Off the Kuff Rotating Header Image

September 7th, 2018:

How can Beto win?

Sep 7th, 2018
by Charles Kuffner.
18 comments

This is from the weekly newsletter put out by G. Elliott Morris:

Let’s talk about voter turnout in Texas. The statewide voting-agedpopulation is a mixed bag, made up of 45% White, 37% Hispanic, 11% Black, and 6% Asian/other residents, according to projections from the Center for American Progress. On its face, the majority-minority status of the state indicates that Democrats, who have an edge among non-white voters, would prosper in the state. Obviously, that’s not the case. This is because the actual electorate is much redder, made up of 61% White, 21% Hispanic, 13% Black, and 5% Asian voters according again to the CAP. Notably, the share of white voters was down 2% in 2016 compared to 2012.

Okay, Texas voters are Whiter than the state as a whole. So what? Well, this also means that the electorate is more Republican than the state as a whole. Let’s run a scenario: what if all voting-aged Texans voted, and voted the same way for Rs and Ds that they did in 2016? A table:

You can see that I’ve decreased the share of the electorate that is White from roughly 61% to 45% and nearly doubled the share of Hispanic voters (column comp.2016). In the highlighted yellow boxes are the findings: If all voting-aged Texas voted with the same partisan leanings as the state’s electorate alone in 2016, Donald Trump would have won the state by just 0.1 percentage points. That’s as close as his margin in Wisconsin. Texas would be a true swing state.

In 2018, this means that Senator Ted Cruz — who enjoyed a hypothesized 8 percentage point incumbency advantage — would be running roughly even with Rep. Beto O’Rourke, even in the current national environment where Democrats are beating Republicans by roughly 8 percentage points in the national environment.

But everyone doesn’t vote. Instead, demographics are partially destiny in determining outcomes in state elections. For the sake of the game, let’s run a proposed 2018 election where demographics look more like the 2016 electorate than the 2016 “all voters” scenario — because we have no evidence to believe that Hispanic turnout in the state is about to increase by roughly 75 percent — but decrease the share of non-college White turnout (college-educated voters are more engaged in midterm elections, but so are whites.)

For O’Rourke to run even with Cruz in November, college-educated Whites would need to make up about 33% of the electorate, non-college Whites 29%, Hispanics 21%, Black voters 13%, Asian/others 5%. This is not totally out of the questions, but you can see why I’m cautious about being bullish on Beto. Of course, these numbers are dynamic: if the partisan lean of the electorate shifts left, then the share of white voters that Cruz needs to win increases, etc.

Morris gives Beto a 32% chance of winning. This is a way of quantifying the old adage about Texas being not a Republican state but a non-voting state. I think it’s fair to say that this year is a test of that. If you want to see more of Morris’ newsletter or sign up to receive it yourself, go here.

The hearing for the lawsuit to kill Obamacare

Sep 7th, 2018
by Charles Kuffner.
2 comments

Here we go again.

It’s constitutional – deal with it

At the hearing Wednesday, Texas aimed to convince U.S. District Judge Reed O’Connor to block the law across the country as it continues to fight a months- or years-long legal case that could land before the U.S. Supreme Court.

Citing rising health care premiums, Texas says such an injunction is necessary to preserve state sovereignty and to relieve the burden on residents forced to purchase expensive insurance coverage. California counters that temporarily blocking or ending the law would cause more harm to the millions of people insured under it, particularly the 133 million people the state says enjoy the law’s protections for pre-existing conditions. The U.S. Department of Justice, which has taken up many of Texas’ positions in the case, nonetheless sided with California, arguing that an immediate injunction would throw the health care system into chaos.

[…]

Inside the courtroom, where protesters’ shouts were inaudible, Darren McCarty, an assistant attorney general for Texas, argued that “the policies, the merits of the ACA are not on trial here” — just the legality. In that legal argument, McCarty leaned heavily on a 2012 U.S. Supreme Court decision on Obamacare, which upheld the law by construing the “individual mandate,” a penalty for not purchasing insurance, as a tax that Congress has the power to levy. Texas argues that after Congress lowered that fee to $0 in a slate of December 2017 tax cuts, the fee is no longer a tax and thus no longer constitutional. With it must go the rest of the law, the state claims.

“There is no more tax to provide constitutional cover to the individual mandate,” McCarty said. “Once the individual mandate falls, the entire ACA falls.”

California countered that a tax can be a tax even if it doesn’t collect revenue at all times. And, attorneys for the state claim, even if the individual mandate is unconstitutional, the court should let lie “hundreds of perfectly lawful sections,” argued Nimrod Elias, deputy attorney general for California.

The case will likely turn on that question of “severability”— whether one slice of a law, if ruled unconstitutional, must necessarily doom the rest. O’Connor, who nodded along carefully throughout the hearing, lobbed most of his questions at the California attorneys, and many of them focused on whether the various pieces of Obamacare can be unentangled.

Elias said that in the vast majority of cases, the Supreme Court acts with “a scalpel, not a sledgehammer,” leaving in place most of a law even if one provision must be struck. The Texas coalition pointed to a more recent case in which the high court struck an entire law based on a narrow challenge.

O’Connor — a George W. Bush-appointee who has ruled against Obamacare several times, albeit on narrower grounds — also honed in on the question of legislative intent. Texas argued that the individual mandate was a critical piece of the law’s original version. But California argued that in 2017, in gutting the individual mandate without touching the rest of the law, lawmakers made it clear they wanted the law to persist without that provision.

“Would the legislature prefer what is left in statute to no statute at all?” Elias questioned. “We know what Congress intended based on what Congress actually did.”

See here and here for some background. Justin Nelson was at the hearing as well, pressing his attack on Paxton for his ideological assault on so many people’s health care. That really deserves more coverage, but the fact that most everyone outside of Paxton’s bubble thinks his legal argument is ridiculous is probably helping to keep the story on a lower priority. (Well, that and the unending Wurlitzer shitshow that is the Trump administration.) I mean, I may not be a fancypants lawyer, but it sure seems to me that eight years of Republicans vowing to repeal Obamacare plus the entire summer of 2017 trying to repeal Obamacare plus the abject failure to repeal Obamacare would suggest that the Republicans did not intend to repeal Obamacare with the bill that they finally did pass. If they could have they would have, but they couldn’t so they didn’t. I don’t know what else there is to say, but we’re going to have to wait till after the November elections – wouldn’t be prudent to do that before people voted, you know – to find out what this hand-picked judge thinks. Ken Janda, the Dallas Observer, and ThinkProgress have more.

The city has its own bail lawsuit

Sep 7th, 2018
by Charles Kuffner.
1 comment

It’s not going well.

Houston city officials intentionally destroyed evidence, wiping crucial data from the computer drives of top police commanders that is potentially relevant to a lawsuit about the detention of suspects beyond the 48-hour deadline for a magistrate hearing, a federal judge has ruled.

U.S. District Judge Kenneth M. Hoyt’s rare ruling last week means that if the case goes to trial, jurors will receive an “adverse instruction” about the records destruction. The jury must infer as fact that authorities destroyed evidence, knowingly and routinely detained people more than 48 hours without a probable cause hearing, and acted with deliberate indifference to the fact that they were violating defendants’ constitutional rights, the judge ruled.

The judge did not accuse the city of destroying evidence specifically to help it gain an advantage in the lawsuit, but the action is a blow to any defense the city could mount.

[…]

The 2016 class-action lawsuit challenged the city’s treatment of thousands of people jailed for days after warrantless arrests between January 2014 and December 2016. The complaint accuses officials of false imprisonment and alleges that they violated defendants’ constitutional rights to equal protection and a determination of probable cause by a judge. The case was brought by Civil Rights Corps and the Texas Fair Defense Project — the groups that led the landmark suit challenging Harris County’s bail practices — and lawyers from the Houston firm Kirkland & Ellis LLP.

The suit was filed after the January 2016 arrests of Juan Hernandez, who was held 49 hours before seeing a magistrate on an assault charge, and James Dossett, who spent 59 hours in custody before facing a hearing officer via videolink on a charge of possession of a controlled substance. After a week in custody, Hernandez pleaded guilty. Authorities ultimately dropped the charges against Dossett when police failed to prove he had drugs.

The lawsuit also cites arrests in which defendants were held for more than 10 days before receiving a probable cause hearing. Overcrowding at the county jail creates a bottleneck at the city facility, the suit said.

The plaintiffs’ lawyers argued that the city had a “broad, longstanding, and consistent policy of refusing to release warrantless arrestees” even when more than 48 hours had passed since their arrests, and that the city failed to provide thousands of records relevant to this policy and practice.

See here for some background, and here for an earlier Chron story (embedded in this one and the basis of that post) on the subject. I’m appalled by what’s in this story, which I don’t think can be adequately explained by simple incompetence on the city’s part. There needs to be a serious investigation of who was responsible for what, and consequences to follow. This is unacceptable at every level. The city needs to throw itself on the mercy of the court and make an extremely generous settlement offer to the defendants.