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Voting Rights Act

So now we start to prep for redistricting

It’s gonna make for a long session, or more likely sessions.

Wielding the map-drawing power will not be entirely painless for Republicans, who have seen their grip on dozens of state and federal districts erode since the last round of redistricting. Though Democrats failed to flip any of their targeted congressional seats in 2020 and fared about as poorly in state House contests, their single-digit defeats in once ruby red districts point to Democrats’ growing advantages in urban and suburban counties, even as Republicans retain an overwhelming advantage in rural Texas.

Republicans, then, will have to decide how aggressive they want to be in redrawing political boundaries to their benefit, balancing the need to fortify their numbers in battleground districts with the opportunity to flip back some of the districts they lost in 2018, when Democrats picked up 12 seats.

“I see this redistricting opportunity for Republicans as more of a defensive play than an offensive play,” said Texas Republican strategist Matt Mackowiak. “This is one of the tough things when you’re engaging in redistricting if you’re the party in power, because you can be sort of allured by the short-term potential to win an extra seat or two. But you can take two steps forward to eventually take three steps back if you’re not thinking about demographic changes over a 10-year period.”

For now, the looming redistricting fight is far from the minds of most state lawmakers. Though the U.S. Census Bureau is supposed to deliver updated population data to states by April 1 next year, the agency suspended field operations for the 2020 Census due to the COVID-19 pandemic and wrapped up the count in October, well after the original July 31 deadline. Bureau officials also sought to push back the deadline for sending data to the states until July 2021, prompting speculation that Texas may not get the census numbers until after the Legislature gavels out in late May.

“If the data is not delivered during the regular session, it creates a whole set of cascading problems that impact the drawing of lines, even down to the county and municipal levels, because everyone is going to be put on an even greater time crunch,” said Eric Opiela, an attorney and former executive director of the Texas Republican Party who has worked on prior redistricting efforts.

During normal times, officials might already be using population data from the Census Bureau’s annual American Community Survey (ACS) to strategize or even draw up preliminary maps. But the pandemic has forced census workers to adopt unconventional survey tactics and generated unprecedented population shifts due to the rise in remote working, factors that make any pre-2020 population data highly unreliable, Opiela said.

“Those (ACS) projections can be used to allow you to do things like work through scenarios before the official data comes, and it’s actually fairly accurate,” Opiela said. “I don’t know that that’s going to be the case this time. I think it’s going to be very important to wait until the official data is received to draw any conclusions as to where Texans live.”

It’s not just the uncertain timeline. Even if the Census data arrived on time, COVID-19 would likely hamper redistricting efforts by forcing lawmakers to prioritize filling the state’s pandemic-inflicted budget gap and perhaps providing economic and medical relief to COVID-19 victims.

“The challenge with redistricting is it’s such a naturally partisan issue that it’s really hard to sort of box half the day and then be ballet dancers the other half of the day,” Mackowiak said. “It’s hard to be bipartisan on other issues but then super, super partisan during redistricting. So, having a special session just related to redistricting after the major issues are taken care of seems to me to be the smartest pathway.”

See here for the most recent news on the Census situation. I think it’s very likely that we don’t get the data in time for the regular session, in which case redistricting will be done in a special session later in the year. Depending on how late that is, and on how long it takes to hammer out maps, and whether any initial court challenges result in temporary restraining orders, we could see the 2022 primaries get pushed back. The filing period begins in mid-November, after all, so there’s a non-zero chance of it being affected by how this plays out.

It’s worth remembering that if the Dems had managed to win the State House, they still would have had limited influence over redistricting. As the story correctly notes, the Legislative Redistricting Board, a five-member panel that would have had only one Democrat (the House Speaker, in this hypothetical), would draw the State House, State Senate, and SBOE maps if the House and Senate had been unable to agree on them. The Congressional maps would go to a federal court, however, and that’s where the Dems might have had some influence. If Republicans didn’t want to take the chance of putting map-drawing power in a third party like that, they might have been open to some compromises on the other maps. We’ll never know now, but that was the basic idea.

As it is, how this goes with Republicans once again in full control will come down to how they answer a few key questions. (For the purposes of this post, I’m focusing on the State House. The issue are mostly similar for Congress and the State Senate, but my examples will come from House elections.) Will they be constrained by established rules like the county line rule, which puts only whole House seats in sufficiently large counties (this is why all Harris County State House seats are entirely within Harris County), or do they change that? How constrained do they feel by the Voting Rights Act, and by other established redistricting precedents – in other words, do they bet big on the courts overturning past rulings so that they can more or less do whatever they want, or do they pull it in so as not to risk losing in court?

Most of all, what do they consider a “safe” seat to be? Look at it this way: In 2012, Republicans won 16 of the 95 seats they took with less than 60% of the vote. Of those, only five were decided by fewer than ten points:

HD43 – Won in 2010 by then-Democrat JM Lozano, who subsequently switched parties.
HD105 – Barely won by the GOP in 2008, by less than 20 votes.
HD107 – Won by a Dem in 2008, it became the first Republican-held seat to flip in this decade, won by Victoria Neave in 2016.
HD114 – Nothing special, it was won by eight points in 2012.
HD134 – The perennial swing district.

Note that four of those five are now Democratic. Other “less than 60%” seats from 2012 now held by Dems include HDs 45, 47, 65, 102, 115, and 136. (*) The point is, that looks like an extremely durable majority, with enough 60%+ seats on their own to ensure a mostly Republican House. And indeed it was for the first three elections of the decade. There will be books written about why all of a sudden it became precarious, but you’d be hard pressed to do a better job than the Republicans did in 2011.

But as noted, things look different now. In 2020, Republicans won 26 of the 87 seats they took with less than 60% of the vote. Of those, seventeen were won by less than ten points:

HD26, HD54, HD64, HD66, HD67, HD92, HD93, HD94, HD96, HD97, HD108, HD112, HD121, HD126, HD132, HD138

We can talk all we want about how things might have gone differently in 2020, but the fact remains that it wouldn’t have taken much to change many of those outcomes. How many Republican incumbents will insist on a 55%+ district for themselves? Whatever assumptions you make about the 2020 electorate and what it means for the future, that’s going to be a tall order in some parts of the state.

This more than anything will drive their decision-making, and may well be the single biggest source of friction on their side. Who is willing to accept a 51% Republican district, and who will have to take one for the team? In 2011, Republicans were coming off an election that they had won by more than 20 points statewide. This year they won at the Presidential level by less than six points, and at the Senate level by less than ten. They have a smaller piece of the pie to cut up. They have full control over how they do it, but the pie isn’t as big as it used to be. What are they going to do about that?

(*) In 2012, Cindy Burkett had no Democratic opponent in HD113, and Gary Elkins was re-elected in HD135 with 60.36% of the vote. Both of those districts are now held by Democrats. Always in motion, the future is.

Fifth Circuit upholds Abbott’s mail ballot dropoff limits

Because of course they did. Why would you have expected anything else?

In a ruling issued late Monday night, a federal appeals court upheld Gov. Greg Abbott’s order that limited counties to one mail-in ballot drop-off location.

A three-judge panel of the 5th U.S. Circuit Court of Appeals, all appointed by President Donald Trump, rejected arguments from civil and voting rights groups that claimed Abbott’s order suppressed voting rights by making it harder to cast a ballot, particularly for elderly and disabled voters who are the most likely to use mail-in balloting.

In reality, the judges said, Abbott expanded voting options by suspending a state law that allows mail-in ballots to be hand delivered only on Election Day — a July 27 order that Abbott merely refined on Oct. 1 by closing multiple ballot drop-off sites in Travis and three other large counties, the panel said.

“That effectively gives voters 40 extra days to hand-deliver a marked mail-in ballot to an early voting clerk. And the voter still has the traditional option she has always had for casting a mail-in ballot: mailing it,” Judge Stuart Kyle Duncan wrote for the panel.

The ruling blocked Friday’s injunction from U.S. District Judge Robert Pitman, who said Abbott’s order placed an unacceptable burden on voters who are most vulnerable to COVID-19.

[…]

The panel criticized Pitman for vastly overstating the magnitude of the burden on voting rights caused by Abbott’s “partial refinement” of an earlier order that made it easier for eligible Texans to hand deliver a ballot before Nov. 3.

“How this expansion of voting opportunities burdens anyone’s right to vote is a mystery,” Duncan wrote. “Indeed, one strains to see how it burdens voting at all.”

Texans still have “numerous ways” to participate before the Nov. 3 election — by voting early beginning Tuesday because Abbott added six days to the early voting period as a pandemic safety measure, by hand delivering completed mail-in ballots before Election Day, and by dropping their ballot in the mail, Duncan said.

See here and here for the background. Never mind the fact that the state of Texas had previously affirmed that multiple dropoff locations were legal, never mind the fact that Abbott issued this order a week before early voting began and more than two months after Harris County had announced its plan for multiple locations, and of course never mind the global pandemic that has everyone seeking to mitigate their own personal risk. Abbott extended the early voting period, so what are you peasants complaining about?

I mean, look. The Harris County Clerk used legal means to make voting easier and more accessible. The Governor used a false pretext to overrule him, and did so late in the process after people had been led to expect what the Clerk had implemented. The fact that the Governor had indeed taken steps to expand voting access isn’t relevant. The fact that most other counties hadn’t taken similar action as Harris isn’t relevant – they could have and in many cases should have, and if the Governor thought that was unfair to the voters in the slacking counties, he could have used the same authority he exercised here to try to spur those other counties to action. The point is that Harris County stood for making it easier and more convenient to vote, and the state of Texas said no, you can’t do that. In response, the Fifth Circuit said “we don’t see the problem here”. That’s what we’re up against.

I should note that there is still that state lawsuit, which will have a hearing this week. I don’t expect much at this point, but duty compels me to point this out. I presume the other federal lawsuit – as I observed before, this was a combination of two federal lawsuits, but did not include the third – is now moot. As we have seen over and over again, the way forward is going to require winning more elections first.

Judge briefly halts Abbott’s order limiting mail ballot dropoff locations

Late Friday breaking news, which lasted until the early afternoon on Saturday.

A federal judge ruled Friday that Texas counties can have multiple drop-off locations for absentee ballots heading into the Nov. 3 general election, blocking the enforcement of Texas Gov. Greg Abbott’s recent order that sought to limit counties to just one such location.

Saying Abbott’s order confused voters and restricted voter access, U.S. District Judge Robert Pitman granted an injunction late Friday barring its enforcement. With an unprecedented number of Texas voters requesting mail-in ballots during the coronavirus pandemic, and concerns about the reliability of the U.S. Postal Service, some large, Democratic counties had set up numerous locations to accept the ballots before Abbott’s order.

“By limiting ballot return centers to one per county,” Pitman wrote, “older and disabled voters living in Texas’s largest and most populous counties must travel further distances to more crowded ballot return centers where they would be at an increased risk of being infected by the coronavirus in order to exercise their right to vote and have it counted.”

[…]

The Texas Democratic Party called Friday’s ruling a “common sense order [that] followed well-established law and stopped the governor from making up election rules after the election started.”

Before Friday’s ruling, Democrats had denounced Abbott’s order, labeling it voter suppression in a state that has repeatedly been knocked in federal court for intentionally discriminating against voters of color. Voting rights advocates and civic groups quickly sued Abbott in federal court, arguing the order was based on invalid security concerns and places an unconstitutional and unequal burden on the right to vote.

The Texas and national League of United Latin American Citizens, the League of Women Voters of Texas and two Texas voters filed suit the night of Abbott’s order, and another lawsuit was filed the next day by the Texas Alliance for Retired Americans, the get-out-the-vote group Bigtent Creative and a 65-year-old voter.

“Cutting these mail-in voting locations was wrong and done solely to attempt to steal the election from the rising Texas electorate,” said Gilberto Hinojosa, chair of the Texas Democratic Party. “A county, like Harris County, with more than 4.7 million Texans should have more than one hand delivery location. Limiting counties like Harris is a desperate Republican attempt to hold onto power.”

See here for the previous update, and here for a copy of the ruling. Looking at the plaintiffs, it appears that the first lawsuit and the second lawsuit were combined. That leaves one other federal lawsuit, plus the one state lawsuit for which there is a hearing next week.

One presumes this will be appealed, and as we all know the Fifth Circuit is where all good things go to die. I think there’s a strong argument to be made that allowing Abbott’s order, which was made more than two months after counties had begun making plans to have multiple dropoff locations and after the state Solicitor General filed a brief saying that state law allowed for this, is the thing that would improperly disrupt the election at this late date. I also think the Fifth Circuit can rise to the occasion of brushing such an objection aside. Travis County, one of the places that had multiple dropoff locations in place prior to the order, has said it will wait to see what the Fifth Circuit does before reopening them. It’s hard to fault them for that. The Chron and the Statesman have more.

UPDATE: As expected, Paxton has filed an emergency motion for a stay of the judge’s ruling. You can read that here. The smart money always says that he gets what he asks for from this court, so it’s a matter of how quickly they have a hearing and issue a ruling.

UPDATE: Faster than you can say “Anything you want, Kenny”, the Fifth Circuit grants Paxton’s motion. Now we wait for a hearing. See why Travis County decided to wait before reopening any of those dropoff locations? Here’s the Chron story about the granting of the stay.

First hearing for mail ballot dropoff locations

Hopefully we’ll get some action quickly.

Lawyers for voters and voting rights groups asked a federal judge Thursday to block Gov. Greg Abbott’s recent order limiting counties to one location where voters can hand-deliver mail-in ballots.

Abbott waited too long to issue his order on Oct. 1, they argued, not only because it came the same day Travis County opened four drop-off locations after a monthlong public information campaign, but also because voting had already begun in the Nov. 3 general election.

“It is too late and too dangerously burdensome to change election rules midstream,” lawyer Chad Dunn told U.S. District Judge Robert Pitman in a hearing that was held via Zoom as a pandemic precaution.

Other lawyers argued that Abbott’s order placed a disproportionate burden on Texans who are most likely to vote by mail — those who are 65 and older or have a disability — by forcing many to endure longer and more difficult travel to ensure that their votes are submitted in a time of decreasing confidence in the U.S. Postal Service.

“It’s ironic and sad,” lawyer John Devaney said. “Now, after voting has started, the plug has been pulled.”

Lawyers for Abbott disputed claims that his order limited voting rights, saying the governor acted to expand opportunities and options for voters during the pandemic.

Abbott’s first election-related order, issued July 27, added six days of early voting and suspended a state law that allows voters to hand-deliver mail-in ballots only on Election Day, lawyer Eric Hudson told the judge.

In effect, Abbott gave voters almost 40 extra days to hand-deliver their ballots, Hudson argued.

“That’s not provided for in Texas law, and without Gov. Abbott’s proclamation, that right … would not be possible,” he said.

Pitman broke in to ask: “Is it the governor’s position that we’ve given you so much it’s OK to take back a little?”

“I don’t think we’ve taken anything back, your honor,” Hudson replied.

This hearing was for the first lawsuit, filed by LULAC and the League of Women Voters. Earlier in the day, the ACLU and the Lincoln Project announced they had filed amicus briefs in support of the plaintiffs. Courthouse News has some further details.

Representing LULAC, San Antonio attorney Luis Vera said the fears of election fraud have already been discredited and voters had already turned in their ballots for four days until Abbott’s order.

“The state of Texas wants one set of rules for [the] one party they represent and one set of rules for the others,” he said.

Attorney Chad Dunn, with Brazil & Dunn in Houston, asked the judge to issue a preliminary injunction to “preserve the status quo.” He cited federal courts’ reluctance to change the terms of an election so close to Election Day.

“This case is about more than drop-box locations in a county. It is about whether the public believes the results of the election will be honored,” he said.

Attorney John Devaney, with Perkins Coie in Washington, told Pitman the individual voter plaintiffs have standing in the case because of the risk they face voting at the polls and contracting Covid-19, and because they will have to travel further to reach their county’s one absentee drop-off location.

He argued that LULAC and the League of Women Voters have standing as organizations due to the burden of having to reallocate their resources at the last-minute to account for Abbott’s order.

“They will need to change their website, their educational materials and contact their new members” with the new information, Devaney said.

In response to the judge asking if the state also faces a burden if he decides to block Abbott’s order, Devaney responded the state’s burden to maintain the status quo would be smaller than that of the plaintiffs.

“Voters tend to wait until the end of an election to request a ballot. It’s not just procrastination,” Devaney said. “In an election this heated, voters want to wait. There’s going to be a surge of absentee votes … given the two-week period for the USPS, people are going to have to turn in their ballots because they don’t trust the Postal Service.”

Judge Pitman asked the plaintiffs if there was any difference between the drop-off locations closed by Abbott’s order and the still-operation sites in terms of election security.

Attorney Susan Hays, representing Harris County Clerk Chris Hollins, responded the county’s shuttered annex locations are “typical business offices” that are more secure than other public places due to employees receiving election security training. She said they are “much more secure because they must show ID before handing over the ballot.”

Pitman said he would issue his ruling “as soon as possible” given the close proximity to Election Day. Early voting locations are scheduled to open on Oct. 13.

It wouldn’t shock me if we get a ruling by Monday, but we’ll see. This is now the fourth lawsuit filed against the Abbott order, with three of them in federal court. According to the Statesman story, there’s a hearing scheduled for the state lawsuit next week.

UPDATE: Here’s the Chron story:

During a hearing Thursday, U.S. District Judge Robert Pitman appeared unconvinced by the idea that eliminating the additional locations would have no impact on voting accessibility.

The suit before Pitman is one of several challenging Texas election laws and Abbott’s pandemic executive orders amending them that are still swirling, even as the start of early voting approaches.

[…]

The pool of voters using this method appears to be relatively small so far, though mail-in voting is up across Texas, so demand could rise.

In Harris County, for example, just 0.2 percent of 85,922 absentee voters hand-delivered their ballots during the low-turnout July primary runoff; 39 of the 404 ballots for the Nov. 3 election that have been returned through Thursday were dropped off by voters. Those dropoffs ceased when Abbott’s order went into effect with less than 24 hours notice.

It should be noted that dropoff boxes were basically never mentioned as an option for the July primary runoffs, so the fact that almost no one used them is no surprise. And since 39 out of 404 is almost ten percent, it sure looks like we were on our way to a significant increase in the use of this method. I point these numbers out because one can make an argument about how much of a burden Abbott’s order is based on them.

How not to be “ground zero” for voter suppression

It starts with winning elections. Which would be easier to do if Republicans weren’t hell-bent on making it hard to vote, but then that’s why they do what they do.

Fewer and fewer states are standing with Texas as it continues to resist calls to expand mail-in voting amid the coronavirus outbreak, with South Carolina on Wednesday becoming the latest to allow anyone to cast a ballot by mail this fall.

Texas is now one of just five states won’t accept concerns about the coronavirus as an excuse to vote by mail and state leaders have blocked attempts by local officials in Harris County to make voting by mail more accessible.

That Texas is out on the edge on an issue of voting access should come as no surprise, experts in voting laws say.

The Republicans who run state government have made Texas a national leader in voting restrictions, ground zero in a series of long-running fights over voting rights, and hotly debated allegations of potential voter fraud. It’s a battle President Donald Trump has escalated in the past week, tweeting repeatedly about mail-in voting, which he alleges will lead to “MAYHEM!!!” despite no evidence of such in the states that already have widespread voting by mail.

Democrats have poured millions into at least 18 different legal battles against Texas over mail-in voting and a host of other election issues — more than anywhere in the nation — as the state’s elections have grown more competitive. They charge that the Republicans who run state government have placed hurdles at every step of the electoral process to keep their power despite demographic changes that have diminished their public support.

Texas’ sluggish voter turnout rates are frequently cited as evidence that GOP suppression efforts are working. The state’s decision not to make it easier to vote by mail, critics say, is just the latest example.

You can read the rest for a recitation of the greatest hits in making it harder to vote, but it’s all familiar. (This was also written before the Abbott order about mail ballot dropoff locations, which shows that there will always be new frontiers in this field.) The key to this whole thing is right there in the fourth paragraph, “The Republicans who run state government”. The only way this is going to change is for the Republicans to not be running state government. We can take an important step in that direction in this election, especially if we can get an all-Democratic federal government that will pass an expansion of the Voting Rights Act and other protections. We can finish the job in 2022 and pass laws to repeal voter ID, allow for no-excuses vote by mail, enable online voter registration, and more. The courts aren’t going to save us. The Republicans have no interest in any of this – indeed, as I’ve argued before, if they maintain their trifecta after this election, they are now strongly incentivized to rein in efforts to send out vote by mail applications to those who hadn’t requested them. We win these elections and we move forward, or we don’t and we move back. The fact that it’s harder for us to win these elections is just too bad. That’s how it is. It’s all up to us.

Lawsuit filed over Abbott’s order to limit mail ballot dropoff locations

As expected.

Voting rights advocates and civic groups have rushed to the courthouse in a bid to block Republican Gov. Greg Abbott’s Oct. 1 order allowing Texas counties no more than one drop-off location for voters casting absentee ballots, calling the directive an unconstitutional burden on the right to vote that will disproportionately impact voters of color in the state’s biggest cities.

The Texas and National Leagues of United Latin American Citizens, the League of Women Voters of Texas and two Texas voters asked a federal judge in Austin in a lawsuit filed late Thursday to overturn the governor’s order, which forced Travis and Harris counties — two of the state’s most important Democratic strongholds — to shutter a number of drop-off sites they had already opened this week.

“The impact of this eleventh-hour decisions is momentous, targets Texas’ most vulnerable voters—older voters, and voters with disabilities—and results in wild variations in access to absentee voting drop-off locations depending on the county a voter resides in,” attorneys for the groups argued. “It also results in predictable disproportionate impacts on minority communities that already hit hardest by the COVID-19 crisis.”

Attorneys also pointed out that Abbott was making a major change to election procedures just weeks away from an election — an action the state and its attorneys argued was improper in a separate federal lawsuit over straight-ticket voting.

[…]

The lawsuit will have to move quickly, with early voting set to begin in less than two weeks on Oct. 13.

Harris and Travis counties had each set up multiple locations for accepting absentee ballots and had already begun accepting them before Abbott issued his order shutting down the satellite locations. Voting rights experts say access to these locations is especially important given concerns over U.S. Postal Service delays and that closing them will disproportionately impact voters with disabilities or without access to reliable transportation. Harris County is home to 2.4 million registered voters and stretches across some 1,700 square miles, more than the entire state of Rhode Island.

Ralph Edelbach of Cypress, an 82-year-old voter among those suing Abbott, had planned to drop his ballot off at a Harris County location that was 16 miles from his home — but now will have to travel 36 miles, nearly 90 minutes round trip, to reach the only location Abbott has allowed to stay open, according to court documents.

At a press conference Friday morning, Harris County Clerk Chris Hollins said he could reopen the shuttered locations “at the drop of a dime.”

“Ultimately, anything that’s done to decrease voter convenience, to put obstacles in the way of the voter, is voter suppression, and will lead to disenfranchisement,” he said.

Abbott’s order, which came a day after the Texas solicitor general approved Harris County’s plan for multiple locations under earlier guidance from the governor, also said counties must allow poll watchers to observe goings-on at ballot drop-off sites. Voting rights advocates fear that poll watchers, who are selected by candidates or political parties, will seek to intimidate voters, as has been documented in the past.

Abbott claimed the limits on drop-off locations were necessary to ensure election integrity. But he provided no evidence that the drop-off sites enable voter fraud, which experts say is rare.

And the procedures for delivering an absentee ballot are strict. Voters must present an approved form of identification, show up during specified hours and can only deliver their own ballots.

See here for the background and here for a copy of the complaint. The “approval” from the Solicitor General’s office to the Hollins plan is in reference to the brief filed by Paxton’s office in response to the Hotze mandamus that had already challenged what Harris County was doing. Have fun squaring that circle, y’all.

The Chron adds some details.

The suit, filed in federal court in Austin, alleges that the order violates the Voting Rights Act and First and Fourteenth Amendments, which guarantee equal protection of the right to vote, and will disproportionately affect minorities and older citizens who are at higher risk of serious complications from COVID-19.

[…]

Thursday’s move by Abbott was made in stark contrast to a legal argument that Texas Solicitor General Kyle Hawkins had made in response to a lawsuit the day prior. Then, Hawkins argued in a brief to the Texas Supreme Court that nothing in previous orders disallowed the interpretation of the clerks’ “office” to include annex offices, and the Secretary of State had told local officials that any clerk’s office sufficed for dropoff.

It marked the latest instance of Abbott reversing course under political pressure over his response to the pandemic.

Abbott had spent months holding off on a statewide mask mandate, but later enacted one in line with other states. He similarly resisted a statewide stay-at-home order until cases began to surge.

Following an uproar from conservatives over a Dallas salon owner who faced jail time as indirect result of her keeping her business open in violation of Abbott’s stay-at-home order, he limited punishment to fines.

[…]

“As many states are expanding ballot drop off options to ensure voter confidence this year, it is vile to see Texas’s attempts to do the opposite,” said Celina Stewart, senior director of advocacy and litigation for the League of Women Voters.

The Texas director of AARP, which represents more than 2.3 million seniors in the state, said Friday that she was “deeply concerned” about the new restrictions on ballot dropoff.

“During a pandemic, now more than ever, older voters need confidence that they can vote safely,” Tina Tran said. “Texas voters, especially those 50-plus, do not need another impediment to voting.”

Despite Texas having some of the most restrictive voting and vote-by-mail laws in the country — it’s one of just five states where voters have to provide an excuse other than COVID-19 to request a mail ballot — counties have reported higher-than-normal levels of interest in the practice.

To manage the influx, Harris County had planned on having locations at the main county clerk office and 11 annex offices throughout the 1,777-square-mile county to collect mail ballots. Neighboring Fort Bend County had planned to open five locations, and Travis County had planned on having three in addition to its main office.

Dallas County told CBS 11 News that it had planned to open multiple locations but is now prohibited.

County officials said they were given no notice of the order, which took effect within 24 hours.

This will have to be litigated quickly for obvious reasons. I will say, even with all of his often-craven flip flops, Abbott has generally used his executive powers under the Disaster Act to mitigate or halt the spread of the coronavirus. Extending early voting to a third week was one such example of that. There’s nothing in this order that conforms to that goal – limiting mail ballot dropoff locations will force more people to one location and may wind up making more people vote in person – and so on that principle it would seem to me that Abbott’s underlying rationale is legally suspect. I don’t know that that’s an issue here – that would seem to be more of a claim for state court. Who knows, maybe there will be another lawsuit that does go that route. In the meantime, this is what we have. Reform Austin has more.

And straight ticket voting is off again

No surprise, but boy are we all getting whiplash over here.

Texas voters will not be able to select every candidate of a major political party with one punch, a federal appeals court ruled Wednesday, upholding a 2017 state law that ends the popular practice of straight-ticket voting for this year’s general election.

The Texas Legislature years ago acted to end straight-ticket voting in time for the 2020 presidential contest, but a federal judge earlier this month reinstated the practice, citing complications to the voting process caused by the pandemic.

A three-judge panel on the 5th U.S. Circuit Court of Appeals overturned that decision on Wednesday, ruling that the law ending the one-punch option should go into effect even as voters and election administrators contend with the coronavirus pandemic, citing the U.S. Supreme Court’s “emphasis that courts should not alter election rules on the eve of an election.”

“The Texas Legislature passed HB 25 in 2017, and state election officials have planned for this election accordingly. The state election machinery is already well in motion,” the judges wrote. Upholding the law and eliminating straight ticket voting, they wrote, “will minimize confusion among both voters and trained election officials.”

[…]

The opinion, which was not signed, came from a panel of three appointees of George W. Bush: U.S. Circuit Judges Edith Clement, Catharina Haynes and Jennifer Walker Elrod. The court had already paused the lower court’s ruling with a brief administrative stay, but Wednesday’s eight-page decision is a firmer word on the matter.

See here and here for the background. I don’t agree that this ruling would have been disruptive of confusing to voters, who had been used to being able to vote straight ticket, but I thought the original ruling against the plaintiffs was correct, so I’m not going to get too exercised over this. I will say, now that SCOTUS is again on everyone’s mind, that this case is a reminder that many cases get resolved well before they get to SCOTUS, or to SCOTX if we’re talking about state litigation. It’s clear that the courts we have are not going to save us. The route we need to take to fix our ridiculous voting laws is winning enough state elections to pass new and better voting laws. Whatever happens with SCOTUS, we should be plenty of motivated to do that.

Of course the Fifth Circuit paused the straight ticket voting ruling

Water is wet, the sky is blue, the Fifth Circuit gives Ken Paxton whatever he asks.

Best mugshot ever

A federal appeals court on Monday put a temporary hold on a lower court’s ruling last week that reinstated the practice of straight-ticket voting, again casting into uncertainty whether Texas voters will have the option in the Nov. 3 election to vote for every candidate of a political party with one punch. A final ruling is expected after the court weighs the arguments more thoroughly.

[…]

Early voting is set to start Oct. 13, leaving election administrators little time to make major changes to voting procedures.

U.S. District Judge Marina Garcia Marmolejo wrote that ending straight-ticket voting would “cause important delays at polling places, place Texan voters at increased risk of catching a deadly virus, and discourage voters, particularly those most vulnerable to the disease or under significant economic pressure, from exercising their rights on election day.”

The three-judge panel of the New Orleans-based 5th U.S. Circuit Court of Appeals put a momentary pause on that decision Monday while it considers the case. It set quick deadlines for both sides to submit their arguments.

The case was brought by the Texas Alliance for Retired Americans and Democratic groups.

No matter the end result, the litigation has meant hours of chaos for scores of election administrators scrambling to ready their polling places for a Texas election unlike any other.

See here and here for the background. This is what I expected, so I’m not surprised, just appropriately cynical. The court has ordered a briefing to be held on Wednesday, so at least this should be resolved quickly one way or the other. You can see why I suggested we be deliberate about discussing this. Until we get a final ruling for this election, please pour one out for the state’s elections administrators, as they chug Maalox and chain smoke while the courts meddle with their perfectly nice election. The Chron and the Statesman have more.

Paxton appeals stright ticket voting ruling

Letting no moss grow.

Best mugshot ever

The Texas Attorney General’s office filed an appeal and motion to stay Saturday following a federal judge’s order to reinstate straight ticket voting ahead of the November general election.

Lawyers representing the Texas Secretary of State argued that U.S. District Judge Marina Garcia Marmolejo erred when she ruled Friday that the elimination of straight ticket voting this year would illegally impede the ability of Texas residents to vote by causing long lines at the polls amid the COVID-19 pandemic.

The Attorney General’s office also argued the ruling came too late for elections officials to properly alter ballots.

“Eighteen days before in-person voting begins is insufficient time for election administrators in 254 counties and their vendors to meticulously re-program, re-proof, and re-test thousands of different ballot styles,” state officials wrote in their motion to stay.

[…]

Some county elections officials have issued warnings that Marmolejo’s ruling came too late in the planning process. Marmolejo found that only in-person ballots must have a straight-ticket voting option.

It is not immediately clear how quickly the U.S. Fifth Circuit Court of Appeals will act or when Marmolejo might rule on the motion to stay.

See here for the background. This was of course completely expected, and if the Fifth Circuit doesn’t break records issuing a stay of Judge Marmolejo’s order I’ll be shocked, but here we are for now. Gotta admit, Paxton complaining about the timing after his official support of reinstating Green Party candidates within a week of the supposed deadline for printing absentee ballots is a nice touch. You have to respect the dedication to his craft.

I have to admit, I’m a bit hesitant to even talk about this litigation. I don’t want to start telling people “Hey, it turns out you can vote a straight party ticket like you did before”, only to have to retract that following the inevitable Fifth Circuit action and tell people again that they need to vote in each race. I’d just like to know what the rules are so we can prepare for them. Allowing straight ticket voting again, even at this late hour, isn’t confusing, it’s what people are used to. Not having it isn’t great, but we have a message for that. Taking it away, then giving it back, then taking it away again, that’s what would suck. So for now, don’t go sharing this stuff all over social media. Wait till we know what’s for real first.

Straight ticket voting reinstated (for now)

That was unexpected.

Less than three weeks before early voting begins in Texas, a U.S. district judge has blocked the state from eliminating straight-ticket voting as an option for people who go to the polls this November.

In a ruling issued late Friday, U.S. District Judge Marina Garcia Marmolejo cited the coronavirus pandemic, saying the elimination of the voting practice would “cause irreparable injury” to voters “by creating mass lines at the polls and increasing the amount of time voters are exposed to COVID-19.”

Marmolejo also found that the GOP-backed law would “impose a discriminatory burden” on black and Hispanic voters and “create comparatively less opportunities for these voters to participate in the political process.”

She acknowledged the burden the decision could put on local and state election officials, who will have to recalibrate voting machines or reprint ballots. But she reasoned that the potential harm for those suing, including the Texas Association for Retired Americans, was “outweighed by the inconveniences resulting.”

[…]

The Texas Democratic Party joined other Democratic groups and candidates in suing the state in March to overturn the law, but Marmolejo dismissed the case. Another suit was then filed, but with the Texas Association for Retired Americans added as plaintiffs and the state party removed. Nonetheless, Democrats celebrated the judge’s order Friday.

“Time and time again Republican leadership has tried to make it harder to vote and time and time again federal courts strike it down,” Texas Democratic Party Chair Gilberto Hinojosa said in a statement after the ruling. “Texas Democrats will have to continue to win at the ballot box to protect the right vote. Until the new Texas majority wipes out these out-of-touch Republicans, Texas Democrats will never stop fighting for Texans in court.”

See here and here for the background. This was a Democracy Docket case, and so they have a copy of the original complaint and the judge’s order. The complaint wasn’t any different the second time around, but the set of plaintiffs was. Beyond that, the main difference was the extent of the pandemic since the original case was dismissed in late June. The judge cites how much worse the spread of the virus has gotten, as well as the difficulties counties had running the primary runoffs in July – fewer voting locations, harder time getting poll workers – as justification for reversing her original dismissal. She also noted the extra time it takes to vote Texas’ long ballots; I’m guessing this opinion was written a few days ago, because that recent Harris County study was not cited.

I presume this will be appealed to the Fifth Circuit before the weekend is out, and I expect they will put a stay on the order pending whatever review they’re going to do. Or maybe not, I don’t know, we’re getting awfully close to “we really need to finalize the ballot and configure the voting machines” time. The judge also noted in the ruling that it would be less confusing to the voters to restore straight ticket voting at this late time than to not have it, since we have not had such an election yet. I think the real danger of confusion is having everyone talk about this ruling for a few days and then have it blocked by the appeals court, but that’s just me. For now, we’ll be voting like it’s 2018 again. For now. The Chron has more.

Interview with Rep. Marc Veasey

Rep. Marc Veasey

When I came up with the idea to do a series of interviews about redistricting, Rep. Marc Veasey was among the first people I wanted to talk to. He was a State Rep in 2011 when the original maps were passed, and then he got elected as the first member of Congress in CD33, one of the new districts created in that 2011 session. He was one of the litigants in the consolidated case that made it to the Supreme Court (he was also one of the main litigants in the voter ID lawsuit; the 2010s were a busy decade for Rep. Veasey), and I wanted to get the insight from someone who was in this fight from the beginning. As a member of the now-Democratic majority US House, he’s also got a role to play in making the landscape better in the 2020’s, with legislation to make redistricting fairer that will also generally expand voting rights. Here’s what we talked about:

Here’s my interview with redistricting expert Michael Li if you haven’t listened to it yet. I hope to have more of these in the coming weeks.

Straight ticket voting lawsuit tossed

Not a big surprise.

A federal judge on Wednesday threw out Democrats’ effort to reinstate the straight-ticket voting option in Texas.

Siding with the state, U.S. District Judge Marina Garcia Marmolejo found that Democrats lacked standing to challenge Texas Republicans’ decision to kill straight-ticket voting ahead of the November general election. The judge dismissed the federal lawsuit after ruling that Democrats’ claims of the electoral fallout that could come from eliminating straight-ticket voting were too speculative.

The Texas Democratic Party — joined by the chair of the Webb County Democratic Party and the Democratic campaign arms of the U.S. Senate and House — filed the lawsuit in March on the heels of Super Tuesday voting that left some Texans waiting for hours to cast their ballots.

They claimed the elimination of straight-ticket voting is unconstitutional and intentionally discriminatory because the longer lines and waiting times it is expected to cause would be disproportionately felt at polling places that serve Hispanic and Black voters.

[…]

In her order, Garcia Marmolejo ruled that that Democrats’ predictions about the negative effects the lack of straight-ticket voting would have on voters and the election process were “uncertain to occur.” She also found fault with their assumptions that the Texas secretary of state and local officials would not work to “ameliorate the situation.”

Garcia Marmolejo also pointed to the likelihood that in-person voting would be transformed by the new coronavirus, which has led to long lines in other states where elections have already occurred during the pandemic, regardless of whether straight-ticket voting was eliminated.

“Considering the pandemic has already caused long lines at polling-places, many Texans will endure longer lines at polling places indefinitely, irrespective of any order issued by this Court,” she wrote. “And other Texans will experience shorter lines given that voters have been encouraged to steer clear from in-person voting where possible.”

See here for the background. I thought this case was weak, and I am not surprised by the ruling. I do find it ironic that the judge is citing vote by mail as a mitigation of the concerns raised by the plaintiffs. From your lips to John Roberts’ ears, Your Honor. Anyway, there’s still a lot of legal action going on out there. We’ll hope to get ’em next time.

Interview with Michael Li

Michael Li

As we know, among the many monumental tasks that the Legislature has before it in 2021 is redistricting. That will almost certainly be done in a summer or even autumn special session, since Census data will be delayed by the COVID-19 pandemic, but it will happen next year, with all the usual pomp and partisan fighting that accompanies it. And as we also know from living in Texas, litigation and redistricting go together like chips and salsa. This past decade was particularly eventful for redistricting and the courts, and I wanted to have a chance to review where we are now before we embark on the next round. The best person I could think of to have this conversation with is Michael Li, Senior Counsel for the Brennan Center’s Democracy Program, where his work focuses on redistricting, voting rights, and elections. I was of course a dedicated reader of his Texas Redistricting blog, and I follow him now on Twitter, and I was delighted to have the opportunity to ask him all my questions about the state of redistricting litigation:

I have a number of interviews in mind on this topic that I would like to do. I’m working on making that happen, but have no set schedule for any of it at this time. Please let me know what you think.

State ordered to pay plaintiffs’ fees in voter ID case

Pending appeal, of course.

Still the only voter ID anyone should need

Texas ultimately won the long-winding fight to keep its voter ID law on the books, but a federal judge has ruled the state is on the hook for nearly $6.8 million in legal fees and costs.

In a Wednesday order, federal District Judge Nelva Gonzales Ramos of Corpus Christi found the state must pay that sum to the collection of parties who sued over the 2011 restrictions the state set on what forms of photo identification are accepted at the polls. A spokesperson for the Texas attorney general indicated the state will appeal the ruling.

The voter ID case ricocheted through the federal courts for nearly seven years and over several elections, with Ramos first ruling in 2014 that lawmakers discriminated against Hispanic and black voters when they crafted one of the nation’s strictest voter ID laws.

Lawmakers eventually revised the voter ID law in 2017 to match temporary rules Ramos had put in place for the 2016 election in an effort to ease the state’s requirements as the litigation moved forward. After the state faced multiple losses in the courts, the U.S. 5th Circuit Court of Appeals ultimately upheld Texas’ revised law.

But left intact were findings that the original law produced discriminatory results.

It is what it is, and the appeals process will take many more months. No one should be making detailed plans for the money, because even if it survives appeal it’s going to be awhile before any checks get cut. This is a consolation prize, and not that much of one, but it’s what we’ve got. Until we can take back the Lege and more and repeal this stupid law.

First federal vote by mail lawsuit hearing

One down, two to go.

U.S. District Judge Fred Biery heard arguments Friday in a federal lawsuit seeking to give all voters the option to vote by mail due to fears of catching or spreading the coronavirus.

[…]

During Friday’s federal court hearing, Texas Democratic Party General Counsel Chad Dunn argued that concerns about coronavirus should not disqualify someone from exercising their right to vote. Doing so discriminates against classes of voters, such as voters under the age of 65.

Requiring people under the age of 65 to vote in person creates a “survival of the fittest election,” Dunn said via videoconference, and an impossible choice between protecting their health and exercising their right to vote. In the meantime, voters will be left in a “twilight zone,” unclear if they can apply for a mail-in ballot or not, Dunn said.

The Texas Democratic Party named Gov. Greg Abbott, Secretary of State Ruth Hughs, Travis County Clerk Dana DeBeauvoir, and Bexar County Elections Administrator Jacquelyn F. Callanen as defendants in the suit. Other plaintiffs include the League of United Latin American Citizens (LULAC) and other individual voters Joseph Daniel Cascino, Shandra Marie Sansing, and Brenda Li Garcia.

They are seeking a preliminary injunction for the finding that the current election conditions violate tenets of the First, 14th and 26th amendments as well as some provisions of the Voting Rights Act. The suit also requests that the defendants stop issuing threats of criminal or civil sanctions for helping voters vote by mail.

Biery said he could not estimate when he would issue a ruling in the case. “All I can tell you is it will be forthcoming,” he said. “No guarantee as to when.”

Robert Green, an attorney representing Bexar County and Callanen, said the county “is not here to take a position” on the various legal arguments presented by the Democratic Party or by the State. However, Green stated that counties have no mechanism or authority to investigate what “disability” a voter cites in an application for a mail-in ballot.

“A voter who believes that they are eligible … is permitted to indicate that solely by checking a box,” he said. “If a court were to order or if the Secretary of State were to issue guidance that local officials should reject certain disability applications if they’re premised on some COVID-related fear or lack of immunity, it’s not clear at all that local officials would be able to do that because the application does not allow voters” to explain their disability, he said.

Lack of immunity to COVID-19 is a physical condition, Green said. “A voter lacking that immunity is endangered by in-person voting. I think that that’s an inescapable reality.”

See here and here for the background. As the story notes, not long after this hearing came the State Supreme Court ruling that for now at least halted efforts to encourage people to apply for mail ballots. The people who have already asked for them and cited “disability” as the reason will presumably still receive them – as noted, there’s neither a process nor the authorization to check on that. The other two federal lawsuits are not on the calendar yet as far as I know. I have no idea if we’re going to have a clear ruling on this in time for the primary runoff. Of course, the question of what comes after that is even bigger, so this story is just getting underway. Stay tuned.

LULAC joins TDP’s federal mail ballot lawsuit

More plaintiffs, more fun.

A prominent Latino civil rights group is jumping into the fight to expand Texas’ voting-by-mail eligibility, alleging the restriction that limits age eligibility for voting by mail to those 65 and older disproportionately harms Texas Latinos because they tend to be younger in age.

The League of United Latin American Citizens’ national and Texas arms signed on Tuesday to the Texas Democratic Party’s federal lawsuit against the state raising claims that the state’s absentee voting restriction is unconstitutional and violates the federal Voting Rights Act’s prohibition on discrimination against voters based on race.

“All voters will face substantial health risks by voting in person. But the consequences of voting in person will not be equally shared among Texas’ demographic populations,” reads LULAC’s complaint, which was filed in federal court in San Antonio.

LULAC cited census estimates that show nearly two out of every three adults older than 65 in Texas are white, indicating that the pool of voters eligible to request a ballot they can fill out at home and mail in is predominantly white.

“This means that the younger and minority voters, including many of LULAC Plaintiffs’ members, are disproportionately harmed by Defendants’ enforcement of the Eligibility Criteria,” the organization argued. “Nearly a third of Texas’s Latino voters are between the ages of 18-29.”

See here for the background. As noted, there’s a hearing this Friday for this suit. There’s also the age discrimination lawsuit and the undue burdens lawsuit, both in federal court, and the other TDP lawsuit, in state court. Kind of amazing there are this many seemingly viable arguments for allowing greater access to mail ballots, isn’t it? Almost like our state laws are overly restrictive. Doesn’t mean any of these will make it past the Fifth Circuit, but they’re going to have to work hard to shoot these all down.

Lawsuit filed over straight ticket voting ban

Lots of litigation lately.

In a federal lawsuit filed Thursday in Laredo, the Texas Democratic Party — joined by the chair of the Webb County Democratic Party and the Democratic campaign arms of the U.S. Senate and House — claims the elimination of straight-ticket voting is unconstitutional and intentionally discriminatory because the longer lines and waiting times it is expected to cause would be disproportionately felt at polling places that serve Hispanic and black voters.

“In ending a century-old voting practice that Texans have relied on to exercise their most fundamental and sacred rights — the rights to political participation and association — Texas has recklessly created a recipe for disaster at the polls in 2020,” the Democrats wrote in their lawsuit.

The popular practice allowed general-election voters to vote for all of the candidates of either party in an election by simply picking a straight-ticket option at the top of the ballot. But Texas Republican lawmakers championed a change to the law during the 2017 legislative session, arguing it would compel voters to make more-informed decisions because they would have to make a decision on every race on a ballot.

Most states don’t allow for one-punch voting, but its elimination in Texas met intense opposition from Democrats who fear the change will be most felt among voters of color and lead to voter dropoff, particularly in blue urban counties that have the longest ballots in the state.

[…]

Citing violations of the First and 14th Amendments and the federal Voting Rights Act, Democrats are asking a federal judge to block the state from eliminating straight-ticket voting ahead of the general election.

“The end of straight-ticket voting was yet another Republican attempt to suppress the vote, alter the electorate, and take away power from the rising Texas majority,” Texas Democratic Party Chair Gilberto Hinojosa said in a statement. “In minority-majority districts, lines to vote have already proven to be hours long.”

Courthouse News has the details of the lawsuit.

The Democrats say in the lawsuit that Texas’ longest polling-place lines are in its most populous counties, which have large concentrations of Democratic-leaning black and Latino voters.

The biggest counties also have the longest ballots, with voters wading through dozens of candidates, exacerbated by the fact Texas is one of a handful of states that selects judges in partisan elections.

For years, Texans could complete their civic duty in minutes by stepping into the voting booth and clicking one box to vote for all the Democratic or Republican candidates on the ticket — and millions of Texans chose that option.

“During Texas’s 2018 general election, approximately two-thirds of voters — more than 5.6 million Texans — cast their votes using STV [straight-ticket voting],” the lawsuit states. (Emphasis in original.)

But in 2017 the Republican-led Legislature passed House Bill 25 along party lines to end straight-ticket voting on Sept. 1, 2020 and Governor Greg Abbott, a Republican, signed it into law.

Texas Democrats brought a federal complaint Thursday against Secretary of State Ruth Hughs in Laredo, seeking an injunction to stop House Bill 25 from going on the books.

The party says in the lawsuit that HB 25 is a “recipe for disaster,” especially after Super Tuesday saw voters waiting more than two hours in Houston and Dallas to get to voting booths.

Well, the tie-in to the Super Tuesday mess is clever and timely, though how legally relevant it may be remains to be seen. As both stories note, there’s been quite the fusillade of voting rights lawsuits lately, from Motor Voter 2.0 to electronic signatures for voter registration to mobile voting locations. Some have more merit than others, though I remain skeptical that the Fifth Circuit and SCOTUS would ever allow any of them to succeed. As has been the case before, I agree with the basic premise of this lawsuit – I remain a staunch defender of straight ticket voting, even as I doubt its loss will affect Dems more than it will affect Republicans – and I have no doubt that the 2017 bill was passed for the express purpose of making it harder on Democrats. I mean, no one in the GOP had any problems with straight ticket voting when it clearly benefited their side.

I also think the claim that eliminating it is weak, given that Texas was an anomaly by having straight ticket voting, and even if voluminous evidence exists to show that the bill outlawing it was racially motivated, such issues didn’t bother SCOTUS in the redistricting and voter ID litigation. I’m fine with this aggressive approach – it puts the Republicans on the defensive, there’s always the chance something juicy comes out during discovery, and who knows, one or more of these might actually win despite my skepticism. I’m just going to keep my expectations in check. The Chron has more.

HISD attempt to stop TEA takeover denied

Possibly only a temporary setback, however.

A federal judge on Wednesday denied Houston ISD’s request for a preliminary injunction and dismissed its lawsuit aimed at stopping the Texas Education Agency from replacing the district’s elected board, delivering a temporary victory to state officials.

However, U.S. District Judge Lee Yeakel ruled that HISD could still argue parts of the lawsuit in state court and did not reject a Voting Rights Act violation claim brought by the district’s largest teachers union, keeping the possibility of legal intervention alive.

In a 13-page ruling issued late Wednesday, Yeakel found that HISD officials could not legally bring federal due process and voting rights claims against the Texas Education Agency, and that allegations of First Amendment rights violations by the agency did not warrant issuing a preliminary injunction.

[…]

Yeakel, based in Austin, said claims that Texas Education Commissioner Mike Morath exceeded his authority on multiple occasions prior to deciding to replace HISD trustees could be heard in a Travis County court, where he remanded the case.

See here for the previous update; as promised, this was a quick ruling from Judge Yeakel. HISD could now pursue this in a state court, where I don’t think they’re any more likely to get a favorable ruling, but in for a penny and all that. In addition, Judge Yeakel wrote that his initial approval of the Houston Federation of Teachers joining the lawsuit was in error, because they have separate claims from the ones HISD was bringing. He said they should file their own separate lawsuit, which centers on Voting Rights Act claims; as the story indicates, that is what they plan to do. Again, based on the North Forest experience, I don’t think this is going to win the day, but there’s no harm in trying. So, while this was a win for the state, it’s not over yet. The Trib has more.

TEA recommends HISD takeover

Not finalized yet, but you can see the way it’s going to go.

The Texas Education Agency is recommending that the state take over Houston Independent School District — the state’s largest public school system — due to its elected school board’s “demonstrated inability to appropriately govern,” according to a 318-page final investigative report sent to lawmakers Wednesday.

TEA’s Special Investigations Unit Director Jason Hewitt found that school board members violated state open meetings law by discussing district business without notifying the public of their discussions, attempted to influence how contracts were awarded, and took action on district issues individually without consulting other board members. It substantiates most of the allegations made in a preliminary August report.

District officials and board members, whose responses are included in the final report, dispute many of the agency’s conclusions and argued the allegations were not investigated properly. The Texas Tribune obtained a copy of the report, which is public, late Wednesday. TEA officials confirmed that they had sent it to legislators.

Hewitt recommended Texas Education Commissioner Mike Morath appoint a board of managers to oversee the school district, replacing the elected school board.

[…]

Houston ISD received a B from the state this year, largely based on student test scores, but Wheatley High School failed in August for the seventh year in a row. The TEA is separately considering penalizing the district because of Wheatley’s repeated low performance.

The findings in the report are final and cannot be appealed. Morath will make the final determination on whether to replace Houston ISD’s board.

See here for the background. Remember that this is about the ethics investigation – this is the final version of the August report, which means this version was written after HISD had a chance to respond to the initial report, which also recommended a takeover. The accountability ratings issue is still pending, with the Wheatley rating being half-heartedly appealed, and that decision by Morath – a decision between replacing the Board and closing Wheatley, the latter of which everyone expects will not happen – is not due till early next year. I presume Morath has more discretion in this matter, but given that a takeover is basically inevitable at this point I’m not sure how much it matters. I suppose it may make a difference in terms of how long it may take HISD to get back in control of its own governance, and what it needs to do to get there, but in the short term it’s a distinction without much difference.

In the meantime, there’s this.

Lawyers for Houston ISD’s school board have asked a federal judge to preemptively stop the Texas Education Agency from stripping power from the district’s elected trustees and allow board members to select a permanent superintendent, the latest maneuver in a growing legal battle between the district and state.

In a motion filed Tuesday, the HISD board’s lawyers argued agency officials have discriminated against voters in predominantly black and Hispanic cities, overstepped their authority in suspending the district’s superintendent search and misinterpreted a new state law that requires dramatic intervention in districts with long-struggling schools.

[…]

In their motion for a preliminary injunction, HISD’s lawyers said Texas Education Commissioner Mike Morath is attempting to “unlawfully supplant the democratically-elected board of trustees” and replace it with a state-appointed governance team. The district’s lawyers noted that 10 districts subject to major state intervention in recent years all serve large majorities of black and Hispanic students, illustrating discrimination under the Voting Rights Act.

“You could argue that it’s a coincidence. I think it’s not,” Kevin O’Hanlon, a lawyer for HISD trustees, said Wednesday.

In addition to discrimination claims, HISD’s lawyers argued that a state-appointed conservator overseeing the district’s operations of long-struggling Kashmere High School overstepped her legal authority in suspending HISD’s superintendent search last March. HISD has been without a permanent superintendent since March 2018, when Richard Carranza abruptly left to lead New York City’s public schools.

HISD’s lawyers claim the conservator, former Aldine ISD administrator Doris Delaney, only had the power to dictate matters related to Kashmere.

“Delaney was appointed to be a campus-level conservator over the performance of one of (HISD’s) schools, and was to implement and ensure compliance with getting the resources necessary to extract it from its low-performing status,” O’Hanlon said.

However, state law grants broad authority to conservators, including the ability to “direct an action to be taken” by a district’s board of trustees.

I Am Not A Lawyer, but let’s just say I have my doubts about the likelihood of success here. It’s worth a shot, but I wouldn’t go betting the rent on it. We’ll see how this goes, and how long it takes – would anyone be surprised if this is still in the courts when the TEA is handing power back to HISD? I don’t think it’s likely to go anywhere, but that’s just my guess at this time.

Voting centers everywhere

In Dallas:

Starting in November, problems like Mr. Voter’s, at least in Dallas County, will be a thing of the past. Tuesday afternoon, the Texas Secretary of State’s Office officially gave the county permission to participate in the countywide voting program the state allows its most populous counties to opt into. That means that whenever you vote, whether it’s early or on Election Day, you can vote at whatever polling place you choose, as long as you’re both registered to vote in Dallas County and physically in Dallas County.

County commissioners voted to ask the state to get in on the program this spring, after county staff said participation would streamline the voting process, potentially increase voter turnout and decrease the number of voters who cast provisional ballots.

“It is time to come into the 21st century and have an election system that actually works,” Commissioner Elba Garcia said in March. “The main point about vote centers is that we have people, over 3,000 people, that wanted to vote during the last election and they were not able to do it. Voting centers bring that to the table. It’s time to make sure that anyone who wants to vote is able to go and vote in the right place without any problems.”

[…]

In order to participate in countywide voting this November, Dallas County had to upgrade its voter check-in system, something you may have noticed if you’re one of the literally hundreds of people who voted in May or June’s municipal elections. Those looking to cast ballots now check in on a cloud-connected tablet that has service from two carriers, in case one is on the fritz.

November’s state constitutional amendment election is essentially a dry run. If everything comes off without a hitch, and Dallas County sends a successful report to the state, the county will be able to offer countywide polling places during all elections moving forward.

In San Antonio:

The Secretary of State approved Bexar County’s adoption of the vote center model Friday for the upcoming November election, Bexar County Elections Administrator Jacque Callanen told county commissioners Tuesday.

The November election will serve as the “soft rollout” for the vote center model, Callanen said. Vote centers allow voters to cast ballots at any location in Bexar County on Election Day. The county previously used the precinct model, under which voters were required to cast ballots at their specific precincts on election day.

“When we do publication [of voting locations], we’ll have Vote Center 1, VC 2, VC 3, and addresses listed,” Callanen said. “No longer are we precinct-driven.”

Callanen said she expected people to get used to the new model after a complete election cycle. The Elections Department plans to start its advertising push after Oct. 1 to allow people enough time to hear about and understand the new voting model.

“I think that will take a little assistance to get the word out,” she said.

This year’s Nov. 5 Election Day will feature 10 constitutional amendments on the ballot, and turnout is expected to be low. However, county election officials view the election as an important dress rehearsal for the November 2020 presidential election.

Both will join Harris County, which had its dry run in May and will get a fuller test this November, with the city of Houston elections and the Metro referendum. It’s a good thing that voting centers are spreading, because traditional polling places have been going away in the state in recent years.

A new report out from the Leadership Conference Education Fund found that Texas is leading the nation in polling place closures, another practice that voting rights advocates fear can lead to disenfranchisement.

The report, titled “Democracy Diverted: Polling Place Closures and the Right to Vote,” looked at 757 of the 861 counties and county-level equivalents across the nation that were previously covered by Section 5, and found that 750 polling places in Texas have been shuttered since Shelby. That constitutes almost half of all polling places in the U.S. closed since 2013. Fourteen Texas counties closed at least 50 percent of their polling places after Shelby, and 590 have been shuttered since the 2014 midterm election.

Maricopa County in Arizona had the most polling place closures, but that was followed by six counties in Texas: Dallas lost 74 places; Travis lost 67; Harris shuttered 52; Brazoria closed 37; and Nueces closed 37.

“The large number of polling location closures is attributable to the size of Texas and the fact that we’re no longer under preclearance,” said Beth Stevens, director of the Voting Rights Program at the Texas Civil Rights Project. Now, “there’s no one [the state needs] to ask for permission to make changes.”

[…]

This comes into focus when looking at the demographics of some of the counties that saw the most closures. Brazoria County, which lost 59 percent of its polling locations since Shelby, is 30 percent Latino and 13 percent African American. The number of polling places in Nueces County, home to Corpus Christi and 63 percent Latinx, dropped by nearly a third. In Jefferson County, where Beaumont is located, about 34 percent of its 250,000 residents are African American and 20 percent are Latino; polling places there dropped from 57 in 2012 to 39 in 2018.

The report attributes some of these closures to jurisdictions adopting the county-wide polling program and opening voting mega-centers. By allowing people to cast a ballot on Election Day at any location, instead of bounding them to their precinct, the program is supposed to make voting easier (more locations to choose from, shorter lines).

The Texas Civil Rights Project is supportive of the program, said Stevens—so long as it’s enacted responsibly. She pointed to counties like Harris and Bexar as good examples: they’ve moved to county-wide polling while maintaining every single polling location that they would otherwise be required to have.

But, the report notes, some counties with large drops in polling locations—like Somervell (minus 80 percent), Loving (minus 75 percent), and Stonewall (minus 75 percent)—didn’t transition to vote centers. The report adds, “voters in counties that still hold precinct-style elections have 250 fewer voting locations than they did in 2012.”

The report is here and I’ve just glanced at some of it, so I can’t give you too much extra context. Some of what’s reported in the Observer is a bit alarmist, however. Loving County had 110 total registered voters in 2016, and its demographics are almost entirely Anglo. I’d bet that its “75% reduction” is going from four sites to one. Stonewall County had 998 RVs total in 2016. Every voter counts, but not every county’s actions are equal in scope. The statistics for Brazoria, Jefferson, and Nueces counties sounds more ominous, but all of them use voting centers as well. Travis County, of course, is one of the pioneers of voting centers; one of the people in charge of implementing the Harris County program came from the Travis County Clerk’s office having done the same thing there. What all this means is we need more information about how well or not these are working and what the effect are on voters of color. Which, as is noted in the report summary, is a hard thing to assess without Section 5 of the Voting Rights Act. This is definitely something to watch, I just can’t say right now what the level of concern needs to be. The Chron, whose story gets more into the details about voting centers, has more.

Life after the Voting Rights Act

A good long read from the Trib about where we are with redistricting and what may lie ahead.

Since Congress passed the Voting Rights Act in 1965, Texas has been barred by law from discriminating against voters of color. Yet in every decade since then, federal judges have ruled at least once that the state violated federal protections for voters in redistricting.

Now, as Texas Republicans are facing the possibility of losing their political dominance, the state is gearing up for a new cycle of mapmaking. The House Redistricting Committee [held] the first of more than a dozen hearings Tuesday in advance of what’s expected to be a contentious legislative session in 2021, when new political boundaries will need to be drawn to account for the state’s booming population.

But because of voting rights advocates’ repeated court losses over the past decade, state lawmakers facing an incredibly pivotal and politically fraught moment will instead have much more freedom to set those lines — and the power that comes with them — without any federal government oversight. And once they’re enacted, the voters of color and civil rights groups that have fought the maps in the past may not have the same tools with which to challenge the discrimination that may tarnish them.

“It’s just extremely disappointing as far as they went to sort of kick us down and kick minority voting rights down,” [civil rights attorney Jose] Garza said after the Supreme Court ruling came down.

That was the ruling that upheld the Texas Congressional and legislative maps; the subsequent SCOTUS ruling that batted away partisan redistricting claims was just another ton of dirt on the coffin. It’s very likely that Republicans will pursue maximal advantage through redistricting in 2021, including drawing districts based on Citizen Voting Age Population instead of just population – this is what the Census fight and the Hofeller project were about. The only possible kink in that plan would be a Democratic-majority House, which might force some compromises. Anyway, read the story and brush up on your history, because we’re all going to be living it again soon.

Revisiting City Council redistricting

This would be interesting.

At Wednesday’s council meeting, District E Councilmember Dave Martin said the city should consider redrawing city council district boundaries, particularly in his own district.

District E includes two far-flung suburbs, Kingwood and Clear Lake. Martin said it’s a “ridiculously arranged council district” where it is difficult to coordinate meetings.

“I’ve always felt that the folks in Clear Lake do indeed deserve their own representation there, because it is tough for someone to drive 60 miles on a weekend to get to a certain area,” Martin said.

Mayor Sylvester Turner agreed with Martin’s assessment of District E.

“I will tell you it is an interesting drawing,” Turner said. “Because you certainly cannot go from Kingwood to Clear Lake for a town hall meeting, two town hall meetings.”

Turner said he would support taking a look at the map after the 2020 census.

“I don’t know what the thinking was back then,” Turner said. “But it does seem to be not in the best interest of two areas that are so geographically separated. I think it’s worth taking a look at.”

There’s a copy of the map embedded in the story, and you can also see it here, with links to individual district maps here. It’s true that District E is this two-headed amalgam of far-apart suburbs, with a bit of connecting tissue in between, but any proposed solution to address that is complicated. The problem is that the Kingwood part of E abuts District B, and the Clear Lake part borders on Districts D and I. Any redesign of the current map that would split District E into separate parts has to take into account merging a bunch of white Republicans with a bunch of black and Latinx Democrats. Even before we take Voting Rights Act requirements into consideration, I can guarantee you that a substantial number of people would be unhappy with any alternative.

What you could do is reduce the size of individual districts to be roughly the size of the Kingwood and Clear Lake pieces, then redraw the map with however many districts there would be with such smaller population requirements. That would result in a map with anywhere from 15 to 21 districts, depending on how much you padded out the two halves of E. We can debate whether that’s a good idea or a bad idea, but we’d also probably need a charter amendment to make it happen.

Personally, I’d be willing to at least explore the idea, and maybe have someone draw a few sample maps, to give a picture of what this might look like. Honestly, I think we ought to consider the same for the Legislature, where individual districts have grown in population quite a lot in recent years. This is especially true for Senate districts, which used to be smaller than Congressional districts but are now larger and will get more so in 2021 when Texas is given additional seats in Congress. It’ll never happen of course, but that doesn’t mean we should never think about it.

No bail in

No surprise, I’m afraid.

Texas won’t have to seek federal approval when state lawmakers draw new election maps in two years, a three-judge panel in San Antonio decided Wednesday. The judges, however, cautioned Texas that its next process will “undoubtedly” be subject to judicial scrutiny.

“Texas would be well advised to conduct its redistricting process openly,” U.S. District Judge Xavier Rodriguez wrote in the 27-page opinion.

The decision is a blow to civil rights groups that had asked for Texas to again face federal oversight, known as preclearance, following a years-long legal battle over Texas political maps drawn after the 2010 census, which federal courts have found intentionally discriminated against minority voters.

The plaintiffs have yet to decide what they will do next, said Jose Garza, lead counsel for the Mexican American Legislative Caucus. Garza noted the decision’s “strong language.”

“If you read the opinion in its entirety, the state doesn’t come up smelling very well,” he said.

See here, here, and here for the background, and here for a copy of the ruling. This doesn’t foreclose future litigation against the sure-to-be rigged maps the 2021 Lege will come up with – and if not them thanks to Democratic control of the House, the Legislative Redistricting Board – but it’s one less tool in the bag. The simple fact remains that Dems are going to have to win some elections while fighting uphill, and then once they have sufficient control of state government taking whatever steps are necessary to fix this. And if some time during the next decade we wake up in a world where Dems do have control of both chambers and the Governor’s office, redrawing all the maps a la 2003 would be a high priority in the subsequent session. Rick Hasen, the DMN, the Trib, and ThinkProgress have more.

Does the partisan redistricting ruling change anything in Texas?

Maybe, but if so it will be indirect.

Robert Henneke, general counsel for the Texas Public Policy Foundation, a conservative think tank, said the ruling was a clear sign that the high court wanted to discourage federal judges from micromanaging the redistricting process.

“I think it de-escalates the use of litigation as a way of seeking results that aren’t supported on election day,” Henneke said.

Chad Dunn, a lawyer who sued on behalf of the Democratic Party in Texas to block redistricting maps drawn earlier this decade, said he did not believe Thursday’s ruling would have a dramatic impact in the state.

Courts have cracked down on Texas-drawn maps every decade since the 1960s for violating the Voting Rights Act’s restrictions on diluting minority voting strength and gerrymandering along racial grounds, and those restrictions remain in place, Dunn said.

“I don’t think, really, anything changes,” he said. “Partisan gerrymandering (complaints) would have been another tool for voters to use in the courthouse.”

Renea Hicks, another lawyer who challenged the current set of Texas maps, wasn’t so sure.

Republicans who drew the most recent maps claimed they were using voters’ political affiliations to draw districts that helped one party succeed or benefited an incumbent, but Hicks said the reason could be used to mask a racial purpose, particularly because Latino and African American voters tend to favor Democrats.

“They can use partisanship to locate minorities, then draw lines,” he said. “Now they have even more to hide behind.”

I think Hicks has it right. Let’s not forget the previous ruling that found essentially no fault with the Texas legislative and Congressional maps despite the lower court rulings that they were racially discriminatory. SCOTUS accepted the fig leaf that the slightly tweaked 2013 maps, which were still 98% based on the discriminatory 2011 maps, absolved the state of all its sins. I don’t think the Republicans will have much to fear in 2021 if they have full control of the process. Heck, even if they have to defer to the Legislative Redistricting Board for the non-Congressional maps, I don’t think they’ll hold back. And remember, even if they do draw maps that somehow wind up being tossed, they’ll get multiple elections out of the bad maps before any consequences are enforced. The incentives point one hundred percent in the direction of maximal partisan advantage. The real questions are 1) How much more maximally can they draw districts now versus 2011, and 2) How much do the state’s changing demographics hold them back? There’s only one way to find out.

How to rig the Census

This is how you would do it.

The Trump administration’s controversial effort to add a citizenship question to the 2020 census was drawn up by the Republican Party’s gerrymandering mastermind, who wrote that it “would clearly be a disadvantage to the Democrats” and “advantageous to Republicans and Non-Hispanic Whites.” This bombshell news, revealed in newly released legal documents, suggests that the Trump administration added the question not to better enforce the Voting Rights Act, as it claimed, but to benefit Republicans politically when it came to drawing new political districts.

A case challenging the citizenship question is currently before the Supreme Court, and the new evidence significantly undercuts the Trump administration’s position in the case.

Tom Hofeller, who passed away last year, was the longtime redistricting expert for the Republican National Committee. He helped Republicans draw heavily gerrymandered maps in nearly every key swing state after the 2010 election. In some of those places, like North Carolina, the new lines were struck down for discriminating against African Americans.

In 2015, Hofeller was hired by the Washington Free Beacon, a conservative news outlet, to study the impact of drawing state legislative districts based on citizenship rather than total population, which has been the standard for decades. Hofeller’s analysis of Texas state legislative districts found that drawing districts based on citizenship—a move he conceded would be a “radical departure from the federal ‘one person, one vote’ rule presently used in the United States”—would reduce representation for Hispanics, who tended to vote Democratic, and increase representation for white Republicans. But Hofeller said that a question about citizenship would need to be added to the census, which forms the basis for redistricting, for states like Texas to pursue this new strategy.

Hofeller then urged President Donald Trump’s transition team to add the question about citizenship to the 2020 census. He urged the team to claim that a citizenship question was needed to enforce the Voting Rights Act, even though Hofeller had already concluded that it would harm the racial minority groups that the act was designed to protect. That argument was then used by the Justice Department in a December 2017 letter requesting that the Commerce Department, which oversees the census, include a citizenship question.

Hofeller’s documents were discovered on hard drives found by his estranged daughter and introduced into evidence in a separate trial challenging gerrymandered North Carolina state legislative districts drawn by Hofeller. On Thursday, lawyers challenging the citizenship question cited them in federal court. They suggest that members of Trump’s team may not have been fully forthcoming in their testimony under oath. Neither Trump transition team member Mark Neuman nor John Gore, the former assistant attorney general for civil rights who wrote the Justice Department letter, mentioned Hofeller’s involvement in the letter when they were deposed under oath as part of a lawsuit by New York and 17 other states challenging the citizenship question.

Yeah. And of course, Texas was a key to all this.

The filing includes a 2015 analysis by Hofeller that had been commissioned to demonstrate the effect that using the population of citizens who are of voting age, as opposed to total population, would have on drawing up legislative districts.

Hofeller detailed how the change would clearly be “advantageous to Republicans and Non-Hispanic Whites” by using the Texas House as his case study. He detailed how the Hispanic population would drop in traditionally Democratic districts, which would then have to grow geographically to meet constitutional population requirements in redistricting.

The loss of Democratic-leaning districts would be most severe in areas with mostly Hispanic populations, such as South Texas, El Paso and the Rio Grande Valley, which would lose 2.6 state House districts, according to Hofeller’s analysis. The change would also cost Dallas County 1.7 districts and another 1.7 districts in Harris County and its suburbs.

If the Supreme Court had required such a change at the time of the study, it would have mandated a “radical redrawing of the state House districts,” Hofeller wrote. He noted that the traditionally Democratic districts in need of more population could pick up pockets of Democratic areas in adjacent Republican-held districts and ultimately shore up the GOP’s control across the state.

But that approach was unrealistic at that point, Hofeller wrote in his study, because the government did not compile the necessary citizenship information. And he admitted it was unlikely that the Supreme Court could be convinced to alter the population standard used to draw legislative districts.

“Without a question on citizenship being included on the 2020 Decennial Census questionnaire, the use of citizen voting age population is functionally unworkable,” Hofeller said.

This is a reference to the Evenwel lawsuit, which established that states had discretion in how they drew legislative districts, but did not opine on whether drawing them based on citizen population rather than plain old population was legal. And so here we are.

The Census lawsuits have been argued before the Supreme Court, where the five Republican Justices seem inclined to let the Trump administration break the law as they see fit. Rick Hasen thinks this should-be-a-blockbuster revelation will just make the SCOTUS Five that much more likely to go with Team Trump. Hey, remember how Jill Stein supporters – and Ralph Nader supporters before her – poo-poohed concerns about the makeup of the Supreme Court if another Republican President got to pick more Justices? Good times, good times. ThinkProgress and Daily Kos have more.

The Section 3 bail-in hearing

At long last, the final question to answer about Texas and the Voting Rights Act, namely has the state done enough bad stuff to be required to be put under preclearance again?

Back in the federal courthouse where most of an eight year-long case has played out, the fight over forcing Texas back under federal oversight of its mapmaking appeared to hinge on whether the state should be held accountable for political maps that never took effect.

The arguments for a return to the days when Texas needed approval of its political districts diverged significantly during a Thursday court hearing before a panel of three federal judges. The state and the plaintiffs — voters of color, civil rights groups and Democratic lawmakers — each appeared to have a judge on their side. One judge was skeptical of any sort of supervision for state lawmakers, while another judge openly considered why Texas should be allowed to redraw its maps without any sort of guardianship given its recent discrimination against voters of color.

But the high-stakes fight — and ultimately the ruling from the three-judge panel overseeing the case — may very well rest on Chief U.S. District Judge Orlando Garcia, who made few remarks during the hearing but summed up the issue in one question.

“Is it actual injury or threatened harm that controls the issue?” Garcia asked.

[…]

“If the bail in statute means anything…it has to apply to Texas redistricting,” said Allison Riggs, a lawyer with the Southern Coalition for Social Justice who is representing some of the plaintiffs. “Texas redistricting is where the state again and again and again at every level of government has shown a resistance to recognizing the political power of minority voters.”

Thursday’s hearing marked the beginning of the final — and perhaps the most significant — stage of the long-running legal fight over the state’s political maps. The case is poised to serve as the latest test of whether the federal Voting Rights Act can still serve as a safeguard for voters of color. If the panel does not invoke bail in, the 2021 redistricting cycle would mark the first time in nearly half a century that Texas could implement new legislative and congressional districts without first proving they don’t undercut the electoral power of voters of color.

While under federal supervision, Texas proved to be a repeat offender. In their briefs to the court ahead of the hearing, the plaintiffs noted that state lawmakers passed one or more redistricting plans that were declared unconstitutional or in violation of the Voting Rights Act in every decade since 1970.

Given the rulings of intentional discrimination against the state, the plaintiffs are asking the court to put the state back under oversight of its mapmaking for up to 10 years to cover the next round of redistricting when the state will again rejigger its political boundaries to account for population growth.

But Judge Jerry Smith of the U.S. Fifth Circuit Court of Appeals appeared hostile to that proposal, repeatedly alluding to a 2018 Supreme Court ruling in which the court signed off on most of Texas’ current political boundaries and pushed aside claims that state lawmakers intentionally discriminated against voters of color when they replaced the 2011 maps in 2013.

“This has already been going on for eight years, and you want 10 more despite the Supreme Court saying it’s over,” Smith said. “I don’t understand.”

The state’s deputy solicitor general, Matthew Frederick, echoed that sentiment. He argued that Texas shouldn’t be placed back under federal oversight based on findings against maps that were never used, especially after the Supreme Court found no intentional discrimination behind the state’s 2013 effort to replace those maps with those offered up by three-judge panel in 2012 as an interim fix to allow elections to move forward that year.

Bail in “cannot be justified when a state adopts and accepts judicial remedies,” Frederick said.

“So your argument is we messed up and intentionally discriminated at first, but the court fixed it and as a result of the court fixing it we’re OK?” asked federal District Judge Xavier Rodriguez.

Frederick responded that those violations weren’t enough to invoke bail in because the state had not engaged in widespread, rampant discrimination. He pointed out that any sort of discrimination found by the court in Texas did not amount to the widespread racism that marked the 1960s, when states kept voters of color from casting votes by continuously replacing barriers —for example , requirements that black voters guess how many bubbles are in a bar of soap — with other impediments, such as literacy tests, as they were deemed unconstitutional.

But Rodriguez continued to question Frederick over whether the state was “engaging in more subtle forms of discrimination” that it then attempted to wash away by replacing discriminatory laws with court fixes and then claiming there was no harm for which it could be held accountable. He pointed to the state’s defense of its strict voter ID law that, like the state maps, was eventually replaced with a court remedy after a judge found it was enacted with discriminatory purpose.

“But for this court’s changes to those 2011 plans, the state would’ve continued to try to continue to implement them,” Rodriguez said. “That’s what the whole [bail in] paradigm is trying to prevent from happening again.”

See here and here for the background. These are the same three judges who had ruled in the earlier redistricting cases, so it is entirely possible that they may once again vote 2-1 in favor of the plaintiffs. I mean, the record speaks quite clearly for itself, and if Texas doesn’t meet the standard for bail-in, it’s hard to know how it could ever be met. Which just means that the Fifth Circuit will need to come up with a reason, which SCOTUS will then endorse, because come on, we’ve seen this movie and we know how it ends. I wish I were less cynical, but how can you not be, given what has happened so far? We’ll see how long it takes for a ruling and we’ll go from there. The DMN and Michael Li have more.

Is the Lege going to try to “fix” HD90?

Here’s a legislative to do list item that has been completely off the radar.

Rep. Ramon Romero

Federal courts last year gave Texas lawmakers 45 days from the beginning of this year’s legislative session to start redrawing boundary lines for Fort Worth’s House District 90 because of gerrymandering.

The 45-day mark [was] Thursday.

If a proposal isn’t introduced within the first month and a half of the session — or if it doesn’t appear likely that a new plan will come up during the session that wraps up May 27 — then the three-judge panel in a U.S. District Court in San Antonio will undertake the “unwelcome obligation” of fixing the district.

So far, no bill to redraw the district represented by Democrat Ramon Romero has been filed.

“The Supreme Court has ruled that we must have a narrow tailored correction to District 90,” Romero said. “The most narrow tailored line is that those precincts split by amendments in 2013 must be brought back to the way they were before.

“Will the district be fixed by the Legislature or will the Legislature pass on filing a bill … to let the courts do it?”

He said the next step is to see what fixes are proposed by the Texas Attorney General’s Office.

See here and here for the background. This was brought to my attention by regular commenter blank, who also noted it at Daily Kos. This story was published on Tuesday, and as far as I can tell, no bills relevant to this issue have been filed. That doesn’t mean that the courts will absolutely jump in with their own fix – the AG will propose something, the deadline for all bill filing hasn’t passed yet, and I’m sure the court won’t consider taking action until after the session if nothing passes and someone files a motion. Whatever the case, this is out there. What makes it more complicated, as blank noted in his Kos comment, is that if such a bill gets filed and heard in committee, it could be amended in all kinds of ways as it works through the system. You could in effect redistrict the entire Lege using this bill as a vehicle if you have the votes for it. Or you may just decide nothing is worth the bother and leave it to the court to clean up. I have no idea which way this will go, but we’ll keep an eye on it.

Second lawsuit filed over bogus SOS advisory

Keep ’em coming.

Still the only voter ID anyone should need

A group of Latino voters is suing top state officials who they allege unlawfully conspired to violate their constitutional rights by singling them out for investigation and removal from the voter rolls because they are foreign-born.

Filed in a Corpus Christi-based federal court on Friday night, the suit alleges that the decision by state officials to advise counties to review the citizenship status of tens of thousands of registered voters it flagged using flawed data runs contrary to the 14th Amendment of the U.S. Constitution and the federal Voting Rights Act because it imposes additional requirements to register to vote on naturalized citizens.

Joined in the suit by several organizations that advocate for Latinos in Texas, the seven voters suing the state all obtained their driver’s license before they became naturalized citizens and subsequently registered to vote.

Their lawsuit — which names Republican Gov. Greg Abbott, Texas secretary of state David Whitley, attorney general Ken Paxton and one local official as defendants — asks the court to halt the state’s review and block officials from taking any action against them based on their national origin. It also asks Whitley to refrain from targeting new citizens for voter purges and to withdraw his current list “unless and until it acquires information that the voters are currently ineligible to vote.”

[…]

One of the plaintiffs — Julieta Garibay — has confirmed with Travis County election officials that she is on the list they received from the state. Five others believe they were included on the state’s list. Another plaintiff — Elena Keane — received a notice from Galveston County stating “there is reason to believe you may not be a United States citizen” and asking for proof of citizenship within 30 days to remain on the voter rolls.

Two days later, Keane received a second letter stating she had received the first letter in error.

Here’s the latest on that first lawsuit. This one was filed by MALDEF on behalf of the voters. The ACLU of Texas and the Texas Civil Rights Project have threatened to sue if the SOS doesn’t rescind the advisory, so we may get a third filing before all is said and done. Keep at it and don’t let up, I say. The Chron has more.

Trump administration opposes Section 3 oversight

I mean, duh.

In the latest about-face on voting rights under President Donald Trump, the U.S. Department of Justice no longer supports efforts to force Texas back under federal oversight of its electoral map drawing.

In legal filings this week, the Justice Department indicated it would side against the voters of color, civil rights groups and Democratic lawmakers who want a three-judge federal panel in San Antonio to require Texas to seek pre-approval of its legislative and congressional maps, given previous maps that the federal judges ruled discriminatory.

“The United States no longer believes that [federal supervision] is warranted in this case,” federal attorneys said in their filing to the court.

[…]

Under the Obama administration, the Justice Department sided with those challenging the state’s maps as discriminatory. But last year, Deputy U.S. Solicitor General Edwin Kneedler joined state attorneys in convincing the U.S. Supreme Court that Texas’ current congressional and state House maps, which were adopted in 2013, were legally sound.

In approving the state’s current maps, the high court in June wiped out a ruling by the San Antonio panel that found the maps were tainted with discrimination that was meant to thwart the voting power of Hispanic and black voters, oftentimes to keep white incumbents in office. But seemingly left untouched were previous findings of intentional discrimination at the hands of the state lawmakers who first redrew the state’s maps in 2011.

The state’s opponents are now pointing to some of those 2011 violations in asking the San Antonio panel to consider returning Texas to federal guardianship of its maps.

“In a jurisdiction like Texas, which has consistently engaged in intentional discrimination since its inception, and which year after year attempts to sharpen and hone its ability to violate the law in more covert and artful ways, the Constitution’s promise of equal protection under the laws requires the imposition” of federal supervision, the opponents said in a November filing.

See here for the background. The only reason the Trumpies hasn’t opposed this before now is because there hadn’t been a filing by the plaintiffs before. They’re consistent when it comes to opposing voting rights, that’s for sure. As you know, I don’t have any faith in SCOTUS to do the right thing, but you can’t get what you want if you don’t ask for it.

Orlando Sanchez’s bizarre press conference

What a weird thing.

Orlando Sanchez

It was an absolutely wild afternoon for Harris County Treasurer Orlando Sanchez. He planned to have a news conference across the street from the HISD administration building, but things didn’t go as planned.

Protestors showed up and completely disrupted Sanchez’s news conference. When he tried to get it started, the group would chant things like, ‘Go away, TEA’ and ‘You got voted out.’

Things really got heated when he was answering one of our questions. Someone from the group ran up and dumped water on him.

Someone from Sanchez’s team confronted the man. He ended up on the ground and police were called. Both sides claimed they were assaulted.

The news conference was supposed to be for Sanchez to call for the state to take over HISD.

“Taxpayers are fed up and it’s time for the governor and the Texas Education Agency to step up and make sure that children in HISD, which 83 percent of them are minority, get an education,” said Sanchez.

“To have somebody like that step on my toes like that when I have sacrificed so much for these kids, yeah, it’s emotional,” said HISD Board President Rhonda Skillern. “It is because it’s personal. These kids mean a lot to me; not just my five but all 215,000.”

Click over to see pictures and video. Far as I can tell, the only coverage of this fiasco has come from the TV stations; I’ve not seen anything in the Chron as yet.

Let me say up front that whoever poured water on Sanchez is an idiot, and what he did sure sounds like assault to me. It’s also terrible strategy from a public relations perspective. Sanchez’s purpose for calling the press conference was ridiculous on its face, and would have been easy to dismiss on its merits. Anyone who felt the need to attack Sanchez physically is someone who has no faith in their own political position.

Why do I say that Sanchez’s purpose is ridiculous? The law is clear that the authority of the TEA to step in only occurs after the schools fail to meet state standards. We won’t have that data for several months, a fact that everyone knows. It is entirely possible that the four schools in question, which were all granted one-year waivers due to the effects of Hurricane Harvey, could meet standards this year, as the other schools that had originally been under scrutiny and which did not get Harvey waivers did. One could easily argue that by making this needless and premature call for a TEA takeover, Sanchez is expressing a complete lack of faith in the students at the four schools. That’s an insult to them and their parents and teachers. Maybe he had some qualifiers and weasel words in his prepared text, but still, the message is clear: Orlando Sanchez expects you to fail, and so he wants the consequences of your failure to begin now.

One also can’t help but notice that Orlando Sanchez, who just got voted out of a cushy elected position where he was basically invisible for twelve years and has never before expressed any opinions about education or ideas about how to improve it, is jumping up and waving his arms in front of Greg Abbott at a time when he really needs something to do. It’s a clear grab for attention at a time when the news cycle is quiet and he can still call it in his capacity as an elected official. There’s also the rumors that Sanchez is prepping to run for Mayor (again). No such thing as bad publicity, am I right?

Finally, there will surely be litigation over the process of replacing an elected board with an appointed one – for sure, there’s a Voting Rights Act complaint to be made. There were lawsuits over the closure of North Forest ISD and La Marque ISD, and while the state prevailed in each of them, the situation with HISD, which is a much bigger district with many successful schools and is financially solvent, is vastly different. The state may well prevail in any litigation that will occur, but it will take time. There’s also the very real possibility that the Lege could modify the law in question that delays or makes less likely a TEA takeover. The point here is that in every way, this was way premature, and served to do nothing more than call attention to Orlando Sanchez. On that score at least, mission accomplished.

HISD rejects partnership idea

The die is cast.

Houston ISD trustees narrowly voted Thursday to not seek proposals from outside organizations to run long-struggling schools, a decision that keeps those campuses under local control but sets the stage for a possible state takeover of the district’s school board.

Barring an unexpected legislative or legal change, four HISD schools now must meet state academic standards in 2019 after missing the mark for four-plus consecutive years to stave off major state sanctions against the district. If any of those four schools fail to meet standard, the Texas Education Agency is legally required to replace HISD’s entire school board and appoint new members, or close still-failing schools.

HISD could have preempted any punishment for two years if the district temporarily surrendered control of the four schools to outside groups. TEA leaders have previously said they do not see closing schools as a strong option for improving student outcomes, though they have not committed to either option.

In a 5-4 vote following about an hour of debate, interrupted several times by community members who vocally opposed seeking partnerships, trustees opted against directing Interim Superintendent Grenita Lathan to issue a request for proposals to take control of an undetermined number of campuses. The four campuses that have repeatedly failed to meet state standard — Highland Heights Elementary School, Henry Middle School, and Kashmere and Wheatley high schools — would have been considered for partnerships.

[…]

Trustees Wanda Adams, Diana Dávila, Jolanda Jones, Elizabeth Santos and Rhonda Skillern-Jones opposed seeking proposals. Trustees Sue Deigaard, Sergio Lira, Holly Maria Flynn Vilaseca and Anne Sung supported the option.

Well, now Mayor Turner can quit pursuing the partnership plan he had proposed. At this point, either the four schools meet standards or we will say goodbye to the Board of Trustees for some number of years. I don’t foresee a bill getting passed to change the law that mandates the consequences, though that is a possibility that is worth pursuing because there’s nothing to lose and much to gain. While I expect there will be litigation over a state takeover – if nothing else, a Voting Rights Act lawsuit over the disenfranchisement of HISD voters seems likely – that kind of action can take years and is highly unpredictable. So it’s basically up to the students and parents and teachers and administrators at those four schools now. I wish them all the very best. The Press has more.

(On a side note, Diana Davila’s 2015 victory over Juliet Stipeche sure turned out to be consequential. I haven’t asked either of her opponents from 2017 how they might have voted, but Elizabeth Santos’ election in 2017 also looms large now. I sure hope we get to have HISD Trustee elections again next year.)

Moving forward on Section 3

There’s still redistricting litigation action happening.

Late Friday afternoon, the coalition of voting rights groups that have fought the state for fairer legislative districts since the last round of redistricting in 2010 filed a pair of new briefs with the U.S. District Court for the Western District of Texas in Austin. They seek to have the state forced back into federal preclearance under the Voting Rights Act.

States subject to the VRA’s preclearance provision must seek and receive federal approval for any changes they make to any law that applies to voting. Texas has been free from the requirement since 2013, when the Supreme Court cleared the list of states subject to preclearance, but could be placed back on the naughty list if federal courts determine that the state is intentionally discriminatory in its voting laws.

The groups argue that returning Texas to preclearance status for at least the next five years is the only thing that will stop state legislators from drawing unconstitutional district boundaries during the state’s next round of redistricting following the 2020 elections.

“[T]his vital, but time-limited remedy — this Court’s imposition of a preclearance requirement and retention of jurisdiction — is the most statutorily appropriate and equitable action that can ensure the State’s next redistricting plans do not discriminate against minority voters, particularly in light of this Court’s identification of the recent intentional discrimination employed by the State in redistricting and the persistent pattern of discriminatory governmental action in Texas directed at minority voters for generations,” the plaintiffs write.

[..]

“The Supreme Court held that the discriminatory intent of the 2011 legislature was erroneously imputed to the 2013 legislature, it left the findings of intentional discrimination as to the 2011 plans untouched, ‘express[ing] no view on the correctness of this holding,’” the plaintiffs, including the League of United Latin American Citizens and the Texas State Conference of NAACP Branches, write. “This Court’s findings of intentional discrimination in the 2011 Congressional and State House plans remain in place, and these findings — coupled with Texas’s persistent history of continued intentional discrimination — amply justify Plaintiffs’ request for relief under Section 3(c) [of the Voting Rights Act].”

See here and here for the background. The joint plaintiffs and Quesada plaintiffs’ petition for relief under Section 3 of the Voting Rights Act is here, the Task Force plaintiffs’ request is here, and every legal document associated with the case is here; scroll all the way to the bottom to see the most recent stuff. I haven’t seen any other news about these filings, so I guess this subject isn’t as sexy as it once was. Understandable, given the SCOTUS vandalism to the Voting Right Act, not to mention the likelihood of success, but this is still important. The state has till January 15 to respond. I’ll keep an eye on it.

A step forward in Waller County

Some progress.

Two days after students at Prairie View A&M University sued Waller County over allegations that the county is suppressing the voting rights of black residents, the rural county said it is expanding early voting opportunities for students at the historically black university.

The county will now open a Sunday polling place at Prairie View City Hall and expand voting hours at the university’s campus center on Monday through Wednesday of next week to 7 a.m. to 7 p.m., instead of the original 8 a.m. to 5 p.m., according to the NAACP. Students can continue to early vote at the Waller County Community Center in Prairie View on Thursday and Friday of next week.

According to Waller County’s website, there is still no location on campus or in the city of Prairie View available to the students during the first week of early voting, which is what originally prompted five students to sue the county, accusing it of violating the federal Voting Rights Act and U.S. Constitution by denying them “an equal opportunity to vote” compared to the county’s non-black voters.

[…]

In a statement released Thursday, the NAACP Legal Defense and Educational Fund called the expanded early voting plan “an improvement over the original plan, but still not equal to what other Waller County residents were offered.”

See here for the background. This is better than it was before, and that’s always something. But seriously, why is this so hard? Why isn’t Prairie View being treated like other voting locations? There’s no acceptable answer to that question.

UPDATE: State Sen. Borris Miles is not impressed with the latest announcement.

Prairie View students sue over lack of on campus EV site

The fight continues.

Five students at Prairie View A&M University are suing Waller County, which is home to the historically black university, over allegations that the county is suppressing the voting rights of its black residents.

In a lawsuit filed Monday, the students accused the county of violating the federal Voting Rights Act and the U.S. Constitution by not providing any early voting location on campus or in the city of Prairie View during the first week of early voting. The suit says the county’s decision “imposes a substantial and unwarranted burden” on student voters and denies them “an equal opportunity to vote” compared to the county’s non-black voters.

“There is no legitimate, non-discriminatory reason for defendants to deny opportunities for early voting during the first week to plaintiffs and black voters in Prairie View on an equal basis with other non-black voters of the Waller County,” the lawsuit reads.

Alleging that the county was treating black voters as second-class citizens, the students — represented by the NAACP Legal Defense and Educational Fund — asked a federal judge to force the county to set up an early voting site on campus that offers weekend hours.

In the lawsuit, the students noted that the county failed to set up any polling locations on campus or in the city of Prairie View, which has a majority black population, during the first week of early voting. The plaintiffs noted that the county is planning to provide five days of early voting in Prairie View during the second week, but early voting during two of those days will be held at an off-campus location that is not easily accessible to students that lack transportation. Neither site would offer weekend hours.

Meanwhile, voters in the city of Waller — which has a majority white population and half of the eligible voting-age population of Prairie View — will have access to two early voting sites during the first week of early voting. Both of those sites will also be open on Saturday. A polling site will also be open in the city of Waller during the second week of early voting.

I mean, come on. You could at least have a location in the city, with the same hours as the other sites, for the duration. The inequality here is right out in the open. There’s no good reason not to do this, and no, cost is not a good reason in this case.