out next November. There are already going to be a lot of contested Democratic primaries for the judicial positions. This one will surely draw a crowd as well, it just won’t be against a Democratic incumbent.

First two lawsuits filed against the voter suppression bill

No time wasted.

The top elections official in Harris County and a host of organizations that serve Texans of color and Texans with disabilities have fired the opening salvos in what’s expected to be an extensive legal battle over Texas’ new voting rules.

In separate federal lawsuits filed in Austin and San Antonio, the coalition of groups and Harris County sued the state over Senate Bill 1 before it was even signed into law, arguing it creates new hurdles and restrictions that will suppress voters and unconstitutionally discourage public officials and organizations from helping Texans exercise their right to vote.

The lawsuits claim the legislation violates a broad range of federal laws — the Voting Rights Act, the Civil Rights Act, the Americans with Disabilities Act, the Rehabilitation Act of 1973 — and the First, Fourteenth and Fifteenth Amendments.

“Egregiously, SB 1 takes particular aim at voters with disabilities, voters with limited English proficiency — who, in Texas, are also overwhelmingly voters of color — and the organizations that represent, assist, and support these voters,” the plaintiffs in the Austin lawsuit wrote in their complaint.

The plaintiffs in the San Antonio lawsuit,, which includes Harris County, also raise claims that lawmakers intentionally discriminated against voters of color in pushing the legislation.

[…]

The plaintiffs attack head on the lack of evidence that fraud is a widespread problem in Texas elections.

In the San Antonio lawsuit, they argue SB 1’s “additional burdens and restrictions” cannot be justified by invoking “unspecified and unproven voter fraud” when there is no proof that it occurs “beyond the very few examples already identified through Texas’s pre-existing processes and procedures.”

“Rather … SB1 is a reaction to Texas’s changing electorate, which is now more racially diverse and younger than ever before,” they wrote in their complaint.

The claims raised collectively in both lawsuits are as expansive as the legislation is far-ranging.

They include claims on SB 1’s new restrictions on voter assistance, including the help voters with disabilities and those with limited English proficiency are entitled to receive. The plaintiffs point to the reworked oath that a person assisting a voter must recite, now under penalty of perjury, that no longer explicitly includes answering the voter’s questions. Instead, they must pledge to limit their assistance to “reading the ballot to the voter, directing the voter to read the ballot, marking the voter’s ballot, or directing the voter to mark the ballot.”

As part of its claims of intentional discrimination, the lawsuit that includes Harris County as a plaintiff also calls out SB 1’s prohibition on the drive-thru and 24-hour voting initiatives used by the diverse, Democratic county in the 2020 election — both of which county officials said were disproportionately used by voters of color.

SB1 also makes it a state jail felony for local election officials to send unsolicited applications to request a mail-in ballot. Several counties proactively sent applications to voters 65 and older who automatically qualify to vote by mail, but Harris County attempted to send them to all 2.4 million registered voters last year with specific instructions on how to determine if they were eligible.

In outlawing those voting initiatives, Republican lawmakers made it clear they were targeting the state’s most populous county, even though other counties employed similar voting methods.

“My first and only priority is to educate and help voters to lawfully cast their ballots,” Harris County Elections Administrator Isabel Longoria said in a statement. “Voting by mail is not simply another method to vote — for many senior voters and voters with disabilities, it’s their only option to vote. SB1 makes it a crime for me to encourage those who are eligible to vote by mail to do so, effectively making it impossible to fulfill my sworn duty as Elections Administrator.”

Both lawsuits also argue the constitutionality of a section of SB 1 that creates new a “vote harvesting” criminal offense, which it defines as in-person interactions with voters “in the physical presence of an official ballot or a ballot voted by mail, intended to deliver votes for a specific candidate or measure.” The lawsuits argue the language in that section — and the criminal penalties attached to it — are unconstitutionally overbroad and vague and could serve to quash legitimate voter turnout initiatives.

The lawsuits also challenge provisions of SB1 that bolster protections for partisan poll watchers inside polling places, and new ID requirements for voting by mail.

You can see copies of the lawsuits here for Austin and here for San Antonio. I note that Isabel Longoria, the Harris County elections administrator, is a defendant in her official capacity in the Austin lawsuit and a plaintiff in the San Antonio lawsuit. I assume there’s a technical reason why a county elections administrator is named as a defendant in these actions, but I have no idea what algorithm is used to decide which county and administrator. (The Austin lawsuit also includes Dana DeBeauvoir from the Travis County elections office as a defendant, while the San Antonio lawsuit picks the Medina County admin. Go figure.)

I’m not going to speculate on the merits or chances of these lawsuits, which I assume will eventually get combined into a single action. I expect that they have a strong case, and we know from past performance that the Republicans in the Lege tend to be shoddy and indifferent in their work when they pass bills like these, but none of that really matters. What matters is what if anything the Fifth Circuit and SCOTUS deign to find objectionable. For obvious reasons, I’m not going to get my hopes up. I expect the Justice Department to get involved on the side of the plaintiffs, and there’s always the specter of passing the John Lewis Act and making this way easier on everyone. In the meantime, settle in for the long haul, because we know this will take years to come to a resolution. Look to see what happens when (I feel confident saying “when” and not “if”) a temporary restraining order is granted.

Sine die’d

Special session 2.0 is over. And what a lousy thing it was.

The Texas Legislature adjourned its second special session Thursday evening, ending a nearly 30-day stretch that was called to pass a GOP elections bill after House Democrats carried out a weekslong quorum break to block the passage of that legislation during the summer’s first overtime round.

The two chambers gaveled out minutes apart after giving final approval to a number of Gov. Greg Abbott’s agenda items, including so-called critical race theory legislation and a bill that will, among other things, restore funding for the Legislature itself.

The House adjourned first, with House Speaker Dade Phelan, R-Beaumont, wishing members a happy Labor Day weekend before gaveling out.

Over in the Senate, Lt. Gov. Dan Patrick told senators he was proud of their work and nodded to another yet-to-be-called special session that will focus on the redistricting process in the coming weeks — where lawmakers will draw new political maps for the state’s congressional delegation, the Legislature and the State Board of Education.

“We’ll be back soon,” he said. “There’s a little bit of unfinished business yet to be done.”

Earlier Thursday, state lawmakers passed legislation that restores funding for the Legislature — including salaries and benefits for some 2,100 state employees — that was set to run out at the end of the month after Abbott vetoed those dollars earlier this summer. The governor’s veto was intended as retribution for House Democrats who walked out of the Capitol in the final hours of the regular legislative session to block a GOP elections bill in May.

In addition to restoring the funding, the Legislature this week passed a similar version of that controversial GOP elections bill. State lawmakers also reworked the process for releasing accused criminals on bail, beefed up border security fundingexpanded virtual learning for studentsrestricted use of abortion-inducing drugs and banned the storage or disposal of high-level radioactive waste in Texas.

The small bit of good news is that the transgender sports bill and the last-minute fraudit bill did not pass, though as noted there will be another shot at that. Redistricting is up next, and the rumor mill suggests we will have two weeks off before the machinery cranks up again. I suppose it’s possible there could be a temporary restraining order in the lawsuit filed against doing legislative redistricting, but as Congressional redistricting would still be on the menu that would not stop the session from being needed. Anyway, enjoy the brief respite before the next bout of madness begins.

No Roe roundup

I don’t have a good title for this post, but I do have a collection of stories.

Planned Parenthood files restraining order against Texas Right to Life.

Right there with them

Planned Parenthood of Greater Texas and its affiliates filed a temporary restraining order with a Texas district court Thursday night against Texas Right to Life to stop the anti-abortion organization from suing abortion providers under a new law that all but bans abortions in the state.

[…]

Planned Parenthood, which has stopped providing abortion services in San Antonio but continues elsewhere in the state, refers to SB 8 as the “sue thy neighbor law.”

“Anti-abortion activists are already staking out our health centers, surveilling our providers, and threatening our patients,” said Helene Krasnoff, vice president for public policy litigation and law for Planned Parenthood Federation of America, in a news release. “The physicians, nurses, and clinic staff at Planned Parenthood health centers in Texas — and at abortion providers statewide — deserve to come to work without fear of harassment or frivolous lawsuits.”

This unprecedented enforcement framework essentially circumvents traditional judicial review. Typically, individuals or groups would legally challenge the state as the enforcer — but this law removes the state from the equation. In order for the Supreme Court to review the law, someone will have to sue someone who performed or assisted an illegal abortion; only then it can be challenged.

If the district court grants the restraining order, it would only apply to Planned Parenthood, its affiliates, and an individual Planned Parenthood Houston physician, Dr. Bhavik Kumar, who joined the order. This means other providers would likely still be subject to the law.

Texas Right to Life, which helped write the bill, set up a “whistleblower” tip line so people can report violations to the anti-abortion organization. An email seeking the organization’s comment on the restraining order was not returned Friday morning.

The Refugee and Immigrant Center for Education and Legal Services (RAICES) said on Twitter that it will defy the law.

“The ban on abortion in Texas is an abomination,” the nonprofit tweeted. “We want to send a very clear message: RAICES will not obey this archaic and sexist law. We’ve funded & supported access to abortions for immigrants in Texas for years and will continue to do so. Some laws are meant to be broken.”

You can see a copy of the lawsuit, which asks for a temporary restraining order as well as temporary and permanent injunctions against the defendants, “>here. The suit includes 100 “John Doe” defendants as “those individuals or entities who have expressed to other Defendants, whether by words or actions, their intention to enforce S.B. 8 against Plaintiffs”. I’m not exactly sure how that works, but I guess we’ll find out. It seems to me that in addition to the federal lawsuit, which is still ongoing despite the Supreme Court’s cowardly and corrupt ruling that allowed SB8 to take effect in the interim, every stakeholder who could reasonably foresee themselves as being on the wrong side of one of these nuisance vigilante actions should do the same thing and file their own pre-emptive lawsuit. We’ve already established that anyone can sue anyone over this, so who needs standing? KVUE has more.

On the subject of that federal litigation, it’s hard to say what comes next.

“This is all uncharted territory,” said Caroline Mala Corbin, a professor at the University of Miami School of Law. “So it’s really hard to say definitively what’s going to happen.”

What makes the law so unusual is its private enforcement, allowing nearly anyone to sue a doctor or other person who helps provide an abortion after six weeks, a point at which many women don’t yet realize they’re pregnant. Because the ban is not enforced by state officials, it’s difficult to know who abortion clinics can sue to challenge the law’s constitutionality.

The court’s conservative majority did not rule Wednesday on the law itself, and in fact acknowledged that abortion providers had raised “serious questions” about its constitutionality.

But the justices also expressed doubt about their ability to intervene in a privately enforced law such as the Texas law, Senate Bill 8, and experts said abortion proponents may have to think through other ways to get the issue before the court.

“The federal route is not dead, but the problem with it is it’s going to take some creativity on the part of federal courts to figure out why SB 8 and laws that may be like it are a real problem,” said Seth Chandler, a professor at the University of Houston School of Law.

“If SB 8 is OK, there’s nothing to stop Texas from passing a law that creates $10,000 private bounties for newspaper reporters who write things that are critical of the governor,” Chandler said. “Or for California to pass laws that may create a private bounty against people who own handguns in their home.”

Maya Manian, a visiting professor at the American University Washington College of Law, said the court could have at least temporarily intervened to allow for more time to review the claims.

“There is no question the Supreme Court could have found a way to overcome these procedural hurdles,” Manian said. “Yet they’re using this procedural cover to covertly overrule Roe v. Wade,” referring to the 1973 decision that established a constitutional right to abortion.

There’s no question that SCOTUS’ refusal to issue a stay against SB8 was an appalling and wholly political abandonment of their duty. Maybe the outcry that is now occurring will be enough to actually spur some federal action, both in terms of passing a law to enshrine Roe as the standard, and also to put some restraints on the increasingly overreaching Supreme Court. Just its abuse of the shadow docket is sufficient cause to reel them in. I’ll believe it when I see it happen, unfortunately. Beyond that, SB8 is so vague as well as unprecedented that no one really knows what its scope is. I suspect that was a feature of this abomination.

Back to the Chron story:

Several legal experts said the fastest way to challenge the law may be to openly defy it, a move Planned Parenthood and other providers have so far been reluctant to do.

“There will be someone mad enough to violate the law and happily serve as a test subject,” Mala Corbin said. “Because the women of Texas are not going to take this without a fight. This is their right to control their body at stake.”

Miriam Camero, vice president of social programs at RAICES, a group that gives legal aid to immigrants, said it was prepared to help women access abortion regardless of the law. Camero noted that the ban especially harms immigrants who already have a difficult time traveling to abortion clinics or out of state given their legal status.

“We will continue to assist clients, whether it be in Texas or Louisiana or Arkansas, Oklahoma, New Mexico,” Camero said.

It appears RAICES has already taken that step. We’ll see if they get hit with one of those lawsuits, in which case perhaps there will be a route to swifter action.

Doctors are also very unhappy with this new law.

The Texas Medical Association slammed the state Legislature on Friday, calling its passage of two anti-abortion bills “unconstitutional” and an interference with the fundamental patient-physician relationship.

“Enough,” the organization wrote in a statement. “The Texas Medical Association supports our physicians specializing in women’s health and opposes legislation in Senate Bill 8 of Texas’ 87th legislative session and Senate Bill 4 of this special session. SB 4 contains language that criminalizes the practice of medicine. Both bills interfere with the patient-physician relationship.”

[…]

On Wednesday, SB 8, which bans abortion after six weeks, including in instances of rape and incest, went into effect. The new law is a near-total ban on abortion and one of the strictest such measures in the country.

Hours before that, the Texas House passed Senate Bill 4, which would reduce access to abortion-inducing pills, the most common method for patients terminating a pregnancy. As sent to Gov. Greg Abbott’s desk, the bill would prevent physicians or providers from prescribing these medications to patients more than seven weeks pregnant.

Current Texas laws allow, and FDA guidelines suggest, practitioners to give these pills to patients who are up to 10 weeks pregnant.

“SB 8 and SB 4 go too far. Clearly these provisions are unconstitutional, in our opinion. TMA stands for the health care of all Texans and our profession. Enough is enough,” the statement continued.

[…]

“SB 8 allows for a bounty that encourages practically any citizen to file a cause of action against physicians, other health care professionals, and anyone who ‘aids or abets,’ based on a suspicion. If permitted to proceed, this law will be precedent-setting and could normalize vigilante interference in the patient-physician relationship in other complex, controversial medical or ethical situations.”

Meanwhile, the bill that was passed in the Texas House this week, SB 4, which limits access to abortion-inducing pills, would make it a criminal act for physicians to give these medications to patients more than seven weeks into a pregnancy.

“The physicians of Texas never thought the day would come when the performance of our oath would create a private cause of action for persons not connected to or harmed by the action. Yet, that day has sadly arrived in the state we love,” the TMA wrote.

Very heartfelt, and it’s easy to understand their outrage, but last I checked the TMA has been pretty supportive of Republican politicians, mostly because of tort “reform”. You want to convince me that you’re actually mad and not just having a minor snit, there’s an easy way to put your literal money where your figurative mouths are.

Finally, I mentioned the Texas Right to Life snitch site. As you may have heard, it has attracted some attention from folks who intend to disrupt it.

The Texas Right to Life organization created a website for those reports. But instead of citizens reporting on, say, the Uber driver who brought a woman to a clinic, critics of the law are spamming it with a barrage of fake information. Gov. Greg Abbott and Marvel’s Avengers are among those being reported receiving abortions, according to the New York Times.

Part of the flood of false info sent to the website appears to be aided by an activist and developer who posts under the social media alias Sean Black. In a viral TikTok first reported by Motherboard at Vice, Black explained that he wrote a script that anyone can access, which automates the process of letting them file fake reports. Each time they access Black’s script, new information is generated, theoretically making it harder for the Right to Life group to parse and ban people who are submitting fake reports.

As of September 2, not even 24 hours after the Supreme Court refused to halt the implementation of the law, Black told Vice the script had been clicked over 4,000 times.

Go get ’em, Sean Black.

UPDATE: One more story to add: Uber And Lyft Have Pledged To Cover Their Drivers’ Legal Fees If They Get Sued Under The Texas Abortion Law. Kudos to them for that.

UPDATE: TRO granted to Planned Parenthood. A hearing for an injunction will be September 13. No word yet about an appeal of the TRO.

Now we look to see what happens with Greg Abbott’s approval ratings

The first data point is bad for him. Which means it’s good for the rest of us.

Gov. Greg Abbott had the lowest approval rating since February 2016 and his highest disapproval numbers during his tenure as governor, The Texas Politics Project’s August polling found.

The poll queried 1,200 registered voters in Texas, finding that 50 percent disapproved of Abbott’s job performance and 41 percent approved. Nine percent didn’t know or did not have an opinion, the lowest such number of Abbott’s time in office. The margin of error was 2.83 percent, and the poll was conducted from Aug. 20 through Monday, Aug. 30.

The Texas Politics Project, which is housed at the University of Texas-Austin, has been conducting surveys since 2008, and has measured Abbott’s approval since November of 2015. Abbott’s previous high for disapproval was April 2021, at 45 percent.

The poll also found that 52 percent of respondents said Texas was “headed in the wrong direction,” the highest such number it has posted. A spokeswoman for Abbott did not immediately respond to a request for comment.

“Everywhere you look in the poll there’s just signs that the mood here is very dour. And when you have one party that owns the policy environment, that’s not good news,” said James Henson, director of the poll. “The Republicans have had a pretty easy ride for the two-decades-plus they’ve been in power in the state. And there’s now a convergence of factors that’s really going to test their ability to govern. And we’ve seen a very clear approach to that in this last legislative session, and it doesn’t seem to going over very well.”

[…]

The poll also asked whether respondents approved of Abbott’s handling of COVID-19 specifically, and the findings closely mirrored his overall approval numbers: 53 percent disapproved, 39 percent approved and the rest didn’t know or had no opinion.

“The election isn’t tomorrow, it’s not until next year, but it’s been a long time since there was a widespread sense in the state that things aren’t going well, and I think we’re seeing more indications of that,” Henson said.

The usual caveat about this being one data point applies. It’s also important to remember, as we have seen in UT/Trib polls (among others) that Abbott’s numbers tend to be the best among the officials whose ratings are being checked, with President Biden being the closest competition. This poll only tracks Abbott, so we lack that context. Given the dip in Biden’s poll numbers (which I think will be at least somewhat transitory, but I am an optimist), it’s reasonable to think that he may still compare well to others. We won’t know until we see more data.

Just looking at these numbers, the two things that stand out are just how far Abbott has fallen from his early COVID peak, and how the number of “don’t know/no answer” respondents have fallen. He was still in solidly positive territory as recently as February, and was at even levels in June, when we were still thinking we’d get a hot vax summer and everyone was feeling good. It’s not unreasonable to think that the right wing legislative onslaught has eroded his numbers a bit – remember, as we have discussed before, he used to poll decently for a Republican among Democrats – and my guess that the numbers now reflect his intransigence on COVID mitigations. Moreover, with more people having an opinion on him now, it’s likely the case that the fence-sitters have been making up their minds, and what they have decided is they don’t like him.

Again, this is one poll, and as Prof. Henson says, we’re a long way out from next November. Abbott also doesn’t have a Democratic opponent yet, and as we know that matters a lot. Intensity of feeling matters as well, especially in an off year election when turnout is critical. Abbott has been focusing exclusively on the hardcore base, mostly because he wants to win his primary but also because he wants to have a lot of “victories” to crow about to keep them engaged. Maybe this means Abbott’s stature will suffer. There’s plenty of reasons why that should be the case. It’s still too soon to tell for sure, that’s all I’m saying.

Of course there’s time for a stupid election “audit” bill

Of course there is.

Fresh off their success passing legislation to tighten Texas voting laws, Republicans in the Texas Senate are working to hastily push through a bill filed just two days ago that would pave the way for county audits of the 2020 general election and set new rules for handling charges of irregularity in future elections.

The Texas Senate signed off on Senate Bill 97 on a 17-14 vote Thursday to create a new county-level auditing process for elections and give all state or county party officials the ability to trigger mandatory reviews. It was filed by state Sen. Paul Bettencourt, R-Houston, who has acknowledged the Senate is “operating a little bit at warp speed” to move the legislation in the waning days of the special legislative session.

The bill was filed Tuesday, the same day the Senate suspended three rules so the legislation could be considered in committee the next morning. It was voted out Wednesday by the Republican-majority committee, setting it up to reach the Senate floor Thursday, where more rules were suspended to grant it swift passage.

It’s unclear whether the bill will make it to the governor’s desk before the end of the special session on Sunday. An identical bill was filed in the House on Wednesday but has not yet moved forward in that chamber.

“This bill, SB 97, is about election irregularities, giving a chance for the people involved to ask questions,” Bettencourt said before the Senate’s vote. “This is not about anything else except what gets measured gets fixed because if we know why they’ve had that discrepancy, we can fix the problem in the future.”

[…]

Under SB 97, state or county party chairs could mandate a review of the 2020 election simply by submitting a request in writing to a county clerk. Those election officials would then be responsible for forming an “election review advisory committee” based on a list of voters in the county submitted by Republican and Democratic county chairs.

The review would generally include all in-person and mail ballots from Election Day in randomly selected county precincts and some early voting ballots, giving committee members access to all of the ballots cast in three to five races, one of which must be for a federal office, a statewide office or a county office.

The Texas secretary of state would be charged with setting an “acceptable margin of error” between ballots and the final vote counts. Discrepancies outside the margin of error would trigger additional reviews, including a countywide audit for races for federal, statewide or county offices.

Audit results outside the margin of error would prompt an analysis by the secretary of state to determine likely causes for the discrepancies and recommended corrective action.

In future elections, a second part of the bill would allow candidates, county party chairs, presiding polling place judges or heads of political action committees that took a position on a ballot measure to push for audits if they suspect irregularities.

That process would begin with a written request to the county clerk for an “explanation and supporting documentation” for alleged irregularities or election code violations. If the person requesting the review is not “satisfied” with the response, they could request “further explanation.” If they are still unhappy, they could turn to the Texas secretary of state to request an audit of the issue.

If the secretary of state determines the county’s explanations are inadequate, it must immediately begin an audit of the issue at the expense of the county. If a violation is identified, the state can issue $500 penalties for each violation that is not corrected by the county clerk within 30 days.

It’s not as stupid and cynical as the fraudit proposed by Rep. Steve Toth, but it’s still stupid and cynical and completely unnecessary. It’s designed to sow doubt and uncertainty, and it’s going to be another hassle and unreimbursed expense for county election officials to deal with. Specifically, this is aimed at the big urban Democratic counties, though I suppose there’s nothing stopping Democrats in the other counties from doing the same thing. There may or may not be time for this to get a vote in the House even with the ridiculous speed this was given in the Senate, but there will be at least one more special session, and Greg Abbott wants to put this on the agenda, he can.

Killing Roe softly

Right there with them

Honestly, there’s not a whole lot to add here from yesterday. As of this writing, SCOTUS has still not acted on the emergency petition from Texas abortion providers over SB8. SCOTUS will issue a response to that request, but they can take their time about it if they want to. That right there tells you something.

Most of the stories out there that I’m seeing are further explainers of SB8 and how it works and what the current legal status is, some with a side helping of justified rage. They mention the state court injunction in passing, as it has a very limited effect. There are stories about the effect this law has already had on providers and patients, and stories about what SCOTUS has done by doing nothing and what we can do about it (nothing easy, unfortunately). There are reactions from politicians, with Democrats promising to fight, and calls to action from folks who understand that if you’re not ditching the filibuster, you really can’t fight effectively. And on and on.

And so we wait, and we try to figure out how to move forward, and we really better internalize the idea that 1) we need to win more elections, and 2) we need to effectively wield the power we have when we have it. This is what happens otherwise.

UPDATE: Welp.

A deeply divided Supreme Court is allowing a Texas law that bans most abortions to remain in force, for now stripping most women of the right to an abortion in the nation’s second-largest state.

The court voted 5-4 to deny an emergency appeal from abortion providers and others that sought to block enforcement of the law that went into effect Wednesday. But the justices also suggested that their order likely isn’t the last word on whether the law can stand because other challenges to it can still be brought.

The Texas law, signed by Republican Gov. Greg Abbott in May, prohibits abortions once medical professionals can detect cardiac activity, usually around six weeks and before many women know they’re pregnant.

It is the strictest law against abortion rights in the United States since the high court’s landmark Roe v. Wade decision in 1973 and part of a broader push by Republicans nationwide to impose new restrictions on abortion. At least 12 other states have enacted bans early in pregnancy, but all have been blocked from going into effect.

The high court’s order declining to halt the Texas law came just before midnight Wednesday. The majority said those bringing the case had not met the high burden required for a stay of the law.

“In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts,” the unsigned order said.

Chief Justice John Roberts dissented along with the court’s three liberal justices. Each of the four dissenting justices wrote separate statements expressing their disagreement with the majority.

Roberts noted that while the majority denied the request for emergency relief “the Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue.”

The vote in the case underscores the impact of the death of the liberal Justice Ruth Bader Ginsburg last year and then-president Donald Trump’s replacement of her with conservative Justice Amy Coney Barrett. Had Ginsburg remained on the court there would have been five votes to halt the Texas law.

Justice Sonia Sotomayor called her conservative colleagues’ decision “stunning.” “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand,” she wrote.

I’m just sick.

First redistricting lawsuit

Faster than a speeding bullet

The first volley in what is expected to be a fierce war over Texas redistricting kicked off Wednesday in the form of a federal lawsuit filed by two Democratic state senators who argue that state lawmakers cannot legally redraw the state’s legislative maps this fall.

State Sens. Roland Gutierrez of San Antonio and Sarah Eckhardt of Austin are asking a federal district court in Austin to take over the work of drawing up new political maps for the Texas House and Senate to reflect the state’s growth in the last decade. Joined in their lawsuit by the Tejano Democrats, a political organization, the senators argue the Legislature cannot constitutionally carry out that work in a special legislative session.

The Texas Constitution states the Legislature “shall” redraw the state’s legislative maps “at its first regular session after the publication” of each decennial census. But significant holdups in finalizing the 2020 census delayed the release of the detailed population numbers needed to redraw those districts for several months — far past the end of the regular legislative session in May.

Having a court redraw legislative maps could help Democratic chances for a more favorable map compared with what the Legislature’s Republican majority might draw up in a bid to hold power for the next decade in a state that is demographically moving away from the party.

Congressional and state House and Senate districts need to be reconfigured before the 2022 elections to account for the state’s explosive growth in the last 10 years. The census’ August data delivery showed people of color accounted for 95% of the state’s population growth of nearly 4 million residents since 2010. The suit does not challenge the Legislature’s ability to draw a new Congressional district map in special session. Lawmakers must rework that map to add the two additional districts Texas earned because of its fast growth.

Because the Legislature lacks the authority to redraw the legislative districts now, the lawsuit argues, that obligation falls to the court to ensure the maps won’t violate the 14th Amendment’s “one person, one vote” principle for the 2022 elections. The Legislature’s next regular legislative session won’t take place until January 2023.

State legislative districts are meant to be close to equal in population, but the state’s booming — and uneven — growth in the last decade means that population counts in the districts are significantly out of balance.

It’s an interesting argument, and one that has been a part of the discussion of how Greg Abbott’s defunding of Article X in the budget could screw with the redistricting process in this fashion. I have no idea what the odds of success are, but there’s one very interesting tidbit in this that Michael Li highlights:

That’s Republican Former Chief Justice of the Texas Supreme Court Wallace B. Jefferson acting as co-counsel for the plaintiffs. Lawyers have to make a living and all that, but this is nonetheless a very interesting choice of case for him to take. Given the likelihood that he’s set some bridges aflame, and given the level of esteem in which he is generally held, I have to think there’s some merit to this. We’ll see. The Chron has more.

Final passage of the voter suppression bill

That’s all for now, we’ll see you in court for what will likely be a frustrating and unsatisfying denouement.

A wave of changes to Texas elections, including new voting restrictions, are headed to Gov. Greg Abbott’s desk.

Three months after House Democrats first broke quorum to stymie a previous iteration of the legislation, Republicans in the House and Senate Tuesday signed off on the final version of Senate Bill 1 to further tighten the state’s voting rules and rein in local efforts to widen voting access. Abbott, a Republican, is expected to sign it into law.

The bill was delayed one more time as its Republican author, state Sen. Bryan Hughes, disapproved of language added by the House to address the controversial conviction of Crystal Mason, a Tarrant County woman facing a five-year sentence for a ballot she has said she did not know she was ineligible to cast. Hughes’ objection triggered backroom talks to strip the Mason amendment before the bill could come up for a final vote.

[…]

On Tuesday, Democrats decried the Senate’s objection to the Mason amendment, with state Rep. John Turner, D-Dallas, stating he hoped it was “not because they believe that more people in situations like that of Crystal Mason should be prosecuted or imprisoned.”

[Rep. Garnet] Coleman and Turner were part of the panel that worked out the final version of the bill in backroom talks. Despite their support for the amendment, House Republicans on that panel also signed off on removing it.

The amendment — offered by state Rep. Briscoe Cain, R-Deer Park, but worked on as a bipartisan effort — was meant to prevent voter mistakes from being prosecuted as fraud.

“We’re just ensuring that people who do innocent things are not harmed from their past mistakes,” Cain said before it was quickly adopted by the House last Thursday.

Mason was convicted of illegal voting for casting a provisional ballot in the 2016 election while she was on supervised release for a federal tax fraud conviction. Her vote was never counted, and Mason has said she had no idea she was ineligible to vote under Texas law and wouldn’t have knowingly risked her freedom.

Tarrant County prosecutors pressed forward to land the conviction, which was upheld by a state appeals court that ruled that the fact Mason did not know she was ineligible was “irrelevant to her prosecution.” Her case is currently under review by the Texas Court of Criminal Appeals, the state’s court of last resort for criminal matters.

Cain’s amendment would have clarified existing law that currently defines illegal voting as an instance in which a person “votes or attempts to vote in an election in which the person knows the person is not eligible to vote” by emphasizing that a person must be aware of the “particular circumstances that make the person not eligible” and also that “those circumstances make the the person not eligible” to vote.

Mason’s case has played out as Republicans’ baseless claims of rampant illegal voting have intensified. But with lack of widespread evidence, her case has landed among the handful of high-profile prosecutions of people of color.

Mason, who is Black, is appealing her case as the Texas attorney general’s office prosecutes Hervis Rogers, who is also Black, after he was featured in news coverage of the March 2020 primaries for being the last person to vote at Texas Southern University in Houston at 1 a.m. His registration was active even though he was a few months away from completing his parole as part of a 25-year prison sentence for burglary and intent to commit theft in 1995.

Hughes on Thursday said the amendment raised concerns for “people in the building” and “outside the building” that the language could go farther than intended, and noted he believed non-citizens who vote in elections should be prosecuted even if they were not aware they were ineligible. Notably, the Mason amendment could have also affected the state’s prosecution of Rogers, who was charged with two counts of illegal voting.

Hughes also noted the bill still includes language that would require proof beyond a provisional ballot for an attempt to cast an illegal vote to count as a crime.

See here and here for some background. Credit to Briscoe Cain (a phrase I am unlikely to type again anytime soon) but in the end it was more important for the Republicans to keep going after the likes of Hervis Rogers and Crystal Mason because there aren’t any real voter fraud cases for them to tout. Look, either we get the John Lewis Act through the US Senate, or this is our reality until Democrats have full control of state government and sufficient awareness that even the watered down two thirds rule is a trap that (like the filibuster) will not allow them to pass anything of substance. I don’t care to speculate when that might be.

The legal situation with the heartbeat bill

I’m writing this at eight PM, and will very likely be asleep before SCOTUS takes any action, if they do take action. So let’s start with what we have as of now:

That was in reply to this:

See here for the previous entry. If I see that SCOTUS has taken action when I get up in the morning, I’ll update this post. If not, you can assume that there’s basically no such thing as abortion in Texas until further notice. And that will include medical abortion.

Two days before one of the strictest abortion laws in the country is set to go into effect in Texas, the state Legislature tentatively approved another bill Monday evening that would restrict the procedure during the first term of pregnancy.

Senate Bill 4 remains identical to the version of the bill passed by the Texas Senate. Texas Democrats were unable to attach amendments to the bill, despite more than a dozen attempts, which means the bill will head straight to Gov. Greg Abbott’s desk if it is finally approved with no changes.

The legislation would limit patients’ access to abortion-inducing pills, preventing physicians or providers from giving abortion-inducing medication to patients who are more than seven weeks pregnant. Current law allows practitioners to give these pills to patients who are up to 10 weeks pregnant.

Notably, the U.S. Food and Drug Administration set its guidelines in 2016 advising that abortion-inducing pills are safe to use up to 70 days, or 10 weeks, after initial conception.

These pills have increasingly become the most common method for women to terminate a pregnancy if they are aware of their pregnancy early enough. According to the Guttmacher Institute, a reproductive health research institute that supports abortion rights, 60% of women elect to take a pill over having surgery.

It’s grim. This bill might have a chance of being knocked down by litigation, but who can even say at this point.

It should be noted that there is some state litigation happening, but that will not have the effect of blocking SB8.

Travis County District Judge Amy Clark Meachum issued a temporary restraining order barring the anti-abortion organization Texas Right To Life; John Seago, its legislative director, and others from “instituting any private enforcement lawsuits” under SB 8 against the plaintiff, a Dallas attorney, according to the order.

But the full scope of the order was narrow, and does not apply to a majority of providers or Texans.

“While the temporary restraining order issued by the Texas state court in Austin provides some relief to the two individuals and one nonprofit organization against lawsuits from the Texas Right to Life, it does not provide the full relief needed to ensure all Texans can access their constitutional right to an abortion,” said Julie Murray, staff attorney for Planned Parenthood Federation of America.

Here’s a bit more on that litigation from KXAN:

District Judge Amy Clark Meachum considered three cases on Tuesday morning: one, brought by an attorney and sexual assault victim’s advocate named Michelle Tuegel; another brought by Bridge Collective, a resource group for people seeking an abortion; and another brought by Allie Van Stean, a woman who regularly donates to women’s health clinics.

On Tuesday morning, the judge granted temporary restraining orders (TROs) in all three instances, against the group Texas Right to Life. According to attorneys for these three plaintiffs, the TRO’s prevent Texas Right to Life from filing lawsuits under the new fetal heartbeat law, until the court can conduct a full-scale temporary injunction hearing later in September.

Their attorneys say the ruling is significant for their clients because they had to prove “probable right to relief” to get the TRO — meaning they were able to show the judge evidence supporting their challenge to the law’s constitutionality.

KXAN spoke to Van Stean earlier this month, who explained, “Simply donating to places like Planned Parenthood count as aiding and abetting an abortion… If I’m donating to Planned Parenthood, I’m not necessarily giving with the intent to assist women in getting an abortion. Planned Parenthood and other places provide necessary and needed services like birth control at a lower cost, affordable option for women who can’t afford it.”

A spokesperson for Texas Right to Life told KXAN on Tuesday, the judge’s ruling was “narrow” and does not block the Texas Heartbeat Act from being broadly enforced at midnight.

Rewire wrote a story about Michelle Tuegel, who had filed a lawsuit in Dallas. In that one she sued a whole lot of people, mostly legislators. I don’t know what happened to that suit or if it is related in some way to this one. You should read that story, which links to this one about how Tuegel won a big judgment against US Gymnastics over the Larry Nassar case. If nothing else, I’m glad to have someone like that fighting the good fight.

And that’s all I know right now. If there’s any news in the morning, I’ll include it here. Daily Kos has more.

UPDATE: No word from SCOTUS, so SB8 officially became law at midnight last night. They can – and some people think they will – still act today. But SB8 is in effect until and unless they do.

“Big boy pants”

Some hot Dutton on Patrick action going on here.

Another partisan stalemate has broken out in the final days of the second special session called by Gov. Greg Abbott this year, again imperiling the jobs of 2,100 legislative staffers along with two key conservative priority bills.

On Monday night, Rep. Harold Dutton, D-Houston, abruptly adjourned the House Public Education Committee, which he chairs, without voting on two bills prioritized by Lt. Gov. Dan Patrick, the leader of the Senate: a bill that would limit how educators can teach social studies and talk about race at Texas public schools, referred to as the “critical race theory bill,” and another that would require transgender students to participate in sports based on the gender listed on their birth certificate instead of their gender identity.

“We have gotten to the point now where the Senate has adopted certain principles and practices that I don’t think bode well for this Legislature. I think that what’s happened is we have allowed them to do certain things and they disrespect the House in certain fashions,” Dutton said. “It has gotten worse to the point where today, what I am told, is that if we don’t pass these two bills — the [critical race theory] bill and the transgender bill — the Senate is not going to consider trying to fix the funding in Article X. So, I want to see if he has his big boy pants on. This meeting is adjourned.”

Article X refers to the section of the state budget that covers funding for the state Legislature and other independent agencies that support its work. Abbott vetoed legislative funding in June in retaliation for the defeat of his priority election and bail changes bills when Democrats first walked out of the House in May during the final days of the regular legislative session.

The Legislature was set to lose its funding this month, as the new fiscal calendar starts Wednesday, but Abbott and legislative leaders extended its funding through the end of September. Still, the Legislature has not passed a long-term solution for the rest of the next two-year budget cycle, putting in peril the livelihoods of the staffers funded through the Legislature. Lawmakers salaries are constitutionally protected and therefore not affected by Abbott’s veto.

House Bill 5, a wide-ranging bill that includes funding for a 13th check for retired schoolteachers and the restoration of legislative funding, was set to be heard on the chamber floor Monday, but its author, Rep. Greg Bonnen, R-Friendswood, suddenly postponed its consideration until Wednesday. On Tuesday, Rep. Chris Turner, D-Grand Prairie, asked the House to reconsider the motion by which the bill was postponed, which would allow lawmakers to take up the bill immediately. The vote failed by a vote of 74-49.

Dutton did not say who had told him that the Senate would not pass the legislative funding bill until the House passed the two bills in his committee. His office has not returned a request for comment from The Texas Tribune. Patrick’s office did not immediately return a request for comment.

I’ll never complain about someone spitting on Dan Patrick, but Harold Dutton is hardly a hero here. He has already shown that he doesn’t care about trans kids, and it’s clear that his interest here is in not getting rolled by the Senate. That said, no one with any power in the House has stood up for the restoration of Article X funding, which continues to be in jeopardy and clearly isn’t anything Dan Patrick cares about. It’s pathetic how little pushback Dade Phelan and the House Republicans have given to Greg Abbott on this, which leaves that task to the likes of Dutton, who does know what to do with the power he has. There’s no one to cheer for in this story, and I feel confident that Dutton will give Patrick what he is demanding if Patrick plays ball, but at least for now he’s standing for something worthwhile. The Chron has more.

It doesn’t matter what the polls say about the voter suppression bill

Here’s another poll to demonstrate why.

A new survey from Rice University underscores the deepening partisan chasm over provisions in the controversial GOP priority elections bill.

For example, 46 percent of Harris County Republicans polled who participated in the county’s 2020 innovation of drive-thru voting said they supported the bill’s proposal to ban the method, despite 70 percent rating their experience as “excellent.”

The poll confirms other research that has found that confidence in the 2020 presidential election was closely linked with a voter’s political party. The poll also shows that preference for provisions in the GOP elections bill scheduled to be debated in the Texas House today follows the same pattern, said Bob Stein, Rice University political science professor and a co-author of the poll.

“It’s the persistence of partisan polarization,” Stein said, adding that he was surprised that so many Republican drive-thru voters who said they would be interested in drive-thru voting again also said they would support outlawing it.

[…]

The majority of Harris County voters who used drive-thru and 24-hour voting, 53 percent and 56 percent respectively, are Black, Hispanic or of Asian descent, county data shows. Democrats say banning the methods will discourage minority participation in future elections.

Republicans, meanwhile, say the methods were never supposed to be allowed under Texas law and point to their lack of popularity.

For example, while drive-thru voting was the highest-rated method of voting, according to the poll, it was also not an option used by many in the county. About eight percent of Harris County voters, or more than 127,000, voted from their cars.

Still, political leanings influenced opinions, even among those who hadn’t used drive-thru voting themselves: 95 percent of Democratic voters opposed a ban on drive-thru voting while 71 percent of Republican voters approved.

Democrats and Republicans were also far apart on the issue of 24-hour driving, another target of the GOP elections bill. Ninety-two percent of Democrats did not want to see it banned, but 75 percent of Republicans did.

Polling data can be found here. This discussion has long since a meta-argument about rote talking points, but it’s still worth noting how ridiculous some of this is. It’s true that the 127K people who used drive through voting last year were a small fraction of the total number of voters, but that was the first time we ever tried that, and by any measure 127K people is a lot. It’s more than the number of people who voted by mail in 2016 or 2018, and we’ve had vote by mail for decades. I would bet decent money that if we continued to offer drive through voting, more and more people would take advantage of it, just as more and more people are now taking advantage of early voting. Back in 2002, fewer than one out of four voters voted early in person. In 2020, more than three out of four voters did so.

But like I said, none of this matters. It doesn’t matter that there isn’t even a suggestion of why drive through voting or 24-hour voting might be even slightly more susceptible to the microscopic amount of “voter fraud” that we currently experience, nor does it matter that all of these ideas, in addition to being useful and convenient and well-executed, were put in place as a way of making it easier and safer to vote in the midst of a global pandemic. None of these things were thought of by the previous Republican county clerks, and they hurt Donald Trump’s feelings, so they are Bad and they Must Be Stopped. That’s all you need to know. KHOU has more.