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March 16th, 2016:

Runoff watch: Judicial races

There are three District Court race runoffs on the Democratic side, and two Court of Criminal Appeals runoffs for the Republicans. There are also a few Justice of the Peace runoffs, but I’ll deal with them in another post.

11th Civil District Court – Democratic

Kristen Hawkins

Kristen Hawkins

Kristem Hawkins led this three-candidate race by a wide margin, coming within 1000 votes of an outright win. Runnerup Rabeea Collier finished just 170 votes ahead of third-place candidate Jim Lewis. Given the narrowness of that margin, I’m actually a bit surprised there hasn’t been a call for a recount, but as far as I know there hasn’t been one.

Hawkins’ Q&A is here, and Collier’s is here. This race is fascinating because there’s no clear reason why it went the way it did. All three candidates were busy campaigners, and all three won endorsements from various groups, with Lewis getting the nod from the Chron. Hawkins was first on the ballot, but doesn’t appear to have been a major factor overall. Hawkins would seem to be a clear favorite in the runoff based on her near-win in March and commanding lead in vote total, but as we know this runoff is going to be a low-turnout affair. Anything can happen.

61st Civil District Court – Democratic

This three-way race saw a much more even split of the vote than the 11th did. Frontrunner Fredericka Phillips had 38%, with second-place finisher Julie Countiss scoring 35%. In third was Dion Ramos, who won a partial term for the 55th District Court in 2008, but lost it in the 2010 wipeout.

Countiss’ Q&A is here; Phillips did not send me a response. Countiss’ campaign was by far the most visible, at least to me, and she collected most of the group endorsements. Phillips is the Vice Chair of the Texas Democratic Party as well as a past candidate for the 387th District Court in 2012 in Fort Bend, under her maiden name of Petry. The Chron endorsed Ramos for March, so they’ll have to revisit this one; the same is true for the 11th, where Lewis was their initial choice. I see this race as a tossup.

215th Civil District Court – Democratic

Easily the most interesting of the judicial runoffs, and the one with the most backstory. In 2012, District Court Judge Steve Kirkland was the only incumbent judge to face a primary challenge, from attorney Elaine Palmer. Palmer’s campaign was lavishly funded by attorney George Fleming, who bore a grudge against Kirkland, and that animus made this an ugly, divisive race that Palmer ultimately won. Palmer went on to win in November, and now in 2016 she is the only incumbent judge facing a primary challenge. Three candidates filed against her, with JoAnn Storey leading the pack into overtime.

Judge Palmer’s Q&A is here, and Storey’s is here. Palmer led all the way but was never close to a majority, ending up with 43% to Storey’s 27%. If there’s a judicial race that will draw out voters, it will be this one, as Kirkland supporters, in particular the HGLBT Political Caucus, have a shot at avenging that 2012 race. Storey got most of the group endorsements for March, which in itself is remarkable given that she was challenging an incumbent, though the Caucus went with Josh Verde in Round One. I expect that will be handled for the runoff, and that I’ll be hearing from them as attention turns towards the vote. As for Palmer, if Fleming is still financing her it’s not apparent – the only report I can find for her is the January filing, for which she reported no contributions for the period. Again, this one could go either way, but I feel like Storey has a slight edge.

Court of Criminal Appeals – Republican

There are two Republican runoffs for the CCA. I’m just going to quote Grits for Breakfast about them.

Grits suggested before the primary that I’d “be watching the Sid Harle/Steve Smith race on the Court of Criminal Appeals to see if Texas GOP voters have flat-out lost their minds.”

Short answer: They have.

Judge Harle, who arguably was the most qualified and well-respected jurist on the ballot, didn’t even make the runoff to replace Cheryl Johnson on the court. Instead, a lawyer named Scott Walker who according to press accounts had “chosen not to campaign,” led the field with 41%. He’ll face Brent Webster, who ran on an anti-abortion platform unrelated to the activities of the Court of Criminal Appeals and garnered 20.45% of the vote.

Steve Smith ran third with 19.6%, with Harle trailing at 4th with 18.5%

Walker was popular because he shares a name with the Wisconsin governor who at one point appeared to be a presidential frontrunner before the Trump phenomenon erupted. Webster, presumably, benefited from his (irrelevant) pro-life bona fides, though so little is spent on these elections I suspect most people who voted for him knew nothing at all about him.

In the race between Mary Lou Keel, Chris Oldner, and Tea Partier Ray Wheless, Keel and Wheless made the runoff. Keel led, barely, but Wheless’ base is more likely to turn out in the runoff. Keel and Oldner have disparaged Wheless, whose background is mostly in civil law, as unqualified, although Rick Perry appointed him to a district court seat.

Voters in the GOP primary clearly didn’t have a clue about these CCA races. They may as well have drawn lots for Johnson’s seat. These races are so underfunded for a state the size of Texas that candidates can’t meaningfully get their messages out and voters have no way to know anything about them.

The Walker/Webster runoff is the strongest argument in my adult lifetime for appointing judges instead of electing them. What an embarrassment.

So there you have it. As a reminder, there are Democratic candidates in each of these races. I admit, that’s unlikely to matter, but I thought I’d put it out there anyway.

Abbott lies about vote fraud

Ross Ramsay calls him out for it, much more politely than I would have.

Not Greg Abbott

Once a consigliere, always a consigliere

The governor of Texas thinks that fraud in the electoral system that put him and others in office is “rampant.”

He can’t back that up.

Greg Abbott was asked on Monday what he thought about President Obama’s throwdown last week on the state’s lousy voter turnout.

“The folks who are governing the good state of Texas aren’t interested in having more people participate,” the president told The Texas Tribune’s Evan Smith at South by Southwest Interactive.

The chief of those “folks” would rather limit turnout than expand on what he seems to think is an election system that has run off the side of the road.

[…]

Strong word, rampant. The handy office thesaurus offers these synonyms: uncontrolled, unrestrained, unchecked, unbridled, widespread; out of control, out of hand, rife.

Does three cases of fraud for every 1 million votes strike you as “unbridled?”

[…]

A study done by News21, an investigative journalism project at Arizona State University, looked at open records from Texas and other states for the years 2000-2011 and found 104 cases of voter fraud had been alleged in Texas over that decade.

Chew on this: If you only count the Texans who voted in November general elections — skipping Democratic and Republican primaries and also special and constitutional elections — 35.8 million people voted during the period covered by the ASU study.

They found 104 cases of voter fraud among 35.8 million votes cast. That’s fewer than three glitches per 1 million votes.

As a point of comparison, Ramsay notes that the Texas Ethics Commission resolved 227 complaints through agreed orders out of over 500 complaints filed during the 2013-2014 biennium. That’s more than twice as many ethics complaints resolved, in two years, as there were allegations – not convictions, but allegations of voter fraud over more than a decade.

But it’s even worse than that. In this Trib story from the say before, about Abbott dismissing President Obama’s criticism about Texas’ abysmal rate of turnout and the resistance people like Greg Abbott have to doing anything about it, we find even more stark numbers:

“Voters and citizens repeatedly say, ‘Why go vote if we’re going to have corrupt leaders in office?’” Abbott said. “So we need to root out and eliminate corrupt leaders and root out and eliminate corruption in the voting process, and that means greater ballot security, not less ballot security.”

Abbott noted that he personally prosecuted voter fraud cases “across the entire state of Texas” while he was the state’s attorney general from 2002 to 2015.

Voter fraud remains by many accounts a rare phenomenon in Texas.

“You’re more likely to get struck by lightning in Texas than to find any kind of voter fraud,” U.S. Sen. Cory Booker, D-New Jersey, said last year, an assertion that PolitiFact found to be true.

As of last year, there had been a total of 85 election fraud prosecutions resolved in Texas, including 51 guilty or no contest pleas and 9 convictions, according to PolitiFact. Lorraine Minnite, a Rutgers professor and author of the book The Myth of Voter Fraud, determined that four cases in Texas from 2000 to 2014 involved in-person voter fraud.

Emphasis mine. Let’s put that in a bit more context:


Year     Turnout
================
2000   6,407,637
2002   4,553,979
2004   7,410,765
2006   4,399,068
2008   8,077,795
2010   4,979,870
2012   7,993,851
2014   4,727,208

Total 48,550,173

That’s only the November turnout figures, from only the even-numbered years. The total number of in-person vote fraud cases therefore represents one per 12 million votes cast. PolitiFact actually counted the other election totals, and came up with one per 18 million votes. And that’s prosecutions, not convictions; the PolitiFact story doesn’t discuss how those cases were resolved. I mean, you’re more likely to be killed by lightning than to find the kind of “voter fraud” Greg Abbott is so hot and bothered about. So yeah, he’s lying through his teeth. We should be very clear about that.

One State Bar complaint against Paxton dismissed

A little bit of good news for our embattled AG, but not much.

The State Bar of Texas has dismissed one of two pending complaints against Attorney General Ken Paxton.

The dismissed complaint, filed in February by attorney and blogger Ty Clevenger, requested that the bar investigate and penalize Paxton for his failure to register as a financial adviser while steering business to a friend’s investment firm.

[…]

In a letter explaining the move, Assistant Disciplinary Counsel Rita Uribe said the bar dismissed the complaint because “it is the subject of a pending criminal complaint.” If Paxton is convicted, she added, he will be “subject to compulsory discipline.”

Here’s Clevenger explaining why that is unsatisfactory to him.

Best mugshot ever

Best mugshot ever

As I explained in my February 11, 2016 blog post, my grievance against Mr. Paxton had far less to do with Mr. Paxton than the state bar itself.  Time and again, I’ve watched the state bar protect politically-connected attorneys, some of whom have committed serious crimes. And now the practice continues.

According to a March 9, 2016 letter from OCDC, my grievance was dismissed because the allegations are “the subject of a pending criminal case against [Mr. Paxton].”  But as I noted in the appeal that I filed this morning, nothing in the disciplinary rules prevents OCDC from prosecuting attorney misconduct charges concurrently with criminal charges.

On the contrary, “[t]he processing of a Grievance, Complaint, Disciplinary Proceeding, or Disciplinary Action is not, except for good cause, to be delayed or abated because of substantial similarity to the material allegations in pending civil or criminal litigation.” Texas Rule of Disciplinary Procedure 15.02. Granted, a delay or abatement differs from an outright dismissal, but the spirit of the rule certainly implies that OCDC should not dismiss a case simply because a related criminal case is pending. In fact, the OCDC prosecuted my grievance against former Robertson County District Attorney John Paschall concurrently with the overlapping criminal charge.

Under normal circumstances, however, the OCDC will not prosecute a politically-prominent attorney. In this case, the OCDC dismissed a grievance filed by Erica Gammill against Mr. Paxton in 2014 because that grievance supposedly failed to state a disciplinary violation (even though Mr. Paxton had already admitted his guilt in writing and under oath).  After Mr. Paxton got indicted for the very same allegation, I re-filed Ms. Gammill’s grievance along with a copy of the indictment.

And now the OCDC refuses to investigate because a criminal case is pending, which makes this a classic Catch 22.  If you file a grievance against a politician lawyer before he gets indicted, the state bar will dismiss the grievance — no matter how damning the evidence — on the grounds that you failed to state a violation. But if you file the grievance after he gets indicted, then the state bar will dismiss your grievance because a criminal case is pending.  Is it any wonder that my profession has such a miserable reputation?

There are good reasons for prosecuting the cases concurrently. First, the burden of proof differs between a disciplinary charge and a criminal charge. If the special prosecutors fail to prove Mr. Paxton’s guilt beyond a reasonable doubt, the OCDC might nonetheless prove him culpable on the preponderance of the evidence. Second, the four-year limitations period for a disciplinary charge will expire this summer, i.e., before Mr. Paxton’s criminal case goes to trial.  Maybe the Board of Disciplinary Appeals will do the right thing and reverse the OCDC, but the board sided with the OCDC the first time it buried this case.

I’d be very curious to hear what the attorneys who read my blog think about this. In the meantime, there is another complaint pending against Paxton, having to do with his bogus “advice” to County Clerks on how to evade the Supreme Court ruling on same-sex marriage. That one isn’t tied to an indictment, and the Board of Disciplinary Appeals reinstated it after an initial dismissal. So maybe one way or another the State Bar will have to take action.

Electric bikes

I don’t know.

Hundreds of local residents over the weekend strapped on helmets to ride motorized bikes as a way to showcase yet another way for Houstonians to traverse the city’s often congested streets.

The free promotional rides at Rice University Stadium were part of the first Electric Bike Expo in Houston.

“A lot of it really is just about having more fun. (E-bikes) can go pretty much anywhere a regular bicycle can go,” said Pete Prebus, the chief marketing officer of the expo’s organizer, ExtraEnergy. “And if you can commute to work while having fun, why not?”

The bike combines pedal with motor by sensing how fast and forcefully the rider is pedaling then assists with boost of extra power to reach speeds of around 20 to 28 mph, which helps when riders need to trundle uphill or haul groceries. A lithium-ion battery powers the motor and charges in three to six hours with a cable similar to a laptop charger.

On Saturday, Prebus said that e-bikes can be used for leisure, trips to the store, taking kids to school (there’s a specially made bike that can hold children in the back) and commuting to work.

“In the U.S., we’ve grown up around car culture for the most part. There are certain pains that go along with that, but there are solutions,” Prebus said. “Electric bikes are part of the solution.”

Costs range from around $1,000 to $10,000. Prebus said that vendors sell the standard bike for less than $4,000. Although these are hefty prices for a two-wheeler, BikeTexas Executive Director Robin Stallings figured it is worth the cost.

“I believe that e-bikes at any price are a cheaper deal than the cheapest car you will ever buy,” Stallings said, citing that these bikers would not need to deal with fluctuating gas prices and the wear-and-tear of city driving.

I guess if I was going to spend that kind of money on a motor vehicle, I’d buy a scooter or something similar, which I feel would be better suited for the roads. The bike trails in Houston, at least the ones I’ve been on, forbid motorized vehicles, which I presume would include these bikes. I suppose if you just tool around on side roads as you would with a regular pedal-power bike, an electric bike might make sense. Surely, it would be helpful for longer trips or maybe for hauling stuff, but I don’t know how big a niche that is.