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The Lege

A big part of the Cornyn gun bill will do nothing in Texas

Just a reminder.

The bipartisan gun bill that is on a fast track through Congress and backed by U.S. Sen. John Cornyn includes new state grants to incentivize red flag laws, which allow judges to temporarily seize firearms from people who are deemed dangerous.

That means it’ll be up to states as to whether they want to take advantage of one of the key provisions of the landmark gun legislation. But despite last month’s Uvalde school shooting being the inspiration for the bill, Texas is unlikely to get on board.

Red flag laws likely remain a nonstarter among Republican leaders in Texas, where Gov. Greg Abbott already faced a conservative backlash after he asked the Legislature to consider them four years ago.

Lt. Gov. Dan Patrick, who oversees the Senate and wields tremendous sway over what legislation is considered, indicated Wednesday he still opposes such an effort.

“After the Santa Fe shooting, we had the same move to do this and we did not support it,” he said in a radio interview. “I did not support [that], the Senate did not support that.”

Patrick said that if he were in the U.S. Senate, he would have been among the 36 Republicans — including Texas’ junior senator Ted Cruz — who sided against the bipartisan gun bill in an initial vote Tuesday. Patrick added that he was “very, very concerned about that and where that goes.”

See here for some background, in which the subject of red states and red flag laws was thoroughly discussed. I don’t really have anything to add to that, so go listen to this week’s episode of the Josh Marshall podcast, in which they discuss the politics of this bill and what might happen next. Our job here remains to elect leaders that will not be obstacles to sensible and meaningful gun reform.

One more thing:

Red flag laws are nonetheless popular with Texas voters. A poll released Tuesday found that 75% of the state’s voters support laws that “give family members or law enforcement a way to ask a judge to issue an order temporarily removing guns from someone who poses a violent threat to themselves or others.” The survey was conducted by Third Way, a centrist think tank, and GS Strategy Group, a GOP polling firm.

The poll doesn’t break any of their issues questions down by party (or any other subgroup, like gender or race or age), so it’s not very useful. That said, in addition to the number cited above, the poll had 89% support for “Requiring a background check before every gun purchase, including at gun shows and for online sales”, 80% support for “Increasing the minimum age to purchase a semi-automatic weapon from 18 to 21 years old”, 80% support for “Allowing law enforcement to access sealed juvenile records to ensure that young adults with a history of violent criminal behavior are restricted from purchasing firearms”, and 68% support for ” Funding research around the effectiveness of gun safety policies”. You’re not going to get those kind of numbers without a fair amount of Republican support. Getting them to vote for candidates that also support those positions, that’s a different matter. As we well know. The Chron has more.

Roe v Wade

You don’t need me to tell you what happened yesterday, or what is likely to come. Abortion is still technically legal for another 29 days in Texas, when the trigger law kicks in, but many clinics have already stopped providing abortions because they don’t want to get tangled up in another legal fight that they fear they’ll lose. Local district attorneys will have to handle things from there, though as I said before, if there’s even a hint that local prosecutors and/or police departments are dragging their heels, the enforcement power will be shifted to the state (or to the rabid prosecutors in other counties) so fast it will make you dizzy.

That’s only as long as the Republicans have the power to do that, of course. Governor Beto O’Rourke would be able to veto bills that tried to make that happen, while Attorney General Rochelle Garza would not act as the backup prosecutor if it came to that. We at least have the power to make those things happen. You’re mad now, as you should be. This is where to channel that. It’s our best hope.

Is there one last twist in the West 11th Street saga?

This was posted as an update to the change.org petition in support of the West 11th Street project:

The opposition to making 11th street safer is asking TXDOT to stop the project-we need your help!

The group that has organized against making 11th street safer is not giving up after the mayor’s decision to move forward. Instead, they are asking TXDOT to intervene and stop the project, which the state has done before in Houston.

Please consider emailing your state representative (https://wrm.capitol.texas.gov/home) and the governor (https://gov.texas.gov/apps/contact/opinion.aspx) to express your support for the city’s plan to make 11th street safer.

See here for the previous update, which includes a comment making the same claim, that opponents of the project are going to TxDOT to try to stop it. I inquired about the reference to TxDOT stepping in on a project before in Houston, and I think that may have been said in error. There is the recent example of TxDOT taking control of a stretch of Broadway in San Antonio, which scuttled that city’s plans for a redesign that included a “road diet”. That piece of Broadway had previously been a part of the state highway system and was transferred to San Antonio a few years ago; TxDOT acted to rescind that transfer.

As far as I know, West 11th Street has only ever been a city of Houston street, so TxDOT would not have the same ability to intervene. That said, sticking it to cities is now a core component of Republican ideology, and making a similar move here would be politically consistent. I don’t know how to evaluate anything outside of a political lens these days. What I’m saying is that while I, a mostly normal person, don’t see a means for TxDOT to step in, that doesn’t mean it can’t or won’t happen, not if Greg Abbott decides it’s a good idea. Another possibility would be for the Republicans in the Legislature to pass a bill in 2023 that limits or bans “road diets” in some fashion, thus potentially stopping this project before it could be completed. Given the legislative calendar and the fact that construction is scheduled to start in the next couple of months, that seems less likely to be effective.

I really don’t know how the opponents can succeed here. There’s no clear path for them. But given everything we’ve seen and experienced recently, I’m hesitant to say it can’t happen. Go ahead and contact your legislators and the Governor’s office with your support. It can’t hurt.

Uvalde versus DPS

Someone’s not happy.

Uvalde Mayor Don McLaughlin on Tuesday accused state authorities of selectively releasing information about last month’s school shooting to scapegoat local law enforcement and intentionally leaving out details about the state’s response to the massacre.

New details emerged this week about the timeline of the shooting based on surveillance video from the school’s hallways and a transcript of officers’ body cameras. The records show that officers might not have attempted to open the doors of the classrooms where the gunman had holed up with victims. During a state Senate committee held earlier Tuesday, Texas Department of Public Safety Director Steve McCraw told lawmakers that law enforcement’s response to the Uvalde school shooting was an “abject failure.”

McLaughlin lambasted McCraw for what he described as a selective release of information about the investigation, focusing on blaming local law enforcement and leaving out the role of McCraw’s agency during the shooting.

“McCraw has continued to, whether you want to call it, lie, leak … mislead or misstate information in order to distance his own troopers and rangers from the response,” McLaughlin said Tuesday evening.

McLaughlin said none of the entities with information about the investigation into the May 24 shooting at Robb Elementary School — DPS, the Texas Legislature, the Uvalde County District Attorney’s office and the FBI — have briefed Uvalde city officials about their findings.

McLaughlin said he had been asked to refrain from sharing details about the investigation while it was ongoing but said Tuesday he would now start releasing that information as it became available to city officials.

“The gloves are off. If we know it, we will share it,” he said.

McLaughlin’s comments at a special City Council meeting seemed to contradict a press release issued just hours before, in which the mayor had said city officials would refrain from commenting on the investigation “or reacting to every story attributed to unnamed sources or sources close to the investigation.”

I mean, Steve McCraw put all the blame on Pete Arredondo, so it’s not a big surprise that Uvalde’s mayor didn’t care for that. As a reminder, McLaughlin is the guy who got all mad at Beto O’Rourke when O’Rourke interrupted Greg Abbott’s press conference – you know, the one he held just before he headed out for a big fundraiser – to demand that Abbott do something in response to the massacre. This was back when Abbott and DPS were praising Arredondo and Uvalde police for their response, which is to say, back before any of the truth started coming out. McCraw, meanwhile, is a longtime hatchet man for Abbott and Rick Perry before him, and deserves exactly zero benefit of the doubt. This is a fight where you can root for both sides to lose with a clear conscience.

The real issue here is the coordinated resistance to releasing data about the police response to the mass shooting. This is the appropriate response to that.

Sen. Roland Gutierrez

State Sen. Roland Gutierrez, who represents Uvalde, is suing the Texas Department of Public Safety over records related to the deadly shooting at Robb Elementary last month.

“In the wake of the senseless tragedy, the people of Uvalde and Texas have demanded answers from their government. To date, they have been met with lies, misstatements, and shifts of blame,” Gutierrez said in a lawsuit filed Wednesday.

State and local Uvalde officials have fought the release of records that could provide clarity around the botched emergency response to the shooting that killed 19 children and two educators. Law enforcement responding to the shooting waited more than an hour on the scene before breaking into the classroom to kill the shooter.

Gutierrez said he filed an open records request on May 31 for documentation about police presence and ballistics at the shooting, and he still has not received a response. Per state law, DPS had 10 business days to either respond or make a case to the attorney general.

[…

Abbott’s office on Tuesday said all information related to the shooting has been shared with the public or is in the expedited process of being released. Full results of the ongoing investigation by the Texas Rangers and the FBI will also be made public, according to the governor’s office.

That same day, Uvalde Mayor Don McLaughlin said city officials have been left out of briefings related to the investigation from entities, such as DPS, the Texas Legislature, the Uvalde County District Attorney’s office and the FBI.

Sen. Gutierrez’s press release is here and a copy of the lawsuit is here. I cannot wait to see what response the defendants make to this. The Chron has more.

UPDATE: Uvalde Consolidated Independent School District police Chief Pete Arredondo has been placed on administrative leave by the district.

DPS pins the blame on Arredondo

Look out for that bus!

Department of Public Safety Director Steve McCraw told a state Senate committee Tuesday that the law enforcement response to the Uvalde school shooting was an “abject failure” and police could have stopped the shooter at Robb Elementary School three minutes after arriving were it not for the indecisiveness of the on-scene commander, who placed the lives of officers before those of children.

McCraw said the inexplicable conduct by Uvalde school district police Chief Pete Arredondo was antithetical to two decades of police training since the Columbine High School massacre, which dictates that officers confront active shooters as quickly as possible.

“The officers had weapons; the children had none,” McCraw said. “The officers had body armor; the children had none. The officers had training; the subject had none. One hour, 14 minutes and 8 seconds. That’s how long children waited, and the teachers waited, in Room 111 to be rescued.”

The revelations detailed by McCraw completed a remarkable shift in the police response narrative state officials have given since the May 24 shooting. Twenty-seven days after Gov. Greg Abbott said the shooting “could have been worse” but for officers who showed “amazing courage by running toward gunfire,” his state police director described stunning police incompetence that bordered on cowardice.

[…]

McCraw said though the state police are a far larger agency than the six-person Uvalde Consolidated Independent School District department, Arredondo was the rightful incident commander because he was the most senior first responder who had immediate jurisdiction over the district’s campuses. He said Arredondo could have transferred command to another agency, such as state troopers who arrived, but never did so.

Acting against the orders of an incident commander during an emergency can be dangerous and chaotic, McCraw said, responding to a question about why his troopers did not take charge. But he said the failure of one police agency means all law enforcement performed unacceptably that day.

The story notes the comparison of what Arredondo had said to more recent reporting; you can also see a list of places where the two accounts differ in this subsequent Trib story. One almost feels a little sorry for Arredondo. The main question I have at this point is what if anything are we going to do about this? Forget about adopting any kind of gun safety measures, which Greg Abbott will not do, are we interested in any laws that might prevent, or at least disincentivize, police behavior like what we got in Uvalde when the next mass shooting (whether at a school or not) occurs? One possibility I can think of that also will never pass through a Republican legislative chamber is to dial back qualified immunity for law enforcement officers, at least in this kind of circumstance. If the next Pete Arredondo has to worry about getting his ass sued for taking no action at the next gun massacre, maybe he’ll be more inclined towards action. Whether that might end up as a net positive or not, I can’t say. But it’s at least something we could talk about doing, rather than just talk. And someone else, maybe even someone with actual expertise in the matter, may have better ideas. Reform Austin and the Chron have more.

Of course we don’t do nearly enough for mental health

Because Republicans rush to talk about “mental health” every time there’s another mass shooting, it’s important to remember that their response to meeting the demand for mental health, in schools and elsewhere, has been completely inadequate.

Tucker’s was the kind of positive outcome state lawmakers pictured in 2019, when they worked to increase mental health resources for students after the mass shooting at Santa Fe High School that left eight students and two teachers dead.

Access to those services again is at the forefront as Republican leaders respond to last week’s massacre in Uvalde.

Mental health experts say the 2019 initiatives, including hundreds of millions of dollars more in funding, have only begun to address Texas’ mental health crisis, and that the state does little to track even their limited outcomes. Many school districts are left to fund their own interventions.

There is little evidence that mental illnesses cause mass shootings or that people diagnosed with them are more likely to commit violent crimes. Advocates also warn that scapegoating mental illness can stigmatize the wide spectrum of people living with psychological disorders.

“It’s absolutely something that should be addressed — but it’s not a panacea,” said Greg Hansch, executive director for the Texas chapter of the National Alliance on Mental Illness. “It’s more of a secondary or tertiary factor.”

Gov. Greg Abbott and other top Republicans have pointed to the shortage of mental health resources, especially in rural Texas, as a key factor in the Uvalde shooting, while rejecting calls for stricter gun laws.

The 18-year-old gunman, who killed 19 children and two adults, legally purchased the assault-style weapon he used in the shooting spree and had “no known mental health history,” Abbott said.

Even with the 2019 reforms, mental health care remains vastly underfunded in Texas. That largely is because of budget cuts two decades ago and years of stagnant funding to community mental health services. Today, Texas provides less access to care than any other state, and nearly three quarters of children and teenagers with major depression do not get treated, the highest rate in the country, according to the nonprofit group Mental Health America.

Without a direct source of state funding for mental health care, school districts in Texas are forced to rely on a patchwork of state and federal programs, most of which do not guarantee that money will flow to mental health services for students or training for teachers. As a result, only a tiny fraction of Texas’ roughly 1,200 public school and open-enrollment charter districts have enough counselors, social workers and psychologists to meet professionally recommended student-to-provider ratios, according to a recent Houston Chronicle analysis.

Central to lawmakers’ 2019 response was a new mental health consortium overseen by the University of Texas System, with a $99 million initial investment for programs focused on children and teens, including virtual visits between child psychologists and students referred by school staff. The Legislature also increased funding to Communities in Schools, which places staff directly on campuses and had employed Tucker’s social workers.

In addition, lawmakers required school officials to form “threat assessment teams” to identify students who may pose a risk of violence, and put forth another $100 million to school districts every two years that can be used to hire security personnel, provide mental health services and buy physical upgrades, such as metal detectors and bullet-resistant glass.

In the first year, however, just 12 percent of Texas school districts reported using any of the funds for mental health support, while 8 percent said the money was used for behavioral health services, according to a survey by the Texas School Safety Center at Texas State University.

A task force later found the Texas Education Agency was not collecting meaningful data on mental health programs in schools, including the number of students they serve or “any standard outcomes” they measure. The Legislature responded with a bill last year to bolster reporting, but the agency has yet to release any results.

Annalee Gulley, director of public policy and government affairs for Mental Health America of Greater Houston, said lawmakers have taken encouraging steps to support mental health but should have paired the funding with more direction for school officials on how to spend it.

“A critical lesson learned in the years following the Santa Fe High School shooting is funding alone is not enough,” Gulley said. “Instead, the state must connect financial resources to guidance on the most effective strategies to support the safety and well-being of educators and students following such a catastrophic event.”

Much of the focus since 2019 has been on the telehealth effort known as TCHATT, including more than $50 million in added pandemic funding last year. The program has been slow to expand, however, serving only about 6,000 students so far. By comparison, Communities in Schools serves 115,000 students annually on a $35 million budget. There are more than 5 million students in Texas.

So yeah, still a long way to go, and that’s before we get to things like the challenges of hiring all of the counselors that would be needed in Texas’ 1200 school districts and thousands of schools. And this story never mentions the need to expand Medicaid, which would be the single biggest thing that we could do in Texas to improve mental health care for everyone, not just for students. I started the draft of this post a couple of weeks ago, before the Cornyn/Murphy gang got what passes for traction on a bipartisan framework for a gun control bill (still no bill, and the framework remains under negotiation, but there’s an agreement to come to an agreement, and that’s the progress in question), and since then we’ve had that, more ridiculous talk about all of the non-gun things that actually cause mass shootings, the lunatics at the Texas GOP convention basically accusing Cornyn of treason, and a bunch more people getting shot and killed, but we haven’t had much talk about mental health. As with gun control itself, the Republicans and their gun enablers will be happy to just let that fade away, until the next time it has to be trotted out as an excuse for the latest mass casualty.

There’s a lot of resistance to releasing information about Uvalde

Wow.

The City of Uvalde and its police department are working with a private law firm to prevent the release of nearly any record related to the mass shooting at Robb Elementary School in which 19 children and two teachers died, according to a letter obtained by Motherboard in response to a series of public information requests we made. The public records Uvalde is trying to suppress include body camera footage, photos, 911 calls, emails, text messages, criminal records, and more.

“The City has not voluntarily released any information to a member of the public,” the city’s lawyer, Cynthia Trevino, who works for the private law firm Denton Navarro Rocha Bernal & Zech, wrote in a letter to Texas Attorney General Ken Paxton. The city wrote the letter asking Paxton for a determination about what information it is required to release to the public, which is standard practice in Texas. Paxton’s office will eventually rule which of the city’s arguments have merit and will determine which, if any, public records it is required to release.

The letter makes clear, however, that the city and its police department want to be exempted from releasing a wide variety of records in part because it is being sued, in part because some of the records could include “highly embarrassing information,” in part because some of the information is “not of legitimate concern to the public,” in part because the information could reveal “methods, techniques, and strategies for preventing and predicting crime,” in part because some of the information may cause or may “regard … emotional/mental distress,” and in part because its response to the shooting is being investigated by the Texas Rangers, the FBI, and the Uvalde County District Attorney.

The letter explains that Uvalde has at least one in-house attorney (whose communications it is trying to prevent from public release), and yet, it is using outside private counsel to deal with a matter of extreme importance and public interest. Uvalde’s city government and its police department did not immediately respond to a request for comment from Motherboard.

The city says that it has received 148 separate public records requests (including several from Motherboard), and has lumped all of them together, making a broad legal argument as to why it should not be required to respond to many of them. Earlier this week, Motherboard reported on a similar letter sent to Paxton by the Texas Department of Public Safety, which wanted to suppress body-camera footage because it could expose “weaknesses” in police response to crimes that criminals could exploit. (The main seeming weakness in the Uvalde response was that police, in violation of standard policy and protocol, refused to risk their lives to protect children.)

For example, the city and its police department argue that it should be exempted from releasing “police officer training guides, policy and procedure manuals, shift change schedules, security details, and blueprints of secured facilities,” because these could be used to decipher “methods, techniques, and strategies for preventing and predicting crime.”

That argument sound familiar, doesn’t it? Gosh, I wonder what Ken Paxton will say. Also, it would be good to know how much the city of Uvalde is paying for those outside attorneys.

Here’s more on the same topic:

In the past week, Texas Gov. Greg Abbott has joined the growing list of state and local officials fighting the release of records that could help bring clarity to how the emergency response unfolded during last month’s deadly shooting in Uvalde.

The governor’s office strayed from that broader opposition Monday, granting a request under the Texas Public Information Act from a Houston television station that sought the handwritten notes he used when he first spoke publicly about the shooting. The notes appear to support Abbott’s claim that he was misled when he initially praised law enforcement efforts during the mass shooting that resulted in the deaths of 19 children and two educators and left many more injured.

The recent release by Abbott underscores both the tremendous power government officials have to decide what is in the public interest and the unwillingness to release records that could call their agencies’ actions into question.

ProPublica and The Texas Tribune have submitted about 70 public information requests that could help answer larger questions as state and local leaders continue to offer conflicting accounts about why law enforcement did not confront the gunman sooner during the May 24 massacre. Those requests include 911 audio recordings, body and police car camera footage, and communications among local, state and federal agencies. The newsrooms also requested use-of-force documents, death records and ballistic reports.

Three weeks after the shooting, government officials have not provided the news organizations a single record related to the emergency response.

[…]

Abbott’s office, the Texas Department of Public Safety, the U.S. Marshals Service and the city of Uvalde are asking the state’s attorney general for permission to withhold records that may offer tangible answers to the contradictory accounts. (Under Texas law, agencies seeking to avoid disclosure of public records typically must make their case to the attorney general.) Other government entities have asked the state for extensions as they decide whether to fight such disclosures. News organizations across the country are reporting similar responses.

Among the arguments provided by government entities for withholding such documents is one from DPS stating that releasing records like footage from body cameras would provide criminals with “invaluable information” about its investigative techniques, information sharing and criminal analysis.

In most cases, however, the agencies argue that releasing such information could interfere with ongoing law enforcement investigations by the federal government and the Texas Rangers, an arm of DPS now tasked with investigating its own department. In a statement, Abbott’s office said that, upon completion of the investigations, “we look forward to the full results being shared with the victims’ families and the public, who deserve the full truth of what happened that tragic day.”

But timely disclosure of the records is paramount given the lack of transparency and contradictory accounts from state and local officials, three Texas Public Information Act experts told ProPublica and the Tribune.

Laura Prather, a First Amendment attorney in Texas, said the reason the state allows agencies to withhold information when it is part of an ongoing investigation is to protect someone who was accused of a crime but didn’t ultimately get convicted, “not to protect law enforcement for their actions in circumstances like this, where the shooter is dead.”

“The public has the right to know what happened that day, and right now they can only act on rumors and conflicting information,” said Prather, who is representing ProPublica in an unrelated defamation lawsuit. She said law enforcement must be transparent in order to earn the public’s trust, but agencies are instead using their discretionary powers “to thwart the public from getting information that they are rightly entitled to.”

Because state law allows government officials to withhold information in cases that don’t result in a conviction, it creates a loophole that lets governments deny records in cases where the offender was killed and will not be tried.

That results in a challenge for members of the public seeking records related to Uvalde because “either way, there is a statutory basis for these governmental bodies to seek to withhold information,” said Jim Hemphill, an attorney who serves on the board of the Texas Freedom of Information Foundation.

We’ve heard about the “dead suspect” loophole before. I have a modicum of sympathy for withholding some information during an active criminal investigation, but here we already know who did it and there won’t ever be a criminal trial, at least not for him. Especially given the sheer amount of contradictory information that has been out there, we really deserve a lot of timely disclosure.

House Speaker Dade Phelan has talked about addressing that loophole in the next legislative session. Maybe there are some other items for them to address as well.

Members of the Uvalde Police Department are refusing to cooperate with a Texas House committee probing the law enforcement response to the Robb Elementary School shooting, the Express-News reports.

In comments Thursday, Committee Chairman Dustin Burrows — a Republican state rep from Lubbock — said Uvalde school district police department personnel were providing testimony to the three-member panel, according to the daily.

“There is a question mark, however, about the Uvalde Police Department itself, about whether or not they will visit with us voluntarily,” the lawmaker added. “We’ll see if they do that.”

The committee is in Uvalde for two days to hear closed-door testimony about the May 24 mass shooting that left 19 children and two teachers dead. Even if Uvalde police officers don’t voluntarily testify, the committee has the power to issue subpoenas, the Express-News reports.

You have the power to compel their cooperation, or at least to make it a lot more painful to not cooperate. I’m just saying.

What was DPS doing during the Uvalde massacre?

Not much, it would seem.

As many as 13 troopers with the Texas Department of Public Safety waited in a hallway at one point during a gunman’s rampage that killed 19 children and two teachers at Robb Elementary School in Uvalde last month, state Sen. Roland Gutierrez said.

Gutierrez, a San Antonio Democrat whose district encompasses Uvalde, said DPS Director Steven McCraw revealed the number of responding state troopers to him in a recent exchange.

“He told me there was enough people and equipment to breach the door,” Gutierrez said, even as officers continued to wait for more than an hour and some of the children inside the two locked classrooms called 911 for help.

In previous statements, McCraw has said that as many as 19 officers from various law enforcement agencies waited outside the classrooms. DPS has not publicly clarified the extent to which it was involved in the widely criticized police response to the May 24 mass shooting.

[…]

At a news conference last month, McCraw described Pedro “Pete” Arredondo, chief of police for the Uvalde school district, as the on-scene commander. He said that after Arredondo arrived at the school, he instructed other officers not to force entry into the locked classrooms until they could acquire more equipment, such as ballistic shields.

Gutierrez said he spoke May 28 with McCraw, who was in tears. McCraw told Gutierrez that day that DPS would never again “stand down,” the lawmaker told the San Antonio Express-News.

In another exchange June 2, McCraw told Gutierrez that as many as 13 DPS troopers had massed in the hallway outside the classrooms at one point — waiting to make entry even as the massacre unfolded.

[…]

The district attorney for Uvalde, Christina Mitchell Busbee, is leading a criminal investigation into the shooting. The Texas Rangers, with assistance from the FBI, are investigating the police response.

Separately, the Justice Department is conducting a “critical incident review” of the police response. And a three-member legislative committee appointed by House Speaker Dade Phelan is investigating the massacre.

Gutierrez wants more answers now.

“We’re supposed to be the big bad-ass cops in the region,” Gutierrez said of the DPS troopers. “What happened here? Where were they situated in that building, and what time did they get there? When it came to protecting our children, we failed.”

Yeah, lots of investigations of this massive tragedy – perhaps this explains why the local cops quit cooperating the DPS’ own investigation, or why Uvalde schools top cop Pete Arredondo sounds so defensive. Maybe we need all these investigations now because clearly no one wants to have ownership of any of this. Which, given what a massive clusterfuck it appears to have been, I can understand. But man, everything about this just keeps getting worse and more infuriating. I’m with Scott Braddock:

To put this another way:

Gutierrez questioned why state troopers on the scene would automatically defer to a school district officer with no radios.

“Why weren’t the decisions made by the most superior police force on-site?” he asked. “How then did everybody just jump on and make (Arredondo) the incident commander? If he never had a radio, then how did he make himself the incident commander? It just doesn’t follow.”

At the news conference last month, McCraw told reporters that police in Texas are trained not to wait for orders to neutralize an active shooter.

“When there’s an active shooter, the rules change,” McCraw said. “You don’t have time. You don’t have to have a leader on the scene. Every officer lines up, stacks up, goes and finds where those rounds are being fired at and keeps shooting until the subject is dead. Period.”

Law enforcement sources told the Express-News that four Border Patrol agents and two sheriff’s deputies made entry into the classrooms and killed Ramos.

Gutierrez said officers in the hallway at one point had as many as three ballistic shields before finally breaching the door to the classrooms. Once they did, nearly two dozen people inside were dead.

“There was enough material in that room to stop this threat,” he said. “And it didn’t happen.”

There were an awful lot of good guys with guns (and vests and helmet and shields) at Robb Elementary School. They amounted to exactly zero when it came to stopping one guy from killing almost two dozen people, almost all children. That is a goddamn disgrace.

There was definitely an improvement in mail ballot acceptance for the primary runoffs

The last time I looked, I was largely unable to find any news stories about mail ballots and their rejection rates for the May primary runoff elections, with the exception of one story about Bexar County and how they were leading the field in getting rejection rates down to something akin to pre-SB1 levels. I still can’t find any stories about this, but it (finally) occurred to me that the new reconciliation reports that election officials now have to publish would contain the data I’m looking for. So with that in mind, off I went. I obviously don’t have the time to go looking everywhere, and some of those smaller county elections webpages are just awful, but I did have a look at a few places of interest.

Harris County, Democratic: 19,081 total mail ballots, of which 1,128 were rejected, for a rejection rate of 5.9%.

Harris County, Republican: 15,053 total mail ballots, of which 1,169 were rejected, for a rejection rate of 7.8%

That’s a clear improvement of the 20% rejection rate from March and the 12% rejection rate of the May special election. It’s still too high, but it’s not take-your-breath-away too high. And it pleases me no end to see Republicans have a harder time with it than Democrats. It’s unlikely to be enough to matter if that’s still the case in November, but it would be a rich piece of karma if more of their votes got tossed as a result of this malicious law.

Bexar County, Democratic: 11,919 total mail ballots, of which 15 (yes, fifteen) were rejected, for a rejection rate of 0.1%.

Bexar County, Republican: 5,856 total mail ballots, of which 33 were rejected, for a rejection rate of 0.6%.

Bexar is definitely the gold standard, the example for everyone else to emulate. And Dems did better here as well. Encouraging.

Travis County, cumulative: 10,224 total mail ballots, of which 222 were rejected, for a rejection rate of 2.2%.

Not all counties broke this out by party. The overall rate is low enough here to not sweat it too much. About 75% of the mail ballots overall were Democratic, so it’s likely that the Dem rejection rate was right around 2.2% – the Republican rate could have been a lot different without affecting the total too much.

Dallas County, cumulative: 10,708 total mail ballots, of which 176 were rejected, for a rejection rate of 1.6%.

Like Travis County, but slightly fewer rejections. Dems cast a bit less than 70% of the mail ballots.

Montgomery County, cumulative: 4,366 total mail ballots, of which 25 were rejected, for a rejection rate of 0.6%.

Republicans knew what they were doing here. They were 70% of mail ballots.

Fort Bend County, cumulative: 4,382 total mail ballots, of which 187 were rejected, for a 4.3% rejection rate.

Closest one yet to Harris. About two thirds of mail ballots were Democratic. Would have been nice to see the breakdown by party here.

Cameron County, Democratic: 1,323 total mail ballots, of which 3 were rejected, for a rejection rate of 0.3%.

Cameron County, Republican: 292 total mail ballots, of which 2 were rejected, for a rejection rate of 0.7%.

Wow.

So it’s clear there was a lot of improvement, and while Harris did a much better job there’s room for us to do better as well. It’s also important to remember that there are still a huge number of people who have not yet tried to vote by mail, so there’s no guarantee that the improvements will continue or be maintained. There’s still a lot of work to be done. But at least it looks like that work will have a payoff.

(PS – Not all counties had the reconciliation reports in a place that I could find. I looked for them for El Paso and Tarrant and came up empty. Might have just been me, but maybe their site design needs some work.)

C’mon, we should get to see the city’s after-action report on the freeze

This is silly.

Houston will not release its retrospective report on the 2021 winter freeze, citing a post-9/11 law shielding information that could be exposed by terrorists or criminals.

The city drafted a report, called “After-Action Report/Improvement Plans for the 2021 Winter Storm,” after the February freeze, when plunging temperatures crippled the state’s electrical grid and led to hundreds of deaths across Texas.

The prolonged power outages, paired with tens of thousands of burst water pipes, also brought down Houston’s water system. The city at times was unable to send water to customers, including the Harris County Jail and parts of the Texas Medical Center. The system was under a state-mandated boil water advisory for four days. More than a dozen generators failed at city water plants, inhibiting their ability to withstand the electrical outages.

The after-action report includes information about the city’s response and adjustments it has made to plan for future events. It details operational coordination, communication procedures, and emergency medical services, among other information.

The Chronicle requested the report in February 2022 under the Texas Public Information Act, but the city sought the opinion of the attorney general’s office, which said the city must withhold the document. City attorneys argued the information could help criminals or terrorists plot an attack.

The Texas Government Code says municipalities must withhold information that is collected “for the purpose of preventing, detecting, responding to, or investigating an act of terrorism or related criminal activity,” and relates to staffing requirement and tactical plans. It also allows an exemption for assessments about how to protect people, property or critical infrastructure from terrorism or criminal activity. Those exemptions were added as part of the Homeland Security Act, passed by the Texas Legislature in 2003.

[…]

Joseph Larsen, a Houston attorney who has worked on public information cases, said the issue lies in the broad interpretation of the exemptions by governments seeking to withhold documents, the attorney general’s office tasked with enforcing it, and the courts that review those decisions.

“Their hands are not tied, that’s just ridiculous. They can release the report if they want to,” Larsen said of the city. “This is one of the very worst exceptions… It can be used to basically withhold anything.”

Governments often use the terrorism exemption to the Texas Public Information Act to shield weather readiness plans, Larsen said. Similar arguments were made to conceal plans made after Hurricane Ike. And the city is not the only one to use it for the winter storm. The Public Utility Commission, which oversees the state’s electrical grid, has been raising the same argument, according to Larsen.

The open records law is supposed to be “liberally construed in favor of granting a request for information,” the attorney general’s office has said. Exceptions to that rule should be interpreted narrowly, Larsen said.

“They’re not being narrowly interpreted, and that’s just a fact,” Larsen said. “They allow government bodies to cover their behinds for any specific event, and it prevents the public from actually fixing the problems, which is the whole point of freedom of information.”

I can believe that the existing law could be interpreted broadly enough to exclude this after-action report, and I can certainly believe that Ken Paxton’s office would prefer a sufficiently broad interpretation so as to keep most government activity under wraps. That doesn’t mean this is a good idea or that it’s the correct interpretation of the law. I don’t see what’s wrong with just doing a little redaction if there is some legitimately sensitive operational data in there. Blocking the whole thing, especially when there has already been reporting about what the city will do differently now, seems to me to serve no one. We can do better than that.

Two redistricting lawsuit updates

Legislators involved in the most recent redistricting effort can be made to sit for depositions.

The Supreme Court refused Tuesday to block the deposition of Texas lawmakers in redistricting suits.

Mum as to whether there were any dissents, the order from the justices keeps in place a lower court ruling that will force Republican lawmakers to appear for depositions in suits claiming that Texas’ redistricting plans are discriminatory. Per their custom, the justices also did not offer any explanation for their ruling.

The United States subpoenaed three Texas lawmakers at the beginning of the month to testify in a challenge to the state’s 2021 congressional and state House redistricting plans. The Department of Justice and voting rights groups claim the new maps violate Section 2 of the Voting Rights Act by intentionally discriminating against minority voters in West Texas and the Dallas-Fort Worth area.

Representatives Ryan Guillen, Brooks Landgraf and John Lujan tried to limit their testimony to matters in the public record, but a federal judge denied their motion and their attempt to block the testimony altogether. Likewise the Fifth Circuit refused to enter a stay pending appeal that would block their testimony.

In their application to the high court, Texas lawmakers claim they have the privilege and immunity to avoid testifying in the suits.

“The legislators’ depositions will probe the very innerworkings of the legislative process, examining the legislators’ thoughts, impressions, and motivations for their legislative acts,” wrote Taylor A.R. Meehan, an attorney with Consovoy McCarthy representing the lawmakers.

He also warned that lawmakers would have to answer questions in full the “proverbial ‘cat is out of the bag.’ And the twin safeguards of legislative immunity and privilege — older than the country itself — are no safeguards at all.”

The Justice Department said the depositions were routine.

“Courts, including this Court, often rely on such testimony both in assessing the motive and justification for districting choices and in considering the ‘totality of circumstances’ relevant to minority voters’ electoral opportunities, as the VRA directs,” Solicitor General Elizabeth Prelogar wrote in the government’s opposition brief.

The government notes that Lujan has a particularly weak claim to legislative privilege since he was not in the Legislature when the redistricting plans were passed.

“Representative John Lujan, does not have even an arguable claim of legislative privilege with respect to the challenged districting plans because he was not in the legislature when the plans were passed — a critical fact that applicants do not mention,” Prelogar wrote.

This is from the LULAC lawsuit, which is now consolidated with most of the other federal lawsuits. The order is from a couple of weeks ago, as the depositions were set to begin the week of May 24. SCOTUS just never took up the defendants’ motion, so they did not get an order to protect them from being deposed. This is not going to change the overall trajectory of the litigation, but it ought to lead to some interesting facts for the eventual hearings. Lujan as noted was not a legislator when the maps were passed in the special session, so who knows what he thinks he has to keep quiet about, while Guillen was still a Democrat when this was all happening. Should make for some fun questions, if nothing else.

The other federal lawsuit, which was not combined with the LULAC et al complaint, is the one filed by the Justice Department. That one survived a motion to dismiss:

A federal judge has ruled that U.S. Attorney General Merrick Garland can proceed with voting and civil rights claims against Texas over a state law passed last year to address purported voter fraud.

State officials had asked U.S. District Court Judge Xavier Rodriguez to dismiss the case, arguing that federal officials did not have standing to sue them. They argued that local election officials — not state ones — were charged with implementing the new law.

The George W. Bush appointee disagreed in an order Tuesday, finding the U.S. attorney general has “broad constitutional power to protect the right to vote” and is “congressionally authorized” to go after voting rights violations.

The federal government had a “significant stake” in protecting “the general welfare of its citizenry,” Rodriguez wrote. He found the U.S. government had plausibly alleged that Texas law would “disenfranchise eligible Texas citizens who seek to exercise their vote,” including those with disabilities, limited knowledge of English and “members of the military deployed away from home.”

[…]

In November, the U.S. attorney general’s office intervened, expressing an interest the [LULAC et al consolidated] case and urging Rodriguez not to dismiss the claims. Voting lawsuits brought by private groups were necessary, the filing argued, due to the “limited federal resources available for Voting Rights Act enforcement” and because states with histories of voter restrictions no longer had to seek federal preclearance for voting changes following the 2013 U.S. Supreme Court decision in Shelby County v. Holder.

Later that month, the AG’s office also filed suit against the Lone Star State. In a strongly worded complaint, federal officials argued that Texas already had some of the “strictest [voting] limitations in the nation” and that SB1 would “impermissibly” restrict and disenfranchise voters.

Texas’s “history of official voting-related discrimination against its disfavored citizens is longstanding and well-documented,” the complaint said. “Federal intervention has been necessary to eliminate numerous devices intentionally used to restrict minority voting in Texas.”

This lengthy and complex legal battle, involving a variety of parties, led up to Tuesday’s order. Over the months, Texas officials have tried numerous avenues to dismiss the case.

Among other things, state officials zeroed in on the state’s new voter ID and mail-in ballot requirements. Because the state allows voters to “cure” their ballots, they argued, the law did not deny the right to vote.

Rodriguez rejected this argument and others, writing that a voter’s opportunity to cure their ballot “does not necessarily mean” that SB 1 did not violate the Civil Rights Act. The law does not allow state officials to “initially deny the right to vote…as long as they institute cure processes,” he wrote. Instead, it bars these actions altogether.

He also found that, while local elections officials may be in charge of implementing the law, SB 1 was in fact “traceable” to state officials, and therefore they could be sued. Since the law has so far been in effect for the state’s primary elections, the U.S. government had also alleged an injury, he found.

Rather than issuing an injunction preventing enforcement of parts of SB 1, Rodriguez’s order instead simply allows the U.S. government to continue with its lawsuit. It remains to be seen how the case will play out, including whether controversial aspects of SB 1 will remain in effect for the 2022 midterm elections later this year.

There’s a long road ahead for this litigation, and at the end awaits a US Supreme Court that is extremely hostile to voting rights. But you have to start somewhere, and who knows, maybe the landscape will change by that time.

SCOTx answers the Fifth Circuit’s questions

Some late-breaking SB1 lawsuit news.

The Texas Supreme Court issued a ruling Friday on the term “solicit” as it pertains to the state’s new election code.

[…]

Of three main issues, one raised several questions pertaining to the definition of “solicit.” The questions arose after the plaintiff, Harris County Elections Administrator Isabel Longoria, argued the vagueness of the term. In one argument, Longoria’s attorneys requested that the term “solicit” be tethered only to vote-by-mail applications sent to those ineligible voters.

State justices rejected that request.

“The statute does not prohibit solicitation merely of those ineligible to vote by mail. Its text leaves no doubt that the prohibition extends more broadly to the larger universe of persons who ‘did not request an application,’” the opinion read.

In a second request, Longoria’s team argued that “solicitation” in its broad definition could include terms that are less forceful in nature, including “encourage” or “request.

The defendant, Texas Attorney General Ken Paxton’s team, said it defined “solicit” as beyond encouragement, but more so “importuning or strongly urging.” Paxton said that stating “please fill out this application to vote by mail” would constitute solicitation.

While justices refrained from defining “solicit,” stating they were not requested to, they agreed with Paxton that “solicit” is not limited to demands that a person submit an application to vote by mail, but includes statements such as “please fill out this application to vote by mail.”

But justices did find that telling potential voters they have the opportunity to apply for mail-in ballots does not constitute solicitation.

“The Legislature intended to distinguish between merely informing Texans of the option to vote by mail and soliciting them to submit an application to vote by mail when they have not requested one,” the opinion read. “Without expressing an opinion as to any particular statement plaintiffs may wish to make, we conclude that (the law) does not include broad statements such as telling potential voters that they have the opportunity to apply for mail-in ballots.”

See here and here for the background, and here for the opinion. As noted in the previous update, by this time both sides had agreed that Volunteer Deputy Registrars (VDRs) were not public officials and (I presume) not covered by SB1, and that the Attorney General did not have enforcement power for SB1 (not clear to me if District Attorneys might, however). I expect this means that the Fifth Circuit will rule that plaintiff Cathy Morgan, who is a VDR, has no standing to sue.

On the three-part question that SCOTx did have to answer, my reading is that under SB1 it would be illegal for a county elections administrator to pre-emptively send a vote by mail application to everyone who is eligible to vote by mail, as Chris Hollins did in 2020. Such applications can only be sent to people who ask for them. Providing general information about the vote by mail process, including how to apply, would not be barred. I still think the whole thing is a ridiculous over-reaction to what Hollins did in 2020, and that we should be making it easier to vote by mail in general, but all things considered, compared to where we were before SB1, this isn’t a major setback.

It should be noted that there’s still a lot of room for future disputes here, which likely will remain the case even after a final ruling in this lawsuit. From the opinion, on the matter of the definition of the word “solicit”:

The Fifth Circuit next asks whether “solicits” is “limited to demanding submission of an application for mail-in ballots (whether or not the applicant qualifies).” 2022 WL 832239, at *6. Plaintiffs suggest that the ordinary meaning of “solicit” includes speech that lacks the insistence normally associated with a demand. According to Plaintiffs, the term’s ordinary meaning includes speech that is far less forceful. Indeed, under their view, solicitation includes all the following: “requesting, urging, encouraging, seeking, imploring, or inducing.”

Paxton argues that the Legislature could not have intended to sweep so broadly. He argues, for example, that “solicits” cannot include mere encouragement of an action because the Legislature has used both “solicits” and “encourages” in many statutes, indicating that they have different meanings. See, e.g., TEX. EDUC. CODE § 37.152(a) (“A person commits an offense if the person . . . solicits, encourages, directs, aids, or attempts to aid another in engaging in hazing . . . .”); TEX. PENAL CODE § 7.02(a)(2) (holding a person criminally responsible for another’s offense if the person “solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense”); cf. TEX. ELEC. CODE § 13.031(a) (stating that the purpose of appointing VDRs is “[t]o encourage voter registration”). Paxton urges us to define “solicits” to exclude mere encouragement and to require “importuning or strongly urging.” But Paxton also concedes that stating “please fill out this application to vote by mail” would constitute solicitation.

Whether a particular statement constitutes solicitation for purposes of Section 276.016(a)(1) will, of course, be informed by the precise words spoken and by surrounding context. We therefore do not endeavor to articulate today a comprehensive definition of “solicits” as the term is used in Section 276.016(a)(1). Nor do we express an opinion as to whether any of the general categories of statements Plaintiffs say they wish to make constitutes solicitation. We will leave for another case, with a more developed record, the task of defining the term’s outer reach. For today, we believe it is sufficient to hold that, for purposes of Section 276.016(a)(1), “solicits” is not limited to demands that a person submit an application to vote by mail. As Paxton acknowledges, “solicits” includes statements that fall short of a demand, such as “please fill out this application to vote by mail.”

So Isabel Longoria is arguing that SB1 is super-restrictive on this point, while Ken Paxton is saying, nah, not really. The Court is saying they don’t want to get involved just yet, better to see what happens in the real world rather than rule on hypotheticals, and work with a more complete set of facts. If the parties’ arguments seem backwards to you, the Court addressed that in a footnote:

In a criminal prosecution (or civil-enforcement action), one ordinarily might expect the government to take a broad view of the statute’s application and the defendant to take a narrow view. But to establish (or defeat) a plaintiff’s standing in a pre-enforcement challenge, the plaintiff has an incentive to argue that the statute does apply to her, while the government has an incentive to argue it does not. The unusual dynamic present here contributes to our reluctance to make wide-ranging proclamations on the issues of state law presented.

In other words, at this point in time before the law has really been applied to anyone, the plaintiffs want the Court to believe that the law is vast and (they claim) over-reaching and must be struck down, while the defense wants the Court to think that the law is more modest and thus not a threat to anyone’s Constitutional liberties. Needless to say, when the law is eventually enforced by someone, those arguments will be reversed.

So it’s now back to the Fifth Circuit. I wish there had been more coverage of this – I grant, the opinion dropped on Friday afternoon and some people have lives – but so far all I’ve seen is this story from a site in Greenville (?) and one from a partisan site; I also found paywalled stories at Law.com and Bloomberg Law, but couldn’t read them. Maybe next week one of the regulars will have something, which I hope will include a bit of analysis from someone with actual law knowledge. Until then, this is what I think I know.

Restraining order given in latest lawsuit to stop DFPS investigations

Good.

An Austin judge has temporarily stopped the state from investigating many parents who provide gender-affirming care to their transgender children. The state has ruled out allegations of child abuse against one family under investigation, but at least eight more cases remain open.

Travis County District Judge Jan Soifer issued a temporary restraining order Friday in a lawsuit filed on behalf of three families and members of PFLAG, an LGBTQ advocacy group that claims more than 600 members in Texas.

Brian K. Bond, executive director of PFLAG National, applauded the decision to stop what he called “invasive, unnecessary and unnerving investigations.”

“However, let’s be clear: These investigations into loving and affirming families shouldn’t be happening in the first place,” Bond said in a statement.

[…]

This new lawsuit, filed Wednesday by the American Civil Liberties Union and Lambda Legal, seeks to block investigations into all parents of transgender children who belong to PFLAG.

During Friday’s hearing, Lambda Legal’s Paul Castillo revealed that the state has ruled out allegations of child abuse against Amber and Adam Briggle, who were under investigation for providing gender-affirming care to their 14-year-old son.

The Briggle family, outspoken advocates for transgender rights, once invited Republican Attorney General Ken Paxton over for dinner. Five years later, they ended up at the center of a child abuse investigation that stemmed, in part, from a nonbinding legal opinion that Paxton issued in February.

While their case has been closed, many others remain ongoing. Castillo said one of the families involved in the lawsuit was visited by DFPS investigators Friday morning.

“I do want to highlight for the court that every plaintiff in this case has illustrated the stress and trauma of even the potential of having a child removed, merely based on the suspicion that the family has pursued the medically necessary course of care that is prescribed by their doctor for gender dysphoria,” Castillo said.

See here for the background, and here for an account from Lambda Legal. The investigation into the Briggle family had apparently been dropped before the hearing, but as noted the others were still active. The judge has directed the lawyers to schedule a hearing in the coming days, at which time we’ll see if the order gets extended. While DFPS had restarted investigations following the Supreme Court’s lifting of the statewide injunction, the investigation of the family from that original case is still paused, so most likely these families will get the same relief. It’s just a shame that they have to go to such lengths to get it.

I would encourage you to read this Twitter thread by DMN reporter Lauren McGaughy, who live-tweeted the hearing. It’s obvious from the way the state argued the case and responded to the judge’s questions that they know they’re on extremely shaky ground – they’re minimizing the Abbott/Paxton order at every turn, and just not engaging the questions as much as they can. That’s not a guarantee of success for these or other plaintiffs going forward, and the next Legislature could enshrine these orders as law if the Republicans remain in control, but it’s important to see the lack of faith in their own case. The Chron has more.

New lawsuit filed to stop DFPS “investigation” of trans kids and their families

From the inbox:

The American Civil Liberties Union, Lambda Legal, and the ACLU of Texas, along with Texas-based law firm Baker Botts LLP, today filed a new lawsuit in Texas state court on behalf of PFLAG National and three Texas families. The suit requests that the court block state investigations of PFLAG families in Texas who are supporting their transgender children with medically necessary health care.

The lawsuit names Texas Gov. Greg Abbott, who issued a February directive stating that health care that is medically necessary for treating gender dysphoria should be considered a form of child abuse. The suit also names Department of Family and Protective Services (DFPS) Commissioner Jaime Masters and DFPS as defendants.

“For nearly 50 years, PFLAG parents have united against government efforts to harm their LGBTQ+ kids. By going after trans kids and their families, Gov. Abbott has picked a fight with thousands of families in Texas and across the country who are united as members of PFLAG National,” said Brian K. Bond, Executive Director of PFLAG National. “Loving and affirming your child and empowering them to be themselves is the highest calling of any parent, no matter your child’s gender. If it takes a court ruling to ensure that the law protects families who lead with love in support of transgender Texans, so be it.”

PFLAG provides confidential peer support, education, and advocacy to LGBTQIA+ people, their parents and families, and allies. With a nationwide network of hundreds of chapters—including 17 in Texas—PFLAG National works with families, schools, and communities to build safety and support for transgender youth.

In an earlier lawsuit brought by the ACLU, Lambda Legal, ACLU of Texas, and Baker Botts, the Texas Supreme Court upheld part of an appeals court order preventing DFPS from investigating parents who work with medical professionals to provide their adolescent transgender children with medically necessary health care. That case, Doe v. Abbott, is still pending.

While the Texas Supreme Court emphasized that neither Attorney General Ken Paxton nor Governor Abbott have the power or authority to direct DFPS to investigate the provision of essential and often lifesaving medical care for transgender youth as child abuse, the court limited the order blocking all investigations to the specific plaintiffs who filed suit.

“It is indefensible for any state leader to repeatedly attack trans Texans and weaponize the child welfare system against the loving families of transgender kids and teens.” said Adri Pérez, policy and advocacy strategist at the ACLU of Texas. “We will continue to fight against these baseless attacks on our community. Transgender kids deserve to have life-saving gender-affirming care in Texas, so that they might live safely to grow up to be transgender adults. During this Pride Month, we must take a stand against government leaders that are hellbent on stoking fear, and trying to criminalize transgender young people and their families.”

“Notwithstanding the clear language in the recent Texas Supreme Court ruling that Attorney General Paxton and Gov. Abbott do not have the power or authority to direct DFPS to investigate loving families who are providing medically necessary care for their transgender adolescents as child abuse, the agency seems determined to target these families and threaten to tear them apart,” Lambda Legal Senior Counsel Paul D. Castillo said. “With today’s filing, we are joining with PFLAG in working to protect all Texas families who simply want to make sure their children are safe, happy, and healthy. It is unconscionable that the state wants to interfere in that relationship.”

See here for some background, and here for a copy of the lawsuit, filed on behalf of two anonymous families plus the Briggle family. With the resumption of these investigations by DFPS, this is the only way for these folks to protect themselves. Based on what has happened so far I would expect them to get their restraining orders, and after that we’ll have to see what happens with the original case and its eventual appeals. Until we can get a better government in place, I hope we see more of these lawsuits, enough to cover everyone who will need it. The Trib has more.

McConaughey opines for gun control

Not bad.

I believe that responsible, law-abiding Americans have a Second Amendment right, enshrined by our founders, to bear arms. I also believe we have a cultural obligation to take steps toward slowing down the senseless killing of our children. The debate about gun control has delivered nothing but status quo. It’s time we talk about gun responsibility.

There is a difference between control and responsibility. The first is a mandate that can infringe on our right; the second is a duty that will preserve it. There is no constitutional barrier to gun responsibility. Keeping firearms out of the hands of dangerous people is not only the responsible thing to do, it is the best way to protect the Second Amendment. We can do both.

Depraved acts of violence, with guns as the weapon of choice, are ripping apart families, tearing at people’s faith, and shredding the fabric of our society. We have an epidemic of indiscriminate mass shootings, of parents burying their children, of inaction, and buck-passing. Saving the unnecessary loss of lives is not a partisan issue.

The need for mental health care, school safety, the prevalence of sensationalized media coverage, and the decaying state of American values are all long-term societal factors that must be addressed, but right now, we don’t have the luxury of time. We need to focus on corrections and countermeasures that can also and immediately reduce the gun violence tragedies that have become too common in our country.

We need to make the lost lives matter. Our leaders must make bipartisan compromises on a few reasonable measures to restore responsible gun ownership in our country.

He goes on to support enhanced background checks, raising the age for buying assault weapons to 21, national red flag laws, and a national waiting period for assault rifles, and he’s also now advocating for them in public. You could certainly go farther on a number of these, like all the way to an assault weapons ban like we once had, and he studiously refuses to name the reason why no gun control laws can be passed (it’s so much easier to make grand “both sides” pronouncements), but if we did manage to get these items it would be a step forward, and it can’t hurt to have someone like Matthew McConaughey make the case for them. So, two and a half cheers, B+ for the effort, and so on. Via Reform Austin.

More on how abortion bans will be enforced

It’s all about the data.

The Supreme Court is shortly expected to issue its decision on a challenge to Roe v. Wade that will—if a leaked draft version of the opinion holds—end federal protection for abortion access across the US. If that happens, it will have far-reaching consequences for millions of people. One of those is that it could significantly increase the risk that anti-abortion activists will use surveillance and data collection to track and identify people seeking abortions, sending authorities information that could lead to criminal proceedings.

Opponents of abortion have been using methods like license plate tracking for decades. In front of many clinics around the US, it remains a daily reality.

[…]

“The biggest fear, I think, is that there are going to be states that not only ban abortion in short order, but start criminalizing pregnant people who are seeking abortion services even out of state,” says Nathan Wessler, the deputy project director of the Speech, Privacy, and Technology Project at the ACLU.

Some states that protect abortion services might be able to limit what out-of-state law enforcement can do directly, he notes, but that “doesn’t mean that there won’t be anti-abortion vigilantes recording information [outside of clinics] and then sending it to aggressive prosecutors in abortion-banned states.”

There is evidence that anti-abortion activists are already keeping close track of legal abortion activity. In 2014, for example, a recording surfaced of a training session for Texas anti-abortion activists, led by Karen Garnett of the Catholic Pro-Life Committee of North Texas. In it, Garnett explained how license plate tracking is used to keep tabs on both a clinic’s clients and its doctors.

“You track license plates … coming into any abortion facility. We have a very sophisticated spreadsheet. This way you can track whether or not a client comes back,” she said in the video.

We’ve discussed this before, and I said at the time that any real enforcement effort is going to involve a lot of invasive searches. License plate tracking is an old technique – as the story notes, it goes back to at least the 90s – but there are much more modern strategies as well.

A location data firm is selling information related to visits to clinics that provide abortions including Planned Parenthood facilities, showing where groups of people visiting the locations came from, how long they stayed there, and where they then went afterwards, according to sets of the data purchased by Motherboard.

[…]

How data collecting intersects with abortion rights, or the lack thereof, is likely to gather more attention in the wake of the draft. The country may also see an increase in vigilante activity or forms of surveillance and harassment against those seeking or providing abortions. With this aggregated location data available to anyone on the open market, customers could include anti-abortion vigilantes as well. Anti-abortion groups are already fairly adept at using novel technology for their goals. In 2016, an advertising CEO who worked with anti-abortion and Christian groups sent targeted advertisements to women sitting in Planned Parenthood clinics in an attempt to change their decision around getting an abortion. The sale of the location data raises questions around why companies are selling data based on abortion clinics specifically, and whether they should introduce more safeguards around the purchase of that information, if be selling it at all.

“It’s bonkers dangerous to have abortion clinics and then let someone buy the census tracks where people are coming from to visit that abortion clinic,” Zach Edwards, a cybersecurity researcher who closely tracks the data selling marketplace, told Motherboard in an online chat after reviewing the data. “This is how you dox someone traveling across state lines for abortions—how you dox clinics providing this service.”

Read the rest and do a little googling yourself. It’s very possible to identify people who have visited abortion clinics from “anonymized” location data and census tracks, especially people who live in less populated places. Geofencing, which has been used in the past for targeted anti-abortion advertising, may be used by law enforcement agencies that are all in on the forced birth agenda. It’s scary stuff. And when you see it happen, don’t say you couldn’t have known.

Radack drops his redistricting lawsuit

From the inbox:

Former Harris County Commissioner Steve Radack voluntarily dismissed the lawsuit he filed against Harris County Commissioners Court alleging Commissioners Court violated the Open Meetings Act during county redistricting.

Below is a statement from Harris County Attorney Christian D. Menefee on the lawsuit:

“I’m glad this frivolous lawsuit was dismissed. The County ran a transparent, thorough redistricting process. My office will continue working with each of the Commissioners to ensure the transition process is as seamless as possible.”

The suit sought to have the new Commissioners Court map invalidated and alleged court members violated state law by not making the map public at least 72 hours prior to the meeting at which that map was approved.

As you may recall, first there was a lawsuit filed by Commissioners Cagle and Ramsey along with a couple of voters, which claimed that redrawing of Commissioners Court precincts was a voting rights violation because people who would have voted for Commissioner in 2022 would have to wait until 2024. It was dismissed by a Harris County civil district court judge on the grounds that the plaintiffs did not have jurisdiction to sue. A subsequent writ of mandamus to the Supreme Court was denied mostly on procedural grounds, as there would be no time to take any action as the primaries had already begun. The initial lawsuit is as I understand it pending an appeal to the First Court of Appeals, and SCOTx did not rule on the merits of the litigation so we could see a ruling against the county at some point in the future.

The Radack lawsuit was filed on December 31, shortly after the first lawsuit was dismissed by the district court. It claimed that commissioners violated the Open Meetings Act because they did not make public the map that ultimately was approved within 72 hours of the meeting. As far as I know, this suit never had a hearing in court. I checked with the County Attorney’s office and the pending appeal to the First Court is the only active litigation over county redistricting at this time. So there you have it.

UPDATE: Here’s a Chron story about it.

If committees are all we’re going to get, then let’s get something from the committees

Not too much to ask, I hope.

Texas House Speaker Dade Phelan on Friday announced the creation of a legislative committee to investigate the Uvalde shooting.

“The fact we still do not have an accurate picture of what exactly happened in Uvalde is an outrage,” the Beaumont Republican said in a statement announcing the committee. “Every day, we receive new information that conflicts with previous reports, making it not only difficult for authorities to figure out next steps, but for the grieving families of the victims to receive closure. I established this investigative committee for the dedicated purpose of gathering as much information and evidence as possible to help inform the House’s response to this tragedy and deliver desperately needed answers to the people of Uvalde and the State of Texas.”

The three-person investigative committee will have subpoena power for its investigation and will be led by state Rep. Dustin Burrows, a Lubbock Republican who is an attorney. El Paso Democrat Joe Moody, a former prosecutor, will serve as the committee’s vice chair. Former Supreme Court Justice Eva Guzman, who recently lost a bid to become the Republican nominee for attorney general, will also be a member of the panel.

Phelan said Burrows, Moody and Guzman have “decades of experience in civil and criminal litigation matters” that make them well-equipped to conduct the committee’s investigations.

The speaker’s latest announcement comes days after he voiced his support for ending the “dead suspect loophole” in Texas public records laws, which could impede the public’s ability to get answers about the police response to the shooting. Law enforcement agencies often use a statute in the law to shield from public release records related to incidents that don’t lead to a conviction, including in cases in which the suspect dies before a chance to prosecute.

“It’s time we pass legislation to end the dead suspect loophole for good in 2023,” he said on social media on Wednesday.

Better than its Senate counterpart, which is admittedly a low bar. I’d not heard of the “dead suspect loophole” before. I’m fine with closing it, but please don’t tell me it’s going to promote gun safety or reduce gun violence in any way. It’s worth doing on its own merits, and it would mean the Lege didn’t do absolutely nothing. It’s also an extremely small step to take, and we should not be close to satisfied with it.

I do hope this committee uses its subpoena powers, because good Lord there are so many things that still need to be explained.

The Uvalde school district police chief who led the response to last week’s shooting and made the decision to wait for reinforcements while the gunman and survivors were still in the building did not have a police radio when he first arrived on campus, possibly missing reports about the 911 calls coming from inside, according to news reports.

Pete Arredondo, police chief for the Uvalde Consolidated Independent School District, instead used a cellphone to call a police landline to tell officers about the shooter, The New York Times reported Friday. Arredondo told his department that the gunman had an AR-15 but was contained, the Times reported, and to send backup and surround Robb Elementary School.

Arredondo’s decision-making has been widely criticized after it took more than an hour for law enforcement to breach the classroom where the gunman was holed up. Parents begged the dozens of officers outside the school to take action and tried to enter the school themselves. Some were physically restrained.

It was Arredondo who decided to not immediately confront the gunman, who killed 19 children and two teachers and injured 17 others, state law enforcement officials have said. Instead, Arredondo chose to wait for backup and equipment and to treat the gunman as a “barricaded suspect” rather than an active shooter, Steve McCraw, head of the Texas Department of Public Safety, said last week.

Meanwhile, 911 calls from students trapped inside the classroom with the gunman were pouring in to local police dispatchers — including a student begging for police officers to show up. Those calls were routed to the Uvalde Police Department, which operates independently from the school district’s police force, Roland Gutierrez, the state senator who represents Uvalde, said Thursday.

Arredondo presumably did not know about the multiple 911 calls while he was on the scene. McCraw said Arredondo believed no children were in danger, possibly because he did not know any survived inside the classroom.

“Unless there was someone relaying him info, there was no way for him to know there were 911 calls coming from inside that room,” Gutierrez told TV news station WOAI on Friday.

Unbelievable, but at this point unsurprising. The problems go way deeper than one incompetent police chief, and while he deserves a lot of blame and needs to be made to answer a bunch of questions, scapegoating him doesn’t get us anywhere. Just again, don’t ever talk to me about “good guys with guns”. It was idiotic before, and it’s insulting now. Daily Kos has more.

Social media monitoring is not a solution to school shootings

While current Republican “solutions” for gun violence include door control and arming teachers, one “solution” that has been in place for the past few years has been monitoring social media for signs of gun-related threats. That was in place in Uvalde, and it was not effective.

After a shooter killed 21 people, including 19 children, in the massacre at Robb Elementary School in Uvalde, Texas, last week, the United States is yet again confronting the devastating impact of gun violence. While lawmakers have so far failed to pass meaningful reform, schools are searching for ways to prevent a similar tragedy on their own campuses. Recent history, as well as government spending records, indicate that one of the most common responses from education officials is to invest in more surveillance technology.

In recent years, schools have installed everything from facial recognition software to AI-based tech, including programs that purportedly detect signs of brandished weapons and online screening tools that scan students’ communications for mentions of potential violence. The startups selling this tech have claimed that these systems can help school officials intervene before a crisis happens or respond more quickly when one is occurring. Pro-gun politicians have also advocated for this kind of technology, and argued that if schools implement enough monitoring, they can prevent mass shootings.

The problem is that there’s very little evidence that surveillance technology effectively stops these kinds of tragedies. Experts even warn that these systems can create a culture of surveillance at schools that harms students. At many schools, networks of cameras running AI-based software would join other forms of surveillance that schools already have, like metal detectors and on-campus police officers.

“In an attempt to stop, let’s say, a shooter like what happened at Uvalde, those schools have actually extended a cost to the students that attend them,” Odis Johnson Jr, the executive director of the Johns Hopkins Center for Safe and Healthy Schools, told Recode. “There are other things we now have to consider when we seek to fortify our schools, which makes them feel like prisons and the students themselves feel like suspects.”

[…]

Even before the mass shooting in Uvalde, many schools in Texas had already installed some form of surveillance tech. In 2019, the state passed a law to “harden” schools, and within the US, Texas has the most contracts with digital surveillance companies, according to an analysis of government spending data conducted by the Dallas Morning News. The state’s investment in “security and monitoring” services has grown from $68 per student to $113 per student over the past decade, according to Chelsea Barabas, an MIT researcher studying the security systems deployed at Texas schools. Spending on social work services, however, grew from $25 per student to just $32 per student during the same time period. The gap between these two areas of spending is widest in the state’s most racially diverse school districts.

The Uvalde school district had already acquired various forms of security tech. One of those surveillance tools is a visitor management service sold by a company called Raptor Technologies. Another is a social media monitoring tool called Social Sentinel, which is supposed to “identify any possible threats that might be made against students and or staff within the school district,” according to a document from the 2019-2020 school year.

It’s so far unclear exactly which surveillance tools may have been in use at Robb Elementary School during the mass shooting. JP Guilbault, the CEO of Social Sentinel’s parent company, Navigate360, told Recode that the tool plays “an important role as an early warning system beyond shootings.” He claimed that Social Sentinel can detect “suicidal, homicidal, bullying, and other harmful language that is public and connected to district-, school-, or staff-identified names as well as social media handles and hashtags associated with school-identified pages.”

“We are not currently aware of any specific links connecting the gunman to the Uvalde Consolidated Independent School District or Robb Elementary on any public social media sites,” Guilbault added. The Uvalde gunman did post ominous photos of two rifles on his Instagram account before the shooting, but there’s no evidence that he publicly threatened any of the schools in the district. He privately messaged a girl he did not know that he planned to shoot an elementary school.

Any kind of surveillance involves a tradeoff between privacy and security. So far, the security gains from software like this are small, while the loss of privacy – which to be clear here is the privacy of children – is significant.

For privacy advocates, the lack of evidence for the technology’s effectiveness means that there are no sufficient grounds for the potential violations of privacy that come with its use. Hye Jung Han, a researcher at Human Rights Watch specializing in child rights, told The Verge that using surveillance technology on children could cause unwarranted harm:

“Could you imagine schools using toxic materials to build classrooms, even if it hadn’t met any safety standards? No,” said Han. “Similarly, to use unproven, untested surveillance technologies on children, without first checking whether they are safe to use, exposes children to an unacceptable risk of harm.”

Multiple requests for comment sent to Navigate360 — which acquired Social Sentinel in 2020 — did not receive a response.

The Uvalde school district was confirmed to have purchased monitoring capability from Social Sentinel in 2019–2020, though it is unclear whether the subscription was still active at the time of the shooting. However, even if it had been, the technology would have been unlikely to flag any of the shooter’s posts. There are now numerous reports of concerning activity surrounding the shooter’s online activity: he allegedly made frequent threats to young women and girls via chat apps, sent images of guns to acquaintances, and reportedly discussed carrying out the school shooting in an Instagram chat. But Social Sentinel is only able to monitor public posts and would not have had access to any content shared in private messages.

At the same time, there are significant privacy concerns with the software. In 2019, the Brennan Center for Justice outlined a range of civil and human rights concerns stemming from expanded social media monitoring in K-12 schools, among them the questionable effectiveness of the technology in combination with a tendency to disproportionately impact students from minority communities. In the same year, reporting by Education Week also covered the dramatic expansion of digital surveillance in schools, highlighting the large number of false positives generated by Social Sentinel’s technology. (Alerts were reportedly triggered by tweets about the Mark Wahlberg movie, Shooter and from a student pleased their credit score was “shooting up,” among other things.)

Of all US states, Texas has been the most enthusiastic about the use of digital surveillance for school children. A 2021 investigation by The Dallas Morning News found that no state has more school districts contracting with digital surveillance companies than Texas. But of the Texas districts that did take out these contracts, results were apparently mixed: a number of school districts that had paid for Social Sentinel told the Morning News that they had declined to renew contracts, describing a service that provided few actionable alerts or flagged mostly irrelevant information.

But while Social Sentinel advertises an ability to monitor a broad range of platforms, there’s some suggestion that its surveillance capabilities are dictated more by the accessibility of data sources than by their importance. A client presentation from the company shared by the EFF lists a range of social media sources for monitoring, including Instagram, YouTube, Vimeo, Flickr, Tumblr, WordPress, and even Meetup.

Data obtained by BuzzFeed News confirmed this through data obtained under the Freedom of Information Act, which showed the company skewed heavily towards Twitter monitoring. Of the 1,206 Social Sentinel alerts provided to BuzzFeed, 98 percent (1,180) related to tweets — even though Instagram, YouTube, and even Facebook are more widely used by younger demographics. But the conventions of Twitter — where the vast majority of posts are publicly visible, even unintentionally — mean that it is comparatively easier to monitor, providing a wealth of social media data on tap that can be assimilated by companies looking to boost their surveillance credentials.

The DMN reports that some of the school districts that kicked the tires on Social Sentinel later decided it wasn’t worth it.

Uvalde is among at least 52 school districts and three colleges in Texas that have used the Social Sentinel service, according to records from GovSpend, an organization that tracks state and local government spending. It has also been used by dozens of colleges and hundreds of school districts nationwide.

Uvalde purchased Social Sentinel in August 2019, according to GovSpend. A document from the 2019-2020 school year lists the service as one of the district’s “preventative security measures.”

“UCISD utilizes Social Sentinel to monitor all social media with a connection to Uvalde as a measure to identify any possible threats that might be made against students and or staff within the school district,” the document reads.

The district made two payments to the company totaling more than $9,900, the data show.

Several Texas districts that have used Social Sentinel complained the service was mostly ineffective. The News reached out to every school district that used Social Sentinel, including Uvalde, for comment last year. Clear Creek ISD, a district outside of Houston, used the service in the 2018-19 school year but soon canceled.

“The Clear Creek Independent School District discontinued the use of Social Sentinel in its first year,” Elaina Polsen, Clear Creek’s chief communications officer, told The News last year. “The District determined the service just did not meet our needs, and we were receiving far stronger information through our anonymous tip line.”

Representatives from Keller, Lewisville, Mineral Wells and Schertz-Cibolo school districts also said the service provided them with few alerts or alerts that contained mostly irrelevant information.

HISD does not appear to have been a user of Social Sentinel, so we’ve got that going for us. There are other companies with similar products out there, so be on the lookout for that kind of pitch. It’s not out of the question to me that a tool like this could be effective at some point (we would still have to debate the privacy impact, and I can just about guarantee that it won’t be good), but we’re not there yet and it may be awhile before we can reasonably broach the subject. In the meantime, I dunno, maybe ban assault weapons again like we did in the 90s? Worked pretty well back then, and it didn’t involve snooping on things kids were saying among themselves. Just a thought.

(FYI, I first heard about Social Sentinel and its connection to Uvalde on the What Next podcast. I went looking for the DMN story from there, and found the others in the same search.)

There’s only so much that Austin (or any other Texas city) can do to protect abortion rights

I appreciate this, I really do, but it’s important to remember that it can only ever be a band-aid, and very likely a temporary one.

The city of Austin is attempting to shield its residents from prosecution under a Texas law that would criminalize almost all abortions if Roe v. Wade is overturned — the first push by a major city in a red state to try to circumvent state abortion policy.

Councilmember Chito Vela is proposing a resolution that would direct the city’s police department to make criminal enforcement, arrest and investigation of abortions its lowest priority and restrict city funds and city staff from being used to investigate, catalogue or report suspected abortions.

“This is not an academic conversation. This is a very real conversation where people’s lives could be destroyed by these criminal prosecutions,” said Vela, who shared the details of the resolution first with POLITICO. “In Texas, you’re an adult at 17. We are looking at the prospect of a 17-year-old girl who has an unplanned pregnancy and is seeking an abortion [being] subjected to first-degree felony charges — up to 99 years in jail — and that’s just absolutely unacceptable.”

[…]

The new resolution doesn’t explicitly decriminalize abortion but rather directs police to make it their lowest enforcement priority in an effort to skirt conflict with state law, Vela said. But it highlights the tension between red state and the blue cities, where a new front in the battle over abortion rights is opening as the Supreme Court prepares to issue a decision on Roe in the coming weeks.

A city of Austin spokesperson said in a statement that “the city is prepared to take the steps necessary to implement this resolution upon passage by City Council.” The council passed a similar measure in 2020 that effectively decriminalized marijuana by ending arrests and fines for low-level possession, which the police department has followed.

Vela said he is having “ongoing conversations” with Austin Police Chief Joseph Chacon about the proposal and hopes the department will comply with the directive. A department spokesperson did not respond to a request for comment.

“The police do not want to be in the middle of this controversy. The police right now in Austin are struggling with staffing,” Vela said. “I don’t think the police want to dedicate resources to these types of, what I would call, ‘political crimes.’”

A spokesperson for state Attorney General Ken Paxton did not respond to a request for comment. Paxton, a Republican, has been at the vanguard of restricting abortion access in Texas, which has been in the spotlight since the state’s six-week abortion ban, enforced through a private right of action, took effect in September 2021.

Austin’s proposal, which aims to protect both patients and providers, comes as an extension of the city’s efforts to preserve abortion access despite the state’s restrictions. The city has, for instance, provided logistical support for abortion access, including transportation, lodging and child care, since 2019 — a model St. Louis is now looking to replicate.

More cities in Texas could be next. Julie Oliver, executive director of Ground Game Texas, a group that pushes for progressive, local ballot measures, said they are looking at pushing similar measures in San Antonio, Houston and Dallas. If that isn’t successful, the group plans to turn to the local ballot initiative process.

“Home rule charter cities have a tremendous amount of leeway and self-governance, and part of that is deciding which laws you’re going to prioritize,” Oliver said. “And so, because you have a finite number of resources in a finite budget, cities are constantly deciding which laws they’re going to enforce and which ones they are not.”

I support the idea and I love the creativity, as we have discussed what progressive cities can do to protect abortion rights. That includes proactive measures to thwart prosecution, which is very much in a city’s purview. The problem with this approach is simply that as long as the state is run by Republicans, they will pass laws to prevent cities from taking these measures and will punish them for even trying. I’m sure I don’t have to recite to you the long list of attacks on local control lately, but we have already seen reporting to say that the Briscoe Cain uterus-invasion caucus will file bills in 2023 to allow other counties to pursue prosecution of anyone who violates the new forced-birth laws if the local DA refuses. It’s not at all far-fetched to imagine state troopers being given the authority to investigate these claims, which I’d bet will come with a bunch of money to hire more staff specifically for that purpose. I’m sure there will be more private vigilante bounties included as well, to help fund the effort. If recent history is any indicator, they will go much farther than anything Austin tries to do, to send a clear message that they will not tolerate any dissent. Do we really want to test that hypothesis?

Please note that I am not saying that any action on our part is pointless and we should just give up. Not at all! I am just saying – again, and again, and again – that we need to win some statewide elections. The Republicans can only do this as long as they are in control, and they will only be incentivized to do this as long as they perceive there’s no price to pay for it. The antidote for that is obvious. I’m not saying it’s easy, and I’m certainly not saying that this will be an opportune year to do it. I’m just saying that as clever and well-intentioned as these ideas sound, they’re sand castles against the tide. The problem is bigger than anything a city can do. We have to solve it at that level if we want to get anywhere. Reform Austin, KVUE, and Daily Kos have more.

The very least Greg Abbott could do

You can always count on him for that.

Gov. Greg Abbott on Wednesday called on the Texas Legislature to form special committees to make legislative recommendations in response to the Uvalde school shooting.

In a letter to House Speaker Dade Phelan and Lt. Gov. Dan Patrick, the Senate’s presiding officer, Abbott told his fellow Republicans that the state “must reassess the twin issues of school safety and mass violence.” He said the committee process should start “immediately” and outlined five topics he would like the committees to take up.

Notably, the topics include “firearm safety.” Abbott last week essentially ruled out gun restrictions as a response to the massacre, in which a gunman killed 19 students and two adults last week at Robb Elementary School. He focused his attention on mental health care and school security in his public comments.

The other topics Abbott charged leadership with making recommendations on were school safety, mental health, social media and police training.

Phelan responded to Abbott’s call by saying in a statement that “conversations about the issues outlined by Gov. Abbott are already underway in the Texas House and will continue to be a top priority in the months leading up to the next school year and the legislative session.” He added that the House “will get to work immediately.”

[…]

Abbott’s critics quickly argued that the time for committees has passed. They pointed out that the Legislature also formed special committees after mass shootings in 2019, and those discussions did not prevent the Uvalde school shooting from happening.

Abbott’s Democratic challenger for reelection, Beto O’Rourke, panned Abbott’s push for legislative committees.

“Anyone can call for a committee. Only a governor can call a special session,” O’Rourke tweeted. “Do your job.”

The 2019 committees on gun violence followed the anti-Hispanic massacre at a Walmart in El Paso. A Democratic state senator from the area, César Blanco, sent Abbott a letter Wednesday saying that he appreciated the call for committees since the Uvalde shooting but noted “we have solutions ready now.” He cited nine bills he filed in the first session after the Walmart shooting, including a proposal to extend background checks to cover private gun sales. While Patrick initially showed interest in that idea — even suggesting he would stand up to the National Rifle Association to pass it — it was a short-lived crusade and the legislation never got a Senate committee hearing.

Those committees will also be stacked with pro-gun legislators, so adjust your already dismally low expectations accordingly. Despite all this, there’s a call for a special session, mostly from Dems, which I don’t expect to happen since Abbott clearly doesn’t want it to happen, no matter his “haven’t ruled it out” rhetoric. The sound you hear is Greg Abbott quietly waiting for this all to blow over.

I’m just going to leave this here:

Ask not what your Governor can do for you. Ask what your Governor can ask other people to do for him so he doesn’t have to do anything himself. The Current has more.

SCOTUS puts Texas’ stupid social media censorship law back on hold

Good.

The U.S. Supreme Court on Tuesday blocked a Texas law that prohibits large social media companies, such as Facebook or Twitter, from banning or removing users’ posts based on political viewpoints.

The justices, in a 5-4 vote, granted NetChoice and the Computer & Communications Industry Association’s request to reinstate a block imposed by a federal district judge as the lawsuit makes its way through the courts. The justices who voted to reverse the lower court’s ruling didn’t give a reason for their decision — a standard practice when the court is ruling on emergency applications.

Matt Schruers, president of the Computer & Communications Industry Association, one of the two groups that sued to block the law on claims that it violates companies’ First Amendment rights, celebrated the court’s decision.

“No online platform, website, or newspaper should be directed by government officials to carry certain speech,” he said in a statement. “This has been a key tenet of our democracy for more than 200 years and the Supreme Court has upheld that.”

[…]

The two industry trade groups that represent companies such as Google and Twitter sued to block the law last fall. In December, a federal district court judge ruled in favor of the groups and prevented the law from going into effect, reasoning that the First Amendment protects a company’s right to moderate content and calling parts of the law “prohibitively vague.”

As a result, Paxton appealed the district judge’s decision to the 5th Circuit Court of Appeals, which reinstated the law.

Three conservative justices, Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch, said in a dissent that they would have let Texas’ law stand for now. Justice Elena Kagan, a liberal, said she would have also let the order stand but didn’t provide a reason.

Alito wrote in the dissent that it is “not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.” Still, he wrote, the case is “of great importance” and the Supreme Court would have to review the arguments at some point.

“Social media platforms have transformed the way people communicate with each other and obtain news,” he wrote. “At issue is a ground-breaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.”

See here for the previous update and here for a copy of the order. With the Florida law being knocked down by the 11th Court of Appeals, there’s a circuit split, which means that Alito is correct and SCOTUS is going to have to deal with this sooner or later. At least it will be on hold until then. The Chron has more.

It’s called “talking out of both sides of your mouth”

It’s an old and effective trick, but that doesn’t mean it has to work.

For a moment Friday afternoon, Texas Gov. Greg Abbott was in two places at once.

At about 3:30, the National Rifle Association played videotaped remarks from the governor in the George R. Brown Convention Center in Houston. Abbott had originally planned to attend the conference in person, but he canceled Thursday after facing enormous pressure to do so following the mass shooting that occurred at a Uvalde elementary school on Tuesday afternoon.

So at the same time in Uvalde, Abbott took the stage for a press conference to discuss the state’s response to this week’s tragedy.

The messages of the two Abbotts didn’t quite line up.

In Houston, he said that laws were not enough to stop mass shootings.

“Remember this, there are thousands of laws on the books across the country that limit the owning or using a firearm, laws that have not stopped madmen from carrying out evil acts on innocent people and peaceful communities,” the virtual Abbott said.

“In Uvalde, the gunman committed a felony under Texas law before he even pulled the trigger. It is a felony to possess a firearm on school premises, but that did not stop him. And what he did on campus is capital murder. That is a crime that would have subjected him to the death penalty in Texas,” Abbott added.

But in Uvalde, he promised new laws and action from the Legislature to try to stop the massacres, and he said “all options were on the table” in regards to a potential special session of the Legislature to address gun violence.

“Do we expect laws to come out of this devastating crime? The answer is absolutely yes. And there will be laws in multiple different subject areas,” the real-life Abbott said. “We need to have a discussion and pass laws to make sure that our schools are safer, and the people of Uvalde and the people of Texas deserve it.”

The status quo is unacceptable. This crime is unacceptable. We’re not going to be here and talking about it and and do nothing about it.”

The difference between the two Abbotts highlights a fundamental tension that Republican politicians are facing as they attempt to respond to Tuesday’s tragedy: How do you talk about stopping gun violence without talking about guns?

This assumes that they care about stopping gun violence, which assumes facts not in evidence. But the short answer to that question is that they need to lose some (and by “some” I mean “a lot of”) elections over this issue. This is a theme that I’ve repeated ad nauseum here. Republican politicians do respond to pressure. It’s just that the only pressure they’ve felt lately (with the brief exception of the 2018 election) is in their primaries, with their increasingly deranged and authoritarian base. Losing races they had expected to win, whether statewide or in their friendly gerrymandered districts is the one thing that could change that pattern. Until then, why not keep doing what they’re doing, which is to say whatever they feel they need to say to whoever they’re talking to, and then doing nothing while we move on to whatever happens next? Why mess with a winning formula?

Justice Department to review what happened with Uvalde police

Okay.

The U.S. Department of Justice will review the law enforcement’s response to the Uvalde school massacre as local police face intense scrutiny for not acting quickly enough to confront the shooter.

“The goal of the review is to provide an independent account of law enforcement actions and responses that day, and to identify lessons learned and best practices to help first responders prepare for and respond to active shooter events,” Anthony Coley, a spokesperson for the U.S. Justice Department, wrote in a statement Sunday.

Uvalde mayor Don McLaughlin requested the Justice Department investigation, Coley said.

Police officers made a crucial error in waiting to stop the 18-year-old gunman rampaging at Robb Elementary School because the school district’s chief of police wanted to wait for backup and equipment, said Steven McCraw, director of the Texas Department of Public Safety. Meanwhile, students were still trapped inside with the gunman, repeatedly calling 911 for help.

By the time a specialized team of federal officers arrived and entered the school, more than an hour had passed since the shooter had arrived at the school, McCraw said.

“From the benefit of hindsight, where I’m sitting now, of course it was not the right decision,” McCraw said. “It was the wrong decision, period. There’s no excuse for that.”

Since the shooting, state law enforcement officials have given vague and conflicting answers on what exactly happened after the gunman arrived at the school. In the days after the massacre at Robb Elementary School in Uvalde, officials with the Texas Department of Public Safety said the shooter was met by a police officer employed by the school district — and gave conflicting accounts about whether the officer fired at the gunman.

See here for some background. We may at least get some more honest and accurate answers about what happened and why the Uvalde police acted as they did. That’s nice, but I doubt it moves the ball forward for anything else. I’m always in favor of getting the facts right, I’m just trying to maintain perspective on this. It’s good on its own terms, just don’t expect more.

For example:

The Texas Senate Democratic Caucus is urging Gov. Greg Abbott to call an emergency special legislative session to consider a variety of gun restrictions and safety measures in the wake of a mass school shooting in Uvalde that left 19 children and two adults dead this week.

In a letter released Saturday morning, all 13 Senate Democrats demanded lawmakers pass legislation that raises the minimum age to purchase a firearm from 18 to 21 years old. The Uvalde gunman was 18 and had purchased two AR-style rifles which he used in the attack.

The caucus is also calling for universal background checks for all firearm sales, “red flag” laws that allow a judge to temporarily remove firearms from people who are considered an imminent threat to themselves or others, a “cooling off period” for the purchase of a firearm and regulations on high capacity magazines for citizens.

[…]

Such laws are unlikely to gain traction in the Republican-controlled Legislature, which has a track record of favoring legislation that loosens gun restrictions. Only the governor has the power to call lawmakers back into a special session for emergency work.

Asked about a special session at a Friday press conference in Uvalde, Abbott said “all options are on the table” adding that he believed laws would ultimately be passed to address this week’s horrors. However, he suggested laws would be more tailored toward addressing mental health, rather than gun control.

“You can expect robust discussion and my hope is laws are passed, that I will sign, addressing health care in this state,” he said, “That status quo is unacceptable. This crime is unacceptable. We’re not going to be here and do nothing about it.”

Making things worse is always an option. The palaver about “addressing mental health” is as useless and empty as “thoughts and prayers”, since Abbott has said the same thing after each of the previous two mass shootings at schools that have happened during his reign, and all he has done in reality is cut funding for mental health care. Also, too, for the 597th time, the single biggest and best thing the state could do to improve mental health care in Texas is expand Medicaid, and we all know that ain’t happening as long as Abbott and his minions are in charge. Texas Public Radio has more.

A better mail ballot

I’m glad someone’s working on this.

After thousands of mail-in ballots were rejected in Texas’ statewide primaries in March, election officials and voting rights groups are stepping up efforts to make sure voters don’t run into the same problems with ballot rejections going forward.

Nearly 25,000 mail ballots were rejected for the March 1 primaries — a far higher rate than prior elections.

Some ballots were rejected because identifying data didn’t match what was on file. But election officials and voting groups say a design issue with the envelope that Texas voters use to return their mail ballots was most responsible for the rejections.

Grace Chimene, president of the League of Women Voters of Texas, says voters missed important instructions located right under the flap of the mail ballot return envelope. That is where voters have to provide either a partial Social Security number or their driver’s license number.

“Voters wouldn’t see [the section] if the flap is down,” she says. “It’s only visible if the flap is up. And the reason behind that was to keep it secret so people couldn’t get that [information] when it was going through the mail.”

Sam Taylor, assistant secretary of state for communications with the Texas secretary of state’s office, says election officials are also convinced that the new voter ID field on the envelope is what led to mass rejections.

“Based on the number of people who just missed it completely, I don’t think it would be too much of a stretch to think that some people thought it was just an optional section,” Taylor says.

A lot of these changes were prompted by a voting law Republican state leaders enacted last year. Taylor says that among the changes, more information was required to be on the return envelope. That affected the envelope’s design.

“There’s more language that’s required, and as a result there is more language and text competing for the same amount of real estate,” he says.

Just so we’re clear, this is the Assistant Secretary of State for Communications confirming that the Republican voter suppression law did in fact suppress votes by making the process sufficiently confusing that thousands of regular voters cast ballots that had to be rejected. They could have ameliorated this problem by delaying implementation of the law until 2023, which would have given the SOS and county officials enough time to design a better mail ballot (which includes the envelope and any supplemental materials) as well as giving the SOS enough time to properly communicate the changes and anything else that county officials needed to know. But they didn’t, and this was the result. Again, I just want to be clear on that.

Chimene says the League of Women Voters of Texas has been working with the Center for Civic Design to create a pamphlet for Texas voters that breaks down everything they need to do to make sure their ballot is counted.

“And that involved simplifying the words and using images and graphics and using bolding and other methods that they specialize in to make voter information that makes sense,” Chimene says.

The plan is to get county election officials to include these pamphlets with vote-by-mail materials. Chimene says hopefully their easy-to-read guides will clear up any confusion.

I certainly hope that county election officials pay heed to this. I continue to maintain that the Texas Democratic Party, the county parties, the candidates and elected officials and affiliated groups and so on, also had and have a responsibility to communicate to their voters what they need to know and do to vote by mail. This is just too important to leave to anyone else, even if it is their job.

The good news is that we know that making changes like this can work, because Bexar County has proven it.

The mail ballots of Bexar County voters in the primary runoff are being returned at a significantly lower rate when compared to the March primary election earlier this year.

About one in five mail ballots for the March Primary were being rejected by the elections office under rigorous new standards set by the Texas Legislature under SB1, the state’s new controversial voting law. However, as of the day before the May primary runoff election, the rejection rate has dropped to less than 1% according to the Bexar County Elections Administrator.

About 16,000 mail ballots have been received by the office so far and the rejection rate is drastically lower than the 22% seen in March.

“The rejection rate for the Democrats is 0.9% and the rejection rate for the Republicans is 0.4% so we are genuinely thrilled,” said Bexar County Elections Administrator Jacque Callanen.

There are twice as many Democratic Primary ballots that have been received compared to Republican Primary ballots, Callanen added.

[…]

In March, out of the 18,000 ballots received, about 4,000 were rejected.

After that, Callanen said her office made adjustments.

“Just from looking at the raw numbers right now, it looks like it worked,” she said.

That included an insert that was in both English and Spanish.

“We came up with an insert to put in there to assist the voters so they don’t miss on the envelopes with the very tiny print that they need to put on their (Texas Drivers License), or the last four of your social, so we are really excited and now at this point now we’re looking forward to November,” she said.

Another adjustment was increasing the font size on the envelope relating to the new SB1 requirements.

“What we basically did was, we took the area under the flap with all the legalese and we blew it up,” she said referring to the font size which she said was boosted to 12 point font.

We’ve discussed the Bexar County success story before, and I will bang the drum for their example again. I will also note that even within that, there’s room for improvement on the Dem side, which is why it’s important for the Texas Democratic establishment to take their own initiative. I can’t say this often or loudly enough: It is too important to do anything less.

These were the stories I found when I did my latest Google News search for mail ballot rejections. We should have final vote canvasses on Tuesday, so maybe we’ll get some numbers – and some reporting – from other counties as well. I will follow up and let you know.

Runoff results: Around the state

After the primary, I rounded up the Democratic runoffs we’d have in May. I’m going to use that post to round up the results from last night, as best as I can tell as of when I gave up the ghost and went to bed. I started filling this in around 10 PM.

Statewide Dem

Lite Guv – Mike Collier vs Michelle Beckley.
AG – Rochelle Garza vs Joe Jaworski.
Comptroller – Janet Dudding vs Angel Vega.
Land Commissioner – Sandragrace Martinez vs Jay Kleberg.

Garza and Dudding were both up 61-39 as of 9:30 PM, with Garza being declared the winner. Collier (54.8 – 45.2) and Kleberg (52.2 – 47.8) were leading but it was too soon to say with them. Kleberg was up 62-38 in Harris County, and Collier was up 60-40, so that bodes well for them.

Congressional Dem

CD01 – JJ Jefferson vs Victor Dunn.
CD15 – Ruben Ramirez vs Michelle Vallejo.
CD21 – Claudia Zapata vs Ricardo Villarreal.
CD24 – Jan McDowell vs Derrik Gay.
CD28 – Rep. Henry Cuellar vs Jessica Cisneros.
CD30 – Jasmine Crockett vs Jane Hope Hamilton.

Jefferson (75%), Zapata (62%), and Crockett (75%) all had huge leads and were on their way to victory. Henry Cuellar (52.75 – 47.25) had a smaller lead but looked to be in pretty good shape. The other two races were ridiculously close – Ramirez was up by 78 votes, McDowell up by 20 votes. You’ll want to check them again today, and don’t be surprised if they wind up in recount territory.

SBOE Dem

SBOE1 – Melissa Ortega vs Laura Marquez.
SBOE2 – Victor Perez vs Pete Garcia.

Ortega (58%) and Perez (56%) looked to be in good shape.

State Senate Dem

SD27 – Morgan LaMantia vs Sara Stapleton-Barrera. LaMantia was at 57% and appeared to be in good shape.

State House Dems

HD22 – Joseph Trahan vs Christian Hayes.
HD37 – Ruben Cortez vs Luis Villarreal
HD70 – Cassandra Hernandez vs Mihaela Plesa.
HD76 – Suleman Lalani vs Vanesia Johnson.
HD100 – Sandra Crenshaw vs Venton Jones.
HD114 – Alexandra Guio vs John Bryant.

Lalani (64%), Jones (70%), and Bryant (62%) looked to be headed to victory. Lalani would be the first Muslim to serve in the Lege. Jones is openly gay and HIV positive and was the subject of a bizarre homophobic rant by his opponent, so his win is especially sweet. Bryant, who is 75 and served in Congress 30 years ago, wins one for the old white guys.

As of 10 PM, the other races were too close to call, with Hayes (50.86%), Villarreal (52.44%), and Plesa (52.91%) holding the advantage.

Republicans

Ken Paxton easily beat George P. Bush, which launched multiple (likely written in advance) eulogies to the “Bush dynasty” in Texas. Good riddance, if P is what that had fallen to. Dawn Buckingham (Land Commissioner) and Wayne Christian (RR Commissioner) were also cruising to victory.

UPDATE: All of the Dem statewide candidates that were leading when I signed off won. Michelle Vallejo (50.1%) edged ahead in CD15, while Jan McDowell (51.15%) increased her lead. It got super tight towards the end, but yes, Henry Cuellar (50.2%) once again came out ahead. All of the state office candidates that were leading last night were still ahead this morning.

Runoff results: Harris County

As with the statewide roundup, here are the results from Harris County. As of 10 PM, 99 of 260 voting centers had reported, so while these results aren’t final, it seems likely to me that not much will change.

Congressional Dem

CD38 – Diana Martinez Alexander vs. Duncan Klussman. Klussman had a 67-33 lead after early voting (65-35 as of 10 PM) and looked to be an easy winner.

SBOE Dem

SBOE4 – Coretta Mallet-Fontenot vs Staci Childs. Childs was up 56.5 to 43.5, and was leading big in early in person voting (62%) and Tuesday voting (65%), which helped her overcome a 1,200 vote deficit in mail ballots. Given that trend, I’d say she’s on her way to winning.

State House Dems

HD147 – Jolanda Jones vs Danielle Bess. Jones was up 55-45, and unlike the special election led in mail ballots (by 300 votes) and early in person voting (by 200 votes), while running nearly even on Tuesday (the tally was 520-508 for Bess as of 10 PM). She seems likely to hold on.

Harris County Dems

185th Criminal District Court – Andrea Beall vs Judge Jason Luong. Beall led 54-46 and had the advantage in all three forms of voting.

208th Criminal District Court – Beverly Armstrong vs Kim McTorry. Armstrong had a big lead in mail ballots, while McTorry had small margins in in-person voting, but it doesn’t look like it will be enough as Armstrong was up 52-48.

312th Family District Court – Teresa Waldrop vs Judge Chip Wells.
County Civil Court at Law #4 – Manpreet Monica Singh vs Treasea Treviño.

Waldrop (63%) and Singh (65%) were in command from the beginning. I believe Manpreet Singh will be the first Sikh on the bench if she wins in November.

Commissioners Court, Precinct 4 – Lesley Briones vs Ben Chou. Briones led 55-45, with similar margins across all three voting types.

Justice of the Peace, Precinct 1, Place 2 – Sonia Lopez vs Steve Duble. Duble also led 55-45, using a 59-41 advantage in early in person ballots to overcome a modest deficit with mail votes.

Republicans

Alexandra Mealer cruised to victory for the County Judge nomination, while Jack Morman got his rematch in Precinct 2. The HD133 race was too close to call, with less than 100 votes separating Mano DeAyala and Shelley Barineau. Check on that one in the morning.

UPDATE: All of the Dems that were leading last night won. Mano DeAyala won in HD133 51-49.

The election night experience

Let me start off by saying that my heart breaks for everyone in Uvalde. I cannot begin to fathom the pain and loss they are experiencing. I don’t know when we as a society will act to protect people from gun violence, but we cannot act quickly enough. We certainly didn’t for Uvalde, or Santa Fe, or El Paso, or any of too many other places to name.

For the subject that I wanted to be thinking about yesterday, we start with this.

Harris County voters are in for a long election night, with full election results in primary runoff races not expected until well into Wednesday. The night also could be politically turbulent as a dispute plays out over one line in the state’s election code.

One reason for the expected slow count Tuesday is the Harris County Republican Party’s decision to break with the county’s ballot delivery plan, according to Harris County Elections Administrator Isabel Longoria. After closing the polls, election judges will hand off ballots to law enforcement officers and deputized county staffers, who will drive the equipment to the central counting station at NRG Arena on the judges’ behalf. The Harris County GOP argues the plan violates state law, so they are advising their party’s election judges to drive the ballots to NRG themselves. The Texas Secretary of State’s office agrees with the GOP’s assessment.

An election judge is the person in charge of running a voting location. In a primary election, each polling location has one judge from each party overseeing their own party’s voting process. In the past, the responsibility of transporting the ballots to the counting station has fallen to these election judges, the final task at the end of their 15-hour day.

Despite the GOP’s criticism, at least 40 Republican judges are choosing to participate in the county’s plan.

The dispute seems to be more about politics than the law, Martin Renteria, a Republican election judge in Harris County, said. He has no problem trusting a law enforcement officer to deliver the ballots, especially in a primary election where a Republican candidate is going to win no matter what.

“A Republican is going to win during the primary election. It’s going to be Republican versus Republican,” Renteria said. “It’s just illogical to me, and this is a part of the story that nobody talks about.”

[…]

Under state law, ballots should be delivered by either the election judge or an election clerk designated by that judge.

At a May 11 hearing with the state House Elections Committee to address delayed election results, Longoria argued the plan utilizing law enforcement officers and deputized staffers is in compliance with Texas law.

“The election code does not speak to the delivery other than the presiding judge must turn over those election records to our election office. So it doesn’t speak to who has to drive to meet the other person to do so,” Longoria said.

The Texas Secretary of State’s office has disagreed with her interpretation and urged the county to change its plan.

“Harris County’s decision to allow volunteers to transport election records — including voted ballots — to the county’s Central Count location on Election Night is incompatible with the Texas Election Code and violates well-established chain of custody protocols spelled out under Texas law,” Texas Secretary of State spokesperson Sam Taylor said in a statement on Friday.

However, Gerald Birnberg, an elections attorney and General Counsel to the Harris County Democratic Party, questioned the Secretary of State’s logic, pointing out that its own office deputizes others to perform certain duties.

“The same way that the Secretary of State is deputizing these people in his office to speak on behalf of the Secretary of State on statutory matters, to perform his statutory duties, the elections administrator is deputizing individuals to carry out duties and responsibilities and functions that are otherwise prescribed to be discharged by the elections administrator,” Birnberg said.

[…]

The Harris County Elections Administrator’s office maintains the Secretary of State’s office knew about the strategy and raised no objections when they implemented the ballot delivery plan during the May 7 election.

In a statement, Longoria said: “In April, the EA’s Office discussed the May 7 law enforcement and county driver program with the Secretary of State’s Office’s Managing Attorney of the Elections Division, specifically requesting guidance and recommendations. The SOS raised no concerns, legal or otherwise, with the program. Further, the EA’s Office discussed the plan for both May elections with both political parties as early as April 7. Both parties had the opportunity to ask questions, review the chain of custody document, and raise issues. Neither party raised concerns.

In fact, the first time any concerns were raised occurred during a public meeting May 11 at the Election Committee Hearing by the Secretary of State’s Office. One week later, just six days from election day, the Harris County Republican Party notified us that its judges would not participate in the program.”

See here for the background. Later in the day, we got this.

With voters walking into polling places and ballots set to arrive at NRG Arena in a few hours, Harris County’s Republican Party has challenged the process election officials will use to transfer ballots from locations to the central counting center, citing concerns with handing the machines over to anyone but precinct judges.

In the 18-page filing to the Texas Supreme Court around 2 p.m. on Tuesday, the local Republican party says despite assurances that election officials have it under control, state election law and past experience make them wary to hand over ballots to emissaries so they can ferry to a central location.

Cindy Siegel, chairwoman of the Harris County GOP, said officials are impeding on the democratic process.

“They are trying to make it as difficult as possible, and talking people out (of driving ballots themselves) by warning them there will be long lines,” Siegel said. “They are scaring people into creating this system that isn’t even legal.”

Lawyers for the GOP argue the county is ignoring state election laws and breaking the mandatory chain of custody for ballots.

“An essential component of the central counting station is the physical delivery of sealed ballot boxes and access to the central counting station is necessary (for) that process to take place,” the filing states.

The petition asks the high court to order Harris County to allow election judges to drive their own precinct ballots to the central counting center at NRG Park.

The request drew a fast rebuke from Democratic Party leaders and Harris County Attorney Christian D. Menefee.

“Their leadership has known about the County’s election day plans for some time, yet they waited until 6 hours before the polls close to now ask a court to throw the plans out the window and put residents’ votes at risk,” Menefee said in a statement. “And in their lawsuit, they flat out misrepresent the county’s plans to the court, making several statements that they know are demonstrably false.”

[…]

“(Longoria’s) office successfully used constables in the May 7 election, and the GOP had no problem at that time,” said Odus Evbagharu, chairman of the Harris County Democratic Party. “Now, someone wakes up on Election Day and suddenly thinks law enforcement officials and deputized election officers are an issue?”

Siegel said that is precisely why the GOP is suing.

It is the May 7 election, and widespread problems that day, that prompted the concerns in the first place. She said Republican judges only learned the day before that election that they would have to hand ballots over at polling sites, rather than drive them downtown themselves. In a handful of cases, no one came to pick up the ballots — leading the election judge to take them home — or couriers failed to drop them off in a timely manner. As a result, the county did not complete its count until Sunday morning, even though fewer than 115,000 ballots had been cast.

Again, I didn’t have a problem with the May 7 reporting. There’s clearly a difference of interpretation of the law here, and if that can’t be resolved on its own then a courtroom is the proper venue. I have a hard time believing that this couldn’t have been litigated before Tuesday afternoon, however. I started writing this post at 8 PM, and as of that time there had been no ruling from SCOTx. I don’t know when they plan on ruling, but at some point it just doesn’t matter.

UPDATE: It’s 10:30 PM, more than a third of the Tuesday votes have been counted, and I see nothing on Twitter or in my inbox to indicate that SCOTx has issued a ruling. So let’s think about this instead:

Well said. Good night.

UPDATE: Here’s a later version of the story about the GOP’s lawsuit over the results delivery process. I still don’t see any mention of a decision being handed down. And for all of the fuss, final results were posted at 1:26 AM, which seems pretty damn reasonable to me. The midnight update had about 98% of ballots counted on the Dem side and about 95% on the GOP side – 70,016 of 72,796 Dem votes and 105,486 of 116,100 GOP votes. Seriously, this was a fine performance by the Elections Office.

Florida’s stupid social media censorship law knocked down by appeals court

With an opinion from a Trump judge, no less.

A Florida law intended to punish social media platforms such as Facebook and Twitter is an unconstitutional violation of the First Amendment, a federal appeals court ruled Monday, dealing a major victory to companies who had been accused by GOP Gov. Ron DeSantis of discriminating against conservative thought.

A three-judge panel of the Atlanta-based 11th U.S. Circuit Court of Appeals unanimously concluded that it was overreach for DeSantis and the Republican-led Florida Legislature to tell the social media companies how to conduct their work under the Constitution’s free speech guarantee.

“Put simply, with minor exceptions, the government can’t tell a private person or entity what to say or how to say it,” said Circuit Judge Kevin Newsom, an appointee of former President Donald Trump, in the opinion. “We hold that it is substantially likely that social media companies — even the biggest ones — are private actors whose rights the First Amendment protects.”

The ruling upholds a similar decision by a Florida federal district judge on the law, which was signed by DeSantis in 2021. It was part of an overall conservative effort to portray social media companies as generally liberal in outlook and hostile to ideas outside of that viewpoint, especially from the political right.

[…]

As enacted, the law would give Florida’s attorney general authority to sue companies under the state’s Deceptive and Unfair Trade Practices Act. It would also allow individual Floridians to sue social media companies for up to $100,000 if they feel they’ve been treated unfairly.

The bill targeted social media platforms that have more than 100 million monthly users, which include online giants as Twitter and Facebook. But lawmakers carved out an exception for the Walt Disney Co. and their apps by including that theme park owners wouldn’t be subject to the law.

The law would require large social media companies to publish standards on how it decides to “censor, deplatform, and shadow ban.”

But the appeals court rejected nearly all of the law’s mandates, save for a few lesser provisions in the law.

“Social media platforms exercise editorial judgment that is inherently expressive. When platforms choose to remove users or posts, deprioritize content in viewers’ feeds or search results, or sanction breaches of their community standards, they engage in First-Amendment-protected activity,” Newsom wrote for the court.

You can see a copy of the ruling here, and contrast it to the wordless garbage the Fifth Circuit spewed out to allow Texas’ law to stand. This means that SCOTUS will have to get involved to resolve the dispute. It’s going to get ugly in here. Reuters, CNET, and Techdirt, which shows the parts of the lower court’s ruling that were upheld and the parts that were vacated, have more.

Republicans threaten businesses over abortion access

If you didn’t see stuff like this coming, you haven’t been paying attention.

With Texas poised to automatically ban abortion if the U.S. Supreme Court overturns Roe v. Wade, some Republicans are already setting their sights on the next target to fight the procedure: businesses that say they’ll help employees get abortions outside the state.

Fourteen Republican members of the state House of Representatives have pledged to introduce bills in the coming legislative session that would bar corporations from doing business in Texas if they pay for abortions in states where the procedure is legal.

This would explicitly prevent firms from offering employees access to abortion-related care through health insurance benefits. It would also expose executives to criminal prosecution under pre-Roe anti-abortion laws the Legislature never repealed, the legislators say.

Their proposal highlights how the end of abortion would lead to a new phase in — not the end of — the fight in Texas over the procedure. The lawmakers pushing for the business rules have signaled that they plan to act aggressively in the next legislative session. But it remains to be seen if they’ll be able to get a majority on their side.

The members, led by Briscoe Cain, R-Deer Park, laid out their plans in a letter to Lyft CEO Logan Green that became public on Wednesday.

Green drew the lawmakers’ attention on April 29, when he said on Twitter that the ride-share company would help pregnant residents of Oklahoma and Texas seek abortion care in other states. Green also pledged to cover the legal costs of any Lyft driver sued under Senate Bill 8, the Texas law that empowers private citizens to file lawsuits against anyone who assists in the procurement of an abortion.

“The state of Texas will take swift and decisive action if you do not immediately rescind your recently announced policy to pay for the travel expenses of women who abort their unborn children,” the letter states.

The letter also lays out other legislative priorities, including allowing Texas shareholders of publicly traded companies to sue executives for paying for abortion care, as well as empowering district attorneys to prosecute abortion-related crimes outside of their home counties.

Six of the 14 signers, including Cain, are members of the far-right Texas Freedom Caucus. How much political support these proposals have in the Republican caucus is unclear. House Speaker Dade Phelan, R-Beaumont, declined to comment. Lt. Gov. Dan Patrick and Gov. Greg Abbott did not respond.

Since the legislative session is more than seven months away, Cain said in an email that “a quickly drafted and sent letter can hardly be said to reflect the pulse of my Republican colleagues.” He was confident, however, that his ideas would find some support in the Senate.

“Knowing that chamber and its leadership, I’m willing to bet legislation targeting this issue will be promptly filed in January,” Cain said.

But doing so would likely mean targeting companies that the state has wooed as potential job creators. Tesla, for instance, announced this month that it would pay for employees’ travel costs when they leave the state to get an abortion. Abbott celebrated the electric car company’s move to Austin last year and this year urged its CEO, Elon Musk, to move Twitter’s headquarters to Texas, too, if he completes his purchase of the social media firm.

Joke all you want about how Republicans used to be the party of big business, because that hasn’t really been true for awhile. They’re the party of “give us your donations and keep your mouth shut about anything we don’t like regardless of what your employees and customers and stockholders say and maybe we’ll leave you alone and toss you a tax cut” now. You may say that it’s unthinkable that Republicans might actually chase large employers out of the state, but a lot of unthinkable things have been happening lately. Remember how the business community helped defeat the “bathroom bill” in 2017, and issued sternly-worded statements about voting rights and further anti-trans bills last year? How’s that been going?

We are living in Briscoe Cain’s Texas now. If he doesn’t get what he wants now – and mark my words, he wants to arrest people who have anything at all to do with abortion – he’ll get it next time, as long as his Republican Party is in charge. The business community needs to recognize that they are right in the crosshairs along with the rest of us. Daily Kos has more.

The STAAR is back

Missed this last week.

For the first time since the pandemic began, Texas public schools will be rated based on how students score on the State of Texas Assessments of Academic Readiness — more commonly known as the annual STAAR test.

It’s the latest big step toward normalcy for the state’s 8,866 public schools — which includes 782 charter schools — since the COVID-19 pandemic forced school closures in early 2020.

But this year’s ratings come with a few changes. For this year only, schools will receive an A-C rating. Districts and schools that score D or F will receive a “Not Rated” label instead. Schools who fall in those bottom tiers will also evade possible sanctions from the Texas Education Agency during the 2022-2023 school year.

The news comes as thousands of students in grades 3 through 12 are taking the exam this spring. Last year, students had the option to take the STAAR test and results were not held against them or the district.

The ratings, those letter grades affixed on school buildings across the state, are typically released by the Texas Education Agency in August. But when the coronavirus began appearing in the United States more than two years ago, schools were shut down and as a result, standardized testing school testing was canceled for the year.

The new A-C rating this year will allow districts that still have a D or F from 2019 to have a shot of getting a better grade.

[…]

Last year, STAAR results showed that the pandemic had a significant impact on student learning with far lower scores than before the pandemic, especially when it came to math. Also, schools that relied more heavily on online class instruction had students who scored significantly lower than those school that were able to open and offer in-person instruction.

There’s fear that this year’s test scores may be impacted again because of pandemic-related school closures and teacher absences that occurred during surges in infection caused by the delta and omicron variants of the coronavirus.

Even though the rating system has been changed this year, not everyone is a fan of the school rating system to begin with.

Matthew Gutierrez, superintendent of the Seguin Independent School District, near San Antonio, believes the STAAR will be helpful to gauge students’ academic level, but the letter grades should’ve been postponed this school year as well because of the continued COVID-19 disruptions. Seguin, along with other districts, had teachers and substitutes out with COVID-19 during the omicron surge this past winter.

“We had students who went days without support from their certified teacher,” he said. “You had situations where you were combining classrooms and having really creative staffing, so it’s not optimal for learning.”

Gutierrez is also concerned about the “Not Rated” label. He said if a district scored an F in 2019 and then a D this school year, that district won’t get credit for that progress.

Yeah, last year’s STAAR results weren’t great. They might be better this year, but as a whole we’re likely still pulling ourselves out of the ditch caused by the pandemic. We could just do like last year and skip the grades, since we’re essentially giving the schools that don’t get good results a break. I’m not sure what the point of this halfway-accountable system is, and I’m also not sure that we missed anything by not going through this rigmarole the past couple of years. It’s been a hard year for everyone. Let’s accept that and make it a little easier on ourselves.

The coming fight over medical abortion

Sure is a good thing SCOTUS will leave this up to the states, isn’t it?

Republican-led states are moving swiftly to restrict access to medication abortion.

The efforts so far have focused on regulations around the pills, such as banning them from being shipped or prescribed. But can states ban the actual abortion pill itself, even though the Food and Drug Administration has approved it? That question could be the next frontier in the abortion wars.

The short answer comes down to this: The issue isn’t settled law and will likely be litigated in the courts. Some argue states may be hard-pressed to ban the federally approved medication, though antiabortion advocates disagree.

[…]

Some states have introduced bills focused on banning abortion pills, but they haven’t gotten a lot of traction, per Elizabeth Nash, an interim associate director at Guttmacher Institute, a research group that supports abortion rights. (A recent exception is Oklahoma, whose Republican governor is poised to sign legislation banning abortions – including medication abortions – from the moment of “fertilization.”)

Rather, states are banning the practice of medicine around the pills. For instance: At least 19 states ban the use of telehealth for medication abortion, and some states have additional restrictions, like prohibiting pills from being mailed.

Yet, if Roe v. Wade is overturned, some states may try to ban the actual medication. And states already have gestational limits and other abortion bans on the books that could kick in quickly if Roe is overturned — and those likely encompass limitations on the pills, experts said.

Can states ban a medication the FDA has signed off on?

There’s no clear precedent here.

Some states may argue they can ban medication abortion because states have the authority to regulate the practice of medicine. The FDA, on the other hand, is the acknowledged authority on medical products, such as the abortion pill. But the line between medical practice and medical products is not always clear.

And if a state squared off against the federal government over an FDA-approved drug … “We don’t know how the court would rule. It’s an open question,” Patti Zettler, an associate professor of law at Ohio State University and former associate chief counsel in the FDA’s Office of the Chief Counsel.

See here for some background. Reminder #1: The state of Texas has made it a felony to provide abortion medication after seven weeks, after having already banned anyone but doctors from dispensing such medication, and only via an in-person office visit – no telemedicine. You can be sure that Texas will take this to the next level in the next legislative session if it is in position to do so.

Reminder #2: The same medicine that is used for abortion is also used to treat miscarriages. Needless to say, women who are suffering through a miscarriage will face – and as that story notes, are already facing – barriers to medical care that could threaten their health, their future ability to get pregnant and carry a child to term, and even their lives. That’s our future, and if you think I’m being alarmist, go back and read all those soothing articles about how this Supreme Court was never ever going to overturn Roe v Wade because it would cause too much upheaval.

Debtors’ court, part 2

Also not good.

One day last September, while trying to pay for groceries, Leslie Alvarez got the shock of her life. All the money in her bank account had disappeared.

The Houston single mother called her bank. An employee told Alvarez that her accounts had been placed on a legal hold. A person she did not know had been authorized to remove money from her accounts.

“I had to tell my kids they had to wait awhile so I could go make money to get what they needed,” she said.

Alvarez was forced to pay up on a $1,500 cash loan as part of a debt judgment issued against her in a Harris County civil court.

Texas doesn’t allow people’s wages to be garnished to pay off debts unless it is to collect child support. By law, however, courts can designate special officers, known as turnover receivers, to force payments by freezing or seizing bank accounts. The legal process became popular in Harris County but has been used all over the state more commonly in recent years, officials say.

“This is the only real way a debt collector can hurt you,” said Craig Noack, a creditor’s attorney in San Antonio who also serves as a court-appointed receiver in Texas.

At issue, though, is whether courts have adequate oversight to ensure a fair process.

Each year, tens of thousands of Texans are subject to a bank seizure as a result of a default judgment that was declared against them because they didn’t show up in court to fight a lawsuit over a debt.

But here’s the dilemma: Most debtors don’t know that they can have their bank accounts cleaned when a debt collector wins a default judgment against them unless they claim exemptions for certain sources of funds, such as child support, Social Security, unemployment benefits and retirement funds. Alvarez had child support payments in her accounts when they were seized.

Just this month, the Supreme Court of Texas took its first steps to establish parameters that would ensure that debtors are informed of their rights to claim exemptions. Under new rules, which took effect May 1, debt collectors must provide at least 17 days for debtors to inform courts that they have funds or property that is exempt from seizure.

“The purpose of these rules and forms is to try to help even out a little bit the playing field so that the debtors get more information,” Texas Supreme Court Chief Justice Nathan Hecht said.

[…]

In the Houston region and other large Texas counties, default judgments rose by 86 percent between 2012 and last year, data show.

“As long as people don’t respond, debt collectors can get a default judgment,” said Ann Baddour, director of the fair financial services project at Texas Appleseed, a consumer advocacy group in Austin. “There’s just this motivation to move forward and sue.”

Even the Texas Creditors Bar Association, a statewide organization of attorneys that engages in debt collections, says it wants to make sure debt collectors don’t take money that is protected by law.

They support the notifications, said Noack, who represented the Texas Creditors Bar Association in discussions before the Supreme Court Advisory Committee about the new rules.

“You’re not going to find a creditor’s attorney out there who wants to take somebody’s Social Security,” he said.

Yet, among the many concerns consumer advocates say still must be addressed is the lack of oversight in Texas courts regarding the appointment of the court officers or turnover receivers.

Texas courts have no way to prevent abuses — or even mistakes — because judges are not required to track their appointments or keep periodic reports on the status of seizures, Houston consumer attorney Benjamin Sanchez said.

“You have these receivers who are doing things but not necessarily reporting back to the court,” Sanchez said.

See here for the previous entry. I hope we can all agree that no one should have their bank account drained as the result of a default judgment where they hadn’t known they needed to appear in court. There needs to be a lot more oversight here, and that’s first a job for the Legislature and then a job for the court system. One possible aspect to a solution might be a public defender system for civil litigation, modeled on the same system for criminal defendants. This is an idea I’ve seen advocated by others, and it makes sense on the principle that everyone should have the right to a lawyer to represent them in court. I’m no expert, I’m just throwing out an idea here. Whatever the case, there’s a real need for reform.

DFPS to resume investigating families of trans kids

Gross and discouraging.

The state of Texas will restart its abuse investigations into families with transgender kids after a recent court ruling that lifted a statewide injunction on such probes.

In a statement on Thursday, the Texas Department of Family and Protective Services said the agency would investigate all allegations of abuse. The statement, while not addressing the investigations into medical treatments for trans youth, indirectly indicated that these probes will now continue.

“DFPS treats all reports of abuse, neglect, and exploitation seriously and will continue to investigate each to the full extent of the law,” the statement read.

Current state law does not explicitly define gender-affirming medical treatments, such as puberty blockers and hormone therapy, as child abuse. A DFPS spokesman did not comment when asked if the agency plans to continue investigating such treatments as child abuse.

Age appropriate and individualized medical treatments for trans youth, including the ones Texas Attorney General Ken Paxton has called abuse, are supported by the state and nation’s largest physicians groups including the American and Texas Medical Associations. These groups have opposed the state’s abuse investigations and other efforts to block or alter gender-affirming care for minors.

The state’s announcement came just days after the Texas Supreme Court ruled that the attorney general and Gov. Greg Abbott, who had directed the agency to investigate certain medical treatments for trans adolescents as child abuse, had no authority to do so. It put control over these probes back into the hands of protective services, which opened at least nine investigations into families with transgender children since the governor issued his directive in February.

One investigation into an agency employee who has a transgender daughter will remain paused while the family fights to overturn the abuse policy, the ruling stated.

[…]

Brian Klosterboer, an attorney with the ACLU of Texas who is on the team representing the unnamed DFPS employee, said the state’s decision to reopen the cases is unfortunate and unlawful. He said his team believes that the high court’s decision removes any responsibility for Texans to report trans youth getting treatments.

“We are going to be closely monitoring what the agency does. We would encourage families that have any reason to believe that they have an investigation to seek legal help,” Klosterboer said.

“Abbott’s letter and Paxton’s opinion did not change Texas law,” he added. “Gender-affirming health care is still legal in all 50 states.”

See here for the previous entry. The initial litigation is still ongoing – as is so often the case in these battles, the issue is over whether or not the law or in this case executive order can be enforced while the lawsuit is being heard – so there may still be a statewide injunction at some point. There’s also a clear path for other families to file similar lawsuits to get injunctions for themselves, similar to what abortion providers and funds were facing with SB8. It’s still a mess and a huge burden for these people that have done nothing wrong and just want to be left alone. And it’s another reason to vote these guys out in November. The Trib has more.