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August 1st, 2021:

Weekend link dump for August 1

“Federal Courts Keep Shooting Down Anti-Trans Laws. Will That Hold at SCOTUS?”

“Your location data is for sale, and it can be used against you.”

Australian cockatoos can open garbage can lids, and what’s more, they can learn how to do it from other cockatoos.

“It seems like after the election, someone really did stop talking about COVID-19. It was the guy who never cared.”

“A Vaccine Or This Marriage: Conspiracy Theories Are Tearing Couples Apart“.

“Quick thread: I don’t think most people know what antivaxx posts on Facebook really look like. That’s good. Why would you? But I think people assume it’s Suzy Turmeric plaintively yelling at you about the microchip, and it’s not. It looks like this. Like code. Or gibberish.”

“Even in the face of Delta, vaccines are still doing what they’re designed to do. That is, they’re defanging the threat of a Covid-19 infection, protecting people from getting so sick they have to be hospitalized and from death. Pretty much nothing in medicine is absolute, so a tiny fraction of vaccinated people will still wind up getting really sick, but there’s a clear reason why some 97% to 99% of current hospitalizations and deaths are occurring among those who are unvaccinated.”

“A mysterious marketing agency secretly offered to pay social media stars to spread disinformation about Covid-19 vaccines. Their plan failed when the influencers went public about the attempt to recruit them.”

Want to buy some classic pinball machines? Now is your chance.

RIP, Bob Moses, civil rights leader and voting rights advocate.

“There is no way to understand the January 6th insurrection without beginning with the fact that it was led by, at the behest of and for the benefit of Donald Trump. It was the result of his actions. It was one of the final developments in a failed coup plot by Donald Trump.”

Rep. Mo Brooks is a traitor. Fortunately, he’s also an idiot. That may help to hold him accountable.

RIP, Dusty Hill, founding member and bassist for ZZ Top. I spent some time Wednesday afternoon , though please understand that the only correct way to listen to “Waitin’ For The Bus” is having it segue into “Jesus Just Left Chicago”. I played that for Olivia a couple of years ago, partly to explain how the age of streaming means a loss of such musical conventions. She was properly impressed.

“But the coverage of the hearing and the violence those officers experienced at the hands of people sent to the Capitol by Donald Trump could have unfolded very differently if Republican flamethrowers like Rep. Jim Jordan of Ohio had been seated on the committee.”

“As we all know, Donald Trump isn’t the cause of the Republican Party’s descent into madness. He’s merely the result of decades of evolution that started when Jerry Falwell founded the Moral Majority, Rush Limbaugh picked up a microphone, and Newt Gingrich reinvented modern conservatism. But these were just warm-up acts. It wasn’t until Fox News was up and running that we started to see permanent changes in the electorate.”

RIP, Ron Popeil, infomercial and “As Seen On TV” king.

“Scarlett Johansson is suing Disney over Black Widow‘s Disney Plus release”. She’s due a bonus based on box office receipts, which are of course lower now that the movie was simultaneously released on D+.

We need to be placing the burdens on non-vaccination on the unvaccinated. And we need to be clear with the public that the problem is the non-vaccinated. They’re at fault. They’re to blame. And even more, the public influencers, celebrities and political actors who’ve driven resistance to vaccination are to blame.”

“This is a significant development that will clear the way for witnesses to provide evidence to the committees investigating post-election conduct, including the Jan. 6 attack on the Capitol. It also presents important questions for the doctrine of executive privilege in future cases.”

We’re #2!

More people have died of COVID in Texas than any other state except California, as Texas surpasses New York’s total.

Texas has passed New York to become the state with the second-most COVID-19 deaths, a feat experts say was driven by an inability to control transmission of the virus here.

Texas reached the milestone Wednesday, hitting 53,275 deaths, despite trailing New York by more than 29,000 fatalities last summer. Since then, though Texas is 54 percent more populous, more than twice as many Texans as New Yorkers have succumbed to COVID-19. California, the most populous state, leads the nation with 64,372 virus deaths.

Spencer Fox, associate director of the University of Texas COVID-19 Modeling Consortium, said he was surprised Texas had not passed New York in mortality sooner, since the northeastern state did a far better job limiting the spread of virus after it endured a horrific surge last spring.

“They enacted really strong, precautionary measures that overall are well based in the available science,” Fox said. “It seems that many of the Texas policies were put in place to try and prevent health care collapse rather than trying to prevent transmission.”

By June 30 of last year, as the first wave of the COVID-19 pandemic swept through the United States, New York tallied 31,775 virus deaths. Texas had just 2,481.

While New York City hospitals were pushed to the brink in the spring and the region became a global epicenter of the virus, Texas had kept the virus at bay and begun to ease restrictions.

Over next 13 months, however, the states reversed roles. New York kept restrictions and mask rules in place longer and consistently maintained a lower positivity rate than Texas. In contrast, Texas endured two surges of the virus and is in the early stages of a third, as the Delta variant now sweeps the country as a fourth wave of the virus.

During that time, Texas steadily closed in on New York’s death tally, a Chronicle analysis found.

Another way to put it is this: Since June 30 of last year, 13 months ago, there have been about 51,000 COVID deaths in Texas. (That’s the official count, which as we know is too low for a variety of factors, but it’s what we’re using for comparison purposes.) In that same time period, there have been about 22,000 COVID deaths in New York. Texas, with 54% more people than New York, has had 131% more COVID deaths than New York in that time period. It’s mind-boggling, enraging, tragic, devastating, and all of it can be laid at the doorstep of Greg Abbott.

The rest of the story is a timeline of those past 13 months, the various things that governments in New York and Texas did and didn’t do to deal with the changing infection rates, and so on. New York has been far more restrictive than Texas has, sometimes to the point where its residents complained and experts questioned the risk calculation involved, but the numbers are what they are. New York also has a higher vaccination rate than Texas, so this trend is going to continue, and probably accelerate, in the foreseeable future. Indeed, given how much more vaccinated California is than Texas, we could conceivably catch up to them as well. Not a goal we should want to achieve.

But we’re well on the way, and Texas’ hospitals are bracing for impact.

When Terry Scoggin left work at Titus Regional Medical Center in Mount Pleasant on Tuesday evening, there were five patients at the facility being treated for COVID.

Overnight, six more people suffering severe coronavirus infections were admitted to the rural Northeast Texas hospital — pushing the facility to its capacity limit and putting Scoggin, the hospital’s chief executive, on high alert for what he’s calling “a fourth surge.”

“We’re at it again,” Scoggin said.

That same night, hospitalizations in Bexar County rose by nearly 8%. Almost 100 people were admitted with severe COVID to local facilities on Tuesday alone, Bexar County officials said on Wednesday.

“These numbers are staggering and frightening,” said Eric Epley, CEO of the Southwest Texas Regional Advisory Council for Trauma in San Antonio.

Hospital and health officials across Texas are seeing similar dramatic jumps, straining an already decimated health care system that is starving for workers in the aftermath of previous coronavirus surges.

[…]

Fueled by the highly contagious delta variant of the coronavirus, which is contributing to skyrocketing cases not just in Texas but across the nation, the rising hospitalizations rates have spread outside of the heavily populated metro areas that first began to report increases a few weeks ago. Now they are being seen in all corners of the state, triggering pleas from hospitals for state-backed staffing help to handle the increasing pressure.

Trend forecasters at the University of Texas at Austin’s COVID-19 Modeling Consortium said Wednesday that most regions of the state could see a return within a couple of weeks to the capacity-busting hospitalization rate facilities were experiencing in January — the height of the pandemic — if people don’t resume masking up and social distancing.

In Florida, hospitals are already seeing the numbers of COVID patients exceeding levels they saw during the worst of the pandemic, and consortium researchers told The Texas Tribune that Texas is not far behind.

“We are absolutely on a path to hit a surge as large, if not bigger, than the previous surges right now” said Spencer Fox, associate director at the consortium. “If nothing is done, we’re on a crash course for a very large third wave.”

The situation has caused health officials from both rural and metro areas to plead for more resources from the state.

“On behalf of the 157 rural hospitals across Texas, I am writing to ask you immediately take steps to provide additional medical staffing which we anticipate will be needed in our rural hospitals in short order because of the new COVID surge,” John Henderson, president and CEO of the Texas Organization of Rural and Community Hospitals, wrote in a July 26 letter to Gov. Greg Abbott.

And what was Abbott’s eventual response?

The story is behind their paywall, but the basics of it that I could glean were that the state of Texas is declining to use any COVID stimulus funds to pay for more hospital staff. Instead, the state is directing cities and counties to use their own COVID funds for that. Because we’re all in this together you’re on your own, Jack. And remember, it’s all your fault and will be your fault when more people have died of COVID in Texas than anywhere else in the country.

A response to Paxton’s response

As you may recall, back in June we learned about a State Bar of Texas complaint against Ken Paxton for his ridiculous and seditious lawsuit that attempted to overturn the 2020 Presidential election. That complaint was filed by four people: Kevin Moran, retired journalist, President of the Galveston Island Democrats; David Chew, former Chief Justice of the 8th Court of Appeals; Brynne VanHettinga, a now inactive member of the Texas Bar; and Neil Cohen, a retired attorney. A second complaint was later filed by Lawyers Defending American Democracy, part of a group that included four former Presidents of the State Bar of Texas.

I’ve had some email correspondence with Neil Cohen, who was introduced to me via a mutual friend, since that first complaint came to light. He sent me the following analysis of Paxton’s responses to the complaints:

Ken Paxton’s recent [7/15] Response to four Grievances arising from his December lawsuit to overturn the election demonstrates that his claims of a stolen election and of illegal voting procedures were merely posturing to improve his political standing. The top law officer of Texas put our system of democracy in grave danger for his own political benefit.

The Grievances charged that his lawsuit is filled with falsehoods and absurd legal claims, thus violating attorney disciplinary rules. Paxton’s response failed to defend large sections of the lawsuit. As to his claims of massive voting improprieties, Paxton stated that he had hoped to develop the evidence during trial. (1) That, however, was his only evidence in support of his stolen election claims. Thus, Paxton’s tacit admission that he has no evidence to support his claims is strong proof that there is no evidence of a stolen election. The “Big Lie” is indeed a big lie. His admission is also in marked contrast to his repeated claims in the month between the filing of the lawsuit and the meeting of the electors on Jan 6 that the election was stolen and his urging Trump supporters to take action. Those claims culminated in Paxton’s appeal to a mob to “keep fighting” shortly before they invaded the Capitol Building.

As to legal claims, Paxton did not offer a defense of several essential claims (2), including the most important, that the proper remedy was overturning the election and disenfranchising millions of voters. On the issue of standing, where by a 7-0 vote [two justices ruled based on other issues] the Supreme Court had rejected Paxton’s arguments that Texas had the right to dictate to four other sovereign states how they conducted their election lawsuit, Paxton merely reiterated his arguments.

Instead of better defending his lawsuit, Paxton instead relies on two very weak procedural arguments. First, the Bar shouldn’t hear the Grievances because the filers weren’t his client. (3) The Disciplinary Rules, however, specifically provide that anyone with information about rule violations can file a grievance. (4) He also argues, without citing cases specific to attorney discipline, that the separation of powers doctrine prevents a court system from disciplining an attorney general for a court filing. (5) This is contrary to the cases I found. (6) Also, moving from the abstract level of his argument to the specific facts of this case, Paxton is arguing for the privilege to lie and to bring lawsuits that lack any reasonable basis. That privilege is non-existent. In fact, an attorney appearing before a court acts as an officer of the court and is therefore subject to discipline from the court (and from the relevant bar associations).

The weakness of Paxton’s Response demonstrates that the lawsuit violates attorney disciplinary rules and that his claims of a stolen election are nonsense. Because of the serious consequences of Paxton’s action, including an invasion of the Capitol Building, the Bar should impose its most serious punishment, disbarment. In addition, Paxton should be removed from office.

1 Response, pp. 12-13.
2 What he did defend — See Response, p. 8 (standing), p. 10 (electors clause), p. 11 (equal protection and due process).
3 Response, p. 13.
4 https://www.law.uh.edu/libraries/ethics/attydiscipline/howfile.html The second question (which is not numbered) states, "Any person who believes that a rule of professional conduct has been violated may file a complaint with the State Bar."  (emphasis added).
5 Response, p. 20
6 In re Lord, 255 Minn. 370 (Minn. 1959) • 97 N.W.2d 287; Massameno v. Statewide Grievance Committee, 234 Conn. 539 (Conn. 1995) • 663 A.2d 317.

I have a copy of the Paxton response here, and further notes from Cohen on the response are here.

As it happens, there was also a story in Salon about the complaint and Paxton’s limited and technicality-laden response to it:

Texas Attorney General Ken Paxton, an ardent Trump supporter who was the lead plaintiff in a last-ditch Supreme Court case aimed at overturning the 2020 election, appears to be backing away from his past claims of widespread election fraud. Facing discipline or even potential disbarment in Texas, Paxton now merely alleges that there were “irregularities” in battleground states, while still suggesting those could somehow have affected the overall result

Paxton’s apparent retreat came earlier this month in response to an array of grievances filed by several members of the Texas bar: retired lawyer Neil Cohen; Kevin Moran, president of the Galveston Island Democrats; former Texas Court of Appeals Chief Justice David Chew; and Dr. Brynne VanHettinga. In their initial complaint, the group argued that Paxton should face professional discipline over his bid to undermine the 2020 presidential election, saying that Paxton’s December petition to the U.S. Supreme Court, arguing that President Biden’s victory should be set aside, was both frivolous and unethical.

In Paxton’s response to their grievances, which was provided to Salon, the attorney general argued that “Texas’s filings were not frivolous” because “the 2020 election suffered from significant and unconstitutional irregularities in the Defendant States.” Paxton further claimed that, by this logic, he and his office “did not violate the disciplinary rules.”

Paxton’s response is a clear departure from his previous rhetoric, much of which explicitly supported former President Trump’s grandiose conspiracy theories about systemic election fraud. Earlier this month, Paxton told a Dallas crowd at the Conservative Political Action Conference that his “fight” for election security “is not done.”

“When people tell you there is no election fraud, let me just tell you my office right now has 511 counts in court because of COVID waiting to be heard,” Paxton continued. “We have another 386 that we’re investigating. If you add those together, that’s more election fraud than my office has prosecuted since it started investigating election fraud years and years ago.”

Paxton is notably less bombastic in his response to the Texas bar, but mentions the same “irregularities” that his original Texas suit claimed had tainted the elections in swing states such as Pennsylvania, Georgia, Michigan and Wisconsin. Effectively all of those supposed “irregularities” were changes in voting rules made in response to the COVID-19 crisis, which created significant challenges for both in-person and absentee voting.

[…]

In an evident attempt to ward off the threat of disbarment, Paxton’s response seeks to explain why the suit had any legal basis or “standing.” He argues, somewhat confusingly: “Texas’s assertion that it had standing in Texas v. Pennsylvania could not have been frivolous. There are no Supreme Court cases contrary to its position that it had standing.”

But Paxton indirectly admits, in Cohen’s view, that he had no real evidence of fraud, and apparently “hoped to develop the evidence during discovery.” In other words, his entire case could be interpreted as a fishing expedition, or just an attempt to rile up the Trump base with unsupported allegations. “That’s in contrast to his behavior for the month after filing the lawsuit,” Cohen said, “when he repeatedly claimed the election was stolen and urged people to take action.”

So now you know. I have no idea when the State Bar may issue a ruling, and as richly as Paxton deserves to be disbarred, I can’t see them doing much more than issuing some kind of reprimand. But at least that would be something. My thanks to Neil Cohen for the info and the guest post.

Will TxDOT pull funding from the I-45 project?

It could happen.

Supporters of state plans to rebuild Interstate 45 from downtown Houston northward trekked to Austin on Thursday to keep the imperiled project on pace, fearing the region could be stuck with an aging freeway and no sign of relief.

Urging state officials to stay committed to the project — and, most importantly, pay for it — supporters said it is up to highway officials to deliver the benefits they say will help heal issues of racial and income inequity raised by opponents.

[…]

Fifteen years in the planning, the project to rebuild I-45 around the central business district and north to Beltway 8 near George Bush Intercontinental Airport is estimated to cost $9 billion but can start construction only if the Texas Department of Transportation keeps its money on the project. Members of the Texas Transportation Commission, who oversee TxDOT’s spending, are considering removing all phases of the project from the state’s 10-year plan, essentially shelving it until Houston-area leaders and highway planners can come to agreement.

As part of the decision-making process, commissioners will hold a public comment session Monday and accept input via mail, phone, email and online forms until Aug. 9. The commission is scheduled at its Aug. 31 meeting to decide whether to remove the project from the annually updated 10-year plan. If removed, the rebuild would need to be reinserted into the plan, allowing TxDOT to redirect the money to other highway expansions or rebuilds in the meantime. Most of the money would have to remain in TxDOT’s Houston region that covers Brazoria, Fort Bend, Galveston, Harris, Montgomery and Waller counties.

Yes, that is the infamous I-45 survey. You still have time to fill it out.

Critics said the pause gives officials ample time to rethink the design but that a last-ditch online survey with a yes-or-no vote is not a way to come to agreement.

“Honestly, we are on the same team and we want the same things for all of the communities,” said Molly Cook, an organizer of the Stop TxDOT I-45 group opposed to the project. “We want economic development, we want to reduce flooding, we want safety, people to be able to move through the region freely. This is not the answer.”

Cook was one of two speakers Thursday among about a dozen opposed to the project. Transportation officials limited public comment to one hour as part of their meeting.

A larger turnout of opponents is expected for the full public hearing Monday. Stop TxDOT I-45 has continued walking door to door in affected communities where hundreds of homes and businesses could be impacted, as community business groups mounted an aggressive online campaign in support of TxDOT.

“You can find a way to connect this project with something someone cares about,” said Ben Peters, a Stop I-45 volunteer, as he walked in Fifth Ward on Saturday.

Opponents, Mayor Turner and Harris County Judge Lina Hidalgo have said that rather than widen the freeway, more of it should be converted to accelerate Metropolitan Transit Authority buses, replacing two managed lanes with, perhaps, a transit-only lane and dedicated stations along the freeway.

TxDOT, while incorporating some changes from more than 300 public meetings over the past decade, has not wavered from the managed lanes plan, saying some of the suggested changes are too significant and would set the design process back years. Regional officials repeatedly approved those designs, TxDOT leadership noted.

“I-45 is established as one of the most pressing candidates in our region for TxDOT to make improvements to address safety, traffic delays and potential emergency evacuations,” said Craig Raborn, director of transportation services for the Houston-Galveston Area Council, which doles out some federal transportation money in the region.

H-GACs Transportation Policy Council supports the project but has encouraged critics and TxDOT to keep addressing differences. The policy council’s chairman, Galveston County Commissioner Ken Clark, urged his county leadership this week to write a letter in support of the project.

I kind of have a hard time believing that TxDOT would pull the money from this project – which would not kill it but would move it to the back of the line while the current funds were used on other projects – but I can imagine them getting a little antsy. We’ll know soon enough.