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Paxton not feeling the love in Collin County

Poor baby.

A crook any way you look

When the Texas House of Representatives voted overwhelmingly to impeach Attorney General Ken Paxton in the waning days of a regular legislative session, some Texans were shocked that the 121 “yes” votes included every representative from Collin County, where voters and local leaders have long rallied behind the now-suspended official’s vocal brand of conservatism.

The booming, largely suburban county north of Dallas has been Paxton’s base of power as he climbed the state’s political ranks, from his first race for the Texas House to becoming the state’s top lawyer. And while changing demographics and some erosion in Republican voting power there have coincided with allegations and scandals that piled up for Paxton, Collin County has still swung for him election after election.

But a unanimous vote to impeach Paxton by the five Republican representatives from Collin County — Frederick Frazier of McKinney, Jeff Leach of Plano, Matt Shaheen of Plano, Justin Holland of Rockwall and Candy Noble of Lucas — exposed a statewide rift within the GOP that’s apparently also been playing out in Paxton’s backyard.

“It has been true that Paxton had the support of Collin County, but that support has been decreasing over the years, and when the crunch came, it was simply no longer there,” said Cal Jillson, a political science professor at Southern Methodist University who lives in Collin County.

A Texas attorney general has never been impeached. For years, though, a laundry list of accusations against Paxton has grown. He’s been under criminal indictment for the vast majority of his tenure in statewide office. The allegations detailed in 20 articles of impeachment accuse him of abusing the powers of his office and firing staff members who reported his alleged misconduct.

In a joint statement after the historic House impeachment vote, the Collin County legislative delegation noted Paxton’s established political credentials but also stood by their decision to impeach and suspend one of their own.

“This was an incredibly difficult vote as, for most of us, Ken has been a long time friend,” they said. “And without question, Ken has been an aggressive and effective warrior defending Texans against federal overreach. Because of that, this was a vote we wish we didn’t have to make and a vote we did not take lightly.”

[…]

The former chair of the Collin County Democratic Party, Mike Rawlins, said the county GOP has helped to insulate Ken Paxton from the fallout of his various scandals.

“The Republican leadership in [Collin] County, from the county courthouse, the judges, the commissioners, state representatives, senators and district attorney, have been a close-knit, closed little fraternity,” he said. “They tend to watch out for each other.”

Jillson, the SMU professor, said as long as Ken Paxton has majority support within the Republican primary electorate, he will continue to win elections. But Jillson noted that the suspended attorney general has struggled to keep support as questions “swirled” around his political and business dealings.

“At some point, the questions about your style, your conduct, your ethical sense, accumulate and become perhaps a drag on your Republican Party and your state,” Jillson said. “And that’s where Ken Paxton is today, with other Republicans recalculating the costs and benefits of standing with him.”

[…]

Since the 1970s, the county has voted Republican in the majority of presidential, state and local races.

But in recent years, the changing population has made Collin County a political battleground.

Since Paxton won his first election in Collin County, it’s been transformed through an influx of younger, more diverse residents, growing by more than 36% from 2000 to 2020, according to census data. The county’s Hispanic, Black and Asian populations have collectively grown from 15% in 2000 to 26% in 2020, while the white population has shrunk from 76% to 50% over the same period.

Paxton’s support has decreased in Collin County over his past three elections for attorney general. In 2014, he won with 66% of the county’s vote. In 2018, that decreased to about 53%, and in his last election in 2022, 52% of Collin County voters cast their ballots for him, according to secretary of state records.

I noted the unanimous Collin County vote against Paxton on Impeachment Day. It’s still one of my favorite things about this saga. I definitely think the change of Collin from a bright red county to a lightly reddish purple county is a big driver of this. In addition to the Paxton numbers noted above, the Presidential numbers went from 65% Romney in 2012 to 56% for Trump in 2016 to 51% for Trump in 2020. And despite the Collin County State House districts being redrawn to fortify the Republican incumbents, none of them are particularly safe:

HD61 – Trump 53.0%, Biden 45.2% — Paxton 54.2%, Garza 42.4%
HD66 – Trump 53.1%, Biden 45.2% — Paxton 55.4%, Garza 42.2%
HD67 – Trump 53.5%, Biden 44.6% — Paxton 54.9%, Garza 42.5%
HD89 – Trump 54.5%, Biden 43.5% — Paxton 55.7%, Garza 40.7%

Those are 2020 and 2022 numbers. It’s not at all crazy to think that Joe Biden could carry Collin County in a 2024 rematch, and if so, that could put any or all of those incumbents in danger. Given that, it seems like a perfectly rational decision to separate themselves from the deeply compromised Ken Paxton, for the small amount of bipartisan sheen they’ll get from doing so.

And given that, as the story briefly notes, Paxton’s years-long fight to have his state securities fraud trial in Collin County might end up being one of the great self-owns of our time. The jury pool in Collin County that he might draw 2024 or 2025 would likely be at best neutral towards him. I’m too lazy to look up when the trial was first moved to Harris County, but the Harris County of 2016-2017 was still considered purple and probably wouldn’t have been all that much more hostile to him than that. In either place, a lot more people now think he’s a crook than did years ago, when he could have had a speedy trial. There’s a lesson in there somewhere, I’m sure of it.

Two 2024 polls

I know, it’s all ridiculously early, but what the heck. Here’s poll #1.

Rep. Colin Allred

The 2024 election is still more than a year out, but a new poll by the University of Texas at Tyler shows Republican Texas Sen. Ted Cruz with an advantage over his newly announced Democratic challenger, Texas Rep. Colin Allred.

Forty-two percent of respondents said they would vote for Cruz and 37% supported Allred. Seven percent indicated “someone else” and 14% responded “don’t know.”

Twenty percent of respondents said they have a very favorable impression of Cruz, 21% said somewhat favorable, 6% indicated neither, 13% said somewhat unfavorable, 36% indicated very unfavorable and 4% said they don’t know enough. Cruz’s favorability was higher among Republicans. Cruz did better among white respondents than Black respondents.

Eight percent of respondents have a very favorable impression of Allred, 13% said somewhat favorable, 12% indicated neither, 10% said somewhat unfavorable, 9% marked very unfavorable and 48% said they don’t know enough about him.

Allred announced his candidacy on May 3. Besides being a frequent critic of Cruz, Allred, 40, is a former NFL linebacker who played for the Tennessee Titans and was a football standout at Baylor University. He later got a law degree from the University of California, Berkeley, before taking positions in the administration of former President Barack Obama.

Poll data is here and you can make of it what you will. This far out, people just aren’t paying much attention and you’re going to get a lot of non-answers. They did ask some questions about abortion, which I will summarize below.

Do you approve or disapprove of the Supreme Court’s decision to overturn Roe v. Wade?


Strongly approve      28
Somewhat approve      14
Somewhat disapprove    9
Strongly disapprove   40
Don't know             9

Are you pleased, upset, or neither that the U.S. Supreme Court overturned Roe v. Wade and ruled that abortion laws could be set by each state?


Upset    45
Pleased  30
Neither  24

Should abortion be illegal in all cases, illegal in most cases, legal in most cases, or legal in all cases?


Illegal in all cases   10
Illegal in most cases  33
Legal in most cases    34
Legal in all cases     22

There are some other questions, which get into murkier and more detailed territory, but these are the ones I wanted to focus on. As I have discussed before, I think there’s a real opportunity to make abortion access a winning issue in Texas in 2024. It’s going to take some careful messaging, and there will be a real disconnect between what Democrats mostly want (basically, abortion as available as it was before the 2013 TRAP law that was later struck down was passed) and what the public broadly supports, but I believe it is doable. The fact of the matter is that abortion is basically illegal in all cases now, and this is the mainstream Republican political position both stated and implied, since they did nothing to even tweak the existing laws despite mouthing a few words in that direction last year. Yet that position is extremely unpopular in Texas. There are plenty of reasons for that disconnect, mostly because Republican voters who would prefer to have at least some abortion access keep voting for maximalist candidates. I say some of those people can be persuaded to cross over. We have no choice but to try to get them to do that.

Anyway. Poll #2 is from the Texas Hispanic Policy Forum:

Former President Donald Trump holds a comfortable lead over Florida Gov. Ron DeSantis among Texas registered voters who say they might participate in a March 2024 Republican primary, according to new polling from the Texas Hispanic Policy Foundation (TxHPF).

In a Texas Republican presidential primary restricted to Trump and DeSantis, 57% of Texas GOP primary voters would vote for Trump and 36% for DeSantis, with 5% undecided and 2% responding that they would not vote if Trump and DeSantis were their only two options. DeSantis announced his long-expected candidacy Wednesday and is the early favorite among several Republican candidates to emerge as Trump’s chief rival for the nomination.

“Donald Trump is the clear Republican frontrunner in Texas for now, but there is a long way to go,” said TxHPF President Jason Villalba. “Texas Republicans regard Trump favorably and he will be difficult to beat for the nomination here, but DeSantis certainly has a base of support upon which he can build. There is also time for other candidates to emerge and make this more than a two-person race for the nomination.”

Four 2024 presidential election scenarios were presented to Texas registered voters: Trump vs. President Joe Biden, DeSantis vs. Biden, Trump vs. Vice President Kamala Harris, DeSantis vs. Harris. Surveys of Texas registered voters tend to be more favorable for Democratic candidates and less favorable for Republican candidates than surveys of likely voters conducted in the months before an election.

  • Trump’s vote intention (44%) surpasses that of Biden (42%) by 2 percentage points. 6% intend to vote for minor party candidates and 8% remain undecided.
  • DeSantis’s vote intention (44%) surpasses that of Biden (42%) by 2 percentage points. 5% intend to vote for minor party candidates and 9% remain undecided.
  • Trump’s vote intention (46%) surpasses that of Harris (39%) by 7 percentage points. 6% intend to vote for minor party candidates and 9% remain undecided.
  • DeSantis’s vote intention (45%) surpasses that of Harris (40%) by 5 percentage points. 5% intend to vote for minor party candidates and 10% remain undecided.

The poll also measured the still-forming contest for the Texas seat in the U.S. Senate now held by Sen. Ted Cruz.

In a March 2024 Democratic Texas U.S. Senate primary featuring U.S. Congressman Colin Allred, State Sen. Roland Gutierrez and former Midland City Council Member John Love, 33% of Democratic primary voters would vote for Allred, 22% for Gutierrez and 4% for Love. 41% of these voters remain undecided.

Cruz leads Allred 47% to 40%, with 9% undecided and 4% voting for minor party candidates in a hypothetical November 2024 race for the Senate. However, Allred is still unknown to many voters; 49% of registered voters do not enough about Allred to have either a favorable or unfavorable opinion about him, while only 6% do not know enough about Cruz to have an opinion about the senator.

“Allred is the early leader among Democrats, but anyone who wins the Democratic nomination will have a difficult race against Cruz,” said Dr. Mark P. Jones, TxHPF Director of Research and Analytics. “It will be critical for the Democratic nominee to introduce themselves to Texans over the course of the next year and make their case for change.”

As with the first poll I don’t want to make too much out of these numbers. We have seen since 2016 that there are some number of Republicans who are willing to cross over to Democrats in some races. That was definitely true with Donald Trump in both 2016 and 2020, and it was true for Ted Cruz in 2018. I see no reason why that can’t be the case next year, and you know what my blueprint for that includes. Poll data can be found here.

Paxton’s defense team

I feel slightly weird about this.

A crook any way you look

Six top officials and employees at the Texas attorney general’s office have taken a leave of absence to help defend suspended Attorney General Ken Paxton in his impeachment trial this summer.

Those employees are solicitor general Judd Stone, the agency’s top appellate lawyer; assistant solicitors general Joseph N. Mazzara and Kateland Jackson; Chris Hilton, chief of the general litigation division; senior attorney Allison Collins; and executive assistant Jordan Eskew.

The news was first reported by the conservative website The Daily Wire. Jarrod Griffin, a spokesperson for the attorney general’s office, confirmed the report to The Texas Tribune.

Prior to Tuesday, it was unclear who would serve as Paxton’s lawyers in the impeachment trial before the Texas Senate.

I can’t fully articulate why this feels weird to me. I just didn’t expect his employees to be the ones taking on the task of defending him in the Senate. I guess I assumed he’d hire a couple of high-priced private attorneys, who would most likely be financed by his fat cat supporters. That’s icky in its own way, while this is almost heartwarming – they’re loyal enough to go without pay for some number of weeks to save his bacon! – and yet it still just has strange vibes to me. We don’t have the Senate rules yet about the trial, but this would seem to be within whatever those rules turn out to be. Is it weird that I think this is weird? I assume these people were all hand-picked by Paxton and would likely move on if they fail. Maybe I’m just overthinking it. What do you think? Oh, and how do you think they feel about going up against these guys?

While you ponder that, here’s a Chron story about the guy who had been temporarily filling in for Paxton as AG.

The Attorney General’s Office has announced that First Assistant Attorney General Brent Webster will be the temporary replacement for Ken Paxton, who was impeached by the Texas House last week.

As first assistant attorney general, Webster represented Texas taxpayers in Paxton’s lawsuit that sought to overturn the 2020 election results for Donald Trump.

Webster started working for the office at a tumultuous time in October 2020, shortly after eight top aides reported Paxton to law enforcement, accusing him of taking bribes and abusing the authority of his office. Paxton fired the whistleblowers and hired new department heads, including Webster.

[…]

In December 2020, Webster signed his name to an unsuccessful suit filed by Paxton before the U.S. Supreme Court seeking to overturn Joe Biden’s presidential wins in four battleground states.

The State Bar of Texas later sued Paxton and Webster for professional misconduct for his part in the suit, arguing that it made dishonest and misleading statements about the existence of voter fraud, including many that had already been debunked in other courts in the country. The case against Paxton is ongoing, and a judge dismissed the case against Webster, though the bar is appealing.

Top Republicans have come to their defense, with Abbott saying the case “raise(s) separation-of-powers questions under our Constitution” and Lt. Gov. Dan Patrick calling it “politically motivated.”

The whistleblowers in their suit are seeking $15,000 in civil damages against Webster, as well as Paxton, for adverse personnel action taken in violation of the Texas Whistleblower Act. According to the suit, Webster had a role in firing all four and is accused of using intimidation tactics and pressuring some of them to resign.

I drafted this before the news about John Scott’s appointment as temporary AG, so this is less important now. Maybe the upside of Scott as temporary AG is that the agency, which does have basic operational things to do, is now being led by someone who’s not a close personal friend of Ken Paxton and might have something on their mind other than getting him off on the impeachment charges. Just a thought.

Anyway. We’ve discussed the State Bar’s actions against Webster before. I believe this is the first report I’ve seen that the judge’s ruling dismissing the case has been appealed; I’m delighted to see that. Beyond that, Brent Webster is to me basically like Angela Paxton, in that his moral qualities are severely limited by his voluntary association with Ken Paxton. We kind of already know everything we need to know about him. And now we can worry a little bit less about it.

Abbott names former SOS John Scott as temporary AG

I honestly wasn’t sure he was going to bother with this.

A crook any way you look

Gov. Greg Abbott on Wednesday appointed Fort Worth lawyer and former Secretary of State John Scott as interim Texas attorney general, temporarily replacing Ken Paxton, who was suspended as attorney general pending the outcome of an impeachment trial in the state Senate.

Scott previously served as deputy attorney general for civil litigation when Abbott led that office. He has more than 34 years of legal experience and has argued more than 100 cases in state and federal courts, including the U.S. Supreme Court. After leaving the attorney general’s office, he was appointed chief operating officer of the state Health and Human Services Commission, overseeing 56,000 employees and a budget of $50 billion.

“John Scott has the background and experience needed to step in as a short-term interim Attorney General during the time the Attorney General has been suspended from duty,” Abbott said in a statement. “He served under me in the Texas Attorney General’s Office and knows how the Office of the Attorney General operates.”

Abbott tapped Scott to serve as secretary of state in October 2021. Before leaving the job in December 2022, Scott oversaw elections and struggled to simultaneously assure the public that Texas elections were secure while mollifying those, including supporters of former President Donald Trump, who alleged widespread fraud.

Many feared Scott would be amenable to Trump’s argument that the 2020 election was riddled with fraud because Scott briefly represented the former president in a lawsuit challenging the election results in Pennsylvania.

But a 2020 audit of results in four of the largest Texas counties that Scott managed found no widespread fraud or voting irregularities. Local elections administrators, many in populous Democratic counties, praised him for defending their work at a time when they had increasingly come under partisan attack.

I’ve said a few things about John Scott in the past, and I stand by them. But having said them, it is important to remember that we are now comparing him not to the AG we want and deserve, but to the AG we had and the guy who was filling in for him before now. By that measure, he mostly merits a shrug and a “meh, could have been worse”. He’ll be on the job for maybe four months max, so he’s more substitute teacher than anything else. I suppose Abbott could appoint him as the replacement if Paxton gets convicted by the Senate, but I don’t see him as the top choice there. On a side note, I wonder if previous-temporary-AG Brent Webster was caught by surprise by this. A little drama in these matters is never unwelcome. Anyway, this is fine, as far as “fine” goes these days. TPM and Reform Austin have more.

Two thoughts on the whole impeachment thing

A crook any way you look

Let’s start with the obvious, which is the “Why now?” question. A lot of people seem to be mystified. Why, after nearly a decade of Ken Paxton’s criming, did the House General Investigations Committee decide to go all scorched earth on him now? I’ve seen some theories about it having to do with the federal investigation into Paxton and Nate Paul being taken up by the Justice Department instead of the local US Attorney, with a Twitter thread that I forgot to bookmark speculating that the House signing off on the $3.3 million settlement would somehow make House members complicit in a coverup of Paxton’s activities, since now nothing would or could come out in court. I don’t buy that – it’s not clear to me that the change of venue for the investigation means anything about its ultimate resolution, and I cannot see how any House member could be criminally liable for voting to approve that settlement and payout. If anything, it would be the whistleblowers, who are still pushing for that settlement to be ratified, who would be in danger of obstructing the feds. None of that makes any sense to me.

My best guess, as an amateur Democratic pundit who has spent zero time at the Capitol talking to people, is that it comes down to two things. I was struck by the comment made by Rep. Brian Harrison – who by the way voted against impeaching Paxton – in which he opined that “there are a large number of my colleagues who do not hold the current attorney general in very high regard”. That’s just a background condition, but it sets the stage for everything else. Once the settlement was announced and it was clear that Paxton expected the Lege to pick up the tab for his criming, I think that allowed for the investigation to begin. There was some resistance up front, but it wasn’t too much. Honestly, given the more-than-occasionally petty nature of the Legislature, I think it was when Paxton didn’t bother to address the budget committee himself about the payment that got enough people into a foul mood about the whole thing for the ball to really start rolling.

What I’m saying is this: A lot of Republicans didn’t like Ken Paxton all that much to begin with. I’m sure there are many reasons for that, but let’s accept that as fact and go from there. Those same Republicans probably don’t much care for the big-money interests that support Paxton and tend to be a threat to your typical Republican legislators, who have to deal with the possibility or actuality of those fat cats bankrolling a primary challenger to them and riling up the rubes to harass them and their staff. Taking a shot at Paxton also means sticking it to those people, and I don’t doubt for a minute that was a catalyst. Throw in that request for the $3.3 million, a penny-ante but still annoying and arrogant shit sandwich that they’re being told they need to eat, and now you have a reason for the committee to decide to take a closer look at the Nate Paul situation. Finish it off with a committee made up of people who clearly took the assignment seriously, and here we are. (*)

Am I certain of this explanation? Of course not. I have no way of knowing. But this makes sense to me, and is consistent with what we know. I am open to alternate ideas, and of course any insider information from people who do have real insight. Send me an email with whatever off-the-record dirt you want to share, I’ll be delighted to read it.

The second point I want to discuss is “What is the best possible outcome for the Democrats?” The best possible outcome for society at large is for Paxton to be convicted by the Senate, then arrested by the feds, and eventually convicted in both state and federal court before spending some number of years in jail. You know, being held accountable for his actions and all that. I’m rooting for that, but I’m also rooting for Democrats to maximize their chances of winning elections next year, because the best way to deal with the bigger picture of why the likes of Ken Paxton was able to flourish for so long begins with Democrats winning a lot more political power in this state. What needs to happen to give them that chance next year?

The short answer to that question is for Republicans to be maximally divided amongst themselves, and focusing their anger and rage and money and resources on each other. You may recall that Donald Trump, as well as the slimy insect who chairs the state GOP, are firmly on Team Paxton and have been attacking every Republican who isn’t also in that camp. Trump is attacking Greg Abbott for his silence. This is what we want.

I don’t know if a near future date for a Senate trial or one that is farther out is better for this, but I do prefer there to be a definite time frame, so everyone can get more mad as the date draws near. I can make a case for either a conviction or an acquittal in terms of the political fallout, but either way I want the vote in the Senate to be as close as possible, either 21-10 (or 20-10, if Angela Paxton is recused) for conviction, or a 20-11 failure to convict with Angela Paxton casting the saving vote. Oh, and I want the question of whether or not Angela Paxton casts a vote to be divisive as well, with Dan Patrick trying to get her to recuse and she defiantly rejects him. (Remember, Angela Paxton will be on the ballot in 2024, too.)

If we get that knife’s edge conviction – really, 20-10 with Angela Paxton seething on the sidelines is best – then we not only have Trump and the state GOP and a bunch of its big moneymen mad, with a defenestrated Ken Paxton free to vent his rage at his partymates from the cheap seats, we also have a Greg Abbott-selected AG on the ballot nest year, too. It won’t matter if he selects someone who would be objectively formidable under other circumstances, because now a significant portion of the Republican base hates that person and can focus their sense of aggrievement and betrayal on them. There would surely be a nasty primary, and who knows, maybe an effort to put an independent wingnut on the ballot as well.

Add all this up, and remember that Ted Cruz is also all in on Team Paxton, and maybe that share of Republican voters who don’t want to vote for certain specific Republicans gets a little bigger, while a portion of the hardcore dead-end Trump contingent decides they’ve been stabbed in the back one time too many and they stay home. It wouldn’t take that big a shift to put Joe Biden, Colin Allred/Roland Gutierrez, whoever runs for AG, and perhaps some number of Congressional and Legislative candidates in a winning position next year. It’s a perfect storm.

Now again, am I certain of this? Of course not. Am I maybe wishcasting just a little too hard here? For sure. But is any of this implausible? I don’t think so. A few rolls of the dice have to go well, and of course we need the overall national conditions to be reasonable and for no other earthquakes to strike. It’s also well more than a year away, and as we know that may as well be a million years in political time. I’m just saying, much of this could happen, and if it does I think it works in Democrats’ favor. Just something to think about. Let me know what you think.

(*) Yes, I know, these same legislators are responsible for these conditions that they don’t like, from the moneyed interests to the frothing-at-the-mouth primary voters who are the only ones that count to them. That doesn’t mean that they can’t find a way forward when those conditions work against them for a change.

UPDATE: We have dates now. So that’s good.

Fort Cavazos

For a number of reasons, Tuesday was a good day.

General Richard E. Cavazos

One of the U.S. military’s largest bases has been renamed after the Army’s first Hispanic four-star general.

Fort Hood, located about 70 miles north of Austin, Texas, was redesignated on Tuesday as Fort Cavazos in honor of the late Gen. Richard Edward Cavazos, a Texas native who served in the Korean and Vietnam wars.

“General Cavazos’ combat proven leadership, his moral character and his loyalty to his Soldiers and their families made him the fearless yet respected and influential leader that he was during the time he served, and beyond,” Lt. Gen. Sean Bernabe, III Armored Corps Commanding General, said in a statement.

“We are ready and excited to be part of such a momentous part of history, while we honor a leader who we all admire,” Bernabe added.

The redesignation is part of an effort by the Department of Defense to rename military bases and other sites with titles linked to members of the Confederacy.

A slew of military installations and nine Army bases are getting new names, including Fort Hood, which was named after the Confederate Gen. John Bell Hood, who commanded troops during the Civil War.

The Congressional Hispanic Caucus and other supporters had urged the military to rename the base after Cavazos, who was raised in Kingsville, Texas, and commanded troops at Fort Hood.

Born to Mexican-American parents, Cavazos was commissioned to the Army after graduating from high school and went to fight in the Korean War. There, he was a member of the Borinqueneers, a famed unit of mostly Spanish-speaking Puerto Rican soldiers. He later led troops in the Vietnam War.

Cavazos earned the Silver Star and two Distinguished Service Cross awards for his service during the two conflicts — for actions such as evacuating wounded soldiers before having his own injuries treated during the Korean War and exposing himself to enemy fire while leading attacks in the Vietnam War.

“I truly believe that a lot of us got home because of the way he conducted himself,” Melvin “Brave” Brav, who served under Cavazos, told the San Antonio Express-News.

Cavazos eventually ascended to the rank of four-star general and led the U.S. Army Forces Command, making him one of the highest-ranked Army officials at the time.

Outstanding, well deserved, and long overdue. You can learn more about Gen. Cavazos by clicking on the embedded picture. And just as a reminder, not everyone supported this.

The renaming of bases became a heated political issue in the final months of the Trump administration, when the former president blasted the idea, accusing others of wanting to “throw those names away.”

Trump had vetoed the 2021 National Defense Authorization Act, which included the Naming Commission, but in the waning days of his administration, Congress delivered its first and only veto override during his tenure, approving the legislation with overwhelming bipartisan support.

And the renaming comes at a time when Gen. Lloyd Austin, the country’s first Black secretary of defense, has identified racism and domestic extremism as some of the most pressing issues facing the country and the armed services.

“The job of the Department of Defense is to keep America safe from our enemies. But we can’t do that if some of those enemies lie within our own ranks,” Austin said at his confirmation hearing.

The fact that this happened on the same day that a jury found The Former Guy liable to the tune of $5 million for his assault on E. Jean Carroll is just *chef’s kiss*. Throw all those names right into the trash, I say. We should have done it decades ago. And if somehow your butt remains in pain because of this, just drive a few miles north of Fort Cavazos to Hood County, where that slimeball Confederate’s legacy still lives on. However much we do, it’s still not enough.

One more thing about abortion and polling

Just wanted to add one thing to my earlier post about abortion as a political/campaign issue in Texas in 2023-24. In addition to the question of support for or opposition to abortion, most polls also ask questions about what issues voters prioritize. Sometimes they give the respondents a list, sometimes they let the respondents volunteer their answers. You can see examples in the Texas Politics Project polls and in various national polls, among others. The idea here is to try to get a handle on the issues that are actually motivating people to vote, as well as understand which way they would go.

Generally speaking, abortion is not a top-cited issue in most polls. Even in 2022, even among Democrats and the voters Democrats were trying to reach, it wasn’t the top issue. Inflation, crime, the state of democracy, climate change, and abortion were among the top issues for Dems last year, while for Republicans it was inflation, crime, and immigration. There is of course a subset of voters for whom abortion as been The One Issue, but that’s a small group and they are the hardest of the hardcore forced-birth contingent.

Abortion is absolutely becoming a more salient issue for Democrats, where it fits into a panoply of related issues that we see as being genuinely threatened by radical far-right legislators and their enablers on the courts. Voting rights, democracy in general, LGBTQ+ rights, gun control, fights against book bans and “critical race theory” and “don’t say gay” laws and drag show bans and on and on, they’re all of a piece. Dems are increasingly (though still not entirely) unified on these issues, and they both poll better overall and tend to have appeal to a class of voter that used to be on the other team. There are still disagreements – there will always be disagreements – but the Bart Stupak contingent is now vanishingly small. I’d say a fair number of more recent converts, the post-2016 crowd in particular, which includes some of our more energetic activists, came on board in part over abortion rights and the fear of the Roe reversal that was to come.

What’s clear from the polling data we have is that support for abortion rights, even in a more-limited-than-we’d-like manner, significantly exceeds the vote share that pro-choice politicians get. Here in Texas, there are three issues on which public support is totally disconnected from legislative action: Expanded gambling, marijuana decriminalization, and abortion rights. The first two can largely be explained as “Dan Patrick opposes them”, but the third is entirely due to people who say they support abortion rights – again, even in the very limited “rape/incest/health of the mother” way – voting for Republican candidates that support making abortion 100% illegal.

How do we get these Republican voters who want to have at least some access to legal abortion in Texas to stop voting for forced-birth extremists? If I knew the answer to that, I’d be pelting Colin Allred and Roland Gutierrez with my resume to be their campaign manager. I can’t say with certainty that there’s a way to reach these people and change their minds, or at least their voting behavior, even in just one or two key races. But I believe there is, and I believe we can and must try to find it. I believe we did not try to take advantage of this change in the national mood last year – we did try to persuade people about the failures of the grid and our deadly gun laws, with which I have no quarrel other than they ultimately didn’t work – and we must try it next year. I believe we can learn from what activists did in states like Kansas and Michigan and Pennsylvania. I believe there is a risk both of going too far and pushing past the comfort levels of the “I support women who need abortions, but I’m icked out by the women who want them” voters, and also of angering and enervating the activists who want the politicians they support to be as bold and courageous as they are by trying to accommodate the former. I believe we have no choice but to try, whatever the risks are.

Like I said, I don’t know the answers. I’m just trying to frame the questions. I welcome your feedback.

What does abortion as a political issue really look like in Texas now?

In my earlier post about what the likely Biden/Trump rematch looks like in Texas, I said that abortion really wasn’t tested here as a political issue in 2022. I said I’d like to see it be a real focus for next year, if only to get an answer to that question. It was this tweet that got me thinking along those lines.

It’s great that NBC News has this deep archive of polling data, especially since they’ve asked the same question, which allows for direct comparisons. The shift over time is indeed striking. It’s important to remember, however, that believing abortion should be legal “most of the time” is likely not incompatible with a 15-week ban, as proposed by Sen. Lindsay Graham, in the minds of many voters. There are of course major issues with such a ban, beginning with the fact that most conditions that cause fetal death and serious health risks for the mother cannot be detected until several weeks after that artificial deadline. There’s also the critical question of availability, especially in states that would continue to have other restrictions like wait times and requiring multiple office visits, all of which contribute to having fewer clinics and running out the clock on many women who don’t live near them. I do not expect that anyone who is currently mad about Dobbs and the continued crusade by the zealots to expand it further would be fooled by this proposal. But it’s a reminder that not only is how a poll is worded very important, it’s also the case that however you do word it, people will interpret what it means their own way. Getting at how people understand what the wording means, and what the consequences of their preferred interpretations may be, is incredibly difficult.

A few days after that tweet, Politifact in the DMN did its own study of national opinion on abortion.

Every year, the pollster Gallup asks people about their satisfaction with aspects of American life. Respondents saying they are “very dissatisfied” with “the nation’s policies regarding the abortion issue” have spiked somewhat.

In 2021, 30% of survey respondents said they were “very dissatisfied” on abortion policy. In 2022, the share rose to 41%, and in 2023, it rose to 48%. (As recently as 2014, the share saying this was as low as 19%.)

This finding is broadly echoed in polling by Quinnipiac University that was completed at shorter intervals before and after Roe was overturned.

In May 2021, 57% of respondents told Quinnipiac that abortion should be legal in all or most cases, while 37% said abortion should be illegal in all or most cases. But Quinnipiac’s most recent survey, from February 2023, found 64% saying abortion should be legal in all or most cases, while 29% said abortion should be illegal in all or most cases.

This shift has also been seen in some state-level polling. In Arkansas, which has some of the nation’s strictest abortion laws, the percentage of respondents to the Arkansas Poll saying that it should be “more difficult” to get an abortion dropped from 50% to below 30% from 2020 to 2022, while the share saying it should be “easier” showed the reverse pattern, climbing from about 13% to 32%, said Janine Parry, director of the Arkansas Poll at the University of Arkansas.

However, polling in Wisconsin shows less dramatic shifts.

Charles Franklin, director of the Marquette Law School Poll, said he has “not seen much change” across multiple questions his polling operation has asked in national polls.

For instance, from September 2021 to September 2022 — a period spanning the time before and after the Supreme Court’s ruling — the Marquette poll asked about overturning Roe. (Before the decision, the question was posed about a potential future decision overturning Roe; afterward, the question involved the decision itself.)

Excluding respondents who said they didn’t know anything about a potential or actual decision, the percentage of respondents who opposed it fell modestly, from 72% to 67%, while the percentage that had heard of the decision and supported it rose equally modestly, from 28% to 33%.

Still, these figures showed that respondents favored the abortion-rights position by about a 2-1 margin in a politically competitive state.

And national polling data from the Democratic firm Navigator also shows a general dissatisfaction with the Republican position on abortion, said Margie Omero, a principal with the Democratic research firm GBAO. Asked whether they “approve or disapprove of how Republicans in Congress are handling” abortion policy, 35% approved, compared to 56% who disapproved.

Different polls, different wording, but the overall trend is similar. Again, though, you have to consider what people might have understood the question to mean. Some number of those “very dissatisfied” people could be the forced birth zealots who are upset that overturning Roe didn’t mean that abortion is banned everywhere. In Arkansas, where the laws are so drastic, there’s little room for “more difficult”. Surely some of the people who used to want it to be more difficult now think it’s just right, and some of those thinking it should be easier are just thinking in terms of rape/incest/health of the mother exceptions. While clearly some people are more pro-choice than before, it’s hard to say how many, and how important it is to them.

Now again, all that said, the overall trend across multiple polls, as well as the objective evidence of the 2022 election and abortion referenda in states like Kansas and Kentucky and Montana, strongly suggest that the pro-choice position is the more popular, and the extremist stance now being touted by most Republicans is a loser, while no one buys their soggy attempts at “moderation”. It stands to reason, as we have seen in Presidential horse race polls, that the national shift implies related shifts across the states. And that brings us to Texas.

There is polling data for Texas. The Texas Politics Project has polling data that goes back to 2008. The problem is that they vary the questions from poll to poll, so direct comparisons are tricky. There are a couple of close-enough points we can look at. For example, from July 2008:

Do you believe that abortion should be:

29% generally available
15% more limited
35% illegal except in cases of rape/incest/to save the life of the mother
17% never permitted
5% Don’t know/refused/NA

Who knows what “generally available” and “more limited” mean, especially since the third choice is fairly limited. However you want to look at it, the mostly-to-all-illegal positions are a majority. Now here’s October 2018:

What is your opinion on the availability of abortion?
15% By law, abortion should never be permitted.
29% The law should permit abortion only in case of rape, incest or when the woman’s life is in danger.
12% The law should permit abortion for reasons other than rape, incest, or danger to the woman’s life, but only after the need for the abortion has been clearly established.
39% By law, a woman should always be able to obtain an abortion as a matter of personal choice.
5% Don’t know

I couldn’t begin to tell you what “only after the need for the abortion has been clearly established” means, but given the rest of that question it seems to be about abortion being somewhat more accessible than just the rape/incest/health of the mother exceptions. If we count that as a “generally available” option, then the pro-choice position is now in the majority. Note that at the time this was conducted, we were still more than three years away from the Dobbs decision.

In October 2022, we get a chart summarizing the course of one particular question:

Do you think that abortion laws in Texas should be made more strict, less strict, or left as they are now?


         Stricter  As now  Less strict  DK/NA
=============================================
Oct 2022       18      25           50      8
Aug 2022       20      21           49     10
Feb 2022       23      23           43     12
Apr 2021       33      22           33     11
Feb 2021       32      18           37     13
Feb 2019       41      20           32      8
Jun 2013       38      21           26     14

Two things to keep in mind here. One is that between April 2021 and February 2022, the Lege passed the vigilante bounty hunter law SB8, which had the effect of making surgical abortion basically illegal and almost completely unavailable. That also means that before then, the “as it is now” option was technically a pro-choice one, while after SB8 it’s an anti-abortion one. In reality, given the widespread closures of clinics after the passage of HB2 in 2013 – you remember, the omnibus anti-abortion bill that was aimed at making it extremely difficult for clinics to operate, the bill that was famously filibustered by Wendy Davis – the “as now” choice was more likely to be favored by those who preferred a strict regime, just because – as noted above – on a practical level abortions were hard to access, especially outside the big urban areas. Vibes-wise, it was mostly anti-abortion before 2021, and definitely anti-abortion after 2021.

With all that said, you can see the clear shift after the passage of SB8. The “less strict” number jumped ten points in less than a year, and was up by 17 points in a year and a half. By August 2022, which is now post-Dobbs, the “less strict” answer is a majority (okay, almost in August but there in October). The trend is there.

Still, there are reasons to be cautious about this. In October 2014 (scroll to page 15) and February 2023 (page 32), the poll gives various specific scenarios for when an abortion might be legal or illegal, which mostly break down to the rape/incest/health of the mother situations and discretionary, abortion-on-demand situations. In both years, there’s a clear distinction between the former, which generally has strong support, and the latter, where support is at best a plurality, and even then comes with limits.

The interpretation I have for this is that poll respondents are broadly sympathetic to women who “need” abortions, but less so – sometimes much less so – to women who “want” abortions. That’s going to make the messaging for this super challenging, with vagueness likely to be the best strategy. The key difference between now and, say, 2014, when Republicans gleefully clubbed Wendy Davis over the head for her pro-choice positions, is exactly that the facts on the ground have changed. People are more likely to understand that women who “need” abortions simply cannot get them in Texas, and that this is harmful to them. That opens the door, but how much that door can swing past the “rape/incest/health of the mother” milestone is a question I can’t answer. As I’ve been saying, I strongly believe we need to test this, but I fully acknowledge that it won’t be easy to do and there are downsides if we fail. I just don’t think there’s any other way forward.

Anyway, this is my manifesto for 2024. I welcome your feedback.

Two “Trump Train” defendants settle

Interesting.

Two of the eight Trump supporters accused of participating in a “politically-motivated conspiracy” by closely following, honking at and slowing down a campaign bus for President Joe Biden on a Texas highway in the weeks leading up to the 2020 presidential election have settled with former state Sen. Wendy Davis and three others on the bus.

Lawyers representing the plaintiffs announced Thursday they have filed papers to dismiss Hannah Ceh and Kyle Kruger as defendants in the lawsuit. The case against the six other defendants remains pending.

The terms of the settlement were not made public, but the two issued formal apologies for their involvement in the “Trump Train,” according to a press release from Project Democracy, the lawyers representing the plaintiffs.

“Looking back, I would have done things differently. I do not feel that I was thinking things through at the time, and I apologize to the occupants of the bus for my part in actions that day that frightened or intimidated them,” Ceh wrote in her apology.

The plaintiffs, who also include a Biden campaign volunteer, a former campaign staffer and the bus driver, claimed in the lawsuit that Ceh, Kruger and six others violated the Ku Klux Klan Act of 1871 and Texas law when they, along with dozens of people in trucks with Donald Trump flags, surrounded the bus as it drove up Interstate 35 from San Antonio to Austin, shouting and honking at the bus and successfully slowing it to a crawl in a deliberate attempt to intimidate supporters and disrupt the campaign.

“I knew that my driving was risky, but I wanted to express my opposition to their campaign and send them a message to leave my community,” Kruger added in his apology. “While I regret now participating in such risky activity, and apologize to the occupants of the bus for my part in the actions that day, at the time I and other Trump Train participants were happy that, after our actions, the Biden campaign canceled the rest of the bus tour.”

[…]

Two of the other defendants who have not settled, Steve and Randi Ceh, were leaders of the New Braunfels Trump Train, according to the filing. Ceh is their daughter and a member of the group.

The filing alleges that Kruger, who is engaged to Ceh according to her social media, was driving her white Toyota Tundra while she sat in the passenger seat. According to the filing, Ceh posted videos to social media that showed her license plate number, which matched the license plate of one of the cars that allegedly surrounded the bus. Screenshots of Instagram posts attached to the lawsuit show Ceh in the passenger’s seat with text on the image that says “#operationblockthebus.” The filing said the social media posts show Ceh and Kruger driving “within inches of the bus.”

At one point, the filing claims, Ceh told Kruger that she was “getting too nervous” and participating in the caravan was “stressing her out.”

“Nevertheless, Defendant Kruger continued to come close to the Biden-Harris Campaign bus and abruptly swerved next to it,” the filing read.

Davis and the other plaintiffs filed a second lawsuit against San Marcos police, alleging they turned a blind eye to the attack. 911 transcripts filed in that lawsuit revealed San Marcos police refused to send help despite repeated requests for those on the bus. That lawsuit is ongoing.

The lawsuit against the “Trump Train” participants remains ongoing against the six other plaintiffs. In March, federal judge John Pittman set a trial date for April 22, 2024.

See here for the previous update, and here for more about the San Marcos police. I have a copy of the press release from the Texas Civil Rights Project, which contains the full apology statements from the two settlers, beneath the fold. I have to say, while the one from Hannah Ceh seems fine and appropriate, the one from Kyle Kruger sounds awfully non-apologetic. It has at least as much about the objectives of the Trump Train and their satisfaction in chasing the Biden campaign buses out of town than anything contrite. Maybe the confidential part of the settlement makes up for that, and maybe the case against Kruger was the weakest, I don’t know. I’m hoping for better for the rest of the case. See below for the TCRP statement, which includes the two full apologies.

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Sen. Gutierrez talks about 2024

He’s officially still thinking about it and will announce after the session. I’d say it’s a strong bet he’s already decided to run.

Sen. Roland Gutierrez

State Senator Roland Gutierrez said Wednesday he’s going to wait before deciding on running for U.S. Senate. If he jumps in the race, the South Texas Democrat would be challenging incumbent Republican Ted Cruz.

It was six years ago that Cruz faced El Paso Congressman Beto O’Rourke at the ballot box. The Democrat came close to defeating Cruz, but the Republican held on with 50.9 percent of the vote.

Today political watchers are wondering if Cruz is still vulnerable to a strong challenger, especially after Cruz’s role in the Jan 6th attempt to stop the counting of the Electoral College votes.

[…]

Gutierrez has not ruled out running for Senate but he said a decision on challenging Cruz in the 2024 election is going to have to wait because he’s focused on the current Texas legislative session. And he’s particularly concerned with the issues connected to the Uvalde school shooting.

“I got to be 100 percent focused on the next five weeks. And gotta do what I can do for these families. My future we’ll figure all those things later down the road,” he said.

Gutierrez said when the session ends — which is in about five weeks — he will then consult with his family before making a decision to enter the race.

See here for the background. The middle of the story is about Cruz admitting to his complicity in the 2020 insurrection, which wasn’t exactly a secret but never hurts to remember. I obviously don’t know for sure that Sen. Gutierrez will run, though I do believe he will, but if he does he’ll give Cruz a good fight. And he won’t have to give up his seat to make the race, which I’m sure is a factor in his decision as well. I’ll be ready to make a donation when he makes it official.

On the (likely) future Biden/Trump matchup

It’s way too early to pay any attention to state polling, but there are a few general principles to discuss here.

President Joe Biden announced his reelection bid on Tuesday, setting up a potential rematch with former President Donald Trump — two candidates most Texas voters have said should not run again.

Biden’s pitch, made in a 3-minute video, seemed tailored to a Texas audience as the president focused on a slew of issues Republicans in the state have prioritized, including outlawing abortion, restricting LGBTQ rights and banning books.

“Around the country, MAGA extremists are lining up to take those bedrock freedoms away,” Biden said in his announcement video. “Cutting Social Security that you’ve paid for your entire life while cutting taxes for the very wealthy, dictating what health care decisions women can make, banning books, and telling people who they can love — all while making it more difficult for you to be able to vote.”

“The question we are facing is whether in the years ahead we have more freedom or less freedom, more rights or fewer,” he said.

But the president heads into 2024 with a lot of ground to make up with Texas voters, 43 percent of whom had a very unfavorable view of Biden in the latest polling by the Texas Politics Project at the University of Texas at Austin.

And former President Donald Trump, who has dominated polling in the GOP primary, is just as unpopular in Texas, with 42 percent saying he is very unfavorable.

Sixty one percent of Texas voters, meanwhile, said Biden should not run, while 58 percent said the same of Trump, according to the poll, which was released in February.

Still, Biden fared better in Texas in 2020 than any Democratic presidential candidate in years, losing the state to Trump by just 6 percentage points.

[…]

Biden likely got a boost in 2020 from independent voters who had a very negative view of Trump. They now have a worse impression of Biden, with 54 percent of independents seeing him as very unfavorable, compared to 42 percent who said the same of Trump.

While few think Biden will actually win the state in 2024, whether or not he can improve on his past performance largely depends on who else is on the top of the ticket, said Joshua Blank, research director at the Texas Politics Project.

U.S. Sen. Ted Cruz, who narrowly won reelection over Democrat Beto O’Rourke in 2018 and faces a 46-percent disapproval rate in the state, is also seeking reelection. His campaign could have an impact, depending on the quality of the Democratic candidate challenging Cruz, who would likely be the primary focus of Democratic effort in Texas, Blank said.

“I think a fair case could be made that GOP congressional and Texas legislative candidates might perform better with someone besides Trump and Cruz leading the ticket,” Blank said. “Biden might find Texas a greater challenge facing a GOP candidate other than Trump who doesn’t carry the same baggage as the former president — and someone who he hasn’t already beaten, at least nationally.”

I don’t take the “shouldn’t run again” numbers too seriously, for either candidate. Biden’s overall popularity among Dems is high, and I feel confident that when the choice becomes “Biden or Trump”, he’ll have no trouble getting Dems in line. I mostly think the same for Trump, though he has much bigger potential pitfalls in front of him, nearly all of which will be faced in a courtroom. Biden’s main areas of concern are his age, the potential that he could backslide on issues Dems care about, and not being seen as putting up enough of a fight against Republican malfeasance and creeping authoritarianism. He’s striking the right notes for now, and as long as he stays on that path I feel pretty good about what’s ahead.

A big unanswered question for me is how the abortion issue will play in Texas in 2024. While its largely positive-for-Dems effect in 2022 in other states is well known, it really wasn’t tested as an issue here. The 2022 election was much more about the grid and (in the wake of Uvalde) guns. I don’t have any criticism of that – those were super salient issues, ones on which the Republicans should have been plenty vulnerable – but they didn’t work as we would have liked them to work. The scenario I hope for, both from the Biden campaign and from the campaign of the Democratic nominee for Senate, whether Roland Gutierrez (not yet confirmed, for what it’s worth) or Colin Allred or someone else, is basically a promise to restore Roe v Wade, with extra language to head off the more recent attempts to curtail abortion access (in other words, codify what was in the Hellerstedt decision) and a ban on bounty hunter civil suits. This also requires winning back the House and having enough Senators willing to nuke the filibuster, but you have to start by setting the stakes, and doing this sure does make flipping the Ted Cruz seat that much more of a prize.

Will this work? I mean, we have over 30 years of results to suggest that the odds are against it, but it would give plenty of people – including, I would think, independents and the kind of Republicans that have been pretty reliably crossing over in some number of races since 2016 – a reason to turn out and support Dems at the top of the ticket. It would be nice to have everyone pulling in the same direction, and who knows, it might mean some real national investment in these races. Like I said, we’ll remain the underdogs, but it’s at least a coherent vision. That’s better than what we’ve usually had.

Sen. Gutierrez appears to be getting set to challenge Ted Cruz

Very interesting.

Sen. Roland Gutierrez

State Sen. Roland Gutierrez, a San Antonio Democrat who has become a fierce champion of the families impacted by the Uvalde school shooting, is likely to run against Republican U.S. Sen. Ted Cruz in 2024, The Texas Tribune has learned.

One source close to Gutierrez said he is “very likely” to run, while another said there is “no question he is seriously looking at it.” Gutierrez is not expected to make any announcements about the race until after the current legislative session, which ends late next month.

Gilbert Garcia, a columnist for the San Antonio Express-News, first reported Wednesday morning that Gutierrez is “nearly certain” to run.

The two sources close to Gutierrez declined to be named because they were not authorized to publicly discuss his deliberations. Gutierrez also declined to comment.

Cruz’s campaign did not immediately respond to a request for comment.

U.S. Rep. Colin Allred, D-Dallas, is also considering running against Cruz, who has shifted focus to his reelection campaign in recent months after flirting with another presidential bid.

Gutierrez has served in the Texas Senate since 2021 after previously serving over a decade in the House. His Senate seat is not on the ballot again until 2026, meaning he would not have to give it up to challenge Cruz next year.

The Uvalde massacre happened inside his district, killing 19 children and two teachers, and Gutierrez has dedicated himself this legislative session to trying to address it despite GOP leaders’ resistance to considering any new gun restrictions. He has held several news conferences with families of victims and clashed with Lt. Gov. Dan Patrick over the issue on the Senate floor.

Gutierrez got his biggest victory yet Tuesday when a House committee held a hearing on a slate of gun bills, including one that would raise the minimum age to purchase certain semi-automatic rifles.

This kind of comes out of left field. Sen. Gutierrez has been mentioned in various “who could run against Cruz” stories, but mostly in passing, in the “other names that have been mentioned” category in articles that focused on Julian Castro or Colin Allred. Indeed, in at least some stories in which Allred is touted as the likely candidate, Sen. Gutierrez isn’t mentioned at all. I don’t think there’s one correct way to road test a possible candidacy, but it’s fair to say that if this is for real, Gutierrez took a different path than Allred has.

That’s assuming Allred is still a potential candidate. We’ve discussed all the reasons why it would make more sense for him to stay put, at least until Texas becomes Democratic enough to not have to run as a distinct underdog. It’s one thing to give up your safe Congressional seat for an odds-against shot at Ted Cruz when you know you’ll be the nominee. It’s another thing altogether if you have to win a primary against a strong opponent first. The fact that Gutierrez, like Royce West in 2020, can run without ceding his current position is a big advantage for him. I won’t say this will put an end to the Allred speculation industry, but it certainly changes the calculus.

It must be noted that at this point in time, Allred has a significant financial edge over Gutierrez. I’ve got a Q1 Congressional finance reports post in the works, and Rep. Allred has about $2.3 million on hand after raising over $500K. Sen. Gutierrez has $309K on hand as of January, and can’t do any more fundraising until the session is over. If there are special sessions, that also puts his fundraising on hold. It would not be a surprise to see him get a surge of donations in whatever post-session days of May and June there are, but he has a ways to go to catch up.

Anyway. Sen. Gutierrez would be a fine candidate. He has been true to his word to be an advocate for Uvalde on sensible gun control measures, and that would surely be a centerpiece of his campaign against Cruz. As is always the case, I will want to hear the words from his own mouth before I commit to the belief that he’s running, but this is a strong clue.

There was a Trib story from a couple of weeks ago about the 2024 Senate race, mostly focused on Cruz, that I had in my drafts but hadn’t published. I’ve repurposed that post for this one, and you can find the original beneath the fold. Note the absence of any mention of Sen. Gutierrez in the piece, or at least in what I had highlighted from it.

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Precinct analysis: Looking back at the 2012 landscape

PREVIOUSLY: State House 2022

We’ve had our first look at the way the new State House districts performed, and while we can expect the 2024 election to be a little different, it’s clear at this time that there aren’t many swing seats out there, even with a fairly expansive definition of “swing”. That’s by design, of course, and it’s clear Republicans have gotten pretty good at doing what they do. But I think we all recall feeling similar emotions following the 2012 election, and while it took awhile, we did see some massive changes in how districts were perceived over time. So let’s wind the clock back a decade and see what the landscape looked like at first. We’ll start with the Republican seats as of this time in 2013, using the same “under 55%” and “55-60%” standards as before.


Dist  Romney   Rom%    Obama Obama%
===================================
023   31,282  54.6%   25,365  44.2%
043   25,017  52.0%   22,554  46.9%
052   30,763  54.7%   23,849  42.4%
054   25,343  52.9%   21,909  45.7%
102   29,198  53.0%   24,958  45.3%
105   23,228  52.1%   20,710  46.5%
107   27,185  51.8%   24,593  46.9%
113   27,095  52.5%   23,891  46.3%

Dist  Romney   Rom%    Obama Obama%
===================================
032   28,992  56.9%   21,104  41.4%
045   35,298  55.2%   26,757  41.8%
047   50,843  58.0%   34,440  39.3%
065   31,456  57.5%   22,334  40.8%
096   36,190  58.6%   24,838  40.2%
097   39,614  59.6%   25,881  38.9%
108   40,564  59.0%   27,031  39.3%
112   28,221  55.0%   22,308  43.5%
114   35,795  55.2%   28,182  43.5%
115   30,275  55.4%   23,556  43.1%
132   31,432  58.9%   21,214  39.8%
134   46,926  56.4%   34,731  41.7%
135   32,078  58.8%   21,732  39.8%
136   35,296  55.1%   26,423  41.2%
138   27,489  59.2%   18,256  39.3%

Ironically, the first two districts listed here are ones that quickly disappeared from the “competitive” rankings. Both HDs 23 and 43 trended red over the decade, and neither has had a serious Democratic challenge since 2014. (HD23 was won, for the last time, by Democrat Craig Eiland in 2012; HD43 became Republican after the 2010 election when its incumbent switched parties.) Most of the other districts in both tables above are now Democratic, with HD132 being Dem for one cycle after being flipped in 2018 and flipped back in 2020. HD107 was the first Dem takeover, in 2016, while HD134 turned blue in 2020. All the rest came over in 2018.

It should be noted that as of the 2012 election, there were only 55 Democrat-held districts. Three went red in the 2014 debacle, with two of those (HDs 117 and 144) plus HD107 flipping back in 2016. Dems have 64 seats now, and could with a bit of optimism get to the 67 that they had after the 2018 wave. After that, you’re relying on either a steady march of favorable demographic progress, or another shakeup in the national landscape that makes formerly unfriendly turf more amenable. Which is indeed what happened last decade – in the previous decade, it was more the march of demography – but past performance does not guarantee future results. The Republicans have made some gains in formerly dark blue turf, too, as they had in 2010 when they managed to finally win in historically Democratic rural areas. You can’t say from here which way or how far the wheel will spin.

In the end, there were 22 “competitive” seats by our metric as of 2013. Fourteen of them were won after then at least once by a Democrat, with thirteen of them net for Team Blue. I have 34 such seats in 2023. I’d say that’s a combination of Texas being modestly bluer overall – remember that Mitt Romney took 57% in 2012 while Donald Trump took 52% in 2020; Greg Abbott got 59% in 2014 and 54% in 2022 – with Republicans having to spread themselves a little thinner in order to hold as many of these seats as a result. We’ll just have to wait and see how it all ends up.

On the other side of the ledger, the “swing” Dem-held seats of a decade’s hence:


Dist  Romney   Rom%    Obama Obama%
===================================
034   19,974  44.2%   24,668  54.6%
078   19,013  44.0%   23,432  54.3%
117   20,036  46.7%   22,234  51.8%
144   11,606  47.9%   12,308  50.8% 

Dist  Romney   Rom%    Obama Obama%
===================================
041   14,906  42.3%   19,935  56.5%
048   32,025  39.5%   46,031  56.8%
050   22,906  38.8%   34,110  57.8%
074   16,738  41.5%   22,955  56.9%
118   17,824  43.3%   22,719  55.2%
125   19,004  39.5%   28,374  59.0%
148   16,296  41.1%   22,449  56.6% 
149   18,183  41.8%   24,839  57.1% 

Not nearly as many as there are now, and basically none of them became more competitive over the course of the 2010s. HDs 117 and 144 did flip in 2014 but returned to the fold the following election. A couple of these districts, specifically HDs 34 and 74, are legitimately competitive now, at least by the statewide numbers, and of course HD118 was drawn to be considerably redder and is now Republican-held but tenuously so. While it’s on the Dem target list now, I expect it will be on the Republicans’ target list in two years.

I have a total of 19 competitive-by-this-metric seats as of now, but as noted I only expect a couple of them to truly behave that way. Dems will have more “real” targets, up until such time as they begin winning them. But maybe some of those South Texas seats will begin to drift away and we’ll be having a very different conversation in, say, 2026. Again, we’ll just have to see how it plays out. For now, it’s clear that there are more “competitive” seats in 2023 than there were in 2013. We’ll check back later to see how or if that changes.

Precinct analysis: State House 2022

We have data.

Texas Democrats and Republicans are beginning to gear up for a presidential election cycle in which opportunities to flip seats for Congress and the Legislature appear limited.

It’s a natural outcome after Republicans redrew legislative and congressional district boundaries in 2021 to shore up their majorities for the next decade, stamping out most districts that had turned competitive by the end of the last decade. Most of the remaining competitive territory was in South Texas, which is predominantly Hispanic, and where the GOP poured almost all their resources in 2022 — to mixed results.

On paper, there are few obvious pickup opportunities based on an analysis of the governor’s race results in each district. Among U.S. House seats, Republican Gov. Greg Abbott and Democratic challenger Beto O’Rourke did not carry any districts that are currently held by a representative from the other party. The same was true in the Texas Senate. And among state House districts, Abbott and O’Rourke each won only one that is currently controlled by the opposing party.

The statewide election results often provide a helpful guide of how a district is trending given that they often represent the highest-turnout contest in a district.

The size of the battlefield in 2024 could depend on the top of the ticket, which will be the presidential race. President Joe Biden is expected to run for reelection, and the Republican frontrunner to challenge him is former President Donald Trump, whose 2016 and 2020 runs yielded some of the closest presidential races in Texas in recent history. His closest competitor for the nomination is Florida Gov. Ron DeSantis, who has not launched a campaign yet but is widely expected to jump in.

There are other factors for the down-ballot contests that remain to be seen.

Even though Abbott signed off on redistricting in 2021, the lines could still change for the 2024 election. Various groups are suing over the maps, alleging things like intentional discrimination and efforts to dilute voters of color, and they are currently awaiting a trial in federal court in El Paso. On the line in the case are boundaries for seats such as a San Antonio state House seat currently held by GOP Rep. John Lujan; that seat is a top battleground in the Texas House.

My initial view of the new map, which looked at the past elections of the decade, is here, and an index of my look at the results from the 2020 election under the old maps is here. I’ll look at the other types of results in future posts, but today we focus on the State House. The 2022 data for the new map is here.

The gist of this story is that the Republican redistricting was very effective and that there aren’t many competitive districts, which means we’re headed for some boring elections, much as we had in the first couple of cycles last decade. That’s slightly less true for the State House than it is for the other entities, and I think the 2024 environment will at least differ enough from last year to produce some variance.

I’m presenting the districts of interest in two groups. One is the competitive Dem-held districts, the other is the same for Republicans. I’ve sorted them further into districts where Abbott or Beto took less than 55%, and districts where they won between 55 and 60 percent. With all that said, here we go. First up are the closer districts currently held by Dems.


Dist  Abbott   Abb%    Beto   Beto%
===================================
022   17,170  44.5%   20,822  54.0%
034   18,285  47.0%   20,128  51.7%
070   27,581  45.9%   31,749  52.8%
074   18,915  48.7%   19,218  49.5%
080   20,611  51.9%   18,249  46.0%

035    9,867  39.9%   14,517  58.7%
036   10,835  39.0%   16,525  59.4%
039   12,056  40.0%   17,686  58.7%
041   17,364  43.5%   22,125  55.5%
045   26,119  38.9%   39,783  59.2%
076   20,148  39.8%   29,705  58.6%
078   21,133  41.4%   29,140  57.0%
092   14,217  40.2%   20,680  58.4%
105   13,086  42.1%   17,515  56.4% 
113   17,848  41.2%   24,854  57.4%
115   22,605  42.1%   30,334  56.5%
135   16,443  40.0%   24,121  58.6%
144   11,566  43.3%   14,683  55.0%
148   15,451  41.2%   21,460  57.2%

As the story notes, the Republicans somehow failed to field a challenger to Rep. Tracy King in HD80, an oversight I expect they’ll fix in 2024. They made the same mistake in 2010 with then-Rep. Allan Ritter in HD21, but Ritter, an old school conservative rural Dem, rectified their error by switching parties. King, whose district is considerably bluer than Ritter’s was, seems unlikely to follow suit; among other things, he’s been pushing to raise the age to buy automatic weapons from 18 to 21, which puts him at odds with Republican orthodoxy. Never say never, and if the district continues a trend towards the red King could be amenable to such overtures, but for now I don’t see that happening.

For the others, HD70 is a newly-drawn Dem district, and I’d expect it to get bluer over time. HD74, which Rep. Eddie Morales won by 11 despite its closeness at the statewide level, was modestly blue based on 2020 results and should be more so in 2024, though if that isn’t true then expect a bigger fight later on. HD34 was purple-ish before redistricting, and as with HD74 I think it will be bluer next year, but again keep an eye on it. The one district that I think will become more vulnerable over time is HD22, in Jefferson County, which has a declining population and much like Galveston County in the 2000s and 2010s a reddish trend over the past decade. I’d like to see some effort made to shore it up, but I don’t know enough about the local conditions to know how feasible that is. Feel free to chime in if you do.

None of the other districts concern me. The Latino districts, I’d like to see what they look like in 2024. They’re all actually pretty spot on to the 2020 numbers, which given the overall lackluster Dem showing in many areas is moderately encouraging. The rest of them are in overall strong Dem areas, and I don’t expect any reversion of past trends.

Now for the Republican-held seats that Dems might like to target:


Dist  Abbott   Abb%    Beto   Beto%
===================================
037   20,551  51.1%   19,202  47.7%
052   41,813  52.5%   36,500  45.8%
063   35,831  54.8%   28,630  43.8%
094   34,479  54.7%   27,557  43.8%
108   46,796  52.6%   41,022  46.1%
112   35,245  50.6%   33,467  48.0%
118   25,172  48.5%   25,952  50.0%
121   40,300  51.1%   37,368  47.4%
122   47,856  54.7%   38,491  44.0%
133   33,195  54.4%   26,971  44.2%
138   31,077  54.1%   25,464  44.3%

014   27,936  56.9%   20,207  41.1%
020   48,367  56.5%   35,743  41.8%
025   31,545  59.3%   20,785  39.1%
026   36,266  57.7%   25,683  40.8%
028   38,940  58.1%   27,061  40.4%
029   33,393  58.8%   22,579  39.7%
054   23,763  59.7%   15,463  38.8%
055   28,125  58.4%   19,322  40.1%
057   37,715  58.1%   26,311  40.5%
061   39,753  56.1%   30,211  42.7%
065   41,487  56.9%   30,451  41.7%
066   41,464  56.9%   30,421  41.8%
067   38,127  56.3%   28,647  42.3%
089   38,701  57.5%   27,643  41.1%
093   34,136  57.6%   24,310  41.0%
096   35,260  55.2%   27,877  43.6%
097   36,059  55.2%   28,336  43.4%
099   31,869  58.6%   21,719  39.9%
106   41,639  58.3%   28,875  40.5%
126   35,835  59.4%   23,627  39.1%
127   39,102  58.5%   26,791  40.1%
129   37,118  56.8%   27,144  41.5%
132   35,079  57.0%   25,603  41.6%
150   33,857  58.3%   23,303  40.1%

I think it’s fair to say that the failure to win back HD118 was a big disappointment last year. I’ll use a stronger word if we get the same result in 2024. HD37 remains the subject of litigation – if there’s anything on the agenda to address it in this legislative session, I am not aware of it at this time. It had a slight Democratic tilt in 2020 and will clearly be a top target next year. As will HDs 112 and 121, with 108 and 52 a notch below them, though 108 is starting to feel a bit like a white whale to me. All things being equal, Dems should be in position to make a small gain in the House next year, with some potential to do better than that, and given everything we’ve seen since the dawn of time, the potential to do a bit worse as well.

The farther-out districts are mostly those we had identified as targets following the 2018 election, with a few adjustments for the new map. They’re all in counties and regions that had been trending Democratic. For the most part, I expect that to continue, but that doesn’t have to be monotonic, nor does it have to be at a fast enough pace to make any of these places actually primed to flip. I’ve said before that the way Tarrant County was sliced up it gives me “Dallas County 2012” vibes, but whether than means that a bunch of districts eventually flip or they all hold on if by increasingly tight margins remains to be seen. We’ll know more after 2024.

In theory, there won’t be many truly competitive districts in 2024, like there weren’t last year. The national environment, plus the higher turnout context, plus whatever yet-unknown factors may be in play will surely affect that, by some amount. I’d like to see an optimistic view for next year and get as many strong candidates in as many of these districts as possible, but that’s far easier said than done. This is not that different than how things looked after the 2012 elections, and we know how things went from there. Doesn’t mean anything will go any particular way or on any timetable, it’s just a reminder that there’s only so much we can know right now. I’ll have some thoughts about the other district types going forward. Let me know what you think.

The unhinged abortion pill lawsuit hearing

What a shitshow.

The future of medication abortion in the United States remains up in the air after a federal judge heard arguments Wednesday in a suit challenging the Food and Drug Administration’s long-standing approval of mifepristone.

U.S. District Judge Matthew Kacsmaryk said he would rule “as soon as possible” on the challenge brought by the Alliance Defending Freedom, a conservative, anti-abortion law firm.

ADF is asking Kacsmaryk to suspend — and ultimately withdraw — the FDA’s approval of the medication, which would have nationwide implications, especially in states where abortion remains legal. In the hearing, a lawyer for ADF conceded that this would be unprecedented, but argued that the court had the authority to intervene to prevent harm.

Lawyers for the Department of Justice and Danco Laboratories, the pharmaceutical company that produces generic mifepristone, argued that the lawsuit is meritless.

Granting a preliminary injunction would be “depriving patients and doctors of a safe and effective drug,” argued Julie Straus Harris, with the DOJ.

Since it was initially approved in 2000, mifepristone has been found to be overwhelmingly safe and effective for terminating pregnancies. Citing that body of evidence, the FDA has recently relaxed restrictions on the medication, which is used in the majority of the abortions in the United States.

In the suit, ADF is representing anti-abortion medical organizations and doctors who argue they have been harmed by having to treat patients who have experienced adverse effects from the medications — and that they anticipate increased harm as a result of these loosened restrictions.

They also argue the drug was initially approved improperly under an FDA regulation that fast-tracks drugs that treat serious illnesses.

“Pregnancy is not an illness,” said Erik Baptist, a lawyer for ADF, in Wednesday’s hearing. “Mifepristone doesn’t treat anything.”

Kacsmaryk, appearing to give weight to that argument, listed off all the drugs that were approved under this regulation before mifepristone, most of which treat HIV and cancer. Separately, he summarized Baptist’s argument as asking the court to “deem one of these not like the others.”

The hearing, which ran more than four hours in Kacsmaryk’s Amarillo courtroom, covered a wide range of arguments. But the central question before Kacsmaryk is not as much about abortion as it is about administrative procedure — and whether the plaintiffs have any right to bring this lawsuit at all.

See here and here for the background. I can’t overstate how ridiculous this all is, and that includes the extreme restrictions on coverage of the hearing, for which you literally had to be there or at a single courthouse in Dallas, but only a handful of people were allowed at the courtroom, and cellphones were banned, so no live-tweeting. All for a hearing at which one hand-picked judge could severely curtail access to abortion for millions of women across the country, based on vibes. I really hope I’m wrong, but I don’t see anything in the coverage I’ve read to suggest this guy will do anything other than what he clearly wants to do. We’ll find out soon. Jezebel, the Associated Press, Slate, Daily Kos, and NBC News have more.

UPDATE: From Slate, “If Kacsmaryk rewrites the history of mifepristone’s approval as grounds to pull it from the market, his decision should command no respect or acquiescence from anyone—not the FDA, not abortion providers, and certainly not the public at large.”

The hearing for that unhinged abortion pill lawsuit is today

Like I said, brace yourselves.

A federal judge in Texas will hear arguments Wednesday in a closely watched dispute that could halt distribution of a key drug used for medication abortion and disrupt access nationwide, even in states where reproductive rights are protected.

The case before U.S. District Judge Matthew Kacsmaryk was brought in November by a conservative legal organization on behalf of anti-abortion rights medical associations and targets the Food and Drug Administration’s (FDA) decades-old approval of the drug mifepristone, one of two medications used to terminate an early pregnancy.

The associations have requested Kacsmaryk order the FDA to withdraw its 2000 approval of mifepristone, arguing the agency erred when it gave the green-light to the drug under a regulation that allows accelerated approval of medications for “serious or life-threatening illnesses.”

But the Biden administration has warned that such a step would harm patients who rely on abortion pills and further strain state health care systems, particularly in places with clinics already grappling with overcrowding as a result of abortion restrictions in neighboring states.

The parties will have two hours apiece to press their arguments before Kacsmaryk, and the judge laid out a host of issues for them to discuss Wednesday, including whether the associations have the legal standing to sue, whether an injunction would serve the public interest and the regulation under which mifepristone was approved.

Kacsmaryk could issue his decision on the associations’ request for a preliminary injunction any time after the hearing, though a quick appeal to the U.S. Circuit Court of Appeals for the 5th Circuit is expected.

[…]

In papers filed with the court, the anti-abortion rights groups claimed the FDA exceeded its regulatory authority to approve mifepristone and has over the years removed safeguards by changing the dosage and route of administration in 2016, and lifting an in-person dispensing requirement to allow the pills to be mailed in 2021.

“The FDA took these actions by running roughshod over the laws and regulations that govern the agency and, more importantly, protect the public from harmful drugs,” they argued.

The Biden administration countered that the challengers’ request for the court to withdraw approval of mifepristone is “extraordinary and unprecedented.” Administration lawyers said they have been unable to find any case where a court has “second-guessed FDA’s safety and efficacy determination and ordered a widely available FDA-approved drug to be removed from the market — much less an example that includes a two-decade delay.”

Taking aim at the associations’ claim that the FDA improperly accelerated approval of mifepristone without substantial evidence of its safety, Justice Department lawyers noted that the 2000 approval of the drug came more than four years after manufacturer Danco submitted its application.

The drug maker, too, told the court that forcing the FDA to withdraw its long standing approval of mifepristone would not only “seismically disrupt the agency’s governing authority as to whether drugs are safe and effective,” but also put Danco out of business.

“The public has no interest in a hastily cobbled together, and overtly political, attempt by private parties to wrest control of the drug approval process from the United States agency responsible for it — an agency that has acted deliberately, thoughtfully, and consistent with its authorizing statute and implementing regulations,” the company said.

See here for the background. Plenty of legal types have written at length about how specious and flimsy the plaintiffs’ arguments are, and how utterly lacking their claim of standing is, so I’ll just note that and move on. Whether any of that matters to this wingnut judge or not will only be known after his ruling. As for the coverage of this ridiculous lawsuit, TPM among others provided insight:

TPM has obtained, and is first to report, the transcript from the status conference, which was conducted over the phone.

The case centers on the Food and Drug Administration’s 20-year-old approval of mifepristone, a drug often prescribed with misoprostol to induce abortions. Anti-abortion groups are trying to get that approval revoked, which could send the drug’s availability into flux.

After some typical housekeeping, Kacsmaryk leans on the lawyers to keep the hearing quiet.

“Because of limited security resources and staffing, I will ask that the parties avoid further publicizing the date of the hearing,” he said. “This is not a gag order but just a request for courtesy given the death threats and harassing phone calls and voicemails that this division has received. We want a fluid hearing with all parties being heard. I think less advertisement of this hearing is better.”

He said that the case so far has brought “a barrage of death threats and protesters and the rest.”

“So we will have standard security protocols in place, but I’ll just ask as a courtesy that you not further advertise or Tweet any of the details of this hearing so that all parties can be heard and we don’t have any unnecessary circus-like atmosphere of what should be more of an appellate-style proceeding,” he added.

He then told the lawyers that he was going to purposefully keep the hearing off the docket until the day before the hearing, to keep it as under the radar as possible — a move that prompted questions and objections by observers when discovered. A Department of Justice lawyer on the call sought clarification about whether the hearing would be made public at some point Tuesday.

“To minimize some of the unnecessary death threats and voicemails and harassment that this division has received from the start of the case, we’re going to post that later in the day,” Kacsmaryk replied. “So it may even be after business hours, but that will be publicly filed.”

The absolute best case scenario here is that in the end this was all a massive waste of time and energy. Here’s hoping. CNN, ABC News, and CNBC have more.

The unhinged abortion pills lawsuit will take place in darkness

Nothing about this is good.

The Texas judge who could undo government approval of a key abortion drug has scheduled the first hearing in the case for Wednesday but took unusual steps to keep it from being publicized, according to people familiar with the plans.

The hearing will be an opportunity for lawyers for the Justice Department, the company that makes the drug and the conservative group that is challenging it to argue their positions before U.S. District Court Judge Matthew Kacsmaryk. After they do, the judge could rule at any time.

Kacsmaryk scheduled the hearing during a call with attorneys Friday, said multiple people familiar with the call, who spoke on the condition of anonymity because they were not authorized to discuss it. Kacsmaryk said he would delay putting the hearing on the public docket until late Tuesday to try to minimize disruptions and possible protests, and asked the lawyers on the call not to share information about it before then, the people said.

Public access to federal court proceedings is a key principle of the American judicial system, and Kacsmaryk’s apparent delay in placing the hearing on the docket is highly unusual. The judge and his staff did not respond to emails requesting comment on Saturday evening.

The lawsuit seeks to revoke Food and Drug Administration approval of mifepristone, one of two drugs used in a medication abortion. The case has garnered widespread attention and protests.

A decision by Kacsmaryk to suspend FDA approval of mifepristone would immediately prompt major changes in how many abortion clinics across the country provide care. Some are planning to immediately switch to a misoprostol-only protocol, while others are planning to offer only surgical abortions. Any decision would likely be appealed to the conservative U.S. Court of Appeals for the 5th Circuit, and possibly to the Supreme Court.

[…]

Kacsmaryk told the attorneys that he also wanted to delay publicizing the hearing because courthouse members have received threats in the wake of the lawsuit, according to the people familiar with the call. Several people close to Kacsmaryk say the judge and his family have faced security threats since he ascended to the federal bench in 2019, and those threats have intensified ahead of the abortion pill ruling.

Before and after the Friday phone call with lawyers, The Washington Post repeatedly called and emailed Kacsmaryk’s chambers seeking information about it, but received no response. Kacsmaryk’s chambers also did not respond to a request that reporters be allowed to join the call.

Kacsmaryk was nominated by President Donald Trump and is known for his conservative views on issues like same-sex marriage and abortion.

By waiting to publicize the time of the hearing, Kacsmaryk and his staff could make it difficult for the public, the media and others to travel to the courthouse in Amarillo. The remote, deeply conservative city has few direct flights except from Dallas or San Antonio and is at least a four-hour drive from any of the state’s major, heavily-Democratic cities. Still, over 150 abortion rights advocates gathered there on a Saturday in mid-February to voice their support for abortion pills.

I noted this lawsuit when it was filed. There’s been a metric crap-ton of analysis and punditry and increasingly dire warnings about this lawsuit and the pernicious effect of court-shopping, and I’ll leave it to you to google around for all the screaming into the void you can handle. It’s possible that this maneuver means that Kacsmaryk has at least a dim idea that his actions have the potential to cause a massive shitstorm. It also may just be that he doesn’t care to deal with the media and he has the power to make his wishes come true. Either way, brace yourselves.

UPDATE: Chris Geidner has more.

So whose fault is the Sidney Powell lawsuit dismissal?

My reaction to the news that the lawsuit brought by the State Bar of Texas against Trump nutcase lawyer Sidney Powell was being dismissed was that it was the State Bar’s fault for screwing up the paperwork. The DMN editorial board puts the blame elsewhere.

A local Republican judge’s decision to throw out the State Bar of Texas’ disciplinary case against former Donald Trump lawyer Sidney Powell on flimsy technical grounds was a disservice to the public the judge serves.

Collin County state District Judge Andrea Bouressa last week granted Powell’s motion for a summary judgment largely because of filing and clerical errors bar lawyers made. Among the mistakes Bouressa found so egregious were a mislabeling of the bar’s exhibits and a failure to file a sworn affidavit attached to a motion.

What a travesty of justice. Such errors occur in court cases often. And while not excusable, they shouldn’t be a basis for a judge to throw out such a serious case without considering evidence.

[…]

There’s no question the state bar made some careless errors in its brief asking the judge to deny Powell’s motion to dismiss the case for lack of evidence. Exhibits were clearly mislabeled and some were altogether missing.

But Bouressa’s heavy-handed ruling is concerning. First, it wasn’t rendered as part of an in-person hearing, during which the filing issues may well have been quickly resolved in open court.

Rather, her decision came after her private review of the parties’ documents. Her judgment says that she tried to contact the bar’s lawyers for clarification on their confusing exhibits, but it “responded that no corrective action was necessary.”

That’s puzzling. The court file revealed only one email exchange between Bouressa’s court coordinator and a legal assistant at the bar, and it involved only one question about one exhibit. The assistant answered the question.

We understand it’s within Bouressa’s right to rule against a party for clerical errors. But legal experts tell us that appellate courts lately have been frowning upon judges who dismiss cases based on filing mistakes rather than on actual evidence.

That’s what happened here. Eric Porterfield, associate professor at the University of North Texas Dallas College of Law and an expert in civil procedure, reviewed the judgment for us and said it’s clear that while the bar was sloppy, Bouressa’s decision wasn’t based on the merits of the case.

Instead, the regal Bouressa got hung up on what she called the “defects” of the bar’s documents. In doing so, she shut the door on the public’s right for a full hearing of the facts surrounding Powell’s outlandish conspiracy theories that threatened the peaceful transfer of the power of the presidency.

See here for the background. As I said, my initial inclination, made with admittedly limited information, was that the State Bar screwed it up. If this take is more accurate, then they were screwed by the judge. The good news there is that appealing the dismissal is an option and it has a decent chance of working. If they do that, then I retract what I said before about the State Bar.

A win for butterflies

I’m sure this will end up in court, but it’s still a good thing.

The U.S. Fish and Wildlife Service on Monday declared the prostrate milkweed an endangered species and mandated new habitat protections for the plant, closing a chapter in a feud between environmentalists and those who advocate for unfettered border wall construction in South Texas.

The rare milkweed, which grows only in the Texas-Mexico borderlands, has for months been at the center of the fight between butterfly lovers and Texas officials. Texas Attorney General Ken Paxton, a Republican who supports new border wall construction, said last year that formally protecting the plant would create an “influx of illegal aliens” and endanger Texans. Environmental groups say the listing will help safeguard the charismatic migratory monarch butterfly, which has a deeply symbiotic relationship with the unassuming weed.

While the prostrate milkweed has a range of around 200 miles, only 24 populations of the species are known to still exist. Those are in Starr and Zapata counties in far South Texas, as well as in neighboring states of Nuevo León and Tamaulipas in northern Mexico.

It’s the rarest species of milkweed, and it’s a critical habitat for monarch butterflies as they head north from Mexico after the winter. Monarch caterpillars can only eat milkweed, and female monarchs only lay their eggs on milkweed. Toxic compounds in the plant, which monarchs consume, help protect the butterflies from predators and give them their signature orange hue. In turn, monarchs help pollinate and spread the plants.

Historically, the FWS said in its final rule on Monday, patches of prostrate milkweed along the Texas-Mexico border were all geographically linked. They were separated and are “very unlikely” to reconnect, the agency said, due to what it called “disturbance” in the region.

That disturbance has included herbicides, oil and gas pipelines and, most notably, border wall construction green-lit by former President Donald Trump.

The Trump administration spurred a firestorm in 2017 when it began bulldozing habitat at the National Butterfly Center in South Texas, damaging habitat used by monarchs and other species. Officials with the center said they weren’t properly notified about construction and publicly criticized the Trump administration. The situation pulled some butterfly lovers into an unlikely partisan battle, and the center was later forced to temporarily close following threats and conspiracies about human trafficking.

While Trump is no longer in office, Texas Governor Greg Abbott, a fellow Republican, has repeatedly said he also wants to build a wall. This year, he appointed a state border czar with a goal of speeding up that project.

In the process, the Texas state government became one of the biggest opponents of plans to list the prostrate milkweed as endangered, submitting multiple comments to the FWS. Among them was a comment from the state attorney general’s office warning the designation would have “a significant impact on national security by preventing Texas’s efforts to address the border crisis.” In response, the FWS said in its rule that prostrate milkweed is currently in danger of extinction and that the agency is therefore required to list the species as endangered.

[…]

The monarch butterfly has also been struggling, with population numbers dropping by 99.9% in some areas. The International Union for Conservation of Nature last year listed the monarch as endangered, citing declining milkweed populations as a factor, though federal officials have so far held off on making a similar ruling.

There are many factors behind the decline in milkweed, but one of the biggest is border wall construction, said [Tierra Curry, a senior scientist at the Center for Biological Diversity]. Even after a section of wall is constructed, there is an “ongoing disturbance” as border officials keep clear land near the wall and drive vehicles along it.

“You don’t just put up the wall and leave it there,” Curry said.

I’ve noted the plight of the monarch butterfly and the battle between Monarch conservation and the border wall before. As you might imagine, I’m happy to see this news. I’m also a hundred percent certain it will draw a lawsuit, and who knows what happens from there. I’m sure I’ll keep an eye on it. In the meantime, let’s be happy that the right thing was done. There will be plenty of time to worry about any negative consequences later.

Sidney Powell beats State Bar charges

I’m upset about this on two levels.

A state district judge dismissed a Texas state bar disciplinary case against Dallas attorney Sidney Powell for her role in disputing the 2020 election results as a lawyer for former President Donald Trump.

The State Bar of Texas filed a petition last March accusing Powell of professional misconduct by filing “frivolous” voter fraud lawsuits in four states, making false statements to a court and knowingly presenting false evidence. Powell filed lawsuits in Georgia, Michigan, Wisconsin and Arizona accusing election companies of vote manipulation.

The petition asked the court to decide the appropriate sanction, which could have ranged from reprimand to disbarment.

In the decision signed Wednesday, Andrea Bouressa, a Collin County district judge who heard the case filed in Dallas County, found “defects” with filings from Powell’s accuser, the Commission for Lawyer Discipline.

The commission, she ruled, mislabeled exhibits of evidence and failed to correct the errors when pointed out. That left two exhibits and those failed to meet the burden of the case, the judge said in granting Powell’s motion to dismiss the complaint.

[…]

Although the Texas court handed Powell a victory, her reputation continues to take a beating as evidence emerges in a $1.6 billion defamation lawsuit against Fox News from Dominion Voting Systems.

Last week, the company revealed that Powell’s “evidence” for allegations of fraud in the 2020 presidential election stemmed from a bizarre email by an unidentified author who attributed her insight to an ability to “time travel in a semi-conscious state.”

Dominion said Fox executives harmed its business by knowingly allowing hosts and guests to voice baseless and false assertions linking it to nonexistent vote fraud.

In depositions, Fox host Maria Bartiromo called the email that Powell had provided “nonsense,” according to Dominion’s filing.

And David Clark, then Fox’s senior executive over weekend shows, said that — had he known that Powell’s “crazy” theories were based on that email — he “would not have allowed that claim to be aired.”

See here for the background, and be sure to read the judge’s decision, it’s short and to the point. I’m upset that Powell won’t be sanctioned for all the obvious reasons – it really seems impossible to hold terrible people to account for their terrible actions these days – but if the weight of the evidence did not support a finding of guilt, then so be it. What really chaps me is that the State Bar appears to have completely bungled this, by not including all the evidence they said they had, mislabeling the evidence they did include, and not taking the opportunity to fix their clearly flawed exhibits when given the chance. I’m trying to think of a reason for this that isn’t rank incompetence on their part, and I’m having a hard time doing so. Whatever the reason was, we the people deserved a hell of a lot better than this. Any remaining optimism I may have had for their case against Ken Paxton took a beating with this outcome. Reuters and Forbes have more.

State Bar lawsuit against Paxton survives motion to dismiss

Good news.

The only criminal involved

Texas Attorney General Ken Paxton must face an ethics lawsuit by state attorney regulators over a case he brought challenging results of the 2020 election, according to a court ruling posted on Monday.

Judge Casey Blair on Friday denied Paxton’s bid to dismiss the case on jurisdictional grounds. Blair said he was not ruling on the merits of the case.

[…]

The ruling is a setback for Paxton, who had argued that his work as the top Texas state lawyer was beyond the reach of Texas attorney ethics regulators. Potential penalties if the case succeeds could include suspension or disbarment.

The Texas State Bar, an agency that oversees licensed attorneys in the state, filed the lawsuit against Paxton in state court in Dallas last May. The complaint said Paxton made “dishonest” statements in a lawsuit that sought to toss 2020 election votes in four states.

The U.S. Supreme Court threw out the election challenge in December 2020.

Paxton’s lawyers told the Texas court that the bar’s allegations were tied to his “performance of his official duties” and that seeking to discipline him “is tantamount to a judicial veto over the exercise of executive discretion.”

The state bar countered that Texas attorney conduct rules “apply to any attorney engaged in the practice of law regardless of their position.”

Technically, this lawsuit was filed in Collin County, per State Bar rules. Both sides filed their briefs in July, and the hearing was in August. Paxton’s argument was basically that the State Bar had no authority over him in this matter, which the judge (a Republican from Kaufman County) rejected.

Assuming this doesn’t get appealed or is upheld on appeal, there will be a hearing on the merits. If that goes well, we may finally get some form of accountability for our lawless Attorney General. Note that a similar lawsuit filed against Paxton’s First Assistant Brent Webster was dismissed in September when the judge in that case bought the same argument about separation of powers. That ruling is under appeal; if there’s been any further news about it, I’ve not seen it.

So there you have it. Stay patient, there’s still a long way to go. MSNBC has more.

Can we finally end Ken Paxton’s egregious court-shopping?

File this under “About damn time”, even if it eventually comes to naught.

The only criminal involved

As soon as President Joe Biden entered the White House, Texas Attorney General Ken Paxton launched an unprecedented campaign of obstruction to block his agenda in the courts. Paxton took advantage of a quirk—really, a loophole—in the federal judiciary: A state can pick the specific judge who will oversee its case by filing in a small division where only one judge sits. Using this strategy, Paxton has positioned his cases before a rotating cast of the same conservative judges, most of them nominated by Donald Trump. They have dutifully played their role in this pantomime of litigation, issuing an unending series of sweeping injunctions that block Biden administration policies nationwide for months or years.

On Thursday, the administration finally said: enough. In response to yet another Texas lawsuit exploiting this loophole, Biden’s Justice Department called out Paxton—and, implicitly, the judges playing along with his scheme. The DOJ highlighted Texas’ “blatant” and shameless “judge-shopping,” urging a transfer to another court “in the interests of justice.” Naturally, Trump-nominated Judge Drew Tipton is unlikely to oblige; that is, after all, why Paxton hand-picked him for this lawsuit. But the DOJ’s filing marks a new phase of battle against Republicans’ judicial gamesmanship: The Justice Department is playing hardball in the lower courts, forcing compromised judges to address their own complicity in a cynical partisan chicanery.

As soon as President Joe Biden entered the White House, Texas Attorney General Ken Paxton launched an unprecedented campaign of obstruction to block his agenda in the courts. Paxton took advantage of a quirk—really, a loophole—in the federal judiciary: A state can pick the specific judge who will oversee its case by filing in a small division where only one judge sits. Using this strategy, Paxton has positioned his cases before a rotating cast of the same conservative judges, most of them nominated by Donald Trump. They have dutifully played their role in this pantomime of litigation, issuing an unending series of sweeping injunctions that block Biden administration policies nationwide for months or years.

On Thursday, the administration finally said: enough. In response to yet another Texas lawsuit exploiting this loophole, Biden’s Justice Department called out Paxton—and, implicitly, the judges playing along with his scheme. The DOJ highlighted Texas’ “blatant” and shameless “judge-shopping,” urging a transfer to another court “in the interests of justice.” Naturally, Trump-nominated Judge Drew Tipton is unlikely to oblige; that is, after all, why Paxton hand-picked him for this lawsuit. But the DOJ’s filing marks a new phase of battle against Republicans’ judicial gamesmanship: The Justice Department is playing hardball in the lower courts, forcing compromised judges to address their own complicity in a cynical partisan chicanery.

The underlying lawsuit in Texas v. Department of Homeland Security is another frivolous effort to shift control over border policy from the executive branch to a single federal judge. Paxton has pulled this off before: In August 2021, he persuaded another Trump-nominated judge, Matthew J. Kacsmaryk, to block Biden’s repeal of a Trump policy that forced U.S.-bound migrants to remain in Mexico. Kacsmaryk even forced U.S. diplomats to negotiate with Mexican officials under threat of sanctions. Texas’ new suit, filed on Tuesday, seeks to do something similar. The state is infuriated by a new agreement between the Biden administration and Mexico regarding migrants from Cuba, Nicaragua, Haiti, and Venezuela. (The U.S. cannot send these migrants back to their home countries.) The agreement compels most of these migrants to stay on the Mexican side of the border. But it allows a small number of them to enter the U.S. legally—and remain here for a limited period—if they are vetted and have financial supporters in the country already.

This policy, first implemented in December, has already contributed to a dramatic reduction in unlawful entry among migrants from the four relevant nations. But Texas is furious that the new rules will allow some migrants to enter the U.S. lawfully. So its lawsuit asks the judiciary to strike down the entire policy, blowing up negotiations between the Mexican and American governments.

Paxton strategically filed the suit in the Victoria Division of the Southern District of Texas, where exactly one judge sits: Tipton, not just a Trump nominee but also a longtime Federalist Society member. This is the seventh case that Paxton has positioned before Tipton. The first, filed two days after Biden’s inauguration, sought to block the new president’s 100-day halt on deportations. Tipton swiftly granted a nationwide injunction against the pause.

Paxton’s suit is also the 25th time he has exploited the single-judge loophole to get a case before an ideological ally in Texas, according to statistics meticulously compiled by law professor (and Slate contributor) Steve Vladeck. (That count shoots up when you factor in suits filed in other red states with single-judge divisions, like Louisiana.) This plot goes way beyond any Democratic forum-shopping under Trump. Democrats filed in favorable district courts and hoped they drew a left-leaning judge. Paxton, by contrast, zeroes in on a handful of divisions within districts where he is guaranteed to draw a hard-right judge.

The Justice Department is asking for the case to be moved to either Austin or Washington, DC, on the theory that as the plaintiff is the state of Texas and the defendant is the USA, the case should be heard where one of them “resides”, which is to say one of their capitals. Alternately, the Justice Department asks for the suit to be moved to another division within the Southern District of Texas, one that has multiple judges in it, so the case can be randomly assigned as per the norm, instead of going to one of Paxton’s pet judges by default. I have no idea what the likelihood of that is – clearly, Slate author Mark Joseph Stern isn’t optimistic – but it can’t hurt to ask, if only to see what kind of weak justification is given for denying the request. I don’t know if this is appealable, but if it is I’d expect the Justice Department to go for it, since why not. It’s worth the effort and if nothing else it may at least put a little sand in Paxton’s gears. Anything is better than what we have been doing.

Lawsuit filed to keep The Former Guy off the 2024 ballot

Good luck with that.

Former president Donald Trump is facing a legal challenge to his 2024 bid for the presidency from a fellow Republican.

John Anthony Castro, an attorney from Texas and long-shot candidate for president in 2024, filed the lawsuit in federal court on Friday arguing that Trump was constitutionally ineligible to hold office under Section 3 of the 14th Amendment.

Known as the “Disqualification Clause,” the section prohibits anyone who engaged in “insurrection or rebellion” against the United States from holding “any office, civil or military, under the United States.” Castro is arguing that Trump’s involvement in the January 6th insurrection should disqualify him from holding public office again.

“The framers of Section 3 of the 14th Amendment intended the constitutional provision to be both self-executing and to provide a cause of action,” Castro, who’s representing himself, wrote in the complaint. “More specifically, the Union sought to punish the insurrectionary Confederacy by making their ability to hold public office unconstitutional.”

The Disqualification Clause mostly sat dormant since 1869 until last fall, when a New Mexico judge ousted Cowboys for Trump founder Couy Griffin from his position on the Otero County Commission for breaching the Capitol complex on Jan. 6.

Several advocacy groups, including Citizens for Responsibility and Ethics in Washington (CREW), have vowed to pursue similar legal action against Trump during his 2024 run.

“The evidence that Trump engaged in insurrection is overwhelming,” CREW President Noah Bookbinder wrote in a letter to the former president on Nov. 3, before he declared his candidacy. “We are ready, willing and able to take action to make sure the Constitution is upheld and Trump is prevented from holding office.”

Castro was among the giant herd of candidates who ran in the CD06 special election in 2021. He won 5.51% of the vote, which was probably in the top half of performers. I saw another story about this that described him as a “long shot candidate”, and I’d say that’s accurate. He filed this lawsuit in Florida, and ironically drew the Trump-toadiest judge out there, Aileen Cannon; he says he plans to disqualify her from hearing the case, which checks out. He also noted that the advocacy groups that intend to file their own lawsuits will do so later in the year, and he wanted to get out ahead of things. I don’t expect anything to happen with this lawsuit, but it ought to be fun to watch regardless. Bloomberg has more.

Yep, still no voter fraud found

So says the official 2020 election audit.

Despite challenges posed by the COVID-19 pandemic, there was neither widespread voter fraud nor other serious issues in Texas’ 2020 elections, according to an audit of four of Texas’ largest counties released Monday evening by Secretary of State John Scott’s office.

While the 359-page report did find some “irregularities,” it nonetheless reinforced what election experts and monitors — including Scott, the state’s chief election official — have routinely said: that the 2020 contest was not riddled with widespread fraud, and Texans should be confident that future elections will be similarly secure.

“When the Texas Election Code and local procedures are followed, Texas voters should have a very high level of confidence in the accuracy of the outcome of Texas elections,” the report stated. “When procedures are followed, results of the election are trustworthy. Indeed, in most cases, the audit found that the counties followed their procedures and clearly documented their activities.”

[…]

The report found that “many of the irregularities observed” in 2020 were likely caused by the “extraordinary challenges” posed by the pandemic and ensuing staffing shortages. And, auditors said, such problems are even less likely to occur in future contests because of legislative changes, including those in Senate Bill 1.

Of the four counties the report analyzed, the Harris County general election had the most issues, including improper chain of custody of mobile ballot boxes at 14 polling locations. Auditors also found thousands of discrepancies between electronic pollbook records and audit logs.

See here for a bit of background. No one who doesn’t have to is going to read the entire 359 page report, but you can get a high level summary at the beginning of it. I have two points to add. One comes from the Chron story, which addresses some of the items raised in the audit about Harris County:

Harris County did not properly handle certain electronic voting records during the 2020 election, according to an audit from the Texas secretary of state’s office that uncovered numerous administrative mishaps but no evidence of widespread voter fraud in four of the state’s largest counties.

In a report released Monday evening, the state elections office found that Harris County failed to properly document the “chain of custody” — a required step-by-step accounting of voting records — for thousands of ballots across at least 14 polling locations. The finding was among those mentioned by state elections officials last month in a letter to the Harris County elections administrator, delivered days before the November midterms.

The report outlined a number of slip-ups across the four audited counties, which included Republican-controlled Collin and Tarrant counties and Democratic-run Dallas and Harris counties. It concluded that Texas voters “should have a very high level of confidence in the accuracy of the outcome of Texas elections” when counties follow the state election code and their own local procedures.

“Each of the four counties has detailed procedures and detailed forms to document compliance with the code and ensure that only lawful ballots are cast and counted,” the report reads. “When procedures are followed, results of the election are trustworthy. Indeed, in most cases, the audit found that the counties followed their procedures and clearly documented their activities. In some cases, however, they did not.”

When counties did not properly follow state law and local procedures, “discrepancies and irregularities ranging from small to large ensued,” the report said.

State officials singled out Harris County for “very serious issues in the handling of electronic media,” finding that the county lacked records to explain the origin of 17 “mobile ballot boxes” — the pieces of hardware that store vote tallies and transmit the data to and from polling places. The report also identified disparities between electronic records from the polls and “tally audit logs” at numerous locations.

Since the 2020 election, Harris County has switched to a new system that stores voting records on vDrives — a type of USB thumb drive — with “procedures in place to document proper chain of custody … in the event a vDrive fails,” the report reads.

[…]

Harris County Elections Administrator Cliff Tatum has pledged a complete assessment of the issues that arose during the midterm while warning the county is in “dire need” of improvements to the way it conducts elections.

Last month, Tatum penned a letter to state officials seeking to address the audit’s preliminary findings, including the chain-of-custody problems.

Writing to Chad Ennis, director of the secretary of state’s forensic audit division, Tatum said the issue with the 14 locations cited in the report arose when votes were “stranded” on devices used at Harris County’s drive-thru voting and other locations.

To read the “stranded” results, Tatum wrote, county officials had to create 30 “replacement” mobile ballot boxes.

“The number of cast votes on those 30 MBBs align with the expected number from the voting sites,” Tatum wrote to Ennis. “This explains why there were more than 14 MBBs created to read the results and why those initial 14 were not read into the tabulator.”

The poll book disparities, meanwhile, were the result of voting machines being moved from one location to another during the election.

“While this may have been done to address long lines at any of the vote centers during the 2020 election, this is a practice that our office no longer follows,” said Tatum, who was appointed elections administrator in July.

We have the joy of being “randomly” audited again for this November’s election, so we’ll see what they have to complain about this time.

The other point I would raise, which was mentioned in passing in that Chron story, was that this audit was released on Monday night (the Trib story published at 8 PM) during Christmas week. I don’t know about you, but I think that if they had something juicy to report, they’d have dropped it at a time when people would be actually paying attention. This has all the hallmarks of a “nothing to see here” report.

Electoral Count Act included in must-pass budget bill

It’s not nearly enough to shore up voting rights, but it’s still vitally necessary and clearly the best we could do.

After months of negotiations, it now appears to be official: The Electoral Count Reform Act has hitched a ride on the much-anticipated 2023 omnibus funding package that was released Monday night, setting up a path for the legislation to pass the Senate.

“My two-word reaction is thank God,” said Matthew Seligman, a lawyer and fellow at Stanford Law School’s Constitutional Law Center who has tracked the reform effort closely. “I think this means that it’s virtually certain that it will be included in the final bill and the Electoral Count Reform Act will become law.”

Democrats and a handful of Republicans have been negotiating over how to reform the outdated 1887 law — which lays out how presidential electors are counted in Congress — for the past year. The effort to do so was prompted by vagaries in the text that former President Donald Trump and lawyer John Eastman sought to exploit to subvert the 2020 election.

Sen. Susan Collins (R-ME) and Sen. Joe Manchin (D-WV) announced they’d come to an agreement this summer, but it has been unclear for some time whether the legislation would garner the 60 Republican votes needed to clear a filibuster, and whether it would pass before Republicans take over control of the House next year.

But the end game is coming into focus: The Friday government funding deadline is coming up, lawmakers are aiming to pass the massive $1.66 trillion spending bill — and the ECA reform included in it — before then.

“We must finish passing this omnibus before the deadline on Friday when government funding runs out, but we hope to do it much sooner than that,” Majority Leader Chuck Schumer (D-NY) said on Tuesday morning. He added the first procedural votes in the Senate could happen as soon as today.

The ECA reform bill would clarify that the vice president’s role in certifying a presidential election is purely ceremonial and make it clear that they do not have the sole power to address disputes over electors. It would also raise the threshold for Congress to invalidate legitimate electors and for state legislatures to override the popular vote in their states.

This reform is “​​a critical step to strengthen the guardrails for our democracy and ensure that the will of the voters is upheld following a presidential election,” said Holly Idelson, a counsel with Protect Democracy.

It really is a shame that a much more robust reform package that included a renewed Voting Rights Act, redistricting restrictions, requirements for early voting, voting by mail, same-day voter registration, and more was not able to pass. I’ve ranted about that before, and all I can do at this point is hope that another opportunity comes up in the foreseeable future. At least this will make it harder for a bad actor to try to steal the next Presidential election. You take the wins where you can.

Precinct analysis: Beto versus the spread

PREVIOUSLY
Beto versus Abbott

So last time we saw the numbers for the 2022 Governor’s race. But what numbers need in order to be meaningful is context, and that means other numbers to compare them to. We’re going to do that in a few different ways, and we’ll start with the numbers from the Texas Redistricting Council for these new districts. Specifically, the numbers from 2018 and 2020.


Dist    Abbott    Beto     Cruz    Beto
=======================================
HD126   35,835  23,627   38,851  26,028
HD127   39,102  26,791   40,573  28,326
HD128   31,983  13,915   32,586  15,892
HD129   37,118  27,144   38,281  29,112
HD130   44,983  20,891   42,747  20,968
HD131    5,963  25,387    5,628  33,440
HD132   35,079  25,603   32,220  23,431
HD133   33,195  26,971   34,930  30,329
HD134   29,592  51,010   32,114  54,514
HD135   16,443  24,121   16,162  27,762
HD137    7,860  13,421    8,713  19,309
HD138   31,077  25,464   32,754  28,778
HD139   11,643  32,115   11,599  38,842
HD140    5,717  13,400    5,393  19,532
HD141    4,549  20,922    4,459  28,096
HD142    8,666  25,793    8,265  29,705
HD143    8,420  16,047    8,751  23,602
HD144   11,566  14,683   12,511  21,278
HD145   12,631  32,765   12,101  37,672
HD146    8,511  33,610    9,227  40,111
HD147    8,952  37,366    9,575  45,020
HD148   15,451  21,460   16,281  26,815
HD149   12,068  19,844   12,097  27,142
HD150   33,857  23,303   33,084  23,466


Dist   Abbott%   Beto%    Cruz%   Beto%
=======================================
HD126   59.37%  39.14%   59.40%  39.80%
HD127   58.50%  40.08%   59.30%  40.00%
HD128   68.66%  29.87%   66.80%  32.60%
HD129   56.80%  41.53%   56.30%  42.80%
HD130   67.29%  31.25%   66.60%  32.70%
HD131   18.78%  79.96%   14.30%  85.20%
HD132   57.06%  41.64%   57.50%  41.80%
HD133   54.41%  44.21%   53.10%  46.10%
HD134   36.16%  62.34%   36.80%  62.40%
HD135   39.97%  58.63%   35.00%  64.40%
HD137   36.32%  62.01%   30.90%  68.40%
HD138   54.09%  44.32%   52.80%  46.40%
HD139   26.25%  72.41%   22.90%  76.50%
HD140   29.36%  68.82%   21.50%  78.00%
HD141   17.61%  80.98%   13.60%  85.80%
HD142   24.79%  73.80%   21.60%  77.80%
HD143   33.86%  64.53%   26.90%  72.50%
HD144   43.34%  55.02%   36.80%  62.50%
HD145   27.31%  70.85%   24.10%  75.00%
HD146   19.95%  78.80%   18.60%  80.70%
HD147   19.04%  79.49%   17.40%  81.90%
HD148   41.18%  57.19%   37.50%  61.70%
HD149   37.31%  61.36%   30.60%  68.70%
HD150   58.34%  40.15%   58.10%  41.20%

Greg Abbott got 490K votes in 2022, whereas Ted Cruz got 498K in 2018. It’s therefore not a surprise that Abbott generally matched Cruz’s vote totals in the districts, with a bit of variation here and there. Beto, meanwhile, got 595K votes in 2022 after getting 700K in 2018, a significant drop. You can clearly see that in the district data. What’s interesting to me is that Beto was pretty close to his 2018 performance for the most part in Republican districts. His dropoff was almost entirely in strong Democratic districts, which accounts for the decrease in vote percentage he got. This is consistent with reports that Republicans had the turnout advantage nationally, due in part to weaker Democratic turnout among Black voters.

You can shrug your shoulders about this or freak out for What It All Means for 2024 as you see fit. I tend to lean towards the former, but I will readily acknowledge that the job of working to get turnout back to where we want it for 2024 starts today. I’ll have more to say about this in future posts as well, but let me open the bidding by saying that the target for Democratic turnout in Harris County in 2024, if we want to make a serious run at winning the state for the Democratic Presidential nominee, is one million Democratic votes; it may actually need to be a little higher than that, but that’s the minimum. It’s doable – Biden got 918K in 2020, after all. Ed Gonzalez got 903K in his re-election for Sheriff. Really, we may need to aim for 1.1 million, in order to win the county by at least 300K votes, which is what I think will be needed to close the statewide gap. Whether we can do that or not I don’t know, but it’s where we need to aim.

I also want to emphasize the “Abbott got more or less the same number of votes in each district as Cruz did” item to push back as needed on any claims about Abbott’s performance among Latino voters. His improvement in percentage is entirely due to Beto getting fewer votes, not him getting more. That’s cold comfort from a big picture perspective for Democrats, and as we saw in 2020 a greater-than-expected share of the lower-propensity Latino voters picked Trump, so we’re hardly in the clear for 2024. All I’m saying is that claims about Abbott improving his standing with Latino voters need to be examined skeptically. Remember that if we compared Abbott to Abbott instead of Beto to Beto, he got 559K votes in 2018, so he dropped off quite a bit as well. He got fewer votes in each of the Latino districts in 2022 than he did in 2018:

HD140 – Abbott 6,466 in 2018, 5,717 in 2022
HD143 – Abbott 10,180 in 2018, 8,420 in 2022
HD144 – Abbott 13,996 in 2018, 11,566 in 2022
HD145 – Abbott 15,227 in 2018, 12,631 in 2022
HD148 – Abbott 18,438 in 2018, 15,541 in 2022

So yeah, perspective. I suppose I could have done the Governor-to-Governor comparison instead, but I was more interested in Beto’s performance, so that’s the route I took. Beto would look better from a percentage viewpoint if I had done it that way. There’s always more than one way to do it.

One last thing on turnout: In 2014, Wendy Davis led the Democratic ticket with 320K votes in Harris County. Beto was at over 401K even before Election Day. His total is almost twice what Davis got. We can certainly talk about 2022 being “low turnout”, but we’re in a completely different context now.


Dist    Abbott    Beto    Trump   Biden
=======================================
HD126   35,835  23,627   50,023  35,306
HD127   39,102  26,791   53,148  38,332
HD128   31,983  13,915   46,237  21,742
HD129   37,118  27,144   51,219  38,399
HD130   44,983  20,891   58,867  29,693
HD131    5,963  25,387   10,413  42,460
HD132   35,079  25,603   46,484  35,876
HD133   33,195  26,971   42,076  40,475
HD134   29,592  51,010   38,704  66,968
HD135   16,443  24,121   26,190  40,587
HD137    7,860  13,421   12,652  24,885
HD138   31,077  25,464   42,002  37,617
HD139   11,643  32,115   17,014  49,888
HD140    5,717  13,400   10,760  24,045
HD141    4,549  20,922    8,070  38,440
HD142    8,666  25,793   13,837  41,332
HD143    8,420  16,047   15,472  28,364
HD144   11,566  14,683   20,141  25,928
HD145   12,631  32,765   18,390  45,610
HD146    8,511  33,610   12,408  51,984
HD147    8,952  37,366   14,971  55,602
HD148   15,451  21,460   24,087  34,605
HD149   12,068  19,844   21,676  35,904
HD150   33,857  23,303   45,789  34,151

Dist   Abbott%   Beto%   Trump%  Biden%
=======================================
HD126   59.37%  39.14%   57.80%  40.80%
HD127   58.50%  40.08%   57.30%  41.30%
HD128   68.66%  29.87%   67.10%  31.60%
HD129   56.80%  41.53%   56.20%  42.20%
HD130   67.29%  31.25%   65.50%  33.00%
HD131   18.78%  79.96%   19.50%  79.60%
HD132   57.06%  41.64%   55.60%  42.90%
HD133   54.41%  44.21%   50.30%  48.40%
HD134   36.16%  62.34%   36.10%  62.50%
HD135   39.97%  58.63%   38.70%  59.90%
HD137   36.32%  62.01%   33.20%  65.40%
HD138   54.09%  44.32%   52.00%  46.60%
HD139   26.25%  72.41%   25.10%  73.70%
HD140   29.36%  68.82%   30.60%  68.30%
HD141   17.61%  80.98%   17.20%  81.80%
HD142   24.79%  73.80%   24.80%  74.10%
HD143   33.86%  64.53%   34.90%  64.00%
HD144   43.34%  55.02%   43.20%  55.60%
HD145   27.31%  70.85%   28.30%  70.10%
HD146   19.95%  78.80%   19.00%  79.80%
HD147   19.04%  79.49%   20.90%  77.60%
HD148   41.18%  57.19%   40.50%  58.10%
HD149   37.31%  61.36%   37.20%  61.70%
HD150   58.34%  40.15%   56.50%  42.10%

Obviously, the vote totals don’t compare – over 1.6 million people voted in 2020, a half million more than this year. But for the most part, Beto was within about a point of Biden’s percentage, and even did better in a couple of districts. Abbott did best in the Republican districts compared to Trump. As we’ll see when we look at the other statewide races, Abbott (and Dan Patrick and Ken Paxton) was one of the lower performers overall among Republicans, as was the case for Trump in 2020, but maybe there were slightly fewer Republican defectors this year.

It will take an improvement on the 2020 Biden and 2018 Beto numbers for Dems to put any State Rep districts into play, with HD138 being the first in line; remember that HD133 was a bit of an outlier, with a lot of Republican crossovers for Biden. Incumbency has its advantages, and as we have seen Dem performance can be a lot more variable downballot than at the top, especially when the top has the most divisive Republicans, so it will take more than just (say) Biden getting 50.1% in HD138 for Rep. Lacy Hull to really be in danger. It’s more that this will be another incentive to really work on boosting overall turnout. Having a good candidate in place, which I think Stephanie Morales was this year, and making sure that person has the financial and logistical support they need (which she didn’t have) will be key.

I’ll have more to say as we go along. Please let me know what you think and ask any questions you may have.

Ken Paxton’s hatred of LGBTQ+ people continues unabated

Item #1: Texas attorney general’s office sought state data on transgender Texans.

The only criminal involved

Employees at the Texas Department of Public Safety in June received a sweeping request from Republican Attorney General Ken Paxton’s office: to compile a list of individuals who had changed their gender on their Texas driver’s licenses and other department records during the past two years.

“Need total number of changes from male to female and female to male for the last 24 months, broken down by month,” the chief of the DPS driver license division emailed colleagues in the department on June 30, according to a copy of a message obtained by The Washington Post through a public records request. “We won’t need DL/ID numbers at first but may need to have them later if we are required to manually look up documents.”

After more than 16,000 such instances were identified, DPS officials determined that a manual search would be needed to determine the reason for the changes, DPS spokesperson Travis Considine told The Post in response to questions.

“A verbal request was received,” he wrote in an email. “Ultimately, our team advised the AG’s office the data requested neither exists nor could be accurately produced. Thus, no data of any kind was provided.”

Asked who in Paxton’s office had requested the records, he replied: “I cannot say.”

[…]

Public records obtained by The Post do not indicate why the attorney general’s office sought the driver’s license information. But advocates for transgender Texans say Paxton could use the data to further restrict their right to transition, calling it a chilling effort to secretly harness personal information to persecute already vulnerable people.

“This is another brick building toward targeting these individuals,” said Ian Pittman, an Austin attorney who represents Texas parents of transgender children investigated by the state. “They’ve already targeted children and parents. The next step would be targeting adults. And what better way than seeing what adults had had their sex changed on their driver’s licenses?”

[…]

The records obtained by The Post, which document communications among DPS employees, are titled “AG Request Sex Change Data” and “AG data request.” They indicate that Paxton’s office sought the records a month after the state Supreme Court ruled that Paxton and Abbott had overreached in their efforts to investigate families with transgender children for child abuse.

Paxton’s office bypassed the normal channels — DPS’ government relations and general counsel’s offices — and went straight to the driver license division staff in making the request, according to a state employee familiar with it, who said the staff was told that Paxton’s office wanted “numbers” and later would want “a list” of names, as well as “the number of people who had had a legal sex change.”

During the following two months, the employee said, the DPS staff searched its records for changes in the “sex” category of not only driver’s licenses but also state ID cards available from birth, learner’s permits issued to those age 15 and up, commercial licenses, state election certificates, and occupational licenses. The employee spoke on the condition of anonymity to avoid retaliation for describing internal state discussions.

DPS staff members compiled a list of 16,466 gender changes between June 1, 2020, and June 30, 2022, public records show. In the emails, DPS staff members repeatedly referred to the request as coming from the attorney general’s office as they discussed attempting to narrow the data to include only licenses that had been altered to reflect a court-ordered change in someone’s gender.

DPS staff members did spot checks on the data, examining records that included names of specific individuals, according to records and the state employee familiar with the inquiry. But it was hard to weed out driver’s licenses that had been changed in error, or multiple times, or for reasons other than gender changes.

“It will be very difficult to determine which records had a valid update without a manual review of all supporting documents,” an assistant manager in the DPS driver’s license division wrote in an email to colleagues on July 22.

On Aug. 4, the division chief emailed staff members, “We have expended enough effort on this attempt to provide data. After this run, have them package the data that they have with the high level explanations and close it out.” On Aug. 18, a senior manager emailed to say a data engineer had “provided the data request by the AG’s office (attached).”

Last month, The Post made a request to Paxton’s office for all records the attorney general’s office had directed other state offices to compile related to driver’s licenses in which the sex of the driver was changed, as well as related emails between Paxton’s office and other state agencies.

Officials indicated that no such records existed.

“Why would the Office of the Attorney General have gathered this information?” Assistant Attorney General June Harden wrote in an email to The Post, later adding, “Why do you believe this is the case?”

If it did, Harden said, any records were probably exempt from release because of either attorney-client privilege or confidentiality.

Marisol Bernal-Leon, a spokesperson for the attorney general’s office, later emailed that the office “has reviewed its files and has no information responsive to your request” for either records it had requested from DPS or emails between the attorney general’s office and DPS.

Separately, DPS provided The Post with a half-dozen documents spanning three months that referenced the request by Paxton’s office.

When The Post shared copies of the records that had been provided by DPS, Assistant Attorney General Lauren Downey noted that “none of the records provided by the Texas Department of Public Safety are communications with the Office of the Attorney General. Our response to your request was accurate.”

Downey did not reply to questions about why the DPS emails refer to the request as originating from the attorney general. Paxton’s office has yet to respond to another public records request for any records of its contact with DPS concerning driver’s license changes via means other than email, including phone calls, video meetings and in-person exchanges.

It’s the brazen lying about it that really kicks this up a notch. I can’t think of a good reason for a public official to need this data, or to bypass the normal channels for requesting it, but there are plenty of bad reasons for it. Because data tends to be messy, you can see how potentially thousands of people who were not Paxton’s intended targets could have been caught up in whatever malevolent scheme he cooked up for them. In a way it’s too bad this came to light before that could have happened, because the harassment of such a large number of people might have been an actual scandal that could damage him. Now it’s just another unfair MSM hit piece that Paxton’s enablers can ignore.

And in case that wasn’t enough, we also got news item #2: Texas fights federal rule that would outlaw LGBTQ discrimination in state adoptions and foster care.

Attorney General Ken Paxton is suing the federal government to preserve Texas’ ability to include religious groups that won’t place kids with same-sex couples in the state’s adoption process without losing federal funding.

With his lawsuit filed Monday in federal court in Galveston, Paxton continued a yearslong, cross-country legal fight over anti-discrimination rules for adoption and foster programs drafted under the Obama administration that languished under former President Donald Trump and have never been enforced.

The rule on Sexual Orientation and Gender Identity Discrimination, known as the SOGI rule, prohibits recipients of federal funds for adoption and foster programs from discriminating on the basis of age, disability, sex, race, color, national origin, religion, gender identity, sexual orientation or same-sex marriage status.

A Texas law passed in 2017 allows religious organizations that contract with the state to refuse to work with LGBTQ couples who are seeking to foster or adopt. The law requires the state to ensure there are other providers to work with LBGTQ children or families who are refused help by a religious provider, although there is no specific process for ensuring that happens.

Losing federal funding would be a major blow for Texas’ foster care budget. Federal money accounts for nearly a quarter of the $550 million the state spends on residential care each year, and another $58 million supports case work for foster children who qualify for the funds, according to the attorney general’s complaint.

[…]

The anti-discrimination rule has been the subject of court battles. In 2019, Texas joined the Archdiocese of Galveston-Houston to sue the federal government over the rule, arguing it would prevent the religious group from becoming a provider of child welfare services. Shortly after the suit was filed, the Trump administration announced a rollback of the rule.

But Paxton is now seeking to have the rule thrown out preemptively as other groups are suing to compel its enforcement.

[…]

Bryan Mares, the government relations director at the National Association of Social Workers Texas, said the state law allowing religious providers to refuse services to LGBTQ couples creates a supply issue for the LGBTQ children in the foster system who need affirming homes.

“It makes it much more difficult to find families who might already identify as part of the LGBTQ community to bring children that are in the system into their home,” Mares said of the law. “It really just impedes our ability to prioritize LGBTQ youth placements into homes where they are being supported in a way that they need.”

A 2018 analysis of Texas licensed child-placing agencies by the Center for American Progress found that nearly half of them had statements of faith listed on their websites, but only 10% had expressed specific willingness to work with LGBTQ foster and adoptive parents. “Given this landscape, and the religious exemptions and lack of legal protections … prospective parents may understandably become discouraged about finding a welcoming agency and choose to abandon their efforts,” the report concluded.

Pretty sure that’s the intent. I’ve run out of accurate descriptors for Paxton and his shameless hate. At this point, I don’t know what can be done to stop him. He certainly acts as though there is nothing in his way and no possible consequences for anything he does.

Precinct analysis: How the 2022 Harris County State Rep candidates did versus the 2020 and 2018 results

I still don’t have a full canvass of Harris County, so I’m looking around to see what kind of analyses I can do in the meantime. For this post, I’m comparing how the candidates in the contested State Rep contests did against the 2020 and 2018 numbers that we saw in the redistricting reports. This isn’t my preferred kind of comparison – there are too many uncontested races, some “contested” races really aren’t because of poor candidate quality, incumbents tend to have a bit of an edge – but it’s what we’ve got for now. My impressions of the numbers for the new State Rep districts are here, and the Texas Legislative Council reports can be found here for 2020 and here for 2018. First up is 2020:


Dist   Biden   Trump   Hegar  Cornyn     Dem     Rep
====================================================
128    31.6%   67.1%   30.6%   67.2%   29.5%   70.5%
129    42.2%   56.2%   39.4%   58.0%   39.2%   60.8%
131    79.6%   19.5%   77.3%   19.9%   80.5%   19.5%
132    42.9%   55.6%   40.0%   57.6%   40.3%   59.7%
133    48.4%   50.3%   43.2%   54.9%   36.4%   61.4%
134    62.5%   36.1%   56.6%   41.7%   61.6%   37.1%
135    59.9%   38.7%   57.5%   39.4%   57.6%   42.4%
138    46.6%   52.0%   42.8%   55.0%   42.9%   57.1%
145    70.1%   28.3%   66.2%   30.8%   71.3%   28.7%
148    58.1%   40.5%   55.3%   41.7%   55.5%   42.6%
149    61.7%   37.2%   59.7%   37.5%   59.8%   37.7%
150    42.1%   56.5%   39.5%   57.9%   39.3%   60.7%

Biden generally outperformed the rest of the ticket by two or three points, more in some places like HDs 133 and 134. It’s clear he drew some crossover votes, so matching his performance is a sign of great strength. MJ Hegar was more of a typical Dem performer, and ideally a Dem in 2022 would do at least as well as she did. Note that most of the individual State Rep races were straight up D versus R, but in the cases where the percentages don’t add up to 100, assume there was a third party candidate as well. Most Dems met the Hegar standard, with incumbent Reps. Alma Allen (HD131) and Christina Morales (HD145) outdoing even the Biden number. On the other side, HD133 GOP candidate Mano DeAyala easily stomped a Democrat whose existence even I didn’t know about.

On to 2018:


Dist    Beto    Cruz  Valdez  Abbott     Dem     Rep
====================================================
128    32.6%   66.8%   29.1%   69.7%   29.5%   70.5%
129    42.8%   56.3%   36.8%   61.5%   39.2%   60.8%
131    85.2%   14.3%   80.4%   18.5%   80.5%   19.5%
132    41.8%   57.5%   36.2%   62.3%   40.3%   59.7%
133    46.1%   53.1%   37.9%   60.3%   36.4%   61.4%
134    62.4%   36.8%   52.5%   45.3%   61.6%   37.1%
135    64.4%   35.0%   59.4%   39.2%   57.6%   42.4%
138    46.4%   52.8%   39.6%   58.7%   42.9%   57.1%
145    75.0%   24.1%   67.5%   30.4%   71.3%   28.7%
148    62.7%   37.5%   56.1%   42.4%   55.5%   42.6%
149    68.7%   30.6%   64.0%   34.8%   59.8%   37.7%
150    41.2%   58.1%   36.3%   62.4%   39.3%   60.7%

Beto and Valdez represented the top and bottom of the scale for Dems this year. It’s clear that Dems fell short of the 2018 standard this year, with the 2022 version of Beto being somewhat above the Valdez line. In general, Biden did about as well in most districts as Beto had done two years before, though there are exceptions, of which HDs 135 and 149 are the most interesting. I don’t want to read too much into any single number here – this was a year I’d classify as an underperforming one for Dems overall, though at a much higher baseline than we were used to for off years, and I’d expect better numbers in 2024. Dems have the same targets as before in HDs 132 and 138, while if I were the Republicans I’d take a closer look at what’s going on in 135 and 148. The actual me really wants to see the full canvass data to see how the broader ticket did in these districts. Let me know what you think.

We do need to find someone to run against Ted Cruz

I don’t know who that ought to be yet, but surely someone is out there.

Not Ted Cruz

Ted Cruz said on Saturday that he would seek a third term in the U.S. Senate in 2024, though he also did not rule out running for president.

“I’m running for reelection in the Senate, I’m focused on the battles in the United States Senate,” Cruz told reporters after addressing the Republican Jewish Coalition’s annual leadership meeting in Las Vegas. He said he was also focused on the Senate runoff in Georgia on Dec. 6, according to a video of his discussion with reporters posted by Fox News.

The Texas Republican reiterated his disappointment that his party failed to take control of the Senate in this month’s midterm elections, a setback he blamed on a lack of determination within the party.

Cruz was one of 10 Republican senators who voted against the reelection of Sen. Mitch McConnell, R-Kentucky, as minority leader on Wednesday. McConnell easily fended off a challenge from Sen. Rick Scott, R-Florida, by a vote of 37-10.

I know I just said that I don’t want to engage in wischcasting for this, and I still don’t. But we do need to be prepared to think about who we want to see run for this nomination, and the sooner the better. It’s still the case that no Texas Republican has come as close to losing statewide this century as Cruz did in 2018, and it’s still the case that all decent people loathe Ted Cruz. I’m sure there are some people who will relish the opportunity.

I know we just came off a mediocre at best election, but the optimistic view is that Dems have been steadily gaining ground overall, and we’ve done better in Presidential years. The lunatic fringe of the Republican-majority House will make a very easy foil for President Biden, and Donald Trump will either be the Republican nominee – and nobody has done more for Democratic turnout efforts over the past three cycles than he has – or will be enraged and embittered over not being the nominee – and nobody has done more to sow division and turmoil in the Republican Party over the past six years than he has. There are any number of ways that things could be bad, and that’s before we consider whether Biden should be running for a second term, but there is a very plausible optimistic case to be made. Of course, I said the same thing about 2022 not long after Biden was inaugurated, so take all that into account. The point still is, at least at this time, there’s no need to fear running in 2024.

As to who, we can debate that as we see fit. Maybe Julian Castro, if he hasn’t reached his sell-by date. Maybe a current (Ron Nirenberg, Eric Johnson) or recent (Annise Parker) Mayor might want to take a step up. Maybe a State Senator who wins the draw to not be otherwise on the ballot in 2024. Who knows? My argument is simply that this is an opportunity that someone should want to take. We know we can raise enough money for whoever it is. Just think about it, that’s all I’m asking.

A True the Vote twofer

An update on a different lawsuit they’re involved in.

A disgruntled supporter of the True the Vote campaign to find voter fraud in the 2020 election preserved a claim on appeal, at least temporarily, against the organization’s law firm.

While True the Vote founder Catherine Engelbrecht remains in custody for contempt in a separate lawsuit, the Fourteenth Court of Appeals delivered its opinion in Eshelman v. True the Vote.

In this case, North Carolina millionaire Fredric N. Eshelman donated $2.5 million to Engelbrecht’s organization on the understanding the funds would support investigations, the production of whistleblowers and litigation concerning voter fraud in the 2020 election, according to court filings.

After True the Vote identified no whistleblowers and the four lawsuits in four states were filed without substantial evidence and then voluntarily dismissed, Eshelman demanded his money back.

The donor brought suit against all parties who received some of the funds, including True the Vote partner OPSEC Group, headed by Gregg Phillips, and the nonprofit’s general counsel, The Bopp Law Firm of Terre Haute, Indiana, and attorney James Bopp Jr.

The Bopp Law Firm‘s marketing material show it has played a role in GOP-led campaigns to stir doubt about the 2020 election, and about election administration integrity in general.

At trial court in Travis County, Engelbrecht and most of the defendants asserted Eshelman lacked standing. Their responses claimed the alleged oral agreement of the gift being conditioned on certain acts never occurred, and Eshelman couldn’t sue over a contribution to a charitable organization and its operations.

“These assertions were supported by Catherine Engelbrecht’s declaration that ‘there was no discussion or suggestion of any sort between Mr. Eshelman and myself, or his agents … and myself, that Eshelman’s gift was conditional in any way,’” the Fourteenth Court noted in its opinion.

Because those parties produced evidence that there were no conditions on Eshelman’s donation, the burden shifted to Eshelman and he failed to support his allegation with any evidence, the appeals court said.

The trial court dismissed Eshelman’s claims against all defendants, and the appeals court affirmed that decision in part.

Circumstances with the Bopp Law Firm and James Bopp were different, though, since they only challenged Eshelman’s pleading, not his allegation of a conditional use.

“This is a crucial distinction, because if the movant produces no controverting evidence, we assume the plaintiff’s factual allegations are true,” the appeals court found.

Eshelman’s causes of action against the Bopp defendants are for conversion, declaratory relief, and for money had and received.

“Eshelman has standing to assert his private interest in enforcing his agreed-upon right to recover damages for breach of the parties’ oral agreement,” the Fourteenth Court concluded.

See here for the background. This is actually a bit of good news for True the Vote, which could use it while Engelbrecht and Phillips sit in the pokey. I don’t know why attorney Bopp and his firm didn’t make the same arguments that succeeded for the other defendants – if that is spelled out in the opinion then please forgive me as I didn’t read it because it was too technical and my eyes glazed over – but I assume he can do so at trial. This is one of those situations where you root for everyone to lose, but you can’t always get what you want.

Meanwhile, the end of the story included this bit of information regarding our TTV protagonists:

Company founder Eugene Yu alleged that people working with True the Vote took possession of Konnech data concerning the identities of poll workers throughout the United States, that they are “engaged in an attack against Konnech,” claiming the company and its president are Chinese operatives working for the Chinese Communist Party to interfere with U.S. elections.

In a preliminary injunction order signed Monday by U.S. District Judge Kenneth Hoyt of the Southern District of Texas, the court recognized Yu and his family have been personally threatened, and statements of intent by True the Vote to release confidential data would destroy public trust in government entities and trust between those entities and Konnech.

The defendants were enjoined from making any use of data in their possession and ordered to return it.

This was happening on the same day that Engelbrecht and Phillips were tossed in jail for contempt of court. I’d like to specify exactly what they were ordered to do and not to do, as taken from the linked opinion:

Therefore, it is ORDERED that a preliminary Injunction issues, ENJOINING the defendants, their agents and assigns:

(i) from accessing or attempting to access Konnech’s protected computers;

(ii) from using, disclosing, or exploiting the property and data downloaded from Konnech’s protected computers; and further, they are;

(iii) ordered to identify each individual and/or organization involved in accessing Konnech’s protected computers;

(iv) ordered to return to Konnech all property and data obtained from Konnech’s protected computers, whether original, duplicated, computerized, handwritten, or any other form, whatsoever obtained from any source;

(v) ordered to preserve, and not to delete, destroy, conceal or otherwise alter, any files or other data obtained from Konnech’s protected computers;

(vi) ordered to confidentially disclose to Konnech how, when, and by whom Konnech’s protected computers were accessed; and

(vii) ordered to identify all persons and/or entities, in defendants’ knowledge, who have had possession, custody or control of any information or data from Konnech’s protected computers.

Yeah, that doesn’t look good for our, um, heroes. Maybe the longer they sit in their cells, the longer they can put off the seemingly inevitable butt-kicking that awaits them at the end of these proceedings. Doesn’t seem like a great plan, but it may be the best they can do. Poor babies.

John Scott keeps wanting to have it both ways

You’re kind of close to getting it, John. You do need to do better, though.

Speaking in July to a group of concerned conservative voters in Dallas, Texas Secretary of State John Scott declared that Texas elections were the nation’s most secure.

But just a few minutes earlier, he was joking with the crowd about a Texas county with more voters than residents, rumors of dead men voting and stories of electioneering dating back to Lyndon B. Johnson’s 1948 senatorial campaign.

“Cheating is not something that’s isolated to Democrats or Republicans,” Scott said to members of the Dallas Jewish Conservatives that summer evening. “People have been cheating in elections for as long as there’s been elections. The trick is to try and catch them.”

Then, Scott fielded questions from the group who expressed serious skepticism about the legitimacy of the 2020 presidential election results. Over the next hour and a half, Scott batted down disproven claims of widespread fraud and, in one instance, briefly defended himself from insinuations that he too was part of the anti-democratic scheme that audience members were convinced was happening in real time.

The evening was in many ways emblematic of Scott’s tenure as the state’s chief elections officer, marked by occasional mixed messages in an effort to build trust in an election system without alienating a base of voters who increasingly view election denialism as a party platform.

[…]

In an interview last week, Scott expressed some regret about his choice of words when talking to the Dallas Jewish Conservatives group earlier this year. But Scott said he has not spread election misinformation, whether that night or throughout his yearlong tenure. Rather, he said, he has sought to meet people where they are as a means of gaining trust and assuage their concerns through transparency.

“Am I probably more flippant than most? Yes,” he said. “Are there better public speakers? I’m sure there probably are. Are there better messengers? Yeah, I’m sure there’s better messengers. But I don’t know that there’s a better way to convey a message to someone that may not necessarily be open to your message other than being a little understanding of, potentially, how they got where they are.”

Over the course of his tenure, Scott has repeatedly insisted that Joe Biden is the rightful president and that Texas’ elections are and have been free, fair and secure.

“Our elections are more accessible and safer than they’ve ever been,” he told The Texas Tribune last week.

At the same time, Scott has on occasion given oxygen to the very misinformation that he now battles full time, including through his office’s audits of elections in four of the state’s largest — and mostly Democratic-leaning — counties. Those audits are rooted in false claims that the 2020 election was stolen, and have yet to produce any evidence of serious fraud. Yet Scott has continued to justify the reviews by saying they will provide transparency and assuage the concerns of those who’ve bought in to disproven conspiracy theories.

Voting rights groups see it otherwise and fear his pronouncements on election integrity are too little, too late. They say Scott’s ties to myth-spreading Republican leaders — and his willingness to go along with audits — have needlessly injected more doubt into an already skeptical electorate ahead of a consequential midterm election. And they worry that Scott has helped lay the groundwork for a new round of even stricter voting rules — enhancements of laws that have already disenfranchised many Texans.

“He’s supposed to act as an arbiter of truth when it comes to elections,” said Alice Huling, senior legal counsel for voting rights at the Campaign Legal Center, a watchdog nonprofit founded by the former Republican chair of the Federal Election Commission that has previously sued Scott’s office over voting laws.

Huling said election officials across the country need to be much more vocal in denouncing those in their own party who have spread misinformation.

“It is not sufficient to just throw your hands up and say, ‘I’m not pushing conspiracy theories,’” she said.

It’s like I was saying. I like making jokes as much as anyone, but sometimes they’re just inappropriate. And while Scott might claim that his jokes were bipartisan in nature – the aforementioned “county with more voters than people” is the famously Republican Loving County – unless he spelled it out very clearly it’s likely that his audience took it as further evidence of rampant cheating by Democrats. Being extremely consistent in delivering the message that elections are handled with care and integrity around the country, not just in Texas, is what is needed now.

And the problem isn’t just misplaced humor, either:

But voting rights groups say Scott should have better used the bully pulpit of his office to push against those doing the duping. They say that Scott’s proximity to prominent election-deniers has made it difficult to trust what he says — and has created ambiguity that fuels fraud myths.

For example: At the July event with the Dallas Jewish Conservatives, much of the conversation centered around “2000 Mules,” a widely debunked propaganda film by longtime GOP political operative Dinesh D’Souza that alleges there was serious fraud at drop-off ballot locations in 2020. The film has been promoted by top Texas Republicans, including Agriculture Commissioner Sid Miller, Lt. Gov. Dan Patrick and Attorney General Ken Paxton’s office, which oversees the exceedingly rare number of voter fraud prosecutions in the state. At the event, Scott spoke alongside Texas Sen. Bryan Hughes, R-Mineola, who also represented Trump and has been a key driver of more restrictive voting laws.

While Scott did note that the premise of the film was not applicable to Texas because the state does not use drop-off balloting, he did not reject D’Souza’s debunked theory outright.

“It’s really amazing,” Scott said of the film, which he said he had recently watched. “You get an enormous amount of information … and I guess it’s scary, right? It leaves you a little angry, a little scared that that’s going on.”

Scott has since explained those comments: “My point is that none of that stuff took place in Texas,” he said last month. “I didn’t do a great deal of research on what happened in other states. So I don’t know if voter fraud was widespread or not.”

[…]

Some of the harassment has been directed at Scott, too. In an interview last month with Texas Monthly, Scott again proclaimed that the 2020 election was not stolen and disputed the findings of “2000 Mules.” His office was immediately inundated by angry voters, some of them threatening.

“You little RINO piece of shit,” one man said in a voicemail that Scott’s office provided to the Tribune. “We want everyone in this country to see what you goddamn bastards did to this country. … There’s a reason Trump reinstituted capital punishment as hanging and firing squads.”

Scott said he’s been surprised by the vitriol that’s been flung at his office and other county elections administrators over the last year.

“I think there’s a group of people that make a living off of spreading misinformation,” Scott said last week. “I think that there are some people that are absolutely mentally disturbed out there, and this gives them a purpose.”

He added that the issue didn’t emerge overnight or even in the past year — it has been “getting more and more aggravated, probably over the last six years.”

“I probably was informed enough to know that it was not necessarily going to be a clover patch here. But I don’t know that I was fully anticipating as much venom,” he said.

I mean, this is “the dog ate my homework”-level excuse-making, plus a feigned innocence that just beggars belief. If you have to be told to stay away from widely-debunked propaganda, and even worse fail to understand why it’s propaganda, then you really are completely unqualified for this job. You just can’t be trusted. I don’t know what else to say.

Univision: Abbott 46, Beto 42

Another registered voters poll, with a supersample of Latino respondents.

Republican Governor Greg Abbott leads Beto O’Rourke in the Texas governors’ race by more than four points, even though the Democrat has more support among Latinos and Blacks.

The increase in the cost of living dominates the concerns of registered voters in Texas for the November 8 elections and is emerging as a decisive factor, according to a survey by Univision News and the Lyndon B. Johnson School of Public Affairs of the University of Texas.

Half of the 1,400 respondents – including Hispanics, Whites and African-Americans – considered inflation to be the biggest problem facing the administration and the new Congress that will emerge from the elections to be held in two weeks time.

[…]

Overall, Latinos in Texas represent about 25% of the state’s registered voters and lean towards the Democratic Party candidates. White voters remain the majority and are more likely to be Republican.

This is clearly seen in the gubernatorial race. Some 58% of Latinos and 70% of African-Americans say they will vote, or are inclined to vote, for O’Rourke. Meanwhile, Abbott, the current governor, has the support of 63% of White voters, giving him a four-point overall lead (46% – 42%).

The same goes for polling in the congressional election in November which could redraw the balance of power at the federal level. Although the preference of Latinos and African-Americans on the performance of the current Congress largely favors Democratic Party candidates, Republicans have the overall advantage.

While 55% of Latinos and 75% of African Americans say they will vote for Democratic candidates for the House of Representatives, only 25% of Whites say they will do the same, and 63% will vote for Republican candidates. That gives Republicans a seven-point advantage (47% vs. 40%) in overall voter intention in the state.

President Joe Biden’s popularity isn’t helping Democratic Party candidates. The weakness in the economy is due to many factors – the hangover from the pandemic and the war in Ukraine, among others – but historically voters always blame the incumbents.

Overall, 55% of registered Texas voters have a poor image of Biden, while 40% view him favorably. Among Latinos the numbers are reversed (40% – 55%), but the percentage who view him “very favorably” (26%) is nearly equal to those who view him “very unfavorably” (24%).

This is a trend that Univision News polling has observed since the beginning of the year.

Donald Trump, meanwhile, has a 49% favorability rating among registered voters in Texas. It is much lower among Latinos, at 34%.

Crosstabs are available here. They also did a poll of Nevada, which I didn’t look at. The last Univision poll I blogged about was from late October 2020, in which they had Trump up by a 49-46 margin. Trump actually won by five and a half points, 52.0 to 46.5, so while they were a bit off it’s pretty close.

There are two main takeaways from this poll for me. One is that it is further evidence of a significant split between “likely voter” (and “Extra Supersized Likely Voter”) polls and simple “Registered Voter” polls, following on the heels of the Beacon poll, the Marist poll, and the LV-screened UT/TPP poll. Maybe we will find that the LV screens were off, maybe we will find that a lot of voters who said they preferred Dems didn’t vote, maybe we won’t know what difference it made. The point here is that whatever we think, we should acknowledge that these differences in approach are yielding differences in result. We don’t know yet if one is superior to the other. Maybe the final totals will end up in the middle. This is a weird year with a lot of uncertainty. It’s foolish to put all your chips on one particular outcome.

The other is that as was the case in 2020, we are getting very different signals about how Latinos will vote across the polls. This poll, which has Beto carrying Latinos by a 58-28 margin, is the best result for him we have seen. Like the Telemundo poll, this one has an actual survey-sized sample of Latinos, with a standard-sized margin of error, which ought to make it more accurate. That said, they were too rosy on Democratic prospects for Latinos in 2020, and their story makes it clear that Republicans have an edge on at least the economy right now, so who knows what could happen. I am trying to stay hopeful without being a chump.

One last point is that both Abbott and The Former Guy are in positive approval territory, while Beto and Biden are negative. Given that, the closeness of this poll is remarkable. That also may be an indicator of a difference in voter enthusiasm, which would be in Republicans’ favor. Just noting it for the record.

State Bar complaint against Ted Cruz was dismissed

This story ran a few days ago.

Not Ted Cruz

A lawyer group that brought ethics complaints against Trump attorneys is trying to make it tougher for lawyers to use the legal system to overturn elections.

The group, called the 65 Project, aims to change bar rules of professional conduct in 50 states and the District of Columbia to eliminate “fraudulent and malicious lawsuits” against fair election results.

“Lawyers purport to be self-regulatory and special stewards of the rule of law,” Paul Rosenzweig, a group advisory board member, told reporters Wednesday. “They failed in that responsibility” with the 2020 election.

The effort is a new front in the group’s self-described battle to protect democracy from abuse of the legal system. 65 Project has already filed 55 state bar ethics complaints against lawyers for former President Donald Trump over their efforts to overturn the results of the 2020 election.

The group’s targets have included former Foley & Lardner partner Cleta Mitchell, Sen. Ted Cruz (R-Texas) and lawyers Joseph diGenova and Boris Epshteyn.

Part of 65 Project’s new effort includes proposing rules to prevent attorneys in public office from violating attorney standards by amplifying false statements about elections.

The group is focusing initially on about a dozen states, including Ohio, Wisconsin, Texas, and Pennsylvania, and DC, said Michael Teter, a former Utah assistant attorney general who is Project 65’s managing director.

See here for the background. The Bloomberg Law story says that all of the 65 Project’s complaints are active, but that is not accurate. According to the DMN, which I was able to quickly peruse before the paywall came up, the complaint was dismissed by the State Bar of Texas on June 13, a few weeks after it was filed. The reason, as noted in the sub-head of the story, is that the State Bar said they lacked oversight since Cruz was acting as a Senator and not a lawyer; their dismissal letter didn’t address the merits of the complaint. A minor consolation, that. We are still waiting for a ruling in the complaint against Ken Paxton; a ruling by a different judge in the case against Paxton deputy Brent Webster does not bode well for the complainants, but I suppose it’s not over till it’s over. There’s still a possible appeal of that ruling, which as far as I know has not yet been filed. I fear all of them will get away with it, which is too depressing to contemplate. We’ll know soon enough.

You can be gay, you just can’t act gay

So rules a notoriously anti-gay Trump judge, narrowing a SCOTUS ruling from just two years ago at the behest of the usual suspect.

A federal judge has ruled that Biden administration guidelines requiring employers to provide protections for LGBTQ employees go too far, in a win for Texas Attorney General Ken Paxton, who brought suit against the rules last fall.

The rules were first issued after the landmark ruling in Bostock v. Clayton County in 2020, in which the Supreme Court ruled that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, sex or religion, includes protection for gay and transgender people.

In 2021, the Biden administration released guidance around the ruling, noting that disallowing transgender employees to dress and use pronouns and bathrooms consistent with their gender identity constituted sex discrimination.

Judge Matthew Kacsmaryk, a Donald Trump-appointed U.S. district court judge for the Northern District of Texas, found that Title VII prohibits employment discrimination against an individual for being gay or transgender, “but not necessarily all correlated conduct,” including use of pronouns, dress and bathrooms.

Earlier this year, after Paxton issued a nonbinding legal opinion that gender-affirming medical care for transgender minors could be considered child abuse, Health and Human Services Secretary Xavier Becerra released additional guidance that federally funded agencies can’t restrict people from accessing “medically necessary care, including gender-affirming care, from their health care provider solely on the basis of their sex assigned at birth or gender identity.” Kacsmaryk also ruled to vacate that guidance.

[…]

Kacsmaryk is himself known for his opposition to expanding or protecting LGBTQ rights. Before being nominated to the bench, Kacsmaryk was the deputy general counsel for the First Liberty Institute, a conservative legal organization focused on religious liberty cases. In a 2015 article arguing against the Equality Act, Kacsmaryk wrote that the proposed legislation that would prohibit discrimination based on sex, sexual orientation or gender identity would “punish dissenters, giving no quarter to Americans who continue to believe that marriage and sexual relations are reserved to the union of one man and one woman.”

In a 2015 article for the National Catholic Register titled “The Abolition of Man … and Woman,” Kacsmaryk called the term gender identity “problematic” and wrote that, “The campaigns for same-sex ‘marriage’ and ‘sexual orientation’ and ‘gender identity’ (SOGI) legislation share a common legal theory: Rules predicated on the sexual difference and complementarity of man and woman are relics of a benighted legal regime designed to harm ‘LGBT’ persons, or at least deny them ‘full equality.’”

I wonder sometimes how Ken Paxton would do if instead of being able to pick his judges he always had to argue his cases in front of a judge that, you know, ruled on the law and the merits of the case rather than on what they felt like. Probably would have a lower batting average, I’m thinking. Anyway, that ruling was 6-3, with Gorsuch the author and Roberts joining him and the (at the time) four liberals. That means that five judges who ruled for the plaintiffs are still there. It’s certainly possible, maybe even likely, that the Biden administration read that ruling in as expansive a manner as they thought they could, and as such they could have overstepped what SCOTUS had in mind. I suppose we’ll get to find out, once the Fifth Circuit does its duty of upholding the ruling. We know that in general this SCOTUS doesn’t give a crap about precedent, but maybe they’ll feel differently when it’s their own precedent.