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Ken Paxton cannot be trusted to prosecute anyone

Feb 9th, 2022
by Charles Kuffner.
2 comments

Scary story:

The article is paywalled, but I got to see a Google doc copy of it. This happened to Rob Icsezen, the host of the H-Town Progressive podcast and a Democratic appointee of the Early Voting Ballot Board and Signature Verification Committee for the 2020 election. I will summarize what happened:

– A Republican poll watcher showed up to observe what the EVBB and SVC were doing. Existing law said poll watchers were allowed at the former, but said nothing about the latter. Icsezen interpreted this to mean that they weren’t allowed to observe the SVC, checked his interpretation with the Harris County Attorney, which approved his decision, and turned the poll watcher away.

– The poll watcher complained to the Harris County GOP, who called the Secretary of State, who called Icsezen and said he was wrong, the poll watcher needed to be allowed in to observe the SVC. Icsezen did so. According to the story, this all took place within a few hours, and according to other members of both groups who the author spoke to, it was no big deal at the time.

– An investigator with the AG’s Election Integrity Unit spoke to Icsezen in December of 2020, and apparently concluded that this was basically a misunderstanding of an unclear law, and did not warrant further action.

– The Harris County GOP reacted angrily to this and sent a letter to Ken Paxton demanding he take action or else “we have no confidence that the Attorney General will uphold any of our election laws”.

– So Paxton, ever the coward, convened a grand jury in Montgomery County – not Harris, where this alleged “crime” took place, but the very friendly confines of Montgomery County – and presented his case. Which, despite this being Montgomery County, and despite it being entirely his show, declined to indict Icsezen on whatever charges Paxton had dreamed up.

– Note that Paxton had previously tried to indict Travis County Clerk Dana DeBeauvoir on similarly flimsy charges in 2020, but a grand jury in Williamson County – again, not where the alleged “crime” took place – declined to indict.

– The only reason we know any of this is because Paxton put out a whiny press release complaining about his inability to get a Montgomery County grand jury to give him what he wanted.

So yeah, this is the guy who wants unlimited power to prosecute “election fraud” – which, evidence would suggest he’s not very good at – and is now sending out the howler monkeys against the Court of Criminal Appeals in order to get his way. Doesn’t exactly fill you with pride and confidence in our justice system, does it?

SCOTX upholds Abbott’s limit on mail ballot dropoff locations

Oct 28th, 2020
by Charles Kuffner.
1 comment

I’m shocked, I tell you, shocked.

In what’s expected to be the final ruling on the matter, the Texas Supreme Court has upheld Gov. Greg Abbott’s order limiting Texas counties to only one drop-off location for voters to hand deliver their absentee ballots during the pandemic.

The ruling, issued Tuesday by the all-Republican court, is the final outcome in one of a handful of lawsuits in state and federal courts that challenged Abbott’s order from early this month. A federal appeals court also sided with the Republican governor in an earlier ruling, overturning a lower court’s decision.

The state lawsuit argued that the governor doesn’t have authority under state law to limit absentee ballot hand-delivery locations, and that his order violates voters’ equal protection rights under the state constitution. The suit was filed in Travis County by a Texas-based Anti-Defamation League, a voting rights advocacy group and a voter.

In their opinion, the justices wrote that Abbott’s order “provides Texas voters more ways to vote in the November 3 election than does the Election Code. It does not disenfranchise anyone.”

See here for the previous update. In a narrow and technical sense, the Supreme Court is correct. Abbott did in fact expand voting options with his original order, which not only added that extra week to early voting but also allowed for mail ballots to be dropped off during the early voting period. State law only allows for that on Election Day, one of many problems that will need a legislative fix in the near future. But we all know that the purpose of his amended order, more than two months after Harris County Clerk Chris Hollins had announced his plan to have dropoff locations at all 12 County Clerk offices, and several days after people began using those locations, was to issue a rebuke to Hollins for having the nerve to innovate like that, and to throw a bone to the howling nihilists in his own party that were attacking him for taking any step to make voting easier. The limit served no legitimate purpose, and was done in haste and with politics in mind. It is what it is at this point, and as with every other ad hoc obstacle thrown in our path, the voters have adjusted. We’ll be coming for you soon, Greg. The Chron has more.

SCOTX reinstates Abbott’s mail ballot dropoff location limit

Oct 25th, 2020
by Charles Kuffner.
3 comments

They can move fast when they want to, that’s for sure.

Gov. Greg Abbott’s controversial order to limit Texas counties to one mail-ballot drop-off site was allowed to remain in effect Saturday by the Texas Supreme Court.

The court blocked a previous appellate court ruling that had briefly struck down Abbott’s order, which was widely decried by voting rights groups as a voter-suppression tactic. The lawsuit to overturn Abbott’s order is still pending.

In Harris County, more than 1 million voters have cast ballots during early voting, shattering previous records. Multiple drop-off sites had been set up for voters until Abbott issued his order, which he said would “stop attempts at illegal voting.”

State District Judge Tim Sulak had previously ruled that Abbott’s order would “needlessly and unreasonably increase risks of exposure to COVID-19 infections” and undermine the constitutionally protected rights of residents to vote, “as a consequence of increased travel and delays, among other things.”

Less than 24 hours after the Third Court of Appeals reinstated the district court ruling that had halted Abbott’s order. Clearly, SCOTX does not have a “we close at 5” mentality. It should be noted that this is not the end of the line. From the Statesman:

Acting soon after receiving an emergency appeal on Gov. Greg Abbott’s behalf, the Texas Supreme Court issued an order Saturday that temporarily barred counties from opening more than one drop-off site for mail-in ballots.

The court order keeps in place Abbott’s 3½-week-old proclamation that barred multiple drop-off locations that had opened in several counties, including Travis County, until the Supreme Court can determine the legality of Abbott’s limit.

With an eye on the fast-approaching Nov. 3 election, the court also set tight deadlines, requiring legal briefs in the case to be filed before 5 p.m. Monday.

A ruling could come as soon as Monday night, though the Supreme Court gave no indication when it might act.

In theory, SCOTX could issue a ruling on the appeal on Tuesday or Wednesday, and we could get a few days of having multiple dropoff locations if the lower court order is upheld. Not great, but better than nothing. I think the odds of that happening are pretty slim, but it’s possible, and this is the best case scenario. At least you know what to hope for.

In practical terms, this means very little at this point. Very few people had ever used mail ballot dropoffs before. Existing law only allows for them to be used on Election Day – Abbott’s executive order extended that to all of early voting, which is an improvement even if his subsequent order limits it to a significant degree. Voting by mail is limited to begin with, and the vast majority of that small universe mailed their ballots in. Allowing people to drop them off at one of twelve locations instead of just one was an innovation, one of many that County Clerk Chris Hollins pioneered, and it was a welcome one in this year of COVID chaos, but losing it is more of an inconvenience than an impediment.

All that said, there is zero justification for Abbott’s order. People who wanted to drop off their mail ballots still had to go to an official County Clerk location, hand their ballot to an election judge, and show ID to have their ballot accepted. Fears of “fraud” and professions of “protecting election integrity” are empty shibboleths, the “thoughts and prayers” of vote suppression. Abbott imposed this limit as a sop to the extremists in his party who were already mad at him for adding an extra week to early voting. Hollins’ innovation made voting easier and more convenient. Abbott’s order made it harder and less convenient. That’s all there is to it.

I’ve said this before, but I firmly believe that a large majority of people like easier and more convenient voting, and support efforts to make it happen. There are lots of things the Democrats should un on in 2022. To me, this needs to be one of the big criticisms of Abbott – and Dan Patrick, and Ken Paxton, and every single member of the Supreme Court – in that election. Being on the side of “easier and more convenient” is the side to be on.

Abbott’s order limiting mail ballot dropoff sites blocked again

Oct 24th, 2020
by Charles Kuffner.
14 comments

But that’s not the end of the story, so hang on.

A Texas appellate court on Friday stepped in to block Gov. Greg Abbott’s order limiting counties to just one mail-ballot dropoff site, but Harris County officials said they will wait until the case is resolved before reopening any additional sites.

A three-judge panel of the Third Court of Appeals in Austin ruled that there was “no reversible error” in a lower court’s ruling that put a hold on Abbott’s Oct. 1 order.

The Attorney General’s office said Friday that it planned to immediately appeal to the Texas Supreme Court.

The Republican governor had taken aim at Harris, Travis, Fort Bend and Dallas counties — all of which had either opened multiple dropoff sites or planned to do so in an effort to make mail-in voting more convenient and safer during the pandemic.

Abbott’s order, which triggered the back-and-forth legal battles, meant Harris County had to shut down 11 additional dropoff sites, adding to crowds at the main site at NRG Arena, just southwest of downtown Houston.

The appellate panel consisted of Republican Justice Melissa Goodwin and Democratic Justices Chari Kelly and Edward Smith; the latter two were elected in 2018 as part of a wave of 19 Democratic judicial wins that flipped the four major state appeals courts.

“We’re gratified that a bipartisan panel of the Third Court of Appeals agrees that Texans should have the right to return their absentee ballots easily and safely,” said Mark Toubin, regional director for the Anti Defamation-League Southwest, one of the groups that brought the suit.

See here for the background. Statesman reporter Chuck Lindell had tweeted yesterday morning that all the briefs had been filed, and a ruling was expected. Here’s more from his story.

The unsigned opinion by three justices on the 3rd Court — Democrats Chari Kelly and Edward Smith and Republican Melissa Goodwin — did not weigh the legality or constitutionality of Abbott’s order.

Instead, the panel determined that Sulak’s injunction should not be struck down because the judge did not abuse his discretion by issuing it.

“The trial court could have credited the evidence that decreasing the number of return locations leading up to election day would significantly increase congestion and wait times … which in turn would increase the risk of the voters utilizing this method of contracting COVID-19,” the panel said.

Friday afternoon, Paxton’s office told the all-Republican Texas Supreme Court to expect an appeal to be filed over the weekend.

You can see the opinion here. This is a nice ruling, and a bipartisan one, but as of today it means little because Harris County will not open any other dropoff locations until and unless the Supreme Court upholds the injunction. In practical terms, if this takes another week, it won’t mean much regardless. But maybe we’ll get a quicker ruling than that, you never know. The Trib has more.

State judge halts Abbott’s mail ballot dropoff limit order

Oct 16th, 2020
by Charles Kuffner.
1 comment

Remember there was a state lawsuit over the executive order that limited counties to one mail ballot dropoff location? That suit had a hearing this week, and the plaintiffs prevailed. For now, at least.

A Travis County state district judge on Thursday ordered a halt to Gov. Greg Abbott’s directive limiting Texas counties to one drop-off location for hand delivery of absentee ballots. The ruling is the latest turn in a handful of lawsuits in state and federal courts challenging Abbott’s Oct. 1 order, which shut down multiple ballot drop-off locations in Harris and Travis counties..

On Monday, a federal appeals court upheld the Republican governor’s order under federal law, overturning a lower court’s ruling. The Travis County decision, however, applies to potential violations of state law.

A Texas-based Anti-Defamation League, voting rights advocacy group and a voter filed the lawsuit in Travis County district court last week arguing that the governor doesn’t have authority under state law to limit absentee ballot delivery locations. The lawsuit also claimed Abbott’s order violates voters’ equal protection rights under the state constitution.

In a short order Thursday, Travis County District Judge Tim Sulak ruled against Abbott and the Texas secretary of state.

“The limitation to a single drop-off location for mail ballots would likely needlessly and unreasonably increase risks of exposure to COVID-19 infections, and needlessly and unreasonably substantially burden potential voters’ constitutionally protected rights to vote, as a consequence of increased travel and delays, among other things,” Sulak wrote.

It’s unclear if and when additional mail-in ballot drop-off locations might be re-opened. Travis County had four drop-off locations before the Oct. 1 order, and Harris County had a dozen in place. But the decision is expected to quickly be appealed to a higher state court.

See here for more about the state lawsuit, which as we had heard was scheduled for a hearing this week. The Statesman has some more details.

In a letter sent Thursday afternoon, state District Judge Tim Sulak, who presided over a hearing in the matter on Tuesday, told lawyers that he will issue a temporary injunction against Abbott’s Oct. 1 order.

“The limitation to a single drop-off location for mail ballots would likely needlessly and unreasonably increase risks of exposure to COVID-19 infections, and needlessly and unreasonably substantially burden potential voters’ constitutionally protected rights to vote, as a consequence of increased travel and delays, among other things,” Sulak wrote.

As the Chronicle notes, this ruling is (very likely) stayed for the time being:

Paxton said his appeal in the case means an automatic stay of Sulak’s decision. The constitutionality of that part of the Texas Rule of Appellate Procedure, which allows governmental bodies’ appeals to supersede lower court orders, is being questioned in a case currently before the Texas Supreme Court.

Plaintiffs did not immediately respond to requests for comment on whether they agree with Paxton’s interpretation.

Remember a million years ago when the Libertarian/Green challenge to filing fees was still in effect despite the lower court ruling because of superseding? That’s the principle here. I’ll leave it to the lawyers to explain if it should be the principle here or not, but that’s where it’s at. The question now is, how quickly does this get to SCOTX? It seems likely to me that the ruling would be upheld by the Third Court of Appeals, but we all know where this is headed. It’s just a matter of when. So offer a halfhearted cheer for now, but keep your expectations in check until it’s all over.

Third lawsuit filed against Abbott’s order to limit mail ballot dropoff sites

Oct 7th, 2020
by Charles Kuffner.
2 comments

This one’s in state court.

Gov. Greg Abbott’s order limiting Texas counties to one mail ballot drop-off location has been challenged in court a third time.

The lawsuit filed in Travis County court on Monday alleges that Abbott’s order exceeds his authority under the state’s constitution and would make it unreasonably difficult for eligible Texans to use ballot by mail.

“The state of Texas should be working to ensure safe and accessible voting for all Texans. The governor’s order does the opposite,” Cheryl Drazin, vice president of the Anti-Defamation League’s Central Division, which includes Texas, said in a statement. “Limiting the number of drop-off sites available to absentee voters reduces the options Texans have to participate in the 2020 election without risking their health.”

Several Texas chapters of the Anti-Defamation League are plaintiffs in the case, as are the government watchdog group Common Cause Texas, and Robert Knetsch, a 70-year-old voter from Harris County.

[…]

The plaintiffs argue that Texas election code gives local officials, not the governor, authority to manage elections. So by limiting drop-off locations to one per county, Abbott was overstepping his authority.

The order also went against what the state had already said in other cases, plaintiffs said. In late September, Attorney General Ken Paxton’s office said in a filing to the Texas Supreme Court that the state election code allowed local officials to interpret “early voting clerk’s office” as extending to annexes of those offices and the secretary of state had already allowed that.

Because of projected increases in vote by mail and delays in the U.S. postal service’s mail delivery, taking away the option for multiple drop-off locations would harm voters, like Knetsch, who was at high risk for COVID-19 because of his age, plaintiffs said.

Knetsch had planned to drop off his ballot at one of Harris County’s multiple locations, but “now plans to risk voting in-person at his local polling place, despite the risk to his health” because he fears there will be large crowds at the remaining drop-off site.

“Many of the Texans who qualify to vote absentee have disabilities and are elderly, and they rely on public transportation,” Anthony Gutierrez, executive director of Common Cause Texas said in a statement. “With only one drop-off site per county, these voters would face challenges in travel that might make it impossible for them to vote. The drop-off site limit will also make the one site in each country prone to lines and crowds, endangering voters’ health.”

See here and here for background on the previous lawsuits, both of which were filed in federal court. A copy of the complaint for this suit is here, and a statement from the Brennan Center, which is representing the plaintiffs, is here; you can also see their Twitter thread. I have no idea if one or the others has a better chance of success, I just know that we need to get a ruling Real Soon Now for any of this to make a difference. You can see all the filings from the first federal lawsuit here, and for whatever it’s worth, the top Democratic Congressional leaders have written a letter to Greg Abbott asking him to repeal this order. I’m sure he’ll get right on that.

Just a reminder, you can get a mail ballot if you need one

Jun 13th, 2020
by Charles Kuffner.
4 comments

No one is going to stop you.

As Democrats and civil rights groups sue to expand mail-in voting during the pandemic, a recent decision by the Texas Supreme Court has left it up to voters to decide for themselves whether they qualify for vote-by-mail.

In its decision in late May, the highest civil court in the state ruled that lack of immunity to COVID-19 alone does not constitute a disability that would allow those under 65 years old to vote by mail rather than at the polls, under the Texas election codes.

But it added — which legal experts say is crucial — that a voter can take the possibility of being infected into consideration along with his or her “health” and “health history” to determine whether he or she needs to vote by mail under the ‘disability’ provisions in the law.

“I think really the story here is that it’s going to be up to individual voters to decide whether they fit this definition or not,” said Joseph Fishkin, a University of Texas professor who studies election law and has closely followed the cases.

[…]

Assistant County Attorney Douglas Ray has said Harris is relying on the Supreme Court decision to bolster its recommendation that voters request a ballot if they believe they are eligible.

“If it’s checked disabled, we’ll just send the ballot,” Ray said. “We don’t question that. We don’t have the authority or ability to investigate that.”

In Bexar County, the commissioners court last month passed a resolution supporting access to mail-in ballots for voters afraid of contracting COVID-19 at polling place, but the county has not made any recommendations to voters since.

Bexar County Judge Nelson Wolff said Monday that such a public notice is on the way.

The Bexar commissioners last week directed the county attorney to help craft language for voter guidance, citing the Texas Supreme Court decision, and requesting for the election administrator, Jacque Callanen, to consider publishing it. Callanen did not respond to a request for comment.

“We’ve asked her to make it clear to voters that it’s up to them to determine whether they have a health condition or a physical condition” that qualifies them to vote by mail, Wolff said. “It’s their decision, not the state’s decision.”

Well, we know what Harris County has done. (Note: That was mail ballot applications the Clerk sent to all over-65 voters, not actual mail ballots.) We’ll see what the demand looks like in November. I would still advise, in my extremely I Am Not A Lawyer way, that there is some risk in applying for a mail ballot under the disability provision. How much there is I can’t say, but given the times and the apparent determination of the Republican Party to salt the earth, it’s definitely greater than zero. Make the best decision for yourself. Campos has more.

State Supreme Court issues confusing ruling in vote by mail case

May 28th, 2020
by Charles Kuffner.
12 comments

Let’s unpack this.

The Texas Supreme Court on Wednesday ruled that a lack of immunity to the new coronavirus does not qualify a voter to apply for a mail-in ballot.

In the latest twist in the legal fight over voting by mail during the coronavirus pandemic, the court agreed with Texas Attorney General Ken Paxton that the risk of contracting the virus alone does not meet the state’s qualifications for voting by mail.

“We agree with the State that a voter’s lack of immunity to COVID-19, without more, is not a ‘disability’ as defined by the Election Code,” the court wrote.

Texas voters can qualify for mail-in ballots only if they are 65 years or older, have a disability or illness, will be out of the county during the election period, or are confined in jail. The Texas election code defines disability as a “sickness or physical condition” that prevents a voter from appearing in person without the risk of “injuring the voter’s health.”

Though the court sided with Paxton’s interpretation of what constitutes a disability, it indicated it was up to voters to assess their own health and determine if they met the state’s definition.

“The decision to apply to vote by mail based on a disability is the voter’s, subject to a correct understanding of the statutory definition of ‘disability’,” the court said in its order.

The high court also rejected Paxton’s request to prevent local election officials from sending mail-in ballots to voters who were citing lack of immunity to the coronavirus as a disability. Those officials denied they were operating outside the law and argued they cannot deny ballots to voters who cite a disability — even if their reasoning is tied to susceptibility to the coronavirus.

When voters cite disability to request an absentee ballot, they’re not required to say what the disability is. The voters simply check a box on the application form, and if their application is properly filled out, locals officials are supposed to send them a ballot. The state ultimately conceded that officials can’t reject those voters.

See here for the background, and here for a copy of the opinion. Let me quote the opening two paragraphs, because the main points of this ruling are right there.

Under the Texas Election Code, qualified voters are eligible to vote by mail only in five specific circumstances.1 One is if the voter has a “disability” as defined by statute.2 In this original proceeding, amidst the COVID-19 pandemic, and with elections upcoming in July and November, the parties ask us to determine whether a voter’s lack of immunity from the disease and concern about contracting it at a polling place is a “disability” within the meaning of the statute.3 Petitioner, the State of Texas, argues that the answer is no and seeks mandamus relief prohibiting respondents, five county clerks and election administrators (the Clerks),4 from misinforming the public to the contrary and improperly approving applications for mail-in ballots. The Clerks deny that they have misinterpreted or misapplied the law, either because the State’s position is incorrect or because they have taken no position to the contrary.

Limitations on voting by mail have long been a subject of intense political debate, in this State and throughout the country. We, of course, take no side in that debate, which we leave to legislators and others. The question before us is not whether voting by mail is better policy or worse, but what the Legislature has enacted. It is purely a question of law. Our authority and responsibility are to interpret the statutory text and give effect to the Legislature’s intent. We agree with the State that a voter’s lack of immunity to COVID-19, without more, is not a “disability” as defined by the Election Code. But the State acknowledges that election officials have no responsibility to question or investigate a ballot application that is valid on its face. The decision to apply to vote by mail based on a disability is the voter’s, subject to a correct understanding of the statutory definition of “disability”. Because we are confident that the Clerks and all election officials will comply with the law in good faith, we deny the State’s petition for writ of mandamus.

Emphasis mine, and I’ll get to that in a minute. There’s a discourse on the history of absentee voting in Texas, which was first allowed in 1917, and a summary of the arguments made by all the county clerks. There are three concurring opinions to the main opinion, which was written by Chief Justice Nathan Hecht. I refer you to this Twitter thread by Michael Li highlighting the key points of the majority opinion and noting the differences in the various concurrences.

So what is the practical effect of this decision? First, it basically ends the state lawsuit. While this was a writ of mandamus, and there was never a hearing on the merits of the original case, just a motion to allow voters to request mail ballots in the interim, by defining what is and isn’t a “disability”, the main legal questions have been answered. I expect the hearing in Travis County currently scheduled for after the July election will be cancelled. And of course, there are still the federal lawsuits, which are on a completely different track. This litigation was about the interpretation of state law, the federal lawsuits are about broader voting rights and age discrimination. Whatever happens there will be the ultimate answer for all this.

In the meantime, the Supreme Court’s answer more or less leaves the situation where it was before, with an important caveat. It’s still the case that a voter can request a mail ballot on the grounds of disability, and it’s still the case that their county election administrator has no means or obligation to question that. Look at that bolded sentence from the opinion. The decision to apply for a mail ballot is the voter’s. If you ask for a mail ballot and claim a disability, you will get the mail ballot. As far as that goes and as far as I as a non-lawyer can tell, nothing has changed.

Now for that caveat. The Supreme Court has made it clear what the law is, and what is – or, more to the point, is not – a disability. Your county clerk will send you a mail ballot if you ask for one, but Ken Paxton could have you arrested, or some wingnut activist like Alan Vara could file a complaint against you, if you request one because of COVID concerns. I think the risk of the former is small unless you make yourself a target, but the latter is non-trivial since who gets a mail ballot is a matter of public record. That doesn’t mean that your local DA will agree to press charges, or that they would be able to get a conviction, but who wants to deal with that? We know how vindictive the legal system can be to people charged with violations of the electoral code, especially to voters of color. I’m planning to vote in person regardless, but if I had been thinking about applying for a mail ballot, this would definitely make me reconsider. You have to decide for yourself what your risk of exposure is.

Rick Hasen, writing in Slate, summarizes the position potential absentee voters are in:

Again, this is a recipe for disaster. It will lead Paxton to publicize the argument that lack of immunity and fear of getting the disease is not a valid excuse to vote by mail, and that anyone who advises someone else to claim disability to vote by mail is engaged in a criminal conspiracy to commit voter fraud. Some voters may get in trouble because they could be accused of voting by mail while understanding that it is illegal. Only the ignorant can vote by mail without fear of prosecution, assuming they can later prove their ignorance. Meanwhile, if a voter has a serious underlying condition or comorbidity that increases the risk of serious complications—or death—from COVID-19, the ruling fails to give guidance on whether she is allowed to cite the condition in lawfully voting by-mail in order to avoid the risk of contracting the novel coronavirus. This would seem to leave open the possibility for Paxton to frighten possibly qualifying voters into not voting, or to go after those who do.

That said, and as Hasen notes, there is still the federal litigation, and I expect we’ll get some action on those cases soon. By this time next week the whole thing could be flipped on its head. And of course if you are 65 or over, there is nothing stopping you from applying for a mail ballot if you want one. My advice at this point is don’t panic, don’t freak out, and for sure don’t lose hope. This isn’t over, not by a long shot. The DMN has more.

UPDATE: The following is quoted with permission from a lawyer friend of mine, who sent me a copy of the opinion and answered my questions as I was prepping this:

It doesn’t automatically end the state litigation, but for all practical purposes it does. No litigant can argue now that a lack of immunity by itself is a disability after this decision. (Technically, there are different lawsuits on file and each of them may involve some motions and litigation on just what this means.) It’s clear than Nathan Hecht considered this an important legal question that needed to be answered, and this is his way of answering the question definitively. The Court did a pretty good job of splitting the baby with an analysis that reaches the conclusion sought by Paxton, ends the litigation, and provides deniability that their analysis is partisan.

I think the most pressing question is whether voters who consider themselves disabled will be the final judge of their own condition, or whether the State has the authority to prosecute individual voters. I’ve now skimmed the opinions and notice that Jeff Boyd’s concurring opinion says: “Voters who claim to have a disability under section 82.002(a) merely because they lack immunity to COVID-19 or have a fear or concern about contracting the virus would do so in violation of the statute.”

Now we wait for what I hope will be clarity and a better outcome from the federal cases.

UPDATE: Here’s the Chron story.

We already have the power to do more voting by mail

Mar 18th, 2020
by Charles Kuffner.
25 comments

KUT points to a path forward that could get a lot more people voting by mail in Texas.

Texas has one of the most restrictive vote-by-mail laws in the country, but it is open to some of the state’s most vulnerable populations.

Grace Chimene, the president of the League of Women Voters of Texas, says she hopes the state and counties encourage eligible voters to mail in their ballots.

In Texas, people over 65 can apply for mail-in ballots, so the state’s older population can obtain a ballot ahead of elections.

People with underlying health issues can also apply. Whether those people qualify, however, largely depends on the county election officials who administer elections in the state.

Chimene said it’s possible many people with some health issues could qualify as disabled, which is one of the categories of people allowed to vote by mail here, but those qualifications could be clearer.

“I would like the secretary of state’s office to really explain who qualifies, who can vote absentee,” Chimene said. “I think it’s not super clear.”

Travis County Clerk Dana Debouvoir said that a disability can be a “fungible” thing that changes often throughout a person’s life. She says this could be a category that would allow people who should stay away from large groups because of COVID-19 concerns to vote at home.

“Here at the elections office we are not doctors,” Debouvoir said. “So if you say on one of those forms that you have a disability, we are going to believe you. I am not going to reject an application for ballot by mail on the basis that I think or don’t think someone has a disability. That’s not going to work right now.”

Chimene said she thinks state officials should make it clear if “sick” or disabled could apply to many of these voters who have underlying health issues, like a chronic disease or immunodeficiency.

“What qualifies as sick should be something that we are encouraging the secretary of state to expand on,” Chimene said.

As the story notes, not a lot of people 65 and older, who are eligible to vote by mail no questions asked, take advantage of it now. Travis County Clerk Dana Debouvoir puts the figure at 10-15% there, and I’d bet it’s similar in Harris County. We could already have a lot more people voting by mail right now if they wanted to. The HCDP has a program where it sends a vote by mail application to all of its known-to-be-Democratic voters and then calls them to remind them to send it in (I’ve participated in that), and you can see the effect it has had in recent elections. Thanks to the high level of turnout in this year’s primary we have a lot more Dems identified, and we could get a lot more mail ballot applications sent out. It’s up to the voters themselves to take it from there.

I should note, since I pointed this out before, that having more people vote by mail will also mitigate the effect of not having a straight ticket voting option, in that it will not add to the lines at voting locations. That’s another pretty big consideration after this year’s primary, too. What I’m saying here is: If you’re a Dem and you’re 65 or will be by this November, please consider getting a mail ballot. Pester your eligible friends about it, too. Yes, I know, I love going to the polling places, and I’d greatly miss it if I didn’t do that. And Lord knows, we should very much be on the other end of the coronavirus curve by then – if not, we’re in much deeper trouble than we’re in now – but still. This is a thing you can do that would help on more than one level. Give it some thought.

Even more so, if you’re a person with health issues, especially if you’re in any way immuno-compromised, you can request a mail ballot as well. Your County Clerk ought to oblige. Again, we’ll very likely be mostly out of the pandemic woods by November, but again, why not take advantage anyway? It’ll be good for you, and good for the wait times at polling places. What’s not to like?

Now having said all that, there are potential drawbacks to expanding vote by mail, and we need to take them seriously. One, as Josh Levin, the election protection fellow at the Texas Civil Rights Project notes, vote by mail applications can be rejected due to signature mismatches, and elections officials aren’t good at notifying applicants when this happens. That was noted in the earlier story about the possibility of an all-mail primary runoff election. You’ll need to be persistent and pester your county clerk if you don’t get your mail ballot in a timely fashion. Two, if you do go this route, please don’t then show up at a polling place and vote again in person. Every cycle some people get confused about this, and it is a thing you can be prosecuted for. Three, if the GOP suspects that Democratic voters are trying to game the system somehow by getting mail ballots to people who are not 65 but are claiming a health exception, they will surely take some kind of legal action to stop it. It’s hard to say how big a deal that could be, but we really don’t need further attacks on the legitimacy of our elections.

Finally, Campos raises a good point:

On the mail ballots for everyone thing, we need to be careful on this. I am all for going to a vote by mail system in the future. Last week, I watched a CNN piece on how the state of Washington handles their vote by mail system. It is pretty elaborate with a lot of special equipment and a physical layout to handle the volume. I don’t think the folks who conduct our elections in Texas have the infrastructure in place to handle 16 million mail ballots. I just don’t think we jump into this system under emergency circumstances. Convince me otherwise. We saw what happened a couple of weeks ago today.

Yeah, I agree with that. I think we can encourage people who are already eligible to vote by mail to consider doing so if they haven’t already – there’s a clear benefit to that and the system should have no trouble handling it. Anything bigger than that will require planning and coordination, and we’re not there yet. We don’t want to risk having a worse outcome because we weren’t able to deliver on our promises.

On balance, there’s no reason why folks who are clearly eligible to get a mail ballot not to do so, and many reasons why they should. The first order of business is to make sure they know that they can, and then follow up from there. We can do that this year. It’s already in our power. Daily Kos and TPM have more.

Boosting student turnout at UT

Sep 4th, 2019
by Charles Kuffner.
Comments are off for this post

Cool story.

Between 2013 and 2016, Texas eliminated more than 400 polling locations, the largest drop in any state during that time. In 2013, after years of litigation, it implemented a strict voter ID law. The law, which lists seven kinds of acceptable IDs, became infamous for its brazenly partisan implications—handgun licenses are okay, for example, while student IDs are not.

All of which makes the following statistic so surprising: at the University of Texas at Austin, the state’s flagship university, undergraduate turnout increased from almost 39 percent to 53 percent between 2012 and 2016. Over that same time period, national youth turnout stayed roughly constant. The National Study of Learning, Voting, and Engagement at Tufts University, which calculates campus voting rates, has not yet released numbers for last year’s midterms. But at UT Austin’s on-campus polling locations, the number of early ballots cast was more than three times higher than it was in 2014. (Travis County only provides polling site specific data for early voting.)

[…]

On August 5, 2015, a federal appeals court ruled that Texas’s voter ID law violated the Voting Rights Act. The state’s attorney general vowed to enforce it anyway.

Later that month, a friendly and fast-talking former journalist named Kassie Phebillo arrived in Austin to begin a PhD in political communications at the University of Texas. To support herself financially, she took a job overseeing TX Votes, the nonpartisan organization charged by the university with increasing turnout. At the time, the group barely existed. It had just one returning member, and both of Phebillo’s would-be supervisors had left the school before she even showed up.

Still, Phebillo was drawn to the opportunity to learn more about her field and to mentor students. “I’m a first-gen college student,” she said. “Having those relationships changed my life, and so I try to do that for others.” She sat down with the sole returning TX Votes member—then senior Zach Foust—and began discussing how to restructure the group. They studied how other schools worked to get out the vote and found themselves particularly interested in colleges where students partnered with diverse groups to boost registration and turnout. The two decided to establish a civic engagement alliance and began recruiting a host of student clubs, political and nonpolitical alike, to come on board. By the end of the 2015–16 school year, a small but eclectic group of campus organizations had joined—from the Longhorn League of United Latin American Citizens to the chess club.

Phebillo and Foust asked that clubs in the alliance have one member become a volunteer deputy registrar, part of a broader strategy to create a network of students who could register voters across campus. To accomplish that, Phebillo brought county officials to campus to hold registrar training sessions and asked TX Votes members to bring their friends. Like any good college event planner, they provided free pizza to attract a bigger audience. The events were popular. Between September 2015 and the 2016 election, TX Votes helped train well over 100 volunteer deputy registrars. Together, they registered more than 17,000 voters.

I met Phebillo at UT Austin in early July 2019, in the middle of one of the university’s many freshman orientation sessions. She gave me a partial tour of campus. Inside the offices of the Annette Strauss Institute for Civic Life, she showed me a shelf stocked with national turnout awards and trophies won by TX Votes. One award was for having the most improved undergraduate turnout rate of any college in the country.

Later, I joined Phebillo at the student activities fair, where representatives of TX Votes were trying to recruit new members. Rising sophomore Janae Steggall was especially busy, hustling for the attention of what seemed like every incoming freshman who passed by. “What’s your major?” she would shout. Whatever the reply, Steggall would motion the student closer and deliver her pitch: “Awesome! We’re TX Votes, a nonpartisan organization on campus focused on voter registration and education.”

As I chatted with Phebillo and her team, it became clear that TX Votes has developed a sizable footprint on campus. Phebillo told me that during the 2016–17 school year, TX Votes deepened its involvement in the network of national organizations that help universities bolster turnout. It participated in both the ALL IN Campus Democracy Challenge and the Voter Friendly Campus program, drawing up a detailed plan that both created new initiatives and evaluated past work. After the 2016 election, the group further expanded its civic engagement alliance, which now has more than 100 organizational members. In March 2017, Phebillo became certified to train volunteer deputy registrars herself, allowing TX Votes to increase its training output.

One year later, in March 2018, several TX Votes members successfully campaigned to get the county to open a second polling place on campus. The group also devised a new strategy for registering students: visiting classrooms. Class, they reasoned, is where college students go (or, at least, are supposed to go), and students might be more tempted to register if everyone around them were registering as well. But to take advantage of this, TX Votes first needed permission from the university’s faculty.

“We emailed every single professor teaching a course at this university in fall 2018,” Anthony Zhang, the group’s incoming president, told me. “We had to manually compile that list, starting with accounting and going all the way down to Yiddish.”

I asked how long it took to get contact information for the school’s roughly 3,000 faculty. Zhang shook his head. “I honestly don’t even want to think about it,” he said.

There’s more, so go read the rest. As the story notes, TX Votes was helped by having a great working relationship with Travis County elected officials, in particular the two that are directly involved with elections, the County Clerk and the Tax Assessor. Thanks to the 2018 election, we now have a County Clerk in Harris County that is invested in helping people vote – the recent announcement about early voting centers coming to the UH and TSU campuses being a prime example of this – so now we also have an opportunity to follow TX Votes’ example. Let’s see if we can get those two added to the Best Colleges for Student Voting list next year. In the meantime, you can follow TX Votes on Facebook and Twitter.

Filing roundup: Outside Harris County

Dec 20th, 2017
by Charles Kuffner.
2 comments

A look at who filed for what on the Democratic side in the counties around Harris. These are all predominantly Republican counties, some more than others, so the Democrats are almost all challengers. On the flip side, there are many opportunities for gains.

Lisa Seger

Montgomery County

CD08 – Steven David

HD03 – Lisa Seger
HD15 – Lorena Perez McGill
HD16 – Mike Midler

County Judge – Jay Stittleburg
District Clerk – John-Brandon Pierre
County Treasurer – Mandy Sunderland

First, kudos to Montgomery County, hardly a Democratic bastion, for having so many candidates. They’re a County Clerk candidate away from having a full slate. I’m not tracking judicial candidates, County Commissioners, or Constables, but the MCDP has those, too. Steven David is a business and efficiency expert for the City of Houston. He’s running against Kevin “Cut all the taxes for the rich people!” Brady. Lisa Seger, whose district also covers Waller County, is a fulltime farmer in Field Store Community who has helped feed first responders during the fires of 2011 and is also involved in animal rescue. Her opponent is Cecil Bell, who was possibly the most fanatical pusher of anti-LGBT bills in the State House. She’s also a Facebook friend of my wife, who knows a lot of local farmers through her past work with Central City Co-Op. Jay Stittleburg is a Navy veteran and Project Management Professional who has worked in oil and gas. John-Brandon Pierre is a Marine Corps veteran who served in Iraq. A very solid group.

Fort Bend County

CD22 – Letitia Plummer
CD22 – Margarita Ruiz Johnson
CD22 – Mark Gibson
CD22 – Sri Preston Kulkarni
CD22 – Steve Brown

SD17 – Fran Watson
SD17 – Rita Lucido
SD17 – Ahmad Hassan

HD26 – Sarah DeMerchant
HD27 – Rep. Ron Reynolds
HD27 – Wilvin Carter
HD28 – Meghan Scoggins
HD85 – Jennifer Cantu

County Judge – KP George
District Clerk – Beverly McGrew Walker

Gotta say, I’m kind of disappointed in Fort Bend. They had a full slate for county offices in 2014, but this year there wasn’t anyone to run for County Clerk or County Treasurer? I don’t understand how that happens. Mark Gibson and Steve Brown list Fort Bend addresses, while Letitia Plummer and Margarita Johnson are from Pearland and Sri Kulkarni is from Houston. The Senate candidates we’ve already discussed. For the State House, Sarah DeMerchant ran in 2016, while Wilvin Carter is the latest to try to take out Rep. Ron Reynolds, who is the only incumbent among all the candidates I’m listing in this post and whose story you know well. Meghan Scoggins has a background in aerospace but works now in the nonprofit sector, while Jennifer Cantu is an Early Childhood Intervention therapist for a Texas nonprofit. KP George is a Fort Bend ISD Trustee and past candidate for CD22.

Brazoria County

CD14 – Adrienne Bell
CD14 – Levy Barnes

SBOE7 – Elizabeth Markowitz

HD29 – Dylan Wilde Forbis
HD29 – James Pressley

County Judge – Robert Pruett
County Clerk – Rose MacAskie

CD22 and SD17 also contain Brazoria County. HD25, held by Dennis Bonnen, is in Brazoria but it is one of the few districts that drew no Democratic candidates. I haven’t focused much on the SBOE races, but as we know longtime Republican member David Bradley is retiring, so that seat is open. It’s not exactly a swing district, but maybe 2018 will be better than we think. Adrienne Bell has been in the CD14 race the longest; she’s a Houston native and educator who was on both the Obama 2012 and Wendy Davis 2014 campaigns. Levy Barnes is an ordained bishop with a bachelor’s in biology, and you’ll need to read his biography for yourself because there’s too much to encapsulate. Dylan Wilde Forbis is one of at least three transgender candidates for State House out there – Jenifer Pool in HD138 and Finnigan Jones in HD94 are the others I am aware of. The only useful bit of information I could find about the other candidates is the Robert Pruett had run for County Judge in 2014, too.

Galveston County

HD23 – Amanda Jamrok
HD24 – John Phelps

CD14 and SBOE7 are also in Galveston. Remember when Galveston was a Democratic county? Those were the days. I don’t have any further information about these candidates.

Hope these posts have been useful. There are more I hope to do, but they’re pretty labor intensive so I’ll get to them as best I can.

Your periodic reminder that non-citizens very rarely vote

Jul 15th, 2017
by Charles Kuffner.
Comments are off for this post

I know you don’t need a reminder, being sophisticated followers of the news and all, but here it is anyway.

Since Donald Trump won the Electoral College vote in November, our new commander-in-chief has consistently attacked the legitimacy of popular vote totals that showed his rival, Hillary Clinton, well ahead of him on election day. “In addition to winning the Electoral College in a landslide, I won the popular vote if you deduct the millions of people who voted illegally,” Trump tweeted in November. Although he has doubled down on the claim in several subsequent statements, offering an estimate of three to five million illegal votes and complaints about specific states, Trump has failed to provide evidence of widespread fraud.

Myrna Pérez, a Texas native and civil rights lawyer, won’t take the president at his word. As head of the Voting Rights and Elections project at New York University’s Brennan Center for Justice, Pérez has seen states around the country—Texas included—rushing to respond to voter fraud threats. “As someone who’s driven by data, as someone who researches elections, as someone who is in the business of making sure our elections represent the voices of actual Americans, I’m very troubled at the policies we see that seem to not have any science or data behind them,” Pérez says.

Pérez, a graduate of San Antonio’s Douglas MacArthur High School who now teaches at Columbia and NYU law schools, decided to check if Trump’s claims of massive voter fraud had any empirical backing. Her team at the Brennan Center reached out to all 44 counties in the U.S. that are home to more than 100,000 non-citizens. The team also contacted several of the largest and most diverse counties in the three states—California, New Hampshire, and Virginia—where Trump made specific claims of “serious voter fraud.” Forty-two counties responded to Perez’s queries, including Harris, Dallas, Tarrant, Bexar, Travis, and El Paso counties in Texas. The counties Pérez’s team interviewed accounted for over 23.5 million votes in the 2016 election. However, the county elections administrators reported a combined total of only 30 fraudulent noncitizen votes in 2016—about .00001 percent of the votes totaled.

“Noncitizen voting in Texas, as in the rest of the country, is rare,” Pérez concludes. As for the nationwide total of fraudulent votes, she says her methodology doesn’t offer a reliable estimate, but that there is no way it’s three to five million people. “Not even close,” she says.

Pérez’s criticisms are echoed by elections administrators around Texas—the people work to assure that eligible voters can cast a ballot and ineligible voters cannot. “I have not seen the numbers to support that,” says El Paso County elections administrator Lisa Wise, referring to Trump’s three to five million claim. “The integrity of elections is a priority for this department, and I believe that it is intact until I see differently.” Bexar County elections administrator Jacquelyn Callanen also backs that sentiment. “I welcome the light being shined on this, to show that our records are well-maintained,” Callanen says. “We stand for integrity. We take such pride and we do such, I think, a magnificent job of list maintenance and voter participation.”

You get the idea. I will point out, as I have done with stories about how incredibly rare other forms of voter fraud are, that our current Attorney General and our previous Attorney General would each sell their soul (well, maybe they’d sell your soul) to bust and convict any number of non-citizens they could catch in the act of voting. The fact that they have conspicuously failed to do so over a multi-year and multi-election period of time should tell you something.

“Strongly held religious beliefs” do not justify discrimination

Apr 13th, 2017
by Charles Kuffner.
2 comments

This is a very bad idea.

Legislation that would allow county clerks in Texas to decline to issue same-sex marriage licenses if it conflicts with their religious beliefs was tentatively approved Tuesday by the Texas Senate.

State Sen. Brian Birdwell, a Granbury Republican who authored the measure, said the Senate Bill 522 would allow clerks to recuse themselves from issuing a same-sex license and would instead assign their duties to other clerks, a judge or even a special clerk.

The vote was 21-10, mostly along party lines. A final vote is expected within a few days.

“This provides a way for clerks to exercise their profoundly held religious beliefs under the First Amendment, and at the same time protect the rights of couples who are coming in for a marriage license,” Birdwell said. “Right now, there is not an alternate mechanism for a clerk who is not willing to issue a license because of their sincerely held beliefs.”

[…]

Sen. Sylvia Garcia, D-Houston, questioned who the bill was supposed to protect.

“My main concern here is that all the clerks and judges know about the law and are following the law,” Garcia said.

Birdwell responded: “Without this, we’re saying that if you have strongly held religious beliefs, you are not welcome in public office.”

There is so much wrong with what Sen. Birdwell is saying. Warren Jeffs has “strongly held religious beliefs”. Last I checked, no one was seeking to pass a bill to better accommodate those beliefs. Believing in something extra hard doesn’t make it good or just or worthy of respect. A Catholic county clerk with “strongly held religious beliefs” would by this logic want to be able to recuse themselves from issuing a license to anyone who was divorced or to couples that were cohabiting. There’s a perfectly reasonable alternative bill that would address the concern of the deeply religious county clerk without singling out any particular marriage license applicants.

And that’s really the crux of this. The reason for this bill is because some people still don’t approve of same sex marriage and want to be able to express that disapproval in a formal and sanctioned way. That in turn leads to things like desperate legal attempts to redefine “marriage” in a way that makes it something lesser for same sex couples. There’s no way to escape the animus that a bill like this expresses towards same sex couples, which is at the heart of the Obergefell decision. All but a handful of County Clerks were able to do this after that ruling was made, and those who objected initially have since complied with the law. If there is anyone who can’t comply with that law now, then maybe being a County Clerk isn’t the right job for them.

Let the clerks out of it

Apr 2nd, 2017
by Charles Kuffner.
Comments are off for this post

I approve of this.

The state’s leading LGBT advocacy group has thrown its support behind a bill that would accommodate county clerks with religious objections to same-sex marriage.

Under Senate Bill 911, by state Senator Joan Huffman, R-Sugar Land, marriage licenses in Texas would no longer specify the names of clerks who issue them, instead listing only the counties where they’re obtained.

Chuck Smith, CEO of Equality Texas, said though he hasn’t spoken with anyone from Huffman’s office about SB 911, his group is supporting the bill as “a simple solution.”

“If there are county clerks who want to make a stink, then this proposed legislation cuts their feet off,” Smith said. “Your name isn’t on it [the license]. Nobody would know. Do your job.”

[…]

SB 911 is one of at least four proposals in the 85th Legislature dealing with county clerks and marriage licenses. Others would allow clerks to opt out of issuing licenses to same-sex couples altogether, in some cases forcing them to travel to adjacent counties, which experts say would run afoul of the Obergefell decision.

“The delivery of the service, the access to a license, has to be the same for all people, and if that can be accomplished, we are supportive of that,” Smith said. “I would suggest that [SB 911] is the solution to eliminate any of the other proposed legislation related to county clerks or related to marriage licenses that we would oppose.”

The story notes the Hood County saga, and quotes the Irion County Clerk, who allows that this might satisfy the objections of people like her. I personally don’t think that County Clerks should need to be accommodated in this way since none of this is about them, but whatever. If something as simple as this will get the complainers to knock it off, then I’m all for it.

Rusk County Clerk sets an example

Jul 15th, 2015
by Charles Kuffner.
3 comments

I respect this.

RedEquality

The Rusk County Commissioners Court on Monday formally accepted the resignation of County Clerk Joyce Lewis-Kugle, apparently the first Texas elected official to quit office rather than abide by the U.S. Supreme Court decision legalizing gay marriage.

“Before taking office, I was required to take an oath to uphold the laws of this State and the United States,” Lewis-Kugle, elected in 2006, wrote in her resignation letter to County Judge Joel Hale last week. “Due to the recent decision by the Supreme Court, the laws I swore to have now changed.”

Trudy McGill, who served as Lewis-Kugle’s chief deputy, was sworn in Monday to replace her, and has the option of running for election in March.

[…]

After waiting to receive new forms from the State Registrar’s office following the Supreme Court decision, the county is now ready to issue licenses to same-sex couples, although an employee in the clerk’s office said Monday that no one had applied for one yet.

That’s how it should be. If you swear an oath to uphold the law, then decide you cannot do so, you should step down and let someone else do it. The large majority of Texas’ County Clerks have decided that they can in fact uphold the law post-Obergfell, but for those who decide otherwise, Ms. Lewis-Kugle has demonstrated what the correct thing to do is. Kudos to her for that.

Meanwhile, here’s a fascinating story about one of those clerks that isn’t doing the correct thing.

In Irion County, not all sentiments are so colorful, but the people have had plenty to talk about since the County Clerk there, Molly Criner, declared that neither she nor her office will be issuing marriage licenses to same-sex couples despite the Supreme Court’s recent ruling that extends those rights to all US citizens within her borders.

[…]

Two women walked into the Irion County Clerk’s Office on Wednesday, greeted the staff and requested a marriage license. The clerks, seated behind desks in the open office space beyond the short counter, exchanged nervous glances.

“We,” the blonde one paused contemplatively, “will let you talk to our clerk, Molly Criner. She’s not in right now, but we will giver her a call and she can come in. In the meantime, y’all can wait here…or you can sit out in the hall. We have coffee, we have water, whatever you would like.”

With a smile on her voice, the clerk followed the two women out into the hall, eagerly explaining where to find the coffee and water at great length and offering to brew a new pot should they be in need of caffeine.

Criner, clad in a hot magenta knee-length skirt, white long-sleeve shirt and brown hair flowing loosely around her shoulders, extended her hand as she walked in and asked for the women’s names.

“We just need a marriage license,” one of the women repeated.

“Ok,” Criner sighed, “well, I can’t do that. But the clerk’s office in San Angelo is only 25 miles [away] and they’d be happy to issue one. I just can’t.”

For minutes the dialogue continued, the women questioning Criner as to why she was refusing and whether she had the paperwork and authorization. She responded that she does have the paperwork and is authorized, but repeated that she “just can’t do it.”

Referencing her staff, all of whom she said have issued marriage licenses to heterosexual couples in the past, Criner explained that no same-sex certificates would be coming out of her office. “I have not delegated my authority to them to do it, so they don’t have a choice,” Criner said. “You know, we all believe very strongly in what we believe, and I admire you for that. I really highly recommend 25 miles down the road, where you can get a license in Tom Green County.”

Criner would not speculate as to what the legal repercussions her choice could have, or how she would respond to orders from the court. She also couldn’t say whether she’d remain in office or resign if the Supreme Court’s decision is signed into law. She did, however, admit that feedback within the community has been divided.

“I’ve heard both positive and negative comments from many people,” she said, later on in the conversation stating she’d “have to think about that” when asked what her feelings are with regards to those citizens of Irion County opposed to her decision.

I have no idea why Ms. Criner thinks the Supreme Court decision needs to be “signed into law”, nor whom she thinks would sign it. I have a sneaking suspicion that if the answer to the second question is “President Obama”, it won’t change her opinion of it. But mostly I wonder what she will think she she gets sued, and what the voters in Irion County will think when they get presented with a massive legal bill for her defense. There’s still time to avoid this, however. Rusk County offers one possible way, and nearly every other county in Texas offers another. Up to you, Ms. Criner. Paradise in Hell has more.

UPDATE: From the Observer, Live Oak County Clerk Karen Irving has decided to retire in order to avoid issuing same sex marriage licenses. Kudos to her as well. And to answer Michael’s question in the comments, County Clerks are elected in even-numbered years. Ours in Harris County was re-elected in 2014 and will be up again in 2018, by which time one hopes this will all be largely a non-issue.

There will be more lawsuits

Jul 12th, 2015
by Charles Kuffner.
Comments are off for this post

The lawsuit filed in Hood County to force County Clerk Katie Lang to issue a marriage license to a same sex couple won’t be the last one like it.

RedEquality

“We hope and expect that county clerks across Texas and the country will take a look at what happened [in Hood County] and do the right thing and follow the U.S. Constitution,” said Austin Kaplan, an Austin attorney who represents a Granbury gay couple who obtained a marriage license on Monday after filing a lawsuit against the Hood County Clerk’s office in federal court.

The Granbury couple, Jim Cato and Joe Stapleton, who have been together for 27 years, have said they will move forward with their lawsuit until the county clerk’s office agrees to issue marriage licenses to all couples. Kaplan said they have not heard from Hood County Clerk Katie Lang, and her office would not say whether it is issuing same-sex licenses.

With a population of 53,921 people, Hood County is the most populous county among those still refusing to issue same-sex marriage licenses.

Texas counties’ responses to the Supreme Court’s ruling varied between those that immediately began issuing marriage licenses and those that took a few days to come around. But two weeks after the high court’s ruling, at least six counties are likely refusing to issue same-sex marriage licenses, according to Texans for Marriage.

The other holdout counties as of July 7 were Dallam and Roberts counties in the Panhandle; Irion, Hartley and Loving counties in West Texas; and Hamilton County, located between Austin and Fort Worth.

(Of Texas’ 254 counties, three counties have not been reached and 13 counties are planning to issue marriage licenses after “software changes” or receipt of updated marriage certificates, according to Texans for Marriage.)

On Thursday, a deputy clerk in Roberts County told The Texas Tribune that the clerk’s office would issue licenses if requested by a same-sex couple.

Hartley County Clerk Melissa Mead said her office won’t issue same-sex marriage licenses until the clock runs out on the 25 days that parties in the Supreme Court case have to ask for a rehearing of the case.

A deputy clerk for Loving County said her office was awaiting further direction from the attorney general’s office. A spokeswoman for Texas Attorney General Ken Paxton said the only guidance from the state’s top lawyer was the written opinion issued June 28, which said county clerks with religious objections can opt out of issuing same-sex marriage licenses but they should be prepared to get sued.

Calls to Dallam and Hamilton went unanswered.

See here and here for background on Hood County. Next in line appears to be Irion County, and after that who knows. Actually, what could happen is more lawsuits in the same places as before:

A judge’s ruling in the Hood County case would likely only apply to those parties in that county, said Alexandra Albright, a law professor at the University of Texas at Austin. If the case went to the U.S. 5th Circuit Court of Appeals — which has appellate jurisdiction over federal courts in Texas — then any ruling would apply to the entire circuit, Albright added.

Now that the Hood County gay couple has obtained a marriage license, a federal judge may not immediately rule on the broader issue of whether the Hood County clerk’s delay “caused constitutional damage,” so other same-sex couples would likely have to file their own lawsuits, said Meg Penrose, a law professor at Texas A&M University.

“If this is not a class action, other individuals that are denied marriage licenses will need to sue on their own behalf or wait for a class action to be filed,” Penrose said. “This could become costly for the county [or] clerk as individual lawsuits could mount quickly.”

Kaplan, the attorney for the Hood County gay couple, said Texas lawyers were keeping an eye on “lawless clerks” and would likely take action if clerks continued to believe “there’s some justification for failing to issue the licenses.”

“We’ll see what happens when that comes to head,” he added.

One would think that repeated litigation over the same thing might make a recalcitrant County Clerk less popular. I understand that Katie Lang’s husband Mike is a candidate to succeed Jim Keffer in HD60, so this could quickly become an election issue. As the man said, we’ll see.

Prepare for your time in the spotlight, Irion County

Jul 9th, 2015
by Charles Kuffner.
Comments are off for this post

It’s coming.

No same-sex couples have sought a marriage license in Irion County, but if or when they do the county clerk is willing to fight it in court.

County Clerk Molly Criner has vowed to stand for “natural marriage” and refuses to issue licenses to same-sex couples.

Liberty Counsel, an international nonprofit that says it is dedicated to advancing religious freedom, has offered pro bono counsel to represent Criner in court.

“The Justices of the Supreme Court acted outside and against the authority granted to them by the very Constitution that we have sworn to uphold,” Criner said in a news release issued by Liberty Counsel. “Our founding fathers were fearful of too much power in the hands of a few.”

Referring to the opinion of the five justices who voted to allow same-sex marriage last month, Criner said to keep her oath to uphold the Constitution, she must reject the court’s ruling, which she believes is “lawless.”

See here for the background. The Dallas Observer engages in a bit of mischief in response:

Just in case any of you guys are thinking about getting married this week and feel like making a ruckus, you can get to Mertzon, the Irion County seat, by taking Interstate 20 West to TX 206 South. The clerk’s office is at 209 N. Parkview St. After Crimer turns you down, head northeast on U.S. 67 to San Angelo and Irion County’s assigned U.S. District Court, where you can file your lawsuit at the O.C. Fisher Federal Building and U.S. Courthouse. The courthouse is located at 33 East Twohig Ave. Godspeed and please email us your photos.

I’d advise packing an overnight bag – it’s a long way from D/FW to Irion. Glen Maxey says on Facebook that a couple of plaintiffs have been identified and details will be forthcoming. I can’t wait. The AusChron has more.

Federal lawsuit filed in Hood County

Jul 7th, 2015
by Charles Kuffner.
2 comments

That sound you hear is the rubber meeting the road.

The motion for a temporary injunction and temporary restraining order was filed this morning in Fort Worth federal court on behalf of Soifer’s clients, Jim Cato and Joe Stapleton, who’ve been together for 27 years. The couple has been trying to get a marriage license ever since the Supreme Court made it legal in all 50 states on June 26, only to be told, repeatedly, the clerk’s office isn’t issuing licenses.

Initially Katie Lang, the county clerk, said her office wasn’t issuing licenses because of her religious beliefs; she then clarified her statement to indicate she wouldn’t issue licences, but her staffers would. But on Thursday, the couple says they were told the the same thing The Dallas Morning News was when we called to inquire about the issuing of licenses: It would take several weeks because the clerk’s office didn’t yet have the forms from the state.

According to the lawsuit, on Thursday the couple went to the clerk’s office and “produced a copy of the revised application for marriage license, promulgated by the state and available to county clerks, and asked if they could use it to apply.” But a woman named Virginia in the clerk’s office “told them she could not accept that form. Then Clerk Lang asked everyone to leave the office, stating that no media was allowed. Jim replied that Joe and Jim were not media, but instead taxpayers of Hood County, there to get a marriage license, but the Clerk said they needed to leave as well, which was humiliating. Clerk Lang also apparently called the Sheriff’s Department, because by the time Joe and Jim left her office, approximately half a dozen deputy sheriffs had arrived to stand guard outside and immediately inside the Clerk’s office.”

The suit says the couple “found the entire process to be humiliating and degrading, and have no reason to believe that they would receive a marriage license without having to file a lawsuit to get it.”

See here for the background, and click the link above to see a copy of the lawsuit. This was bound to happen as long as County Clerk Lang refused to obey the law and do her job. The good news is that in spite of all that, Cato and Stapleton got their marriage license.

A Granbury gay couple on Monday obtained a marriage license from the Hood County Clerk’s office after filing a lawsuit against the clerk in federal court.

But attorneys representing Jim Cato and Joe Stapleton, who have been together for 27 years, said the couple will move forward with their lawsuit until the county clerk’s office agrees to issue marriage licenses to all couples.

“Jim Cato and Joe Stapleton are delighted that they finally have been issued a marriage license and can get married in their home county,” the gay couple’s attorneys, Jan Soifer and Austin Kaplan, said in a statement. “It’s a shame that they needed to hire lawyers and file a lawsuit to make that happen.”

The Hood County Clerk’s office would not say whether it is issuing same-sex marriage licenses and referred questions regarding the licenses to County Clerk Katie Lang’s personal attorneys.

Lang’s lawyers at the Liberty Institute, which specializes in religious freedom litigation, said the clerk’s office was unable to issue the license on Thursday “because of software issues” and “lack of guidance” from the county attorney on using existing forms.

“The Clerk’s office was unable to issue a license at close of business on Thursday, even though everyone left with the understanding that one would be immediately available on the next business day,” said Jeremy Dys, senior counsel at the Liberty Institute. “The office was closed Friday. This morning, as of about 8:00 a.m., there is a marriage license waiting for the couple that has, for some reason, sued Hood County.”

Yeah, that’s a mystery to me too, pal. Congrats to Cato and Stapleton, and may the courts deliver a swift and decisive smackdown of Lang, so as to serve as a bucketful of cold water in the face of other derelict public officials and those that would enable them. More coverage from CBS Local and Hood County News, and be sure to see Bud Kennedy as well. Thanks to Somervell County Salon in the comments for the tip.

And the battle moves to Irion County

Jul 7th, 2015
by Charles Kuffner.
2 comments

“Where the heck is Irion County?” I hear you cry. Just the home of the next County Clerk that needs to be schooled on the Constitution, and not her dime store “understanding” of it.

The county clerk in tiny Irion County is standing firm on her decision to not issue marriage licenses to same-sex couples, outlining her opposition in a “declaration of obedience to law and defense of natural marriage.

Molly Criner, clerk in the West Texas county, wrote her response to the U.S. Supreme Court’s recent gay-marriage ruling on Saturday – July 4. In it, she quoted Martin Luther King, Jr., referenced Thomas Jefferson and cited the court’s Dred Scott decision.

“I … shall resist unlawful federal or state court encroachments upon the prerogative of the people of Texas to protect natural marriage, and shall only issue marriage licenses consistent with Texas law, so help me God,” she wrote in her conclusion.

The “declaration” was released on Monday by the Liberty Counsel, an Orlando-based nonprofit firm that focuses on religious issues. The group – which has ties to Liberty University, founded by Jerry Falwell – is providing pro bono counsel to Criner.

“Like Molly, each of us should vow not to be intimidated but, instead, to stand united for our God-given liberties and the rule of law,” Mat Staver, Liberty Counsel’s founder, said in a news release.

[…]

It’s unclear how that situation might play out in Irion County, population 1,573.

I’ll get to that in a minute. I doubt there’s much to be learned from her screed, but it’s reprinted on Glen Maxey’s Facebook wall if you don’t want to get cooties from clicking that Liberty U link. You may note that Glen writes they are looking for some plaintiffs in that post, so you can probably guess how this will likely play out. Hood County, despite all of its County Clerk’s bluster, folded like a cheap suit once the lawsuit was filed. The main complication I see here is that there may literally be no one in Irion County to apply for a marriage license and get rejected; if a couple has to be imported to do this, I don’t know if that changes anything, legally speaking. If it does, then this standoff could last for awhile, but in the end someone will explain to Ms. Criner, using small words, that the Constitution doesn’t mean what she thinks it means. Some lessons just have to be learned the hard way. WOAI has more.

In related news from the ranks of the dangerously ignorant, Texas’ gay-hatingest legislator, Rep. Cecil Bell, did some more stupid things to ensure that his name will go down in the history books for all the wrong reasons. You can read the story for yourself – I’m certain this will be a campaign issue in March, and I fully expect that a barrage of hateful bills will be filed in 2017, but for now it’s a bunch of hot air. Remember what’s being said now and make sure you do everything you can to mitigate against it in 2016.

Here come the lawyers

Jul 6th, 2015
by Charles Kuffner.
2 comments

I don’t see how the squadron of anti-equality attorneys has a case in the wake of Obergfell, but they’re gonna try their best to muck things up anyway.

RedEquality

Now, conservative attorneys are gearing up to defend [government employees who refuse to recognize gay marriage because of religious objections], saying they are confident existing laws will ensure their religious freedom. But the legal arguments they are likely to make are complex, legal experts say, and could test the courts’ capacity to balance gay rights and religious freedom.

As indicated in Paxton’s opinion, there are no blanket protections for county clerks and other government employees who reject same-sex marriage in their official capacity. Instead, the strength of religious claims are considered on a case by case basis.

County clerks, for example, must prove they are refusing to issue same-sex marriage licenses because doing so would violate a “sincerely held religious belief” — a legal standard courts are accustomed to considering, said Jeremy Dys, senior counsel at the Plano-based Liberty Institute, which specializes in religious freedom litigation.

Conservative attorneys suggest these cases can be resolved by guaranteeing that the government official is offered a “reasonable accommodation.” In cases of a county clerk refusing to issue same-sex marriage licenses on religious grounds, that task could be delegated to a deputy clerk or another qualified staff member who has no objections, said Mat Staver, founder and chairman of the conservative Liberty Counsel, a national nonprofit that offers pro bono legal assistance on religious freedom issues.

“What’s happening is that you’re allowing individuals to participate in the change that occurred by the Supreme Court on Friday and you’re allowing individuals who have a religious objection to be able to have that religious objection,” Dys said.

Gay rights attorneys and civil rights groups like the American Civil Liberties Union agree that there is room for religious accommodations for government officials — so long as those accommodations do not discriminate against specific groups, like same-sex couples, by intentionally burdening them.

There is a distinction between a county clerk’s freedom to express religious beliefs and the freedom to impose those beliefs on others in “the execution of their duties,” said Justin Nichols, a San Antonio-based attorney who focuses on gay and lesbian-related legal matters.

He added that reasonable accommodations for county clerks who object to issuing same-sex marriage licenses must ensure that same-sex couples still have the ability to obtain a license in their county without delay and aren’t required to travel to another county to exercise their constitutional rights.

“That’s like saying you can always get a public school education that’s not segregated if you just go to another county,” Nichols said.

Religious freedom hawks and gay rights activists are also at odds about the rights of judges and justices of the peace to refuse to perform marriage ceremonies for same-sex couples.

In his opinion, Paxton wrote that so long as other individuals authorized to perform same-sex ceremonies are willing to conduct them, judges and justices of the peace can refuse on religious grounds; they are not outright preventing a same-sex couple from participating in a ceremony.

But others asserted that the risk of litigation for judges and justices of the peace lies in picking and choosing between performing marriage ceremonies for heterosexual couples and same-sex couples.

“A judge or justice of the peace is authorized to perform a marriage but is under no obligation to do so,” Harris County Attorney Vince Ryan, a Democrat, wrote in a memo Wednesday to the county clerk, local judges and justices of the peace. “However, once the judge elects to undertake the performance of marriages, the service must be offered to all (including same-sex couples) in a non-discriminatory manner.”

You can see a copy of Ryan’s opinion on judges and JPs here. Ryan is an unsung hero here in Harris County. Unlike a lot of County Clerks who apparently had their heads in the sand, Ryan was ready for the SCOTUS ruling and had an opinion on what it meant for the Harris County Clerk ready to go the same day. There’s no way Stan Stanart would have issued a same-sex marriage license that Friday if Ryan hadn’t forced his hand. Keep that in mind when he’s up for re-election next year.

As far as the religious objections of County Clerks and their employees go, I say public officials and employees are there to serve the public – all of the public, not just the public they approve of. If there’s someone in a County Clerk’s office that can’t bear the idea of issuing a marriage license to a same-sex couple, then they need to find another job. If the county in question can accommodate them by placing them somewhere else – Stanart brought up the example of an employee who was moved elsewhere because she objected to issuing liquor licenses – that’s fine, but if not, then they are welcome to look elsewhere. “Reasonable accommodation” does not mean “any and all possible accommodation”. If you can’t perform your job duties, someone else will.

What worries me is the possibility that the Fifth Circuit, being the giant bag of suck that it is, may decide that if it’s not an “undue burden” for a woman to have to travel to another state to get an abortion, it’s no biggie for a gay couple to go a county or two over to get hitched. I mean, as long as Travis County exists you can still get your license, right? I know, the SCOTUS decision in Obergfell didn’t allow for any such consideration, but then Roe v. Wade was a pretty clear ruling too, and look where we are now. My point is, these guys are going to make some form of argument that as long as this right is available somewhere, it doesn’t have to be available everywhere, and I fear some idiot judge will buy it.

The problem is that the standard of religious beliefs being “sincerely held” is unsustainable, as the various guerrilla actions by the Satanic Temple should make clear. If that’s all it takes, then anyone can carve out any exception for themselves as long as they believe in it hard enough. Lots of people used to “sincerely believe” that God intended the races to be separate and thus interracial marriage should be illegal because the Bible said so, no matter how much the current batch of Pharisees insists that this is totally different. The Bible will always say what people like that want it to say. That should not give them any special rights as a result.

Paxton takes the culture-warrior lead

Jul 5th, 2015
by Charles Kuffner.
2 comments

Well, at least he’s found his calling in life.

Ken Paxton

In the six months before Ken Paxton won election as Texas attorney general last fall, he stayed largely out of sight. Under an ethical cloud amid claims of financial fraud, he avoided public events and rarely spoke to reporters, coasting to victory as part of new Republican leadership including Gov. Greg Abbott and Lt. Gov. Dan Patrick.

Lacking Patrick’s knack for political theater, and yet to display the lawyerly intellect of Abbott, his predecessor as the state’s top attorney, the 52-year-old former legislator struggled to emerge from their shadows during his first several months in office.

But now, even as his personal legal troubles resurface, Paxton is poised to claim his place in the sun as the state’s top culture warrior.

Two days after the U.S. Supreme Court struck down Texas’ long-standing same-sex marriage ban, Paxton issued an opinion telling county clerks with religious objections that pro bono lawyers were standing by to help defend them against legal challenges if they denied licenses to same-sex couples.

“Our religious liberties find protection in state and federal constitutions and statutes,” he said. “While they are indisputably our first freedom, we should not let them be our last.”

The missive launched him into the national consciousness, earning comparisons to George Wallace, the former Alabama governor who fought desperately to preserve racial segregation in the 1960s. Blasting Paxton for encouraging state officials to violate the law, a Democratic lawmaker has since asked the U.S. Justice Department to monitor the implementation of the Supreme Court’s decision.

The nonbinding opinion amounted to more of a statement of moral support than legal defiance. But to social conservatives — some beginning to feel abandoned by a governor who has declined their requests to call a special legislative session to address the issue of same-sex marriage — it bolstered the McKinney Republican’s standing as one of the last guardians of religious liberty.

“Texas often tries to bill itself as the most conservative state in the union, which isn’t very often the case actually. We have a reputation that we don’t live up to. But I think that Ken Paxton is living up to it,” said Julie McCarty, president of the NE Tarrant Tea Party, which wields considerable influence in Republican primaries. “I haven’t heard anything from our governor, which is not surprising, but again disappointing.”

Even Patrick, who came to power with the backing of the conservative movement, has not avoided the perception that he failed to do enough as the Senate’s presiding officer to protect traditional marriage this session.

“There’s a lot of other things that should have been passed, that the rest of the Republican leadership caved into the homosexual demands — that would be Abbott and Patrick and [Speaker] Straus,” said Steve Hotze, a Houston doctor who operates the powerful Conservative Republicans of Texas political action committee.

Paxton’s office was “very instrumental” in pushing lawmakers to pass legislation affirming religious officials’ rights to refuse to perform same-sex marriages known as the Pastor Protection Act, said Hotze, whose group distributes mailers and scorecards to a vast network of GOP voters.

“Most people don’t understand, but Ken Paxton does understand the direction of this movement, and he is speaking out,” he said. “Abbott has been AWOL on the issue.”

[…]

Based on the questions about Paxton’s ethical compass, former Railroad Commissioner Barry Smitherman, the candidate who came in third in the primary, later endorsed Paxton opponent Dan Branch in the runoff.

But concerns about Paxton’s business matters did not dissuade conservatives in 2014, and don’t seem to have gained traction among them recently.

McCarty said Thursday she was not aware that Paxton could face a felony charge, but said it did not affect her support for him.

“This is how politics goes. People are always pressing charges and making frivolous suits just to smear someone’s name,” she said. “The general public doesn’t follow it closely enough to know when everything’s been cleared and that it was all trumped up for nothing. Until we have a conclusion, I would definitely side with Paxton and give him the benefit of the doubt because I just know that’s how these games are played.”

So this is where we stand. And just to add a little gasoline to the fire, there’s this:

As if Attorney General Ken Paxton didn’t have enough troubles with a potential felony indictment, now he’ll be fighting off an ethics complaint over his opinion on same-sex marriage.

[…]

Now long-time Travis County Democratic mainstay Glen Maxey has savaged that opinion as nothing more than political cant, and filed a complaint with the Texas State Bar Association against Paxton. In it, the Texas Democratic Party county affairs director alleges multiple violations by Paxton of the Texas Disciplinary Rules of Professional Conduct, including that Paxton made a false statement of law that is “flatly inconsistent with the United States Constitution”, as well as violating the statutes defining his official duties, the oath of office as attorney general, and the terms of his license to practice law in the state of Texas.

In a statement Maxey, who was Texas’ first openly gay state representative, writes, ““It’s irresponsible for an elected official – and a lawyer – to tell other elected officials to break the law. He’s misleading county and state officials based on a false premise that they can discriminate against same-sex couples.”

You can see a copy of the complaint here. It’s not the first time someone has complained to the State Bar about Paxton. I’m not a lawyer and will pass on evaluating the merits of Maxey’s complaint. If that’s in your wheelhouse, by all means please chime in.

As for the larger issue with Paxton, all this raises the stakes on the grand jury/special prosecutor investigation against him. He can complain all he wants about being made a target, but he’s not being tried in Travis County and may have a hard time making that charge sound believable to anyone outside of Ms. McCarty’s circle. If he gets no-billed or manages to beat the charges one way or another, he’ll be in a very strong position politically. If he goes down, there could be collateral damage. At some point, Abbott and Patrick and the rest are going to have to decide if they want to stand by Ken Paxton or let him sink or swim on his own. I imagine there have been a few very off the record back-room discussions about how to play things if it all goes to hell for the state Republican brand. Trail Blazers and the Trib have more.

The wedding industry is rubbing its hands with glee

Jul 5th, 2015
by Charles Kuffner.
Comments are off for this post

Nothing like having your market dramatically expanded overnight.

RedEquality

Within hours after the Supreme Court legalized gay marriage in Texas and across the country, local wedding businesses and venues already began getting orders and bookings from same-sex couples. Those in the wedding industry said they expect a surge of gay couples who were hoping to marry in Texas.

“The gay wedding business will grow instantly,” said Mariana Lemesoff, owner of AvantGarden, which received three new wedding requests from gay couples on Friday.

One study estimated an economic boost of $181.6 million in Texas during the first three years of legalization through direct wedding spending and spending by out-of-state wedding guests.

Until the high court’s 5-4 ruling, Houston had been missing out on the gay wedding business, said Betsy Gelb, a marketing professor at the University of Houston’s C.T. Bauer College of Business.

Competing primarily with Austin, Houston will have an opportunity to attract same-sex wedding business from other Texas towns where people aren’t as comfortable with their union, Gelb said.

“We are, in a sense, behind the curve in cities realizing there is money to be made in LGBT weddings,” she said.

[…]

In some weddings both women wear dresses. Other couples want pantsuits. Either way, [Christine Nokta, public relations director for Impression Bridal] said, the bridal store is expecting an increase in business.

“Two dresses, that’s better than one as far as we’re concerned,” she said.

Indeed. And don’t forget the boon that county coffers will receive by issuing all those marriage licenses, as places like New York City have been doing for years. You may recall that the original anti-gay marriage bill that was taken up in the Lege this year, from Sen. Charles Perry and Rep. Cecil Bell, would have transferred the marriage license business to the Secretary of State’s office. County Clerks raised a huge fuss about that, since that would have been a real financial loss to them. That’s a small amount compared to what this boost in the wedding business will be, however. Just remember, the next time Greg Abbott claims credit for Texas’ economy, SCOTUS and marriage equality will be a part of that. The Huffington Post has more.

Lawsuit threatened in Hood County over clerk’s refusal to issue marriage license

Jul 4th, 2015
by Charles Kuffner.
3 comments

I was beginning to think that none of Texas’ 254 County Clerks were going to attempt to martyr themselves in the name of their “religious freedom” to not issue marriage licenses to same-sex couples. I shouldn’t have worried.

Attorneys for a same-sex couple are preparing to sue Hood County Clerk Katie Lang after the couple was unable to obtain a marriage license.

Two Austin attorneys representing Jim Cato and Joe Stapleton, who have been together for 27 years, sent a letter to Lang on Thursday demanding that her office issue the couple a marriage license by the end of the business day or risk being sued in federal court Monday morning.

As of Thursday evening, the couple was unable to obtain a marriage license from the county, so attorney Jan Soifer confirmed that they would move forward with filing suit.

[…]

Citing her religious beliefs, Lang initially said her office would not grant same-sex marriage licenses.

She later backtracked, saying that she would “personally refrain” from issuing licenses but that other members of her staff would grant the licenses once “the appropriate forms have been printed and supplied to my office,” Lang wrote in a statement posted to the county website.

But obtaining those forms — the county clerk’s office told The Dallas Morning News — could take three weeks.

Pointing to revised forms available on the Department of State Health Services’ website, Soifer and attorney Austin Kaplan wrote that Lang had “absolutely no valid reason” to delay issuing marriage licenses.

“Our clients have been waiting for 27 years to marry, they have a constitutional right to obtain a marriage license in Hood County, where they reside, and there is no valid reason for them to have to wait ‘at least another three weeks’,” the attorneys wrote.

“Three weeks” to obtain those forms is the definition of BS. Here’s the latest survey of Texas’ counties, via Glen Maxey on Facebook at 9 PM on July 1:

So our friends at “Texans for Marriage” led by my great friend Nick Hudson give the Rainbow Report tonight:

Here’s where we are at end of day Wednesday:

235 Texas Counties — 93% — are either issuing marriage licenses already or are planning to issue licenses soon
At least 175 Texas Counties — 69% — said they were issuing marriage licenses by today
60 counties — 24% — say they are not currently issuing marriage licenses but plan to soon (this number may be lower IF the clerks in these counties have already started issuing marriage licenses. A full pass has not been made on the counties in this category in 24 hours.)
10 Counties unknown because nobody is answering the telephone

One of those 175 counties in that report was Hood. That was because Hood County Clerk Katie Lang had appeared to concede the fight. She hadn’t.

When last we heard Hood County Clerk Katie Lang wasn’t going to issue marriage licenses to same-sex couples — because, she wrote, of “the religious doctrines to which I adhere” — but her staff would. Turns out, not so much: The clerk’s office now says it will take three weeks to get the proper paperwork. A woman named Virginia in the clerk’s office says only, “We don’t have the forms.”

As a result, two attorneys from Austin are on their way to Granbury at this very moment. They want just one thing: for the clerk’s office to issue a marriage license for their clients, Jim Cato and Joe Stapleton, who have been waiting to marry for 27 years. If they do not get one, says attorney Jan Soifer, she and attorney Austin Kaplan will sue the Hood County Clerk’s office first thing Monday morning.

“After [Lang] changed her tune Tuesday, my clients gave her a day and waited till this morning to get their license,” says Soifer. “They said, ‘No, no, no, it will take three weeks.’ They said, ‘We’re not ready to do it, we don’t have the forms ready.’ We sent them the link to the website with the form they are supposed to use. It’s posted. It’s available to them. We know 205 other counties in Texas have already been issuing them.”

But not Hood County.

Indeed. I suppose Lang could fold again, but I suspect this one is going to go to court. At this point, the professional grievance holders have arrived, and the crowds have been whipped up. That they have no legal led to stand on isn’t going to stop them. Someone is going to need to be smacked down, and the first someone in line for that is Katie Lang. As a wise man once said, hold on to your butts.

On to the benefits

Jul 2nd, 2015
by Charles Kuffner.
3 comments

Now that same sex marriage is the law of the land, Texas employers need to make sure that the spousal benefits they offer apply to all spouses.

RedEquality

“If an employer provides benefits to anyone who is currently married, they must now treat gay and lesbian employees the same and offer them the exact same benefits,” said Neel Lane, a San Antonio lawyer at corporate law firm Akin Gump Strauss Hauer & Feld.

“The ruling has an enormous impact on employers and employees in Texas,” said Lane, who represents on a pro bono basis a gay couple in Texas who have challenged the state’s ban on same-sex marriages.

[…]

Lawyers said they have been inundated with calls – mainly from small- and medium-sized business owners – seeking legal advice on updating employment and benefits forms but also asking if there are ways under Texas law to avoid having to make changes.

James Griffin, an expert on employment benefits and federal tax law at Jackson Walker in Dallas, said the legal advice he is giving his business clients is simple.

“Don’t waste your time looking for ways to defeat this,” Griffin said. “The Supreme Court decision is very broad. This issue is done. Make the changes and move on.”

Griffin and other lawyers say most large corporations implemented policies years ago that extend benefits to same-sex couples.

But they say some Texas-based companies that operate exclusively within the state have not addressed the issue because they have never had employees come forward and say they are gay and want benefits for their partners. Lawyers say that because Texas political leaders have been adamantly anti-same-sex marriage and benefits, many workers were afraid to step forward.

“Now, because of the Supreme Court ruling, a lot of people who have been reluctant are going to raise their hand for the benefits and the companies have to address it,” said Mark Shank, an employment law partner at Gruber Hurst Elrod Johansen Hail Shank in Dallas.

Among the employers who have already taken action is the state of Texas.

The state’s bureaucracy is moving forward to comply with the U.S. Supreme Court’s gay-marriage decision, even as state elected officials – including Gov. Greg Abbott – have lambasted the landmark ruling.

Starting Wednesday – less than a week after the decision – the Employees Retirement System of Texas, the University of Texas System and the Texas A&M System will extend benefits to spouses of gay and lesbian employees.

That means the state’s largest employer, the State of Texas, will join the list of those providing equal benefits to same-sex partners.

The decision is latest sign that state government is accepting the ruling, which struck down gay marriage bans in Texas and other states. And that bureaucratic churn provides a notable counterbalance to the saber-rattling by Abbott and other top Republicans.

“This is all kind of new for us,” said Catherine Terrell, a spokeswoman for the Employees Retirement System of Texas. “We’re just looking at what other employers have seen.”

The state employees some 311,000 people, according to the state auditor’s office. Terrell said ERS, which handles benefits for most state employees, was anticipating that about 1,500 spouses of gay employees would now enroll for benefits.

A “notable counterbalance to the saber-rattling”. I like that. When you consider all the county clerks who ignored Ken Paxton’s legal “advice”, it’s quite clear who’s really out of touch here. That doesn’t mean they’re going to acknowledge it any time soon.

The Teacher Retirement System of Texas is also providing these benefits now; they weren’t included in the Trail Blazers post. Regarding the UT and A&M systems, I like the quote in this Trib story about that:

Professors at Texas’ public universities celebrated the extension of benefits, saying the policy change will offer relief for many gay and lesbian employees and reduce the rate at which they leave Texas institutions in search of schools that accommodate same-sex couples.

Patrick Burkart, a communications professor at Texas A&M University, said extending benefits for same-sex couples will put the university on the “same competitive footing” as other research universities across the country because it will help retain and recruit top faculty and staffers.

“What we’re going to find out is how expensive it’s been to keep a discriminatory policy on the books as we have,” said Burkart, the secretary and treasurer of the A&M chapter of the American Association of University Professors, which has pushed for the benefits for years.

Burkart, who has served on several faculty search committees, indicated that the previous policy denying benefits to same-sex spouses or partners kept potential candidates from applying for posts at the school.

Hundreds of colleges across the country offer benefits to same-sex spouses or same-sex domestic partners.

”I think our university has suffered for it, and now is a great time to catch up and gather our strengths,” Burkart said.

I’m willing to bet none of our “saber-rattling” state leaders ever considered that, and if any of them did, I seriously doubt they cared. It is of course one big reason why so many private employers have been doing this for so long – you’ve got to keep up with the competition. Burying your head in the sand never works.

Let’s go back to the first story for a minute to see an example of another place where they can demonstrate that:

Legal experts also say the first major domino likely to fall will occur in federal court in Wichita Falls, where a federal judge in March, at the request of Gov. Greg Abbott and Attorney General Paxton, issued an injunction that prevented the federal Family and Medical Leave Act from applying to same-sex couples in Texas.

Because of the ruling, Texas was one of four states in the U.S. where FMLA benefits have been denied to gay couples involved in civil unions.

“That decision will almost certainly be reversed right away,” said David Coale, a partner at Lynn Tillotson Pinker & Cox. “State political leaders may try to fight it, but they are going to lose, and then they are going to have to pay a lot of money to lawyers for pursuing frivolous legal claims.”

See here and here for the background. The lawsuit involved federal employees in Texas, who were covered by an Obama executive order extending employment benefits to same-sex spouses. In the face of Obergfell v. Hodges, the injunction that was granted is clearly out of order. I presume a motion to lift the injunction will be filed shortly, and will be granted right away. Any other outcome is unfathomable.

Moving on, all the newly-married couples in Texas can now sign up for health insurance if they need to.

Same-sex couples who marry have had what the Affordable Care Act considers a “qualifying life event.” And that triggers a special 60-day enrollment period to purchase health insurance from Texas’ federally run, online marketplace, a group promoting enrollment said Tuesday.

Enroll America, a nonprofit supporting Obamacare, said in a release that under the health law, marriage is one of the unusual phenomena that allow consumers a mid-year bite at the apple. The others are having a baby, moving to a different coverage area, getting divorced and experiencing certain changes of income that would affect tax credits and cost-sharing subsidies.

“People don’t know that the special enrollment period exists,” Enroll America spokeswoman Annette Raveneau said in an interview.

[…]

Newly married same-sex couples and others with qualifying life events can sign up all by themselves, using HealthCare.gov.

Raveneau, though, strongly recommends that shoppers meet in person with a certified assistance counselor or Obamacare navigator. They can schedule appointments using Enroll America’s “Get Covered Connector.”

“The people who use an in-person assister, which are free, are twice as likely to finish the enrollment process and actually get a plan,” she said.

How many people might be able to do this? We can only guess, in part because the state has no plans to count how many same-sex couples get hitched.

Though Texas collects detailed data on marriages by county and age, getting better information on same-sex marriage rates in Texas could take years since the state has no plans to separately track those unions. Following Friday’s ruling, the Department of State Health Services released a new gender-neutral marriage application for counties to use. The application does not ask for the sex of either of the applicants.

“We are not specifically tracking those at this time,” said Carrie Williams, a spokeswoman for the department. “The application asks for Applicant One and Applicant Two and currently does not ask for gender.”

States in which same-sex marriage was legal before Friday have taken different record-keeping approaches. Oregon, Vermont and Washington track marriage licenses specifically issued to same-sex couples. California and Florida simply track all marriages, and do not differentiate between same-sex and opposite-sex unions.

The U.S. Census Bureau’s American Community Survey estimated in 2013 that there were 252,000 married same-sex couples in the country, but later said that was likely an overestimate, citing flawed data. A recent paper from a census researcher put the figure at closer to 170,000.

The patchwork of data collection means reliable numbers on how many same-sex couples are getting married in different states may not be available until the next census in 2020, said Drew DeSilver, a senior writer with the Pew Research Center who has researched the issue.

I guess I’m not too bothered by this, since there doesn’t seem to be a single standard practice nationwide. It would be nice to know, but given the way the updated form is worded, I understand the reasoning. I’m sure there will be a million ways to come up with reasonably accurate estimates – new Obamacare enrollments will be one data point – and we’ll have Census data soon enough.

Ready to engage in the next fight

Jul 1st, 2015
by Charles Kuffner.
Comments are off for this post

No rest for the righteous.

RedEquality

On Monday, national and state gay rights leaders and the plaintiffs who sued for marriage equality convened in front of the Texas Capitol to make a different kind of vow: The fight for lesbian, gay, bisexual and transgender people is not over. The next frontier, they said, is pushing for more protections against discrimination in areas including employment and housing.

“In many states, including my home state of Ohio and right here in Texas, you can get married but then suffer consequences,” said Jim Obergefell, the lead plaintiff in the landmark case that legalized same-sex marriage. “You can get married and then lose your job, lose your home and so much more because we are not guaranteed nondiscrimination protections. … Friday’s historic ruling is a victory, but it’s just the beginning.”

Obergefell was joined Monday by a coalition of from the Human Rights Campaign, a prominent LGBT civil rights organization; Democratic state Rep. Celia Israel of Austin; Equality Texas; two same-sex couples who filed suit over Texas’ same-sex marriage ban; and others who announced that they would be part of a statewide campaign for nondiscrimination protections.

[…]

Texas is a huge part of a national strategy to pursue nondiscrimination ordinances because it’s the largest state in the country that offers no statewide protections for LGBT residents, Equality Texas executive director Chuck Smith said Monday.

Democratic proposals for statewide nondiscrimination laws have been non-starters in the Republican-controlled Legislature, where conservatives have tried to override local ordinances. Among opponents of the nondiscrimination ordinances are Lt. Gov. Dan Patrick and Gov. Greg Abbott, who as the former state attorney general said such ordinances violate freedom of speech and religion.

This has left Texas with a patchwork of local protections against discrimination in employment, housing and other public areas like buses and restaurants.

At least nine Texas cities with a population of more than 100,000 have passed some nondiscrimination rules or legislation.

[…]

In defending the need for more protections for LGBT residents, Mark Phariss, one of the plaintiffs in the Texas gay marriage case, likened those protections to the Americans with Disabilities Act that prohibits discrimination against people with disabilities like Abbott, who has used a wheelchair since he was paralyzed from the waist down in a 1984 accident.

At the time of his accident, Abbott was not protected against discrimination “as a result of that disability,” said Phariss, who attended law school with Abbott and said he visited him in the hospital after his accident.

“That has been fixed. The ADA now provides protections for Americans who are disabled, just like Greg, from being discriminated against in their workplace and in public accommodations,” Phariss said. “And that is the exact same protection that we seek for ourselves — nothing more, nothing less.“

Of course, Abbott opposes the ADA, too. All of his accommodation needs have been met, so what does he care about anyone else? Enacting NDOs in more cities and eventually at the state and national level are important and need to be done, but as noted before there are other fights as well, including the birth certificate issue for adoptees and transgender folks, transgender issues in general, and just making sure the laws that are on the books now, including marriage quality, get enforced. Towards that end, Sen. Rodney Ellis sent a letter to the DOJ.

Sen. Rodney Ellis, D-Houston, on Monday sent a letter to U.S. Attorney General Loretta Lynch asking the department to “monitor the implementation of Obergefell and intervene, if necessary, to ensure that Texas officials do not flout the Supreme Court’s ruling and blatantly discriminate against same sex couples.”

[…]

In his letter, Ellis blasted Paxton for the guidance and said “religion must not be relied upon as an excuse to discriminate and refuse to fulfill the duties of government taxpayer-funded jobs.”

“Where does this end?” he asks. “Will judges be able to argue that they should not have to recognize or authorize divorces if it offends their religious sensibilities? Could a judge refuse to sentence a defendant to the death penalty under his or her belief that ‘thou shalt not kill’ means just that?”

A copy of Sen. Ellis’ letter is here. Slippery slope can be tendentious and sometimes ridiculous, but when the state’s top lawyer encourages local officials to ignore a Supreme Court ruling, it’s hardly unfair to ask these questions. And nothing would make me laugh harder than having DOJ observers camp outside Ken Paxton’s office. All Paxton needs to do to make this go away is promise to obey the law. That may be tricky for a guy with Paxton’s past history to promise, but it is what he needs to do.

More counties issuing same sex marriage licenses

Jun 30th, 2015
by Charles Kuffner.
4 comments

Montgomery County:

RedEquality

Montgomery County Clerk Mark Turnbull said he turned one same-sex couple away on Friday who requested a marriage license, but wound up issuing the license after regular hours on Saturday.

He initially refused because he was waiting for clarification from the state on what form to use, but after the courthouse closed Friday evening, Texas Department of Health Services sent a revised form that removed all gender references and referred to those applying for the license only as “applicant one” and “applicant two,” Turnbull said.

With a new form in hand, he telephoned Pam Kunkle, 55, an insurance manager in Houston and her partner, Connie Moberley, 67, and asked them to return to the Montgomery County courthouse so he could issue the license Saturday.

“We needed some time to make adjustments with the language and make sure it worked on our computer program. We were glad they volunteered to come back and be our first guinea pig to make sure the system worked,” he said, adding none of the clerks in his office had raised any religious objections to issuing licenses to same-sex couples. “We are officers with ministerial duties. We have no discretion. We follow rules listed in our handbook.”

However, he recalled a former employee who objected to issuing liquor licenses on moral grounds and said she later switched to another county job where that did not pose a problem.

That’s Montgomery County, one of the reddest in Texas. The theme of “we do what the law says we are to do” is one you will see again.

Tarrant County:

Tracey Knight didn’t know if the day would ever come when she would be legally married in the state of Texas.

At long last it did come Friday, after a landmark Supreme Court ruling swept away the state’s longtime ban against same-sex marriage.

“We dreamed of this day,” said Knight, a corporal with the Fort Worth Police Department who serves as the LGBT community liaison. “We weren’t sure if it would ever happen. Now we have started planning our wedding.”

Knight and her wife, Shannon, who wed two years ago in California but wanted to exchange vows again in Texas, shared smiles and tears Friday as they were the first same-sex couple in Tarrant County to receive a marriage license.

Several other counties in North Texas were awaiting “guidance” from AG Ken Paxton. Denton County, which had originally refused to issue same sex marriage licenses, has now become compliant with the law of the land.

The Denton County clerk’s office is now issuing same-sex marriage licenses, following Friday operations that turned at least three couples away.

Whitney Hennen and Sara Bollinger was the first same-sex couple in the county this morning to be given a marriage license.

On Sunday, Texas Attorney General Ken Paxton declared religious objections a legitimate excuse for county clerks and their staffs as a means of denying licenses to same-sex couples.

Denton County Clerk Juli Luke said she is opposed to gay and lesbian couples getting married for religious reasons, but maintained her personal beliefs cannot prevent her from issuing same-sex marriage licenses.

“Moreover, my faith in Christ ensures I have compassion and respect for those who feel differently,” she wrote in a statement.

See, Ken Paxton? It’s not hard to do at all. Collin County has joined in as well, though several other counties in the area are not there yet.

Williamson County has fallen in line, too.

Williamson County is now issuing marriage licenses to same-sex couples, as of 8 a.m. Monday. That comes after getting advice from County Attorney Dee Hobbs.

“I would like to acknowledge the gravity of the Supreme Court decision and the passion citizens have on both sides of this issue,” reads a statement by Hobbs, posted outside the Williamson County Clerk’s Office. “I would like to thank those that contacted this office for being respectful int heir questions and also understanding regarding time to review.”

That’s two outlaw counties that have come back to their senses. Smith County makes three, with Gregg thrown in as a bonus.

An East Texas same-sex couple became the first in Smith County to be issued a marriage license on Monday morning.

About 8:30 a.m., a couple showed up seeking a marriage license at the Smith County courthouse. Karen Wilkerson and her fiance Jolie Smith began the process to obtain their marriage license shortly after 8:30 a.m. and were issued the document about 9:20 a.m. The couple was the first to show up at the courthouse office.

The license was issued following a Friday Supreme Court decision legalizing same-sex marriage in all 50 states.

Earlier in the day, the Smith County Vital Statistics Department was temporarily closed for a staff meeting. A sign posted in the courthouse said the department was also testing the system to accommodate new forms.

Smith County Clerk Karen Phillips said the state changed the vital statistic form needed to issue the licenses.

Midland County was a Friday adherent, but neighboring Ector was a holdout. Not any more.

Ector County Clerk Linda Haney will issue marriage licenses to same-sex couples, opting not to take an out offered by Attorney General Ken Paxton for clerks who wish to deny such licenses due to religious beliefs.

“I took an oath to uphold the law and I intend to follow the law,” Haney said, although the marriage licenses could not be issued early Monday morning because the new application was not yet available on the computer system.

Her decision comes after the Friday ruling by the U.S. Supreme Court, which held that marriage is a Constitutional right for same-sex couples.
Sunday, Paxton issued an opinion that clerks could deny licenses based on religious beliefs, just as justices of the peace could decline to perform the weddings based on religious beliefs.

Haney, however, said she will follow the Supreme Court’s ruling and what she believes is the correct thing according to the law.

“An act of civil disobedience on my part would not honor my God and I don’t want to put my county at liability either,” Haney said. “I do have strong religious convictions and anybody that knows me knows what those convictions are. But I did take an oath and I will follow the law.”

Amazing how clear and simple that is, isn’t it? I can’t tell you how happy it makes me to see all these counties, from different parts of the state, ignore Ken Paxton’s advice and do the job they’re supposed to do. And congratulations to Karen Wilkerson and Jolie Smith!

Not all counties needed prodding. Fort Bend County had it right from the beginning.

While the topic has produced a variety of opinions among the American public, the Fort Bend County Clerk’s office has issued a direct statement – current marriage forms won’t be modified, but when new forms arrive for same-sex marriage, they will be honored in accordance with the new law.

Same-sex couples will be allowed to marry, using the current forms, until the updated ones arrive.

Again – easy peasy. So simple even Ken Paxton should be able to understand it. Let’s let Brazoria County explain it to him anyway, just in case.

After an opinion from the District Attorney’s office this afternoon, County Clerk Joyce Hudman said Brazoria County is officially issuing same-sex marriage licenses.

Hudman said her offices have been issuing licenses since 1:30 p.m. and will throughout the day.

District Attorney Jeri Yenne gave the county clerk’s office a one-sentence opinion that issuing same-sex marriage licenses is mandatory based on the Supreme Court’s decision today.

“As a follow-up to your inquiry regarding marriage licenses, please be advised that on today’s date, the Supreme Court of the United States issued an opinion indicating the Fourteenth Amendment requires a state to license a marriage between two people of the same sex,” Yenne’s memo reads.

After getting that memo, Hudman said her offices were instructed to grant the licenses.

One couple already has obtained a marriage license from the Pearland clerk’s office, she said.

A “one-sentence opinion” that explained the facts. Are we going to fast for you, Kenny?

Unfortunately, every state has its slow learners.

“I’m standing up for my religious liberty,” said Hood County Clerk Katie Lang, who said her office would not give out same-sex marriage licenses on religious grounds. “I do believe that marriage is for one man and one woman because it did derive from the Bible.”

After the decision Friday, some county officials said they would wait to hear from state Attorney General Ken Paxton, who issued a written opinion Sunday saying clerks with religious objections to same-sex marriages can refuse to issue those licenses. But if they do so, he wrote, they might face fine or lawsuits.

Paxton said pro bono lawyers would be ready to defend those who refuse, noting “the reach of the Court’s opinion stops at the door of the First Amendment and our laws protecting religious liberty.” Lang said after reading Paxton’s opinion, she chose to face possible legal action.

“I could get fined and I could get sued,” she said, “but you could get sued for anything.”

You can also be held in contempt of court if it comes down to it. And remember, for this you could be sued personally, not just named as a defendant in an action against the county or your office. But hey, every cause needs a martyr, and I’m sure that future Fox News gig will be sweet.

That’s about all the counties I have the energy to look up today. Other resources: The DMN has an interactive map that’s at least somewhat inaccurate since they have no report on Fort Bend’s status. The Current has contacted a bunch of Hill Country counties and reports that all except possibly Kerr are now in compliance. Glen Maxey has been keeping tabs on Facebook – see here for his running count, and be sure to see the comments for updates. If you don’t see your favorite county listed somewhere, you may just have to call the Clerk’s office there yourself. Overall, though, the picture is pretty good and it appears to be improving. All the national headlines have been about Paxton and his get-out-of-following-the-law opinion for County Clerks, but at this point very few clerks, almost none in larger counties, have heeded him. Unlike Greg Abbott, they understand how the law works and they respect it. Paxton’s words – and Dan Patrick’s, and Greg Abbott’s, and Ted Cruz’s – will make Texas look bad to the rest of the country, but at least we still have enough sensible local officials to maybe mitigate that a bit.

In closing, here’s a non-legal opinion regarding a better way for county clerks with religious objections to handle this:

Religious freedom is so central to our nation that no public official should be required to do anything that violates the religious principles that direct his or her life.

And there is clear and proper recourse here for any public official who, as a result of this landmark change in the law, finds himself or herself uncomfortable with or unable to perform the revised duties of office.

They should quit.

Amen. Thankfully, very few of them have decided that they cannot do their jobs. Let’s hope the remainders follow their lead and not Paxton’s. Trail Blazers and BOR have more.

Where same sex marriage is still functionally illegal in Texas

Jun 29th, 2015
by Charles Kuffner.
8 comments

Smith County:

RedEquality

After a historic Supreme Court ruling, making same sex marriage legal in all fifty states, couples across the country flocked to courthouses to be legally married.

Despite the ruling, an East Texas County Court will not be issuing marriage licenses to gay and lesbian couples.

Smith County Clerk Karen Phillips said they first need new paperwork that is not gender specific. The current application is a state form that cannot be altered in any way, said Phillips.

The current state application has fields for male and female, an issue Karen Wilkerson and her fiancé Jolie Smith say is merely administrative.

In the Smith County vital statistics office, the couple completed the marriage application and attempted to turn it in to the clerk.

“[Male] is not something I can white out because that’s a legal form,” said Phillips to the couple. “This is a state form and I can’t do anything without a state form.”

“Is the purpose of Smith County to obstruct the law of the land for administrative purpose?” Wilkerson asked.

She then offered that other counties in Dallas and Austin were issuing licenses in Texas.

PHILLIPS: “Well, they may be doing that but I don’t want to have to call up a bunch of people saying we have to redo this.”

WILKERSON: “I’m willing to redo it.”

PHILLIPS: “Well, I’m not.”

WILKERSON: “I want you to act in your capacity as county clerk and follow the law of the United States government””

Phillips went on to explain that an incorrect form could jeopardize the legality of the marriage. In addition, marriage licenses are entered into a software system that also does not recognize non-gender specific information.

The headline to the story says that a lawsuit was filed over this, but there’s no mention of it in the body of the story. The justification that County Clerk Phillips gives is, to put it politely, bullshit, as County Clerks in Harris, Dallas, Travis, Bexar, McLennan, and elsewhere have demonstrated. I’m Facebook friends with Karen Wilkerson, and from what I can tell we will know more about this situation today. I will be keeping an eye on it.

Then there’s Denton County.

The Denton County Clerk Juli Luke refused two same-sex couples an application for a license Friday, saying first that she needed to receive legal guidance from the district attorney’s office.

Later, she announced that the office would not be issuing licenses because they needed to update their computer software.

Another same-sex couple in The Colony said they started calling other county satellite offices looking for one that would issue a license. They, too, were refused.

Denton County Judge Mary Horn said that, at this point, if a same-sex couple came to her requesting to be wed, she would refuse them.

She said that the difference between the actions of elected officials in Dallas County and Denton County on Friday reflected “a difference in core philosophies.”

Every county level elected office in Denton County is held by a Republican.

[…]

District Attorney Paul Johnson said the decision whether to issue licenses belonged to the clerk’s office.

A sign on the clerk’s door said that the office would not be issuing same-sex licenses today because of “changes that must be made for our vendor.”

No explanation was provided.

Again, pure bullshit. Why the County Clerk would need to consult with the District Attorney in a strictly civil matter is a question I can’t answer, but the real question is why she needs to consult with anyone at all on this crystal clear matter of following the law of the land. As yet I have not seen word of a possible lawsuit, but I am confident one will be in the offing if Denton County doesn’t get its act together quickly. If you have any reports from your county about similar behavior, please drop me a note (kuff – at – offthekuff – dot – com) or leave a comment. Thanks.

And if these clerks or any others are waiting to be advised by AG Ken Paxton, they should know he’s giving them very bad advice.

Texas Attorney General Ken Paxton, a Republican social conservative, offered at least moral support Sunday for county clerks and their employees who feel their religious beliefs dictate that they decline to issue same-sex marriage licenses.

In a nonbinding legal opinion, Paxton said religious freedoms guaranteed by the First Amendment “may allow accommodation of their religious objections to issuing same-sex marriage licenses.”

The clerks who balk at licensing gay marriage “may well face litigation and/or a fine,” Paxton warned.

“Importantly, the strength of any particular religious accommodation claim depends on the particular facts of each case,” he concluded.

“But,” he added in a press release, “numerous lawyers stand ready to assist clerks defending their religious beliefs, in many cases on a pro-bono basis, and I will do everything I can from this office to be a public voice for those standing in defense of their rights.”

Paxton’s opinion also said justices of the peace and judges similarly may rebuff requests that they officiate at same-sex weddings, especially if their colleagues in their areas are receptive to doing so.

[…]

Neel Lane, a San Antonio lawyer for the same-sex couples who challenged Texas’ gay marriage ban in federal court, said Friday that state and local officials who refuse to comply with the Supreme Court’s ruling set themselves up for costly lawsuits. Lane said private citizens could file federal civil rights lawsuits, which are called “Section 1983″ claims, against recalcitrant state and local officials. Other lawyers supportive of gay rights have said gay and lesbian couples who are refused marriage licenses could ask U.S. District Judge Orlando Garcia of San Antonio to hold the particular county clerk in contempt of court. Garcia has issued an injunction against enforcement of Texas laws defining marriage as between a man and a woman.

In his advisory opinion to Patrick, Paxton noted that county clerks could delegate their duty to issue marriage licenses to subordinates. He implied that might solve the conundrum for a clerk who feels issuing a same-sex marriage license would violate a sincerely held religious belief. But what if the employees feel similarly?

Paxton noted that under Religious Freedom Restoration Acts (RFRA) that both the Texas Legislature and Congress passed in the 1990s, “deputy clerks and other employees may have a claim that forcing the employee to issue same-sex marriage licenses over their religious objections is not the government’s least restrictive means of ensuring a marriage license is issued, particularly when available alternatives would not impose an undue burden on the individuals seeking a license.” Paxton wrote that if everyone in a clerk’s office has a religious objection, and if the office is still issuing licenses to opposite-sex couples, “it is conceivable that an applicant for a same-sex marriage license may claim a violation of the constitution.” Completely refusing to issue marriage licenses to anyone also would be problematic, he wrote. The two RFRAs, the state and federal constitutions, state employment laws, state laws on clerks’ duties all may come into play, depending on the facts of a scenario, he said.

Essentially, Paxton invited clerks and their employees to defy the Supreme Court, but didn’t promise they’ll win.

There’s a map of what counties are doing at the post, so go check it out. Paxton issued his opinion in response to a request from Dan Patrick. This is probably the fastest opinion ever issued by an AG, and surely the least researched. The Trib quotes the ACLU of Texas reminding everyone that Paxton is basically full of it, but that is unlikely to be persuasive to anyone determined to fall on his or her sword. Again, I am not aware of any planned litigation at this time, but you can be sure it will happen if it needs to. Stay tuned, because this is far from over. The Current, which has a copy of Paxton’s opinion, has more.

UPDATE: Missed this earlier, but Williamson County is on the naughty list, too.

And we begin the next fight

Jun 27th, 2015
by Charles Kuffner.
1 comment

It’s always going to be something.

RedEquality

In a somber and defiant statement, Attorney General Ken Paxton proclaimed his next battlefront would be in defense of religious liberty.

“The truth is that the debate over the issue of marriage has increasingly devolved into personal and economic aggression against people of faith who have sought to live their lives consistent with their sincerely held religious beliefs about marriage,” he said. “It is not acceptable that people of faith be exposed to such abuse.”

Hours later, Gov. Greg Abbott sent a memo to the heads of state agencies directing them to “preserve, protect, and defend the religious liberty of every Texan.” That order “applies to any agency decision,” including granting or denying benefits, the memo says.

Abbott’s office directed questions about who would enforce such a policy to the attorney general. A spokeswoman for the attorney general did not immediately return to a request for comment.

Those celebrating the gay marriage ruling, including civil liberties groups and gay rights advocates, said Texas’ Republican leadership seemed to be picking a fight.

“I think a lot of us anticipated that this would be the next front, that there are going to be some public officials around the country who are going to try to use religious liberty as a way to avoid complying with the ruling,” said Rebecca Robertson, legal and policy director for the American Civil Liberties Union of Texas. “But we don’t agree that government offices that are open to the public should be able to pick and choose, on the basis of personal religious beliefs, which citizens to help and which citizens to turn away.”

Added Robertson: “We may end up having to litigate some of these issues.”

Daniel Williams, legislative director for the gay rights group Equality Texas, said that if a state agency employee denied spousal benefits to another employee in a same-sex marriage, it would be “setting itself up for a very short-lived legal challenge.”

“The ruling today was pretty explicit that the state may not impose upon same-sex couples a definition of marriage that excludes them,” he said.

Yes, there’s Paxton demanding to have his authoriteh respected, and Dan Patrick egging him on by asking if county clerks with “religious objections” can refuse to issue same-sex marriage licenses. I’ve gotten whiplash following the saga in Harris County, but in the end Stan Stanart caved, after a bit of a push.

Delays in issuing marriage licenses to same-sex couples in Harris County led to a showdown between two elected officials Friday, hours after the U.S. Supreme Court ruled that states must recognize such unions.

County Attorney Vince Ryan will seek a court order compelling County Clerk Stan Stanart to issue licenses to same-sex couples, said Sue Davis, a spokeswoman for Ryan. Although couples in Dallas County, Bexar County (San Antonio) and Travis County (Austin) began obtaining licenses within hours of the Supreme Court ruling, Harris County couples still languished in the clerk’s office in the early afternoon.

Ryan, in a memo to Stanart, said, “Our opinion is that the law requires that you immediately begin to issue marriage licenses to all qualified applicants without regard to gender.”

Stanart’s office said it intended to issue the licenses, but said it was waiting for a form from the state attorney general with slots that did not indicate gender.

“We were told if we use the wrong form it will be null and void,” said George Hammerlein, a deputy clerk.

You can see a copy of Vince Ryan’s letter to Stanart here. The Harris County Clerk’s office began issuing same-sex marriage licenses at 3 PM, a few hours after several other counties had done so. (Clearly I was wrong to advise waiting, and that’s just fine by me.) Some other counties, not to mention other states, have not joined in. The Observer’s liveblog is the best resource for following the timeline. The Press had reported that one couple who had been turned away earlier in the day by the Harris County Clerk filed a lawsuit, but there were no details, and all that happened before Ryan’s intervention was reported. For sure, there will be some litigation, both in Texas and nationally. One fight ends, another begins.

Remember, don’t rush to get married in Harris County just yet

Jun 26th, 2015
by Charles Kuffner.
2 comments

The Harris County Clerk isn’t ready for you and won’t be for at least a little while.

Should the U.S. Supreme court decide to strike down same-sex marriage bans nationwide, a decision that could come as soon as Thursday, county clerks in all but one of Texas’ biggest counties are ready to begin issuing marriage licenses to applicants.

The one is Harris County, where County Clerk Stan Stanart said he would await for state guidance before approving license applications.

“I shouldn’t be making up law or processes that are controlled by the state,” Stanart said ahead of the Supreme Court’s ruling, adding that he would not offer extended business hours to handle a potential influx of applicants and would not move to modify the state’s license application form to accommodate applicants of the same gender.

[…]

Now, many Harris County judges are quick to say they would officiate same-sex weddings.

“As long as they have a valid Texas marriage license, then I don’t believe that it’s my job to make any kind of value decision as to whether these two people should be married,” said Don Coffey, a Harris County Justice of the Peace in precinct 3, which covers Baytown. “I would think, and I would hope, that my colleagues would view it in the same way.”

Fellow Justice of the Peace in the East End’s precinct 6 Armando Rodriguez agreed.

“We’re elected to apply the law, not interpret it,” he said.

Although private citizens may decline to perform marriages that would cause them to “violate a sincerely held religious belief,” in accordance with the “Pastor Protection Act” signed into law earlier this month, that exception does not extend to state officials.

“If the U.S. Supreme Court would announce that there is a constitutionally-based, federally constitutionally-based right for gay couples to marry, that would mean that state officials could not frustrate that right,” University of Houston Law School Professor Thomas Oldham said in anticipation of the Court’s decision.

Judges are not required to perform marriages, but to the extent that they do, Oldham said, they would not be allowed to have a different policy for gay couples than for heterosexual couples.

Four things:

1. We knew this already. Given the almost certain response from AG Ken Paxton and the rest of the state’s Republican leadership, it is understandable that a guy like Stan Stanart would choose to wait and let the initial storm pass by before sticking his neck out. Cowardly, to be sure, but understandable. Other counties are options if you just can’t wait. Here are instructions for getting a marriage license in Bexar County, for instance.

2. Having said that, there’s this:

If the U.S. Supreme Court rules in the coming days that same-sex marriage bans are unconstitutional, Texas Attorney General Ken Paxton wants county clerks to hold off on issuing marriage licenses to such couples until his office has given them direction.

“I remain prayerful that the Court will heed millennia of family tradition, Judeo-Christian instruction and common sense and will respect the role of states,” Paxton said in a statement Thursday. “But whatever the ruling, I would recommend that all County Clerks and Justices of the Peace wait for direction and clarity from this office about the meaning of the Court’s opinion and the rights of Texans under the law.”

[…]

Neel Lane, the attorney representing the two same-sex couples challenging Texas’ ban, said the attorney general will have no standing to delay the issuance of marriage licenses if the Supreme Court rules that same-sex marriage is the law of the land.

“Attorney generals aren’t supposed to be in the business of praying but in the business of interpreting the law, and in this case the Supreme Court is going to be quite clear when it rules,” Lane said. “Clerks should not delay any further.”

Ken Paxton doesn’t care about any of that. It’s going to take courts and judges in Texas that do care about the law to swat him down and make the Clerks do their duty. How long that takes, and hoe many fellow travelers of Paxton’s abet in gumming things up, those are the questions.

3. I’m glad to see that all of the Harris County judges quoted in this story are happy, or at least compliant, about performing same-sex weddings, once all the hissy fits and pointless legal maneuvering by our AG have run their course. I will be more than a little shocked if there isn’t at least one judge in Harris County, and quite a few more around the state, who won’t be so accommodating. Judges and JPs don’t fall under the umbrella of the pointless pastor protection law since they are public officials, but they are not required to perform weddings and thus could avoid officiating same sex ceremonies by simply not doing any weddings or maybe just doing them for family and friends. They can’t simply choose to exclude only same sex participants. I feel certain that someone will be accused of doing this, sooner rather than later; in fact, I’ll bet that some judge somewhere gets boastful about it. I rather expect that one’s willingness to do the honors at a same sex wedding will be an issue in some GOP primaries around the state. I won’t be at all surprised if a puffed-up pecksniff like Steven Hotze makes being truculent about it a requirement for his endorsement this March.

4. As always, if you are unhappy with the state of affairs, from our AG to our County Clerk to whichever judge or judges gets ornery about the new reality, the one means of retribution you have for it is at the ballot box. This will all eventually cease to be an issue someday, but if you want that someday to be closer to today than it would on its own, it’s on you to do something about it via the electoral process.

No response necessary

Jun 25th, 2015
by Charles Kuffner.
1 comment

Unless it’s “We will respect and fully comply with the court’s ruling”.

RedEquality

The U.S. Supreme Court could decide as early as this week whether same-sex couples have a constitutional right to marry. For supporters of same-sex marriage, it’s an emotional waiting game.

“People are literally on pins and needles,” said Chuck Smith, executive director of Equality Texas. Smith feels the Supreme Court is on the brink of ruling same-sex couples everywhere have the right to marry. “Such a ruling would certainly be received by joy by thousands of people in Texas who have waited — some for all their lives — to marry the person that they love.”

[…]

The Texas Constitution bans same-sex marriage, and many lawmakers have vowed to fight any ruling to the contrary by the nation’s high court.

The state’s legal response will fall to new Texas attorney general Ken Paxton. Reached by KVUE following a speech to a conservative think tank Monday in Austin, Paxton said it’s too early to say what his response may be.

“It’s very difficult for us to say what’s going to happen given the fact that we don’t know what the result is and we don’t know how that opinion is going to be written,” Paxton said.

When asked whether he intends to fight the ruling, Paxton reiterated that such a decision would depend upon the ruling. “Obviously we have a constitution that protects the definition of marriage, and we’ll do everything we can.”

“If the Supreme Court issues a ruling saying that the freedom to marry is the law of the land, I would expect and hope that marriages begin to happen that day,” Smith said.

I’ve already hypothesized what the state’s likely response will be. It’s really just a question of how long it takes before the hammer comes down, and how obnoxious the resisters are. Stupid pastor tricks are a bit harder to predict, and while there is some legitimate concern that they could cause a bit of real trouble, my best guess is that once everyone else realizes that no one is forcing them in any way to participate in a same-sex wedding, this will all be seen as the circus sideshow that it is. Basically, expect some extreme craziness for the short term, then a return to more-or-less normality, with a shift in focus and tactics still to come.

No special session on same sex marriage

Jun 11th, 2015
by Charles Kuffner.
1 comment

Sorry, wingnuts.

RedEquality

Gov. Greg Abbott apparently really meant it when he said last week he will not call a special session of the Legislature.

In an interview with San Antonio’s WOAI-AM on Monday, Abbott said calls for a session on same-sex marriage haven’t changed his mind about bringing back the lawmakers who left town last week.

“I do not anticipate any special session,” he said. “They got their job done on time and don’t require any overtime.”

He said as much a week ago, as lawmakers brought their 140-day regular session to a close. But in a letter after the regular session ended, several groups wrote a public request to the governor to call lawmakers back to consider legislation that would prohibit county clerks in the state from issuing same-sex marriage licenses.

See here and here for the background. They are pushing for yet another revival of the Cecil Bell bill, which would certainly pass if it came to the floor but which some unknown and deeply closeted group of Republicans really don’t want to have to vote on. It’s a conundrum, isn’t it? I doubt Abbott is denying these people their “victory” out of the goodness of his heart, but whatever the case it’s good to know that we won’t go down that path. Don’t worry, though, there will be plenty of other opportunities for everyone to shake their fists at clouds after the SCOTUS ruling comes down. Texas Leftist has more.

Don’t expect the Harris County Clerk to be ready for the SCOTUS same sex marriage ruling

Jun 10th, 2015
by Charles Kuffner.
4 comments

The Press follows up on a question that we have examined before.

[Harris County Clerk Stan] Stanart isn’t planning on staying open later or doing anything to prepare to handle an influx of same-sex couples should the Supremes decide in favor of gay marriage, and he doesn’t seem concerned about getting the right application forms ahead of time from the state.

Yep, that’s right, should the Supremes rule in favor of gay marriage this month – and the fact that Justice Anthony Kennedy, the resident swing vote on the court, has written virtually every opinion the court has issued on gay rights in the past decade, and has voted in favor of gay rights consistently, implies that the court will find in favor of same-sex marriage – couples who wish to apply in Harris County will still have the flimsy but challenging conundrum of a paperwork problem standing between them and that marriage license.

Why? Well, to apply for a marriage license in Harris County couples have to go down to the any of the ten Harris County Clerk’s offices, pay $72 and fill out an application form. The application form is actually created by state officials and is printed from an online site, according to Stanart. The application form has a space for the name, social security number, address and other details for one female applicant and one male applicant — pretty much the only detail will present a problem until the state changes the forms.

[…]

“I’m going to have to follow whatever the state attorney general’s guidance is. They’re destroying an institution, the institution of marriage, but I’ll follow what the current law of the land is,” he says.

Still, Stanart admits that it should be relatively easy for state officials to fix the forms since the state issues the forms online. (Dallas County is the only county that lets couples fill out their applications online, but every county, including Harris, has couples fill out the same application.) “The forms come from the state and I’d wait for the state to change the forms. I’m sure they’d make any changes necessary and we would use their forms,” Stanart says. “They’re electronic and we’d just print them out.”

Don’t expect Stanart to make the process any easier in the event of a gay rights-affirming SCOTUS ruling. Event though Stanart acknowledges that it should be a fairly simple adjustment to fix the application forms – seriously, all you have to do is delete two words, “male” and “female” – it’s not an adjustment he’ll be making.

See here for the background. To be as fair as I can be to Stanart, most other counties are taking a wait-for-the-state-to-update-its-form approach as well, including Dallas and El Paso. I applaud Travis and Bexar Counties’ initiative – honestly, theirs is the only truly correct response, when you get right down to it – but I cannot believe the state will go along with it. The potential is there for folks who get married in those counties right out of the gate to wind up with licenses that the state refuses to recognize, forcing them to go through the process a second time. I hate to be a wet blanket, because this should be an opportunity for great joy and celebration, but if you ask me, I’d counsel patience.

In fact, someone did ask me. This is an edited version of the response I sent her:

Assuming SCOTUS does what we all think they will do, my best guess for what happens next is as follows:

– Travis and Bexar Counties announce they are open for marrying couples, with their own corrected version of the state’s marriage licence application form. Some other counties may follow, but most others look to the Attorney General for guidance.

– AG Paxton issues an order saying any license application that has been modified by the local County Clerk is null and void, and only the official state form will be accepted. How long that is expected to take and whether there will be any active resistance at that level is unclear to me at this time.

– Not wanting to wait until these guys decide to get their asses in gear, some group of plaintiffs petition a federal judge (probably the San Antonio judge who issued the original ruling, whose name escapes me) to order Paxton and the Vital Statistics Unit to get on it or else. This may wind up before the FIfth Circuit, with the basic arguments being “you can’t rush these things” and “oh yes you can, it’s a stupid simple fix”.

– Just for the lulz, the Fifth Circuit may issue its ruling on the appeal of the original suit, which may or may not throw a wrench into the works. Or they may throw up their hands and say “welp, the Supremes took us off the hook here, kthxbai”.

– Other disgruntled parties may try some other last-ditch rear-guard actions. I have no idea what form any of that may take or if it may have any effect at all besides making us all roll our eyes so hard.

– Eventually, sanity prevails and everyone who wants to gets hitched.

I really have no idea how long any of this may take. I could see it all happening within about a ten-day window, but my instinct is to be pessimistic. This is the final line in the sand.

All the counties within 100 miles of Harris have Republican County Clerks. My guess is they will generally follow the same script as Stan Stanart, which is “we will do what the law says we have to do even if we think y’all are a bunch of icky heathens”. There’s always the possibility someone will try to fall on his sword, but I expect that will be an outlier. I don’t expect any of them to do anything differently until Paxton throws in the towel and the state issues updated forms.

I would love to be wrong and to hear Paxton and Abbott and the rest accept the decision right off, with the state working quickly to produce an updated form, but I ain’t counting on it. Not to put too fine a point on it, but if that were what they were planning to do, there would already be an updated form ready to go. Plan for chaos, hope for the best, and be prepared to wait, that’s my advice.

UPDATE: The Dallas County Clerk has reversed course and will follow the examples of Travis and Bexar Counties.

Getting ready for the SCOTUS same sex marriage ruling

Jun 4th, 2015
by Charles Kuffner.
5 comments

Travis County is prepped and raring to go.

RedEquality

If the U.S. Supreme Court rules that same-sex couples have the right to marry, Travis County Clerk Dana DeBeauvoir plans to be ready.

The clerk’s office, which issues and records marriage licenses from its location at 5501 Airport Blvd., plans to offer extended evening and weekend hours to accommodate the pent-up demand from gay and lesbian couples who have been unable to marry under state law.

“We’re hoping for crowds,” said DeBeauvoir, a strong supporter of same-sex marriage.

When the Supreme Court issues its ruling — expected by the end of June, when the court typically finishes its term — a team of lawyers from the county attorney’s office will scour the decision to determine its implications for Travis County.

If the ruling allows, the goal is to begin issuing marriage licenses to same-sex couples as quickly as possible.

Plans include setting up special areas in the clerk’s office dedicated to marriage licenses and offering extended office hours dedicated to serving those seeking a marriage license. The hours and availability of marriage licenses will be updated on the clerk’s website.

County officials also expect couples to drive to Austin from all over the state, particularly those living in counties that haven’t prepared for the court ruling.

That’s a smart plan, because a lot of other counties are being more cautious about it right now.

Representatives from the Bexar and Travis county clerks’ offices say they’re prepared to physically modify marriage license application forms, which are generated by the state Vital Statistics Unit and currently say “male” and “female.” However, clerks in Dallas and El Paso counties—both Democrats—said they’d be reluctant to do so. Clerks in Harris and Tarrant counties, both Republicans, didn’t return calls seeking comment.

El Paso County Clerk Delia Briones said she reached out to the Vital Statistics Unit about the forms in February, but was told to wait until after the court rules.

“What am I going to do, ask the person who’s the man and who’s the woman? I can’t do that,” Briones said. “You want to be proactive and be prepared, but they’re stalling it at the state level, so my hands are tied.”

Chris Van Deusen, a spokeswoman for the Texas Department of State Health Services, which includes the Vital Statistics Unit, said that after the Supreme Court rules, officials will consult with the attorney general’s office to determine what changes are needed.

“Until the court rules, [we] won’t be able to know the impact on current operations or forms,” Van Deusen said.

Republican Attorney General Ken Paxton, a staunch opponent of same-sex marriage, didn’t respond to a request for comment.

Dallas County Clerk John Warren suggested his office won’t issue licenses to same-sex couples until the forms are modified by the Vital Statistics Unit.

“I don’t think Travis and Bexar may have thought it through completely because the marriage license application is a state form that is provided to the county clerks as the ‘local registrar,’” Warren said. “I can assume those two counties will manually strike through the language on the application. … The problem I have with this is that it makes the action of the clerk deliberate with the strike-out. That shows a direct intent to ignore the law.”

[…]

Ken Upton Jr., Dallas-based senior counsel for the LGBT civil rights group Lambda Legal, said if the Supreme Court rules in favor of same-sex marriage, gay couples could sue the Vital Statistics Unit and quickly get a federal judge to order officials to immediately change the application forms.

“I think there will be some places where this is a problem, but it isn’t going to be a problem for very long,” Upton said. “I think a clerk that hides behind Vital Statistics, when the law clearly states you have to let them get married, risks personal liability.”

Upton said it would also be illegal for clerks to stop issuing licenses to all couples, because they’d be interfering with the fundamental right to marry under the U.S. Constitution. If clerks or state officials refused to comply with a federal judge’s order, they could face punitive damages into the millions of dollars, he said.

“If the Supreme Court rules in our favor, I think there will be relatively little resistance in most places,” Upton said. “Where there are people resisting and throwing up obstacles, I think it will be a fireworks show worth watching, because the truth is they are going to get their heads handed to them.”

I think there will be some chaos for a couple of days, and for sure some number of county clerks will need to be whacked upside the head with a clue stick, but it will get sorted out fairly quickly. The only thing left is rear-guard action.

With legislation to block county clerks from issuing same-sex marriage licenses dying in the Legislature, it is not surprising that social conservatives are asking Governor Greg Abbott to call a special session on the issue.

The U.S. Supreme Court is expected later this month to rule on whether state bans on same-sex marriage are constitutional, and the conventional wisdom is the court is going to say the bans are unconstitutional. Social conservatives had hoped to block implementation in Texas by passing a law that banned the issuance of same-sex marriage licenses, giving the state a means for continued litigation. The conservatives hope to use Harris v. McRae, 448 U.S. 297 (1980) to argue that the federal government cannot force states to spend local money to enforce a federal policy; i.e., issuing licenses for same-sex marriage.

After a legislative session where Abbott can claim a level of success, I find it difficult to believe he would call a special session on such a divisive issue, especially while he is still signing and vetoing bills. But on a single-issue special session, the only thing to stop a bill such as this from passing quickly would be a quorum break by Democrats.

The only prediction I will make is that some currently obscure government functionary is going to make himself or herself a hero/martyr figure among this crowd for a bold act of stupid intransigence that will get stomped on in with all due haste. Those of you that track current events and local stories for “year in review” stories, you will have much to keep track of.

Senate belatedly addresses one voter ID concern

May 12th, 2015
by Charles Kuffner.
Comments are off for this post

Better really late and at least mildly coerced than never, I guess.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

The Texas Senate, with scant attention during an early morning vote, gave its unanimous answer to a lingering question the 5th U.S. Circuit Court of Appeals posed about the state’s embattled voter ID law.

Among the first votes taken by the chamber on Monday was on Senate Bill 983, a measure sponsored by state Sen. Paul Bettencourt, a Harris County Republican, that would allow Texans to show up at their county clerk’s office and get a free copy of their birth certificate – if they say it will be used to get an election ID certificate. The bill won approval, 31-0.

That response came after hard-line questioning from Judge Catharina Haynes, an appellate jurist who will be part of a team that will rule on the constitutionality of Texas’s voter ID law, which has earned national scrutiny and already made it to the U.S. Supreme Court once.

“They’re meeting right now. They had that opportunity. What are they doing?” said Haynes, an appointee of former President George W. Bush’s, during an April hearing. “Why wouldn’t the legislative system fix the rules? Why should we fix the rules?”

More than 600,000 Texans lack the proper identification to vote under the state’s relatively new voting laws, among the most stringent in the nation. Most people (some exceptions can be made for Texans with disabilities) must show one of the following: a driver’s license or ID card (though a student ID card won’t do), a concealed handgun license, a U.S. passport, a military ID card or a U.S. citizenship certificate with a photo. For the record, other states have more qualifying document options available to its eligible voters.

Texans who don’t have any of that, however, must request what’s called an “election identification certificate” to cast a ballot – but wait, there’s more. You have to show a birth certificate, which costs between $2 to $47, in order to obtain said election ID certificate.

That’s where SB 983 comes in. The Senate effectively has told the court that, under this proposal, the state would allow a person to get one free copy of their birth certificate to prove their citizenship, and thus get an election ID certificate.

See here and here for the background. It’s a baby step in the direction of making this law less onerous, though it does nothing to help anyone who doesn’t have a birth certificate (quite a few people who were born at home don’t) or who were born in another state (insert your own “long-form Hawaiian birth certificate” joke here). For sure, the only reason the Senate took this up is because of what Justice Haynes said, so just like someone who only buys a birthday present when reminded of the need and told exactly what to get, it’s hard to say how much credit they deserve for initiative. It also doesn’t address the issue of discriminatory intent, which is a whole ‘nother ball game. If the Republicans wanted to make a sincere effort to show that they didn’t mean to disenfranchise anyone, they could 1) allow out of state drivers licenses and student IDs to be used, and 2) spend some real money on an outreach program to provide election ID certificates to those who need them. Until then, you’ll forgive me if I view this with a helping dollop of cynicism.

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