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Justice Department

Lock Louie up

He believes he committed at least one federal crime. Who are we to disbelieve him?

U.S. Rep. Louie Gohmert was one of a handful of Republicans in Congress who asked former President Donald Trump for a pardon after the Jan. 6 attack on the Capitol, according to testimony shown by the House committee investigating the insurrection.

Witnesses told the committee that the president had considered offering pardons to several individuals, said U.S. Rep. Adam Kinzinger, a Republican on the committee.

Cassidy Hutchison, who served as an aide to former White House Chief of Staff Mark Meadows said in recorded testimony shown Thursday that the Tyler Republican was one of the members who had sought a pardon. Others included U.S. Reps. Matt Gaetz of Florida, Mo Brooks of Alabama, Andy Biggs of Arizona and Scott Perry of Pennsylvania.

“The only reason I know to ask for a pardon is because you think you’ve committed a crime,” Kinzinger said.

Gohmert did not immediately respond to a request for comment.

What could he possibly say? His actions speak for themselves. Over to you, Justice Department.

DPS pins the blame on Arredondo

Look out for that bus!

Department of Public Safety Director Steve McCraw told a state Senate committee Tuesday that the law enforcement response to the Uvalde school shooting was an “abject failure” and police could have stopped the shooter at Robb Elementary School three minutes after arriving were it not for the indecisiveness of the on-scene commander, who placed the lives of officers before those of children.

McCraw said the inexplicable conduct by Uvalde school district police Chief Pete Arredondo was antithetical to two decades of police training since the Columbine High School massacre, which dictates that officers confront active shooters as quickly as possible.

“The officers had weapons; the children had none,” McCraw said. “The officers had body armor; the children had none. The officers had training; the subject had none. One hour, 14 minutes and 8 seconds. That’s how long children waited, and the teachers waited, in Room 111 to be rescued.”

The revelations detailed by McCraw completed a remarkable shift in the police response narrative state officials have given since the May 24 shooting. Twenty-seven days after Gov. Greg Abbott said the shooting “could have been worse” but for officers who showed “amazing courage by running toward gunfire,” his state police director described stunning police incompetence that bordered on cowardice.

[…]

McCraw said though the state police are a far larger agency than the six-person Uvalde Consolidated Independent School District department, Arredondo was the rightful incident commander because he was the most senior first responder who had immediate jurisdiction over the district’s campuses. He said Arredondo could have transferred command to another agency, such as state troopers who arrived, but never did so.

Acting against the orders of an incident commander during an emergency can be dangerous and chaotic, McCraw said, responding to a question about why his troopers did not take charge. But he said the failure of one police agency means all law enforcement performed unacceptably that day.

The story notes the comparison of what Arredondo had said to more recent reporting; you can also see a list of places where the two accounts differ in this subsequent Trib story. One almost feels a little sorry for Arredondo. The main question I have at this point is what if anything are we going to do about this? Forget about adopting any kind of gun safety measures, which Greg Abbott will not do, are we interested in any laws that might prevent, or at least disincentivize, police behavior like what we got in Uvalde when the next mass shooting (whether at a school or not) occurs? One possibility I can think of that also will never pass through a Republican legislative chamber is to dial back qualified immunity for law enforcement officers, at least in this kind of circumstance. If the next Pete Arredondo has to worry about getting his ass sued for taking no action at the next gun massacre, maybe he’ll be more inclined towards action. Whether that might end up as a net positive or not, I can’t say. But it’s at least something we could talk about doing, rather than just talk. And someone else, maybe even someone with actual expertise in the matter, may have better ideas. Reform Austin and the Chron have more.

What were Uvalde police actually doing at Robb Elementary?

I’ll say it again: The more we learn about the law enforcement response to the Uvalde massacre, the worse it looks.

Surveillance footage shows that police never tried to open a door to two classrooms at Robb Elementary School in Uvalde in the 77 minutes between the time a gunman entered the rooms and massacred 21 people and officers finally breached the door and killed him, according to a law enforcement source close to the investigation.

Investigators believe the 18-year-old gunman who killed 19 children and two teachers at the school on May 24 could not have locked the door to the connected classrooms from the inside, according to the source.

All classroom doors at Robb Elementary are designed to lock automatically when they close and can only be locked or unlocked from the outside with a key, the source said. Police might have assumed the door was locked. Yet the surveillance footage suggests gunman Salvador Ramos, 18, was able to open the door to classroom 111 and enter with assault-style rifle — perhaps because the door malfunctioned, the source said.

Another door led to classroom 112.

Ramos entered Robb Elementary at 11:33 a.m. that day through an exterior door that a teacher had pulled shut but that didn’t lock automatically as it was supposed to, indicating another malfunction in door locks at the school.

Police finally breached the door to classroom 111 and killed Ramos at 12:50 p.m. Whether the door was unlocked the entire time remains under investigation.

Regardless, officers had access the entire time to a “halligan” — a crowbar-like tool that could have opened the door to the classrooms even if it was locked, the source said.

[…]

Days after the massacre, Col. Steven McCraw, director of the Texas Department of Public Safety, said at a news conference that “each door can lock from the inside” and that when Ramos went in, “he locked the door.” That information was preliminary, the source said, and further investigation has yielded new revelations about the door.

That’s the last paragraph of the story, which was published on Saturday with a note at the end that it’s developing and will be updated. Late yesterday, the Trib published this:

For this article, the Tribune reviewed a timeline of events compiled by law enforcement, plus surveillance footage and transcripts of radio traffic and phone calls from the day of the shooting. The details were confirmed by a senior official at the Department of Public Safety. The investigation is still in the early stages, and the understanding of what happened could still change as video records are synched and enhanced. But current records and footage show a well-equipped group of local officers entered the school almost immediately that day and then pulled back once the shooter began firing from inside the classroom. Then they waited for more than an hour to reengage.

“They had the tools,” said Terry Nichols, a former Seguin police chief and active-shooter expert. “Tactically, there’s lots of different ways you could tackle this. … But it takes someone in charge, in front, making and executing decisions, and that simply did not happen.”

Here are some key findings from these records and materials:

  • No security footage from inside the school showed police officers attempting to open the doors to classrooms 111 and 112, which were connected by an adjoining door. Arredondo told the Tribune that he tried to open one door and another group of officers tried to open another, but that the door was reinforced and impenetrable. Those attempts were not caught in the footage reviewed by the Tribune. Some law enforcement officials are skeptical that the doors were ever locked.
  • Within the first minutes of the law enforcement response, an officer said the Halligan (a firefighting tool that is also sometimes spelled hooligan) was on site. It wasn’t brought into the school until an hour after the first officers entered the building. Authorities didn’t use it and instead waited for keys.
  • Officers had access to four ballistic shields inside the school during the standoff with the gunman, according to a law enforcement transcript. The first arrived 58 minutes before officers stormed the classrooms. The last arrived 30 minutes before.
  • Multiple Department of Public Safety officers — up to eight, at one point — entered the building at various times while the shooter was holed up. Many quickly left to pursue other duties, including evacuating children, after seeing the number of officers already there. At least one of the officers expressed confusion and frustration about why the officers weren’t breaching the classroom, but was told that no order to do so had been given.
  • At least some officers on the scene seemed to believe that Arredondo was in charge inside the school, and at times Arredondo seemed to be issuing orders such as directing officers to evacuate students from other classrooms. That contradicts Arredondo’s assertion that he did not believe he was running the law enforcement response. Arredondo’s lawyer, George E. Hyde, did not respond to requests for comment Monday.

You can read the rest and get mad all over again. It seems clear why there’s such a wave of resistance to releasing official information about what happened in Uvalde. We can at least be glad that there are plenty of people who will leak info to the press, because otherwise we’d still be talking about what a bunch of damn heroes these guys were supposed to have been.

There’s a lot of resistance to releasing information about Uvalde

Wow.

The City of Uvalde and its police department are working with a private law firm to prevent the release of nearly any record related to the mass shooting at Robb Elementary School in which 19 children and two teachers died, according to a letter obtained by Motherboard in response to a series of public information requests we made. The public records Uvalde is trying to suppress include body camera footage, photos, 911 calls, emails, text messages, criminal records, and more.

“The City has not voluntarily released any information to a member of the public,” the city’s lawyer, Cynthia Trevino, who works for the private law firm Denton Navarro Rocha Bernal & Zech, wrote in a letter to Texas Attorney General Ken Paxton. The city wrote the letter asking Paxton for a determination about what information it is required to release to the public, which is standard practice in Texas. Paxton’s office will eventually rule which of the city’s arguments have merit and will determine which, if any, public records it is required to release.

The letter makes clear, however, that the city and its police department want to be exempted from releasing a wide variety of records in part because it is being sued, in part because some of the records could include “highly embarrassing information,” in part because some of the information is “not of legitimate concern to the public,” in part because the information could reveal “methods, techniques, and strategies for preventing and predicting crime,” in part because some of the information may cause or may “regard … emotional/mental distress,” and in part because its response to the shooting is being investigated by the Texas Rangers, the FBI, and the Uvalde County District Attorney.

The letter explains that Uvalde has at least one in-house attorney (whose communications it is trying to prevent from public release), and yet, it is using outside private counsel to deal with a matter of extreme importance and public interest. Uvalde’s city government and its police department did not immediately respond to a request for comment from Motherboard.

The city says that it has received 148 separate public records requests (including several from Motherboard), and has lumped all of them together, making a broad legal argument as to why it should not be required to respond to many of them. Earlier this week, Motherboard reported on a similar letter sent to Paxton by the Texas Department of Public Safety, which wanted to suppress body-camera footage because it could expose “weaknesses” in police response to crimes that criminals could exploit. (The main seeming weakness in the Uvalde response was that police, in violation of standard policy and protocol, refused to risk their lives to protect children.)

For example, the city and its police department argue that it should be exempted from releasing “police officer training guides, policy and procedure manuals, shift change schedules, security details, and blueprints of secured facilities,” because these could be used to decipher “methods, techniques, and strategies for preventing and predicting crime.”

That argument sound familiar, doesn’t it? Gosh, I wonder what Ken Paxton will say. Also, it would be good to know how much the city of Uvalde is paying for those outside attorneys.

Here’s more on the same topic:

In the past week, Texas Gov. Greg Abbott has joined the growing list of state and local officials fighting the release of records that could help bring clarity to how the emergency response unfolded during last month’s deadly shooting in Uvalde.

The governor’s office strayed from that broader opposition Monday, granting a request under the Texas Public Information Act from a Houston television station that sought the handwritten notes he used when he first spoke publicly about the shooting. The notes appear to support Abbott’s claim that he was misled when he initially praised law enforcement efforts during the mass shooting that resulted in the deaths of 19 children and two educators and left many more injured.

The recent release by Abbott underscores both the tremendous power government officials have to decide what is in the public interest and the unwillingness to release records that could call their agencies’ actions into question.

ProPublica and The Texas Tribune have submitted about 70 public information requests that could help answer larger questions as state and local leaders continue to offer conflicting accounts about why law enforcement did not confront the gunman sooner during the May 24 massacre. Those requests include 911 audio recordings, body and police car camera footage, and communications among local, state and federal agencies. The newsrooms also requested use-of-force documents, death records and ballistic reports.

Three weeks after the shooting, government officials have not provided the news organizations a single record related to the emergency response.

[…]

Abbott’s office, the Texas Department of Public Safety, the U.S. Marshals Service and the city of Uvalde are asking the state’s attorney general for permission to withhold records that may offer tangible answers to the contradictory accounts. (Under Texas law, agencies seeking to avoid disclosure of public records typically must make their case to the attorney general.) Other government entities have asked the state for extensions as they decide whether to fight such disclosures. News organizations across the country are reporting similar responses.

Among the arguments provided by government entities for withholding such documents is one from DPS stating that releasing records like footage from body cameras would provide criminals with “invaluable information” about its investigative techniques, information sharing and criminal analysis.

In most cases, however, the agencies argue that releasing such information could interfere with ongoing law enforcement investigations by the federal government and the Texas Rangers, an arm of DPS now tasked with investigating its own department. In a statement, Abbott’s office said that, upon completion of the investigations, “we look forward to the full results being shared with the victims’ families and the public, who deserve the full truth of what happened that tragic day.”

But timely disclosure of the records is paramount given the lack of transparency and contradictory accounts from state and local officials, three Texas Public Information Act experts told ProPublica and the Tribune.

Laura Prather, a First Amendment attorney in Texas, said the reason the state allows agencies to withhold information when it is part of an ongoing investigation is to protect someone who was accused of a crime but didn’t ultimately get convicted, “not to protect law enforcement for their actions in circumstances like this, where the shooter is dead.”

“The public has the right to know what happened that day, and right now they can only act on rumors and conflicting information,” said Prather, who is representing ProPublica in an unrelated defamation lawsuit. She said law enforcement must be transparent in order to earn the public’s trust, but agencies are instead using their discretionary powers “to thwart the public from getting information that they are rightly entitled to.”

Because state law allows government officials to withhold information in cases that don’t result in a conviction, it creates a loophole that lets governments deny records in cases where the offender was killed and will not be tried.

That results in a challenge for members of the public seeking records related to Uvalde because “either way, there is a statutory basis for these governmental bodies to seek to withhold information,” said Jim Hemphill, an attorney who serves on the board of the Texas Freedom of Information Foundation.

We’ve heard about the “dead suspect” loophole before. I have a modicum of sympathy for withholding some information during an active criminal investigation, but here we already know who did it and there won’t ever be a criminal trial, at least not for him. Especially given the sheer amount of contradictory information that has been out there, we really deserve a lot of timely disclosure.

House Speaker Dade Phelan has talked about addressing that loophole in the next legislative session. Maybe there are some other items for them to address as well.

Members of the Uvalde Police Department are refusing to cooperate with a Texas House committee probing the law enforcement response to the Robb Elementary School shooting, the Express-News reports.

In comments Thursday, Committee Chairman Dustin Burrows — a Republican state rep from Lubbock — said Uvalde school district police department personnel were providing testimony to the three-member panel, according to the daily.

“There is a question mark, however, about the Uvalde Police Department itself, about whether or not they will visit with us voluntarily,” the lawmaker added. “We’ll see if they do that.”

The committee is in Uvalde for two days to hear closed-door testimony about the May 24 mass shooting that left 19 children and two teachers dead. Even if Uvalde police officers don’t voluntarily testify, the committee has the power to issue subpoenas, the Express-News reports.

You have the power to compel their cooperation, or at least to make it a lot more painful to not cooperate. I’m just saying.

What was DPS doing during the Uvalde massacre?

Not much, it would seem.

As many as 13 troopers with the Texas Department of Public Safety waited in a hallway at one point during a gunman’s rampage that killed 19 children and two teachers at Robb Elementary School in Uvalde last month, state Sen. Roland Gutierrez said.

Gutierrez, a San Antonio Democrat whose district encompasses Uvalde, said DPS Director Steven McCraw revealed the number of responding state troopers to him in a recent exchange.

“He told me there was enough people and equipment to breach the door,” Gutierrez said, even as officers continued to wait for more than an hour and some of the children inside the two locked classrooms called 911 for help.

In previous statements, McCraw has said that as many as 19 officers from various law enforcement agencies waited outside the classrooms. DPS has not publicly clarified the extent to which it was involved in the widely criticized police response to the May 24 mass shooting.

[…]

At a news conference last month, McCraw described Pedro “Pete” Arredondo, chief of police for the Uvalde school district, as the on-scene commander. He said that after Arredondo arrived at the school, he instructed other officers not to force entry into the locked classrooms until they could acquire more equipment, such as ballistic shields.

Gutierrez said he spoke May 28 with McCraw, who was in tears. McCraw told Gutierrez that day that DPS would never again “stand down,” the lawmaker told the San Antonio Express-News.

In another exchange June 2, McCraw told Gutierrez that as many as 13 DPS troopers had massed in the hallway outside the classrooms at one point — waiting to make entry even as the massacre unfolded.

[…]

The district attorney for Uvalde, Christina Mitchell Busbee, is leading a criminal investigation into the shooting. The Texas Rangers, with assistance from the FBI, are investigating the police response.

Separately, the Justice Department is conducting a “critical incident review” of the police response. And a three-member legislative committee appointed by House Speaker Dade Phelan is investigating the massacre.

Gutierrez wants more answers now.

“We’re supposed to be the big bad-ass cops in the region,” Gutierrez said of the DPS troopers. “What happened here? Where were they situated in that building, and what time did they get there? When it came to protecting our children, we failed.”

Yeah, lots of investigations of this massive tragedy – perhaps this explains why the local cops quit cooperating the DPS’ own investigation, or why Uvalde schools top cop Pete Arredondo sounds so defensive. Maybe we need all these investigations now because clearly no one wants to have ownership of any of this. Which, given what a massive clusterfuck it appears to have been, I can understand. But man, everything about this just keeps getting worse and more infuriating. I’m with Scott Braddock:

To put this another way:

Gutierrez questioned why state troopers on the scene would automatically defer to a school district officer with no radios.

“Why weren’t the decisions made by the most superior police force on-site?” he asked. “How then did everybody just jump on and make (Arredondo) the incident commander? If he never had a radio, then how did he make himself the incident commander? It just doesn’t follow.”

At the news conference last month, McCraw told reporters that police in Texas are trained not to wait for orders to neutralize an active shooter.

“When there’s an active shooter, the rules change,” McCraw said. “You don’t have time. You don’t have to have a leader on the scene. Every officer lines up, stacks up, goes and finds where those rounds are being fired at and keeps shooting until the subject is dead. Period.”

Law enforcement sources told the Express-News that four Border Patrol agents and two sheriff’s deputies made entry into the classrooms and killed Ramos.

Gutierrez said officers in the hallway at one point had as many as three ballistic shields before finally breaching the door to the classrooms. Once they did, nearly two dozen people inside were dead.

“There was enough material in that room to stop this threat,” he said. “And it didn’t happen.”

There were an awful lot of good guys with guns (and vests and helmet and shields) at Robb Elementary School. They amounted to exactly zero when it came to stopping one guy from killing almost two dozen people, almost all children. That is a goddamn disgrace.

Two redistricting lawsuit updates

Legislators involved in the most recent redistricting effort can be made to sit for depositions.

The Supreme Court refused Tuesday to block the deposition of Texas lawmakers in redistricting suits.

Mum as to whether there were any dissents, the order from the justices keeps in place a lower court ruling that will force Republican lawmakers to appear for depositions in suits claiming that Texas’ redistricting plans are discriminatory. Per their custom, the justices also did not offer any explanation for their ruling.

The United States subpoenaed three Texas lawmakers at the beginning of the month to testify in a challenge to the state’s 2021 congressional and state House redistricting plans. The Department of Justice and voting rights groups claim the new maps violate Section 2 of the Voting Rights Act by intentionally discriminating against minority voters in West Texas and the Dallas-Fort Worth area.

Representatives Ryan Guillen, Brooks Landgraf and John Lujan tried to limit their testimony to matters in the public record, but a federal judge denied their motion and their attempt to block the testimony altogether. Likewise the Fifth Circuit refused to enter a stay pending appeal that would block their testimony.

In their application to the high court, Texas lawmakers claim they have the privilege and immunity to avoid testifying in the suits.

“The legislators’ depositions will probe the very innerworkings of the legislative process, examining the legislators’ thoughts, impressions, and motivations for their legislative acts,” wrote Taylor A.R. Meehan, an attorney with Consovoy McCarthy representing the lawmakers.

He also warned that lawmakers would have to answer questions in full the “proverbial ‘cat is out of the bag.’ And the twin safeguards of legislative immunity and privilege — older than the country itself — are no safeguards at all.”

The Justice Department said the depositions were routine.

“Courts, including this Court, often rely on such testimony both in assessing the motive and justification for districting choices and in considering the ‘totality of circumstances’ relevant to minority voters’ electoral opportunities, as the VRA directs,” Solicitor General Elizabeth Prelogar wrote in the government’s opposition brief.

The government notes that Lujan has a particularly weak claim to legislative privilege since he was not in the Legislature when the redistricting plans were passed.

“Representative John Lujan, does not have even an arguable claim of legislative privilege with respect to the challenged districting plans because he was not in the legislature when the plans were passed — a critical fact that applicants do not mention,” Prelogar wrote.

This is from the LULAC lawsuit, which is now consolidated with most of the other federal lawsuits. The order is from a couple of weeks ago, as the depositions were set to begin the week of May 24. SCOTUS just never took up the defendants’ motion, so they did not get an order to protect them from being deposed. This is not going to change the overall trajectory of the litigation, but it ought to lead to some interesting facts for the eventual hearings. Lujan as noted was not a legislator when the maps were passed in the special session, so who knows what he thinks he has to keep quiet about, while Guillen was still a Democrat when this was all happening. Should make for some fun questions, if nothing else.

The other federal lawsuit, which was not combined with the LULAC et al complaint, is the one filed by the Justice Department. That one survived a motion to dismiss:

A federal judge has ruled that U.S. Attorney General Merrick Garland can proceed with voting and civil rights claims against Texas over a state law passed last year to address purported voter fraud.

State officials had asked U.S. District Court Judge Xavier Rodriguez to dismiss the case, arguing that federal officials did not have standing to sue them. They argued that local election officials — not state ones — were charged with implementing the new law.

The George W. Bush appointee disagreed in an order Tuesday, finding the U.S. attorney general has “broad constitutional power to protect the right to vote” and is “congressionally authorized” to go after voting rights violations.

The federal government had a “significant stake” in protecting “the general welfare of its citizenry,” Rodriguez wrote. He found the U.S. government had plausibly alleged that Texas law would “disenfranchise eligible Texas citizens who seek to exercise their vote,” including those with disabilities, limited knowledge of English and “members of the military deployed away from home.”

[…]

In November, the U.S. attorney general’s office intervened, expressing an interest the [LULAC et al consolidated] case and urging Rodriguez not to dismiss the claims. Voting lawsuits brought by private groups were necessary, the filing argued, due to the “limited federal resources available for Voting Rights Act enforcement” and because states with histories of voter restrictions no longer had to seek federal preclearance for voting changes following the 2013 U.S. Supreme Court decision in Shelby County v. Holder.

Later that month, the AG’s office also filed suit against the Lone Star State. In a strongly worded complaint, federal officials argued that Texas already had some of the “strictest [voting] limitations in the nation” and that SB1 would “impermissibly” restrict and disenfranchise voters.

Texas’s “history of official voting-related discrimination against its disfavored citizens is longstanding and well-documented,” the complaint said. “Federal intervention has been necessary to eliminate numerous devices intentionally used to restrict minority voting in Texas.”

This lengthy and complex legal battle, involving a variety of parties, led up to Tuesday’s order. Over the months, Texas officials have tried numerous avenues to dismiss the case.

Among other things, state officials zeroed in on the state’s new voter ID and mail-in ballot requirements. Because the state allows voters to “cure” their ballots, they argued, the law did not deny the right to vote.

Rodriguez rejected this argument and others, writing that a voter’s opportunity to cure their ballot “does not necessarily mean” that SB 1 did not violate the Civil Rights Act. The law does not allow state officials to “initially deny the right to vote…as long as they institute cure processes,” he wrote. Instead, it bars these actions altogether.

He also found that, while local elections officials may be in charge of implementing the law, SB 1 was in fact “traceable” to state officials, and therefore they could be sued. Since the law has so far been in effect for the state’s primary elections, the U.S. government had also alleged an injury, he found.

Rather than issuing an injunction preventing enforcement of parts of SB 1, Rodriguez’s order instead simply allows the U.S. government to continue with its lawsuit. It remains to be seen how the case will play out, including whether controversial aspects of SB 1 will remain in effect for the 2022 midterm elections later this year.

There’s a long road ahead for this litigation, and at the end awaits a US Supreme Court that is extremely hostile to voting rights. But you have to start somewhere, and who knows, maybe the landscape will change by that time.

Uvalde’s police chief speaks

I’ll reserve judgment for now.

Only a locked classroom door stood between Pete Arredondo and a chance to bring down the gunman. It was sturdily built with a steel jamb, impossible to kick in.

He wanted a key. One goddamn key and he could get through that door to the kids and the teachers. The killer was armed with an AR-15. Arredondo thought he could shoot the gunman himself or at least draw fire while another officer shot back. Without body armor, he assumed he might die.

“The only thing that was important to me at this time was to save as many teachers and children as possible,” Arredondo said.

The chief of police for the Uvalde school district spent more than an hour in the hallway of Robb Elementary School. He called for tactical gear, a sniper and keys to get inside, holding back from the doors for 40 minutes to avoid provoking sprays of gunfire. When keys arrived, he tried dozens of them, but one by one they failed to work.

“Each time I tried a key I was just praying,” Arredondo said. Finally, 77 minutes after the massacre began, officers were able to unlock the door and fatally shoot the gunman.

In his first extended comments since the May 24 massacre, the deadliest school shooting in Texas history, Arredondo gave The Texas Tribune an account of what he did inside the school during the attack. He answered questions via a phone interview and in statements provided through his lawyer, George E. Hyde.

Aside from the Texas Department of Public Safety, which did not respond to requests for comment for this article, Arredondo is the only other law enforcement official to publicly tell his account of the police response to the shooting.

Arredondo, 50, insists he took the steps he thought would best protect lives at his hometown school, one he had attended himself as a boy.

“My mind was to get there as fast as possible, eliminate any threats, and protect the students and staff,” Arredondo said. He noted that some 500 students from the school were safely evacuated during the crisis.

Arredondo’s decisions — like those of other law enforcement agencies that responded to the massacre that left 21 dead — are under intense scrutiny as federal and state officials try to decide what went wrong and what might be learned.

Whether the inability of police to quickly enter the classroom prevented the 21 victims — 19 students and two educators — from getting life-saving care is not known, and may never be. There’s evidence, including the fact that a teacher died while being transported to the hospital, that suggests taking down the shooter faster might have made a difference. On the other hand, many of the victims likely died instantly. A pediatrician who attended to the victims described small bodies “pulverized” and “decapitated.” Some children were identifiable only by their clothes and shoes.

In the maelstrom of anguish, outrage and second-guessing that immediately followed the second deadliest school shooting in American history, the time Arredondo and other officers spent outside that door — more than an hour — have become emblems of failure.

As head of the six-member police force responsible for keeping Uvalde schools safe, Arredondo has been singled out for much of the blame, particularly by state officials. They criticized him for failing to take control of the police response and said he made the “wrong decision” that delayed officers from entering the classroom.

Arredondo has faced death threats. News crews have camped outside his home, forcing him to go into hiding. He’s been called cowardly and incompetent.

Neither accusation is true or fair, he says.

“Not a single responding officer ever hesitated, even for a moment, to put themselves at risk to save the children,” Arredondo said. “We responded to the information that we had and had to adjust to whatever we faced. Our objective was to save as many lives as we could, and the extraction of the students from the classrooms by all that were involved saved over 500 of our Uvalde students and teachers before we gained access to the shooter and eliminated the threat.”

Arredondo’s explanations don’t fully address all the questions that have been raised. The Tribune spoke to seven law enforcement experts about Arredondo’s description of the police response. All but one said that serious lapses in judgment occurred.

Most strikingly, they said, by running into the school with no key and no radios and failing to take charge of the situation, the chief appears to have contributed to a chaotic approach in which officers deployed inappropriate tactics, adopted a defensive posture, failed to coordinate their actions, and wasted precious time as students and teachers remained trapped in two classrooms with a gunman who continued to fire his rifle.

Hyde, Arredondo’s lawyer, said those criticisms don’t reflect the realities police face when they’re under fire and trying to save lives. Uvalde is a small working-class city of about 15,000 west of San Antonio. Its small band of school police officers doesn’t have the staffing, equipment, training, or experience with mass violence that larger cities might.

That right there would seem to be a pretty damn good argument for trying to limit the availability of at least the kind of guns that can do the kind of damage described here. Surely even a Ted Cruz would have to admit that a teacher with a Glock is not going to be as effective as a professional police officer in this kind of situation, and if the cops themselves say they’re not up to the task, who are we to say otherwise?

Anyway, you can read the rest – it’s a long story – or you can read this “five takeaways” piece about the interview if you want more of a summary. I’ll wait to see what the Justice Department says – I suspect they will have some points of disagreement with Chief Arredondo. Reform Austin has more.

Justice Department starts its review of the Uvalde law enforcement response

We’ll see what they turn up.

U.S. Attorney General Merrick Garland said Wednesday that the Department of Justice’s investigation into the law enforcement response to the elementary school shooting in Uvalde won’t be criminal in nature.

Garland described the federal investigation as a “critical incident review,” which was done after other mass shootings such as in San Bernardino, California, and Orlando, Florida. The review will assess the law enforcement response and “give guidance for the future,” Garland said. The department will then produce a public report, which will include the investigation’s findings and recommendations.

“Nothing that these [investigators] can do can undo the terrible tragedy that occurred, and that we are just heartbroken about,” Garland said Wednesday. “But we can assess what happened and we can make recommendations for the future.”

Garland said the team reviewing the law enforcement response will conduct site visits to the school and interviews with witnesses, families, law enforcement officers and school officials.

He said that his department expects full cooperation from all law enforcement officers involved in the response to the shooting. Authorities have been criticized in the days after the massacre over their decision to wait over an hour before entering the school and confronting the shooter.

“We have been promised, assured and welcomed with respect to cooperation by every level of law enforcement: state, federal and local,” Garland said. “We will participate in that vein and we don’t expect any problems.”

See here for the background. Per Texas Public Radio, there’s no official timetable for this process, but they intend to move “as expeditiously as possible”. Uvalde law enforcement has stopped cooperating with DPS in the state’s investigation, so we’ll see if the feds have more luck. Maybe some subpoenas will be needed, but let’s hope not. As I said, I don’t expect much out of this, but if we learn more about what actually happened with how local law enforcement responded and why it went so very wrong, that’s enough of a reason to do this. The Chron has more.

The entire law enforcement response in Uvalde is messed up

What is going on here?

The official response to the mass shooting at an Uvalde elementary school — a response already marred by shifting narratives, finger-pointing and a general lack of timely and accurate information — took a further turn toward dysfunction on Tuesday.

The Texas Department of Public Safety said Uvalde school district’s police chief Pete Arredondo, who made the decision to wait for more resources rather than confront the gunman sooner, has stopped cooperating with state investigators and had not responded to requests for information for over two days. Arredondo contests the claim.

And the agency walked back an assertion that a teacher at Robb Elementary School propped open a back door prior to the shooting, allowing the gunman to enter and kill 19 students and two teachers. Earlier Tuesday the teacher’s lawyer had pushed back on the state’s account.

Texas Rangers investigating the response to the shooting want to continue talking to Arredondo, but he hasn’t answered a request made two days ago for a follow-up interview, according to two DPS spokespeople. The Uvalde Consolidated Independent School District’s police department and the Uvalde Police Department have otherwise been cooperating with the Rangers’ investigation, DPS spokesperson Travis Considine said.

Arredondo did not return a call requesting comment. He told CNN in a brief interview that he is speaking “every day” with DPS investigators but declined to further discuss the shooting.

“I’ve been on the phone with them every day,” Arredondo said.

Amid the turmoil, Texas’ largest police union — the Combined Law Enforcement Associations of Texas, or CLEAT — urged its members Tuesday in a statement to “cooperate fully” with investigations into the police response to the Uvalde massacre — though they didn’t name Arredondo.

Both the police chief and the school teacher had been implicated by DPS officials as, in effect, having failed at their jobs. The change in narrative is likely to deepen the mistrust surrounding the investigation. Already, as in other mass shootings, conspiracy theories and misinformation have begun to proliferate online.

While the U.S. Department of Justice has agreed to review the response to the mass shooting, the ultimate responsibility for carrying out a credible, thorough and transparent investigation rests with the state — and so far, state officials have not offered much confidence in their abilities to carry out such a probe.

[…]

CLEAT, the police union, blamed state officials Tuesday for “a great deal of false and misleading information in the aftermath of this tragedy,” some of which “came from the very highest levels of government and law enforcement.”

“Sources that Texans once saw as iron-clad and completely reliable have now been proven false,” the union said in a statement.

Not much confidence indeed. It’s one thing for there to have been confusion and conflicting or missing information in the immediate aftermath of the murders. We’re more than a week out now, and it’s hard to understand why DPS and the locals aren’t on the same page. If they are unable to communicate or don’t trust each other, it speaks poorly of them all.

And where is Greg Abbott in all of this? He expressed anger after hearing about the botched local PD response, of which he had initially been “misinformed”. Does he have anything left in the tank for this? This is his law enforcement agency, and his hand-picked henchman in charge of it, that are out there stepping on rakes. Is that a problem, or is he going to do his usual thing of refusing to answer any questions about it until the press gets tired and moves on to something else? It’s nice that the Justice Department will do a review, but what happens if Uvalde police don’t want to cooperate with that? Who exactly is in charge here? The Chron, Daily Kos, and Reform Austin have more.

Justice Department to review what happened with Uvalde police

Okay.

The U.S. Department of Justice will review the law enforcement’s response to the Uvalde school massacre as local police face intense scrutiny for not acting quickly enough to confront the shooter.

“The goal of the review is to provide an independent account of law enforcement actions and responses that day, and to identify lessons learned and best practices to help first responders prepare for and respond to active shooter events,” Anthony Coley, a spokesperson for the U.S. Justice Department, wrote in a statement Sunday.

Uvalde mayor Don McLaughlin requested the Justice Department investigation, Coley said.

Police officers made a crucial error in waiting to stop the 18-year-old gunman rampaging at Robb Elementary School because the school district’s chief of police wanted to wait for backup and equipment, said Steven McCraw, director of the Texas Department of Public Safety. Meanwhile, students were still trapped inside with the gunman, repeatedly calling 911 for help.

By the time a specialized team of federal officers arrived and entered the school, more than an hour had passed since the shooter had arrived at the school, McCraw said.

“From the benefit of hindsight, where I’m sitting now, of course it was not the right decision,” McCraw said. “It was the wrong decision, period. There’s no excuse for that.”

Since the shooting, state law enforcement officials have given vague and conflicting answers on what exactly happened after the gunman arrived at the school. In the days after the massacre at Robb Elementary School in Uvalde, officials with the Texas Department of Public Safety said the shooter was met by a police officer employed by the school district — and gave conflicting accounts about whether the officer fired at the gunman.

See here for some background. We may at least get some more honest and accurate answers about what happened and why the Uvalde police acted as they did. That’s nice, but I doubt it moves the ball forward for anything else. I’m always in favor of getting the facts right, I’m just trying to maintain perspective on this. It’s good on its own terms, just don’t expect more.

For example:

The Texas Senate Democratic Caucus is urging Gov. Greg Abbott to call an emergency special legislative session to consider a variety of gun restrictions and safety measures in the wake of a mass school shooting in Uvalde that left 19 children and two adults dead this week.

In a letter released Saturday morning, all 13 Senate Democrats demanded lawmakers pass legislation that raises the minimum age to purchase a firearm from 18 to 21 years old. The Uvalde gunman was 18 and had purchased two AR-style rifles which he used in the attack.

The caucus is also calling for universal background checks for all firearm sales, “red flag” laws that allow a judge to temporarily remove firearms from people who are considered an imminent threat to themselves or others, a “cooling off period” for the purchase of a firearm and regulations on high capacity magazines for citizens.

[…]

Such laws are unlikely to gain traction in the Republican-controlled Legislature, which has a track record of favoring legislation that loosens gun restrictions. Only the governor has the power to call lawmakers back into a special session for emergency work.

Asked about a special session at a Friday press conference in Uvalde, Abbott said “all options are on the table” adding that he believed laws would ultimately be passed to address this week’s horrors. However, he suggested laws would be more tailored toward addressing mental health, rather than gun control.

“You can expect robust discussion and my hope is laws are passed, that I will sign, addressing health care in this state,” he said, “That status quo is unacceptable. This crime is unacceptable. We’re not going to be here and do nothing about it.”

Making things worse is always an option. The palaver about “addressing mental health” is as useless and empty as “thoughts and prayers”, since Abbott has said the same thing after each of the previous two mass shootings at schools that have happened during his reign, and all he has done in reality is cut funding for mental health care. Also, too, for the 597th time, the single biggest and best thing the state could do to improve mental health care in Texas is expand Medicaid, and we all know that ain’t happening as long as Abbott and his minions are in charge. Texas Public Radio has more.

Is there any chance the GLO won’t screw Houston this time around?

I mean, maybe. Things can happen. I just wouldn’t count on it.

Mayor Sylvester Turner on Wednesday commended the U.S. Department of Housing and Urban Development for ordering Texas to fix a Hurricane Harvey recovery plan that the federal agency concluded “disproportionately harmed Black and Hispanic residents.”

HUD told the state’s General Land Office in the letter, dated Monday, it had 10 calendar days to become compliant by coming to a resolution. The federal department had found GLO discriminated against minority residents when it denied flood mitigation aid last May to the areas hardest hit by Hurricane Harvey.

To date, Houston has not received any funds, Turner said, “despite the city and the county incurring 50 percent of the damages from Harvey.”

“This is a step in the right direction. I appreciate HUD for ordering the GLO to bring its Hurricane Harvey Recovery Plan into compliance within ten days, or HUD will refer the matter to the U.S. Department of Justice,” Turner said in a statement. “This is about equity and fairness. It is time for the GLO to allocate a fair (or proportional) share of the federal funds to allow our communities to have adequate climate change mitigation and resilience resources. I urge the GLO to do the right thing for our most vulnerable communities.”

See here for the background. I use the embedded GIF in these posts as a reminder to everyone, including Chron editorial writers, that what the GLO has been doing isn’t “bungling”, it isn’t “a mistake”, it isn’t a matter of the GLO “getting its act together”. It’s all been a deliberate choice by the GLO, which knows what it’s doing and why it’s doing it. The solution to that isn’t trying to get them to see the error of their ways, it’s to take the job away from them because they don’t have any interest in doing it correctly.

Along those lines, this is the right attitude to adopt.

“We intended for the people who were suffering to get the money. But if you decide that you’re going to take it from the poor and the people of color and send it to areas where you don’t have a lot of people of color, then I think there’s reason for HUD to continue with this and I think HUD will,” said [US Rep. Al] Green. “That money was not sent to Texas so that it could be distributed to people who were not impacted by the hurricane.”

[…]

Green says he has talked to the General Land Office. And he’s held hearings where GLO representatives testified.

The Democrat says problems arise after the federal government sends money to the states, because once distributed, the states ultimately decide how it’s spent. And he says Texas has had problems in the past with diverting federal funds away from the intended purpose.

“And this is not just peculiar to this circumstance. It’s happened with money that was for education, not spent as we assumed it would be,” he said.

Green says lawmakers and HUD are waiting to see specific guidelines for the next round of funding distribution. He says it is possible for HUD to step in and take action against the state.

Meantime, the Houston Democrat says he’s looking into ways to “overhaul” the system. And he says lawmakers will consider adding a “clawback provision” to any future legislation.

“If a state declines to adhere to the intentionality of Congress, we can claw that back, claw the funds back and hold onto those funds. We should not allow states to receive funds and then disregard what Congress intended,” Green said.

That’s at least providing the proper incentives. We’ll see what happens next.

The editorial notes that bypassing the GLO and allocating the federal funds directly to the affected localities is an option and that the city is prepared for it, but that the city’s past track record with distributing Harvey funds isn’t good, either. That was the GLO’s rationale for stepping in as the middleman, though the city claims it was existing GLO bureaucracy that caused their problems in the first place. Be that as it may, I’d rather take my chances with the city than the GLO because at least I know the city will try to do right by Harvey victims. I can’t say that for the GLO, not as it is currently governed. Give me a different Land Commissioner and then we can talk, though really it would be nice to have made more progress by then. The bottom line is, George P. Bush cannot be trusted with this. Once that is accepted as the reality, we can figure out what the best way forward is.

GLO prepares to screw Houston again on Harvey recovery funds

Gird yourselves.

Of the more than 300,000 homes in Texas damaged by Hurricane Harvey in 2017, none were in Coryell County.

Located 220 miles from the Gulf of Mexico, this small agricultural county was not the place Congress had in mind when it sent Texas more than $4 billion in disaster preparedness money six months following the storm, said U.S. Rep. Al Green, D-Houston.

“We wanted to help people who were hurt by Harvey and had the potential to be hurt again, as opposed to people who were inland and not likely to have suffered great damage,” Green said.

Nevertheless, Coryell is slated to receive $3.4 million under the plan by the Texas General Land Office and its commissioner, George P. Bush.

After the land office awarded $1 billion of the aid last year, giving the city of Houston nothing, the federal Department of Housing and Urban Development accused Bush’s office of discriminating against Black and Latino Texans. The land office had an opportunity to correct these inequities as it developed a new spending plan.

But an analysis by The Texas Tribune found that the land office is on track to follow a similar pattern as it prepares to allocate the next $1.2 billion of the federal aid. The agency’s revised plan will once again send a disproportionately high share of money to inland counties with lower risk of natural disasters.

Residents in the counties that will benefit most are also significantly whiter and more conservative than those receiving the least aid, an outcome some Democrats view with suspicion as Bush competes for the Republican nomination for attorney general this month.

[…]

John Henneberger, co-director of the low-income housing advocate Texas Housers, whose complaint set off the federal investigation, said the land office is failing to meet the most basic requirement for the money: to spend disaster aid in the areas at highest risk for disasters.

“Why does some community 200 miles from the coast get a new water system when you’ve got neighborhoods that have flooded four or five times in the last decade in a coastal community?” Henneberger said. “It’s a very cynical — and we think illegal — use of the funds.”

Numerous studies have shown poor people and people of color are most likely to be impacted by disasters, said Kevin Smiley, a professor of sociology at Louisiana State University. Planning for future calamities should address that disparity rather than make it worse, he added.

“It’s weird to think about disasters as one of the fundamental mechanisms widening social disparity in the United States, but they are,” said Smiley, whose research focuses on Harvey recovery efforts. “And it’s through nitty-gritty governmental processes that are disbursing mitigation funds that are partly doing it.”

See here for the previous update. The key thing to understand here is that this is not a mistake, it’s not an accident, it’s not the result of a good faith difference of opinion, and it’s not something that can be corrected by reasoned persuasion. It’s a deliberate choice, one that has now been made multiple times. Unfortunately, this time around they had a little help.

The land office’s new proposal for determining which counties would get funding, submitted in August, eliminated its old scoring metrics and instead opted to give $1.2 billion to nine regional councils of government, which would decide how to spend it within the HUD and state counties. These groups are political subdivisions of the state that help plan regional projects like infrastructure.

The land office argued the revisions would allow aid distribution to be tailored more closely to regions’ different mitigation needs. But although the strategy is different, a Tribune analysis of the plan found a fundamentally similar result: far lower spending per capita in the counties with the highest disaster risk.

The funding has not yet been allocated, but the state’s methodology all but guarantees the less disaster-prone counties selected by Bush would still end up with two to four times more funding per resident than the more coastal counties chosen by HUD.

This is because a sizable chunk of the councils of government’s $1.2 billion will flow inland. Even if the land office spent all of it in HUD counties — the plan only requires the councils to spend half their allotment there — it would still not close the per-person spending gap created by the initial funding competition.

Including the awards from the first funding competition, two councils composed of state-picked inland counties that rank no higher than 66th on the disaster index will end up with $752 per resident under the new plan.

The council which includes Jefferson, Orange and Hardin counties — HUD-selected counties on or near the coast that rank in the top 8 for disaster risk — will receive $441 per resident.

When federal investigators reviewed the original plan, these kinds of outcomes were a problem. HUD’s fair housing office on March 4 concluded that the initial scoring competition discriminated against Texans on the basis of race and national origin, since the coastal areas it steered aid away from have high concentrations of nonwhite residents.

Of the nine states that received disaster mitigation funding from the same federal appropriation, only Texas has received such a sanction. HUD gave the state two options: Enter into a voluntary agreement to correct the disparity or face a civil rights lawsuit from the Department of Justice.

And then, two weeks later, HUD approved the Bush team’s new spending plan.

In a letter to the land office on March 18, HUD Office of Block Grant Assistance Director Jessie Handforth Kome said the agency was required to approve the new plan because it was “substantially complete.” She warned, however, that HUD would closely monitor how Texas spends the rest of the aid and could address new violations by requiring the state to give money back.

The advocacy groups who pushed HUD to investigate possible discriminiation were shocked. They felt the best strategy would have been to withhold approval of the plan until Texas had demonstrated future aid distribution would be fair to Black and Latino residents in communities most at risk for disasters.

“HUD is making this harder on themselves,” said Maddie Sloan, an attorney who works on disaster recovery issues for public interest nonprofit Texas Appleseed. “It would make much more sense to ensure the money gets where it’s needed in the first place instead of doing a retroactive look at where it went and whether that violates the law.”

The mixed messaging from HUD, however, creates the impression that Texas can simply ignore the agency’s discrimination claims and spend the aid as it sees fit.

The land office has since shown few signs it is open to compromise. In a blistering 12-page letter in April responding to the discrimination findings, attorneys for the agency called HUD’s objections “politically motivated” and “factually and legally baseless” and noted that HUD had approved the state’s plan for distributing the money.

How thoroughly HUD may vet the new land office plan is unclear. If investigators apply the same rigor they did to the original, said Texas Housers Research Director Ben Martin, they will likely conclude it also violates federal civil rights laws.

“The jurisdictions that were hardest hit by Hurricane Harvey remain the jurisdictions at the highest risk of future disaster,” Martin said. “They’re being severely underfunded by GLO.”

I don’t understand what HUD is doing either. At this point, it may be best to bring on the civil rights lawsuit. And vote in a Land Commissioner that won’t do this sort of thing again.

Federal lawsuit filed over Abbott’s border arrest fiasco

Meant to post this last week.

Three private defense attorneys, representing 15 migrant men arrested under Gov. Greg Abbott’s border operation, have filed a federal lawsuit seeking to end the governor’s policy of arresting migrants on criminal trespass charges, which the suit argues is racially discriminatory and infringes on the federal government’s immigration authority.

The lawsuit is the first to challenge Abbott’s Operation Lone Star in federal court, though defense attorneys have raised similar arguments in ongoing state litigation. The federal suit, filed Wednesday in the Austin-based U.S. District Court for the Western District of Texas, asks the court to scrap the governor’s border initiative altogether and order the release of migrants arrested under what it calls a “separate criminal prosecution and detention system.”

“The criminal process is rife with civil rights violations that have led to extreme, outrageous delays in cases that often end in dismissal or non-prosecution,” the lawsuit states, alleging state authorities filed “fraudulent probable cause affidavits,” failed to appoint attorneys for some defendants, and waited too long to file charges for numerous migrants.

Under orders from Abbott, state troopers and National Guard troops have arrested more than 3,000 migrant men since last July for allegedly trespassing on private property along the border. The operation has allowed Texas officials to jail migrants without running afoul of legal precedent that largely prevents states from enforcing federal immigration law.

The federal suit argues, however, that the entire program — including the trespass arrests — is “intended to rival or supplant federal immigration policy” and “interferes with federal enforcement priorities.” It argues that while the Biden administration has ordered immigration authorities to prioritize the most serious offenders, such as those with violent criminal history, Operation Lone Star “targets any and all suspected aliens without regard to dangerousness.”

Defense attorneys have used a similar argument in a pending state lawsuit that seeks to dismiss the cases of more than 400 migrants arrested under Texas’ border initiative. That lawsuit is modeled after an earlier case in which a Travis County judge tossed the trespass charge against Jesús Alberto Guzmán Curipoma, an engineer from Ecuador who was arrested in September.

Curipoma and his attorneys, Angelica Cogliano and Addy Miro, are also part of the federal lawsuit filed Wednesday.

[…]

The federal lawsuit further alleges that migrants are routinely arrested under Operation Lone Star without probable cause, in violation of the Fourth Amendment, and based on their perceived ethnicity and immigration status, resulting in “systemic discrimination.” The attorneys cited arrest affidavits filed by Department of Public Safety troopers that refer to detainees as Spanish or Hispanic and undocumented, or reference their country of origin.

Such statements “suggested that the individual’s perceived ethnicity was relevant to the DPS trooper’s understanding that that person was not welcome on the property,” the lawsuit reads.

The suit seeks monetary damages of $18,000 for each day that migrants were “unlawfully incarcerated or unlawfully re-incarcerated,” amounting to $5.4 million.

Much of the language from the lawsuit mirrors that of a complaint filed by civil rights groups with the U.S. Department of Justice last December, in which the groups urged the Biden administration to investigate Operation Lone Star. The Justice Department has yet to step in against Abbott’s initiative.

Meant to include this in that big roundup of border and legal stories, but I just missed it. My bad and my apologies. I don’t have anything to add other than I’m rooting for these plaintiffs and I’d like to see the Justice Department get off its ass and address that complaint from December.

Biden administration to appeal airplane mask mandate order

Good.

U.S. President Joe Biden’s administration said on Tuesday it would appeal a judge’s ruling ending a mask mandate on airplanes if public health officials deem it necessary to stem the spread of COVID-19.

The Centers for Disease Control and Prevention, to whom the administration was deferring, said that it would continue to study whether the mandates were still needed. The mandates apply to planes, trains and other public transportation and, prior to Monday’s ruling, had been due to expire on May 3.

“We will continue to assess the need for a mask requirement in those settings, based on several factors, including the U.S. COVID-19 community levels, risk of circulating and novel variants, and trends in cases and disease severity,” a CDC spokesperson said in a statement on Tuesday.

The Justice Department said it would appeal Monday’s ruling by U.S. District Judge Kathryn Kimball Mizelle that the 14-month-old directive was unlawful, if the CDC determined the mandate was needed to protect public health.

See here for the background. For what it’s worth, the public still supports masking on airplanes. Airlines and their employees have not been very fond of it, which is understandable given the amount of petulance and rage they have had to deal with from unhinged mask-haters. Maybe they shouldn’t be so quick to let any of those folks back on board, but that’s just my opinion. It’s true that airplanes have excellent filtration and ventilation, which make them pretty safe from a COVID transmission perspective, though not entirely. And getting on and off the airplane, not to mention being in the airport, is much riskier. Masking up is still your best bet. Slate and Vox have more.

Second lawsuit filed over Galveston redistricting

Similar grounds, different plaintiffs.

Commissioner Stephen Holmes

A coalition of civil rights groups in Texas filed a federal lawsuit Thursday against Galveston County, alleging that the county’s redistricting plan intentionally discriminates against a growing minority population in the Gulf Coast community.

The complaint, shared first with CNN, marks the second lawsuit that seeks to overturn maps approved by the Republican majority on the county’s governing body. Last month, the Justice Department filed a federal lawsuit against the county on similar grounds — in a redistricting dispute that has garnered national attention.

The new lawsuit — brought by the Texas Civil Rights Project and the Southern Coalition for Social Justice on behalf of local branches of the NAACP and the Galveston League of United Latin American Citizens Council 151 — alleges that the new map diminishes the voting power of Black and Hispanic voters by splitting up the only majority-minority precinct.

The new map endangers the reelection of Stephen Holmes, the county’s only Black commissioner, who has served on the board for 22 years. Holmes is next on the ballot in 2024.

The lawsuit alleges the Republicans majority pushed through a “racially discriminatory map” that “largely took place behind closed doors.”

Sarah Chen, an attorney with the Texas Civil Rights Project, called the map — and the process used by the Republican majority in the county to approve it — “egregious examples of people in power … exercising that power to dilute the votes of racial minorities.”

[…]

Both this lawsuit and the complaint by the Justice Department underscore the difficult legal terrain that voting rights advocates now face in challenging alleged discriminatory maps. This cycle marks the first round of redistricting since the US Supreme Court in 2013 gutted the so-called preclearance provision of the 1965 Voting Rights Act.

That provision required states with a history of discrimination to first obtain the permission of the federal government or the courts before enacting new laws related to voting.

With those powers gone, the Justice Department’s lawsuit relies largely on another section of the federal voting rights law, Section 2, which puts the burden on the federal government to prove its case.

The lawsuit filed Thursday cites Section 2, but also argues that map violates the constitutional rights of Black and Latino voters to equal protection of the law.

Chen said civil rights groups are looking for “different pathways” in voting rights cases “because victory is never assured.”

See here and here for the background, and here for a copy of the complaint. The Texas Civil Rights Project, which is co-counsel along with the Southern Coalition for Social Justice, has a tweet thread about this as well. I haven’t read through the two of them so I can’t say where they are specifically similar and different, but the coverage suggests they have overlap. It won’t surprise me if these two lawsuits are eventually combined. I remain less than confident that the plaintiffs will get the relief they seek given the hostility the federal courts have shown towards voting rights in recent years, but I will say that I’m old enough to remember a day when a white majority reducing the political power of communities of color for the reasons of “because we can, that’s why” was considered to be in poor taste. I feel like we should try to return to those days, but what do I know? Daily Kos has more.

Feds warn about lawsuits to come over anti-trans legislation

Bring it.

The Department of Justice is warning states like Texas that policies meant to block transgender children from receiving gender-affirming care violate their constitutional rights.

“Intentionally erecting discriminatory barriers to prevent individuals from receiving gender-affirming care implicates a number of federal legal guarantees,” DOJ officials wrote in a letter sent Thursday to state attorney generals.

The letter comes after Texas Attorney General Ken Paxton authored a nonbinding legal opinion that some gender-affirming care may constitute child abuse and Gov. Greg Abbott ordered the state’s child welfare agency to investigate parents who get such care for their children.

[…]

The DOJ says additional lawsuits may follow.

“State laws and policies that prevent parents or guardians from following the advice of a health care professional regarding what may be medically necessary or otherwise appropriate care for transgender minors may infringe on rights protected by both the equal protection and the due process clauses of the Fourteenth Amendment,” said the DOJ letter, which was sent on Trans Day of Visibility.

Not much to add here. I don’t have a whole lot of faith in the courts, but I also don’t know what else there is to be done right now. A better Senate is really what’s needed to move the ball forward, and the odds of that happening in this election aren’t great. But again, what else is there to be done? The 19th has more.

The dark side of redistricting litigation

The state of Texas is taking a big swing in defense of its gerrymanders, and if they connect it’s going to be devastating.

Beyond the immediate legal fight over whether Texas lawmakers again discriminated against voters of color when drawing new political districts, a quieter war is being waged that could dramatically constrict voting rights protections nationwide for years to come.

For decades, redistricting in Texas has tracked a familiar rhythm — new maps are followed by claims of discrimination and lawsuits asking federal courts to step in. Over the years, Texas lawmakers have repeatedly been ordered to correct gerrymandering that suppressed the political power of Black and Hispanic voters.

The pathway to federal court has been through the Voting Rights Act. Key portions of the landmark law have been weakened in the last decade, but Texans of color still find a way to file lawsuits under its Section 2, which prohibits discriminatory voting procedures and practices that deny voters of color an equal opportunity to participate in elections.

Those protections are the vehicle being used by voters and various civil rights groups to challenge political maps for Congress and the state legislature drawn by Texas Republicans in 2021 to account for population growth. In what promises to be a protracted court fight, Texas will defend itself against accusations that it discriminated — in some cases intentionally — against voters of color.

But tucked into the legal briefs the state has filed with a three-judge panel considering the redistricting lawsuits are two arguments that reach far beyond the validity of the specific maps being challenged.

First, the Texas attorney general’s office is arguing that private individuals — like the average voters and civil rights groups now suing the state — don’t have standing to bring lawsuits under Section 2. That would leave only the U.S. Department of Justice to pursue alleged violations of the act, putting enforcement in the hands of the political party in power.

Second, the state argues that Section 2 does not apply to redistricting issues at all.

Should either argument prevail — which would almost certainly require it to be embraced by a conservative U.S. Supreme Court that has already struck down other portions of the law — the courthouse door will be slammed shut on many future lawsuits over discriminatory map-drawing and voting practices.

“Fundamentally, this Supreme Court thinks we are past the time in which we need the Voting Rights Act, so of course if you’re a state like Texas, you’re going to bring every argument that’s ever been made to challenge the constitutionality of the rest of it,” said Franita Tolson, a vice dean and law professor at the University of Southern California Gould School of Law.

[…]

The turnover at the Supreme Court has cracked the door for “audacious attacks on Section 2,” that would have “never had a chance” under previous iterations of the court, said Rick Hasen, a law professor at the University of California, Irvine who specializes in voting law. Texas is trying to push the door wide open.

In legal briefs, Texas’ argument that Section 2 does not apply to redistricting relies almost exclusively on a series of comments in opinions by Justice Clarence Thomas, who has plainly endorsed the idea in cases dating back to 1994. Justice Neil Gorsuch, a Trump appointee who joined the court in 2017, echoed the view in one of Thomas’ recent opinions.

In a recent case over Arizona voting laws, Thomas and Gorsuch also joined an opinion indicating they agreed with the argument Texas is offering now that private individuals cannot sue to enforce the Voting Rights Act.

The fallout if the Supreme Court agreed with the state on either argument would be radical, upending long established procedures for litigating claims of discrimination in voting and redistricting, and making it harder to enforce what has endured as the chief federal protection for voters of color in a post-preclearance world.

Covering its bets, the state is also pressing a backup argument — that even if individual voters are allowed to sue under Section 2, organizations that serve voters of color cannot bring claims on their behalf. That could knock out of the box groups like the NAACP and LULAC who may have more resources and membership across the state to prop up the complex challenges.

If affirmed by the court, that prospect would put even more pressure on private individuals to protect themselves from alleged discrimination by the state, said Noor Taj, a lawyer with the Southern Coalition for Social Justice who is representing various civil rights and community groups that serve Texans of color, particularly Asian Texans, in a lawsuit against the maps.

“It’s either taking their rights altogether or increasing the burden,” Taj said. “Both ends of that are problematic and incorrect.”

If the high court ultimately decides redistricting lawsuits simply aren’t allowed under Section 2, the recourse left for Texans of color to challenge political maps would be litigation under the U.S. Constitution’s broader promise of equal protection.

That would require challengers to show lawmakers intentionally discriminated against them — “which is the hardest case to win, particularly before a Supreme Court,” said Nina Perales, the vice president of litigation at the Mexican American Legal Defense and Educational Fund.

The state’s efforts to overturn protections for voters of color is ironic given its long history of violating the same law it is now looking to gut, said Perales, who is suing the state over its latest maps on behalf of a group of individual voters and organizations that represent Latinos.

“Since the beginning of the modern era of decennial redistricting, Texas has been found liable for violating the voting rights of Latinos in every single cycle,” Perales said.

The more “aggressive attacks” on Section 2 have come as it’s getting harder for Republicans to comply with the law while preserving their power, Hasen said.

If you can’t comply with the law but you have the power to change it so that you don’t have to, well, it’s obvious what you’ll do. The state’s arguments have not gained any purchase with the three-judge panel at the district court level, but we know where it goes from there. The Democrats would like to do something at the national level about this, but as long as Joe Manchin and Kyrsten Sinema are deciding votes, they don’t actually have the power. (Beating Ken Paxton this fall would also help, but this argument is going to get before SCOTUS one way or another eventually regardless.) And so we get to watch this play out like a slow-motion train wreck, and we’re all standing close enough to it to be collateral damage. Isn’t that nice?

Justice Department sues over Galveston County Commissioners Court map

Good, but remember how the federal courts are these days before getting too optimistic.

Commissioner Stephen Holmes

The Department of Justice on Thursday sued Galveston County over its new redistricting map, accusing Republican county officials of violating the Voting Rights Act last year when they carved up their Commissioners Court precincts into four majority-white districts.

The redrawn map dismantles the precinct represented by Commissioner Stephen Holmes, the only Democrat and minority member of the court, all but ensuring his defeat in 2024 if the map remains intact.

Under the new layout, Republicans are poised to gain a 5-0 majority on the governing body for Galveston County, where 38 percent of voters cast their ballots for Democrat Joe Biden.

In a 25-page complaint filed in the U.S. District Court for the Southern District of Texas, Justice Department officials alleged that Galveston County’s freshly drawn boundaries dilute the voting strength of Black and Hispanic voters, denying them “an equal opportunity to participate in the political process.” The lawsuit accuses the county of violating Section 2 of the Voting Rights Act, which broadly bars racially discriminatory voting practices, including those that minimize the voting strength of racial minority groups.

In asking the court to toss the precincts for “any future elections” — and order the county to redraw a map “that complies with Section 2 of the Voting Rights Act” — the Justice Department also cited Galveston County’s history of drawing federal scrutiny over redistricting. In 2012, federal officials struck down the county’s commissioner, constable and justice-of-the-peace maps, finding that they ran afoul of the Voting Rights Act by diminishing the power of minority voters.

“Over the course of the past three decades, Galveston County has sought to eliminate electoral opportunities for the County’s Black and Hispanic voters,” the lawsuit reads. “The County has a long history of adopting discriminatory redistricting plans.”

[…]

Commissioners Court approved the latest boundaries in November, uprooting Holmes’ Precinct 3 from parts of the county he had represented since being appointed to the court in 1999. While the district had previously cut through the middle of Galveston County, covering an area where the majority of eligible voters were Black and Hispanic, it is now consolidated in the largely white and Republican northwest corner of the county, taking in Friendswood and League City.

Holmes has said he expects to be replaced by a white candidate, given that only about a quarter of the eligible voters in his new precinct are minorities.

“Even though Galveston County is 45 percent minority, every single member of the Galveston County Commissioners Court, under the new map, is going to be Anglo,” Holmes said in an interview last November. “Minorities would not be represented by, or have the opportunity to elect, the candidate of their choice.”

See here for the background, and here for a copy of the complaint. The story notes the 2012 redistricting in Galveston that was blocked for being discriminatory, and also notes that that happened back when we still had preclearance. We don’t have that, and we do have a Supreme Court that is increasingly aggressive in allowing all kinds of radical Republican redistricting maps to stand, so like I said, I’m not optimistic. But what else are you gonna do? Reform Austin has more.

HUD approves updated GLO proposal for Harris County

Interesting, but there are still a lot of moving pieces out there.

The U.S. Department of Housing and Urban Development on Friday said it would accept the Texas General Land Office’s proposal to give Harris County $750 million in federal flood mitigation money, 10 months after Houston and the county were shut out of a state competition for post-Harvey disaster funding approved by Congress.

The announcement does not amount to an approval of the GLO’s overall plan for distributing some $4.3 billion in federal flood mitigation funding, a HUD spokesman said in an emailed statement.

“Let’s be clear: all the amendment taking effect means is that Texas submitted all information required to avoid disapproval,” the statement said. “This does not constitute, and should not be seen as, approval of the state’s implementation of the activities in the plan.”

HUD earlier this month issued a ruling that the GLO violated civil rights law and discriminated against minority residents when it it awarded the $1 billion in Harvey funds following a competition that did not give Houston or Harris County a penny, even though the area suffered more deaths and damage than than any of the other 48 counties declared as disaster areas.

HUD urged Texas to voluntarily find a way to distribute funds in a way that resolves the alleged civil rights violations — a request that could redirect millions of flood relief dollars to Houston. “If a voluntary resolution cannot be obtained, HUD may initiate administrative proceedings or refer the matter to the U.S. Department of Justice for judicial enforcement,” the spokesperson said.

[…]

In an emailed statement, Harris County Judge Lina Hidalgo promised “to apply this substantial influx of dollars fairly, equitably, and quickly.”

She also called out the GLO for originally awarding none of the funds to Texas’s hardest-hit county. “As the third largest county in America, ground zero for Harvey damage and vulnerability to flooding, and home to the nation’s energy industry, there’s simply no excuse to have been shut out from these infrastructure funds in the first place.”

[…]

On Friday, as HUD approved the amendment sending $750 million to Harris County, its spokesperson said it would consider the current civil rights violation allegations in the future when Texas receives disaster grants, and may place conditions upon such grants to “mitigate risk.”

“HUD will closely monitor and pursue any and all enforcement actions against Texas as necessary to help the state provide equal access and opportunity through its mitigation funds,” the spokesperson said.

This is the followup to that story from January in which HUD halted the distribution of $1.95 billion in aid awarded to Texas essentially because of a paperwork error on the Land Commissioner’s part. All this story is saying is that that error has been fixed. It does not have anything to do with the civil rights complaint about how the GLO determined the way it would distribute funds. There’s no clear indication when that might either be resolved or taken to the next level of enforcement on HUD’s part. There’s still another half of the money to be awarded, so this story is far from over. (HUD also basically told H-GAC to go pound sand, which was the appropriate response from them.)

There was still a fair bit of complaining following this story.

Mayor Sylvester Turner criticized the U.S. Department of Housing and Urban Development’s approval of an amendment to the Texas General Land Office State Action Plan as a sanctioning of “discrimination.”

Turner expressed his disappointment in the Friday decision to accept GLO’s plan to send $750 million to Harris County in flood mitigation, just 10 months after both the city and county were barred from receiving any of the $4.3 billion post-Hurricane Harvey flood aid.

“Only a few weeks ago, HUD found that the GLO discriminated against Black and brown communities when it initially denied federal Hurricane Harvey funds to Houston and Harris County,” Turner stated, citing a March 4 HUD report that found discrimination in the GLO’s Hurricane Harvey State Mitigation Competition to distribute flood aid.

In a a joint press release, U.S. Reps. Sheila Jackson Lee, Al Green and Sylvia Garcia on Saturday called for Justice Department intervention, citing discrimination against the Houston residents if any aid is spent under the current distribution system.

[…]

The issue is not with the other areas who received the funding, but rather, the fact that Houston received nothing, Jackson Lee said Friday night.

“I support all of the dollars that were given to our local jurisdictions. I don’t have a quarrel with any of that. What I have a quarrel with is that Houston got zero,” Jackson Lee said. “That’s a glaring, glaring, glaring act of malfeasance on the part of the General Land Office. The housing and urban development, through their decision that came out today, indicated that there are problems with how the GLO handled this.”

I basically agree with everything they’re saying here. It’s just not clear to me that HUD is finished here. It may very well be that they will need to hand this off to the Justice Department for a larger stick to use against the GLO. I don’t trust anything that office does right now. It’s just not clear to me yet that they have been unable to persuade the GLO to take any corrective action. I wouldn’t wait too long on this, but I’d like to hear HUD say unequivocally that option has failed first.

As for the Harris County reaction, we got this from County Judge Lina Hidalgo on Friday:

We’ll see what that means. The end goal is correct, we just have to find a way to get there.

SCOTx puts the last nail in the federal lawsuit against SB8

The fix was in from the beginning.

The Texas Supreme Court dealt a final blow to abortion providers’ federal challenge to the state’s latest abortion restrictions Friday.

The court ruled that state medical licensing officials do not have authority to enforce the law, which bans abortions after about six weeks of pregnancy. This was the last, narrowly cracked window that abortion providers had left to challenge the law after the U.S. Supreme Court decimated their case in a December ruling.

The law has a unique private-enforcement mechanism that empowers private citizens to sue anyone who, in the law’s language, “aids or abets” an abortion after fetal cardiac activity is detected, usually around six weeks of pregnancy.

The law is designed to evade judicial review, a goal at which it has been largely successful so far. Abortion providers have tried to argue that the law is actually enforced by state officials — the clerks who docket the lawsuits, the attorney general and medical licensing officials who could discipline doctors, nurses or pharmacists who violate the law — which would give them someone to bring a constitutional challenge against in court.

The U.S. Supreme Court disagreed with all of those arguments but one, allowing a challenge against the medical licensing officials to proceed. That case then went back to the 5th U.S. Circuit Court of Appeals, which sent it to the Texas Supreme Court to weigh in on.

In a hearing last month, Texas Solicitor General Judd Stone argued that there was no “ordinary English interpretation that entertains any possibility of public enforcement.”

On Friday, the justices issued a ruling that seemed to agree with Stone’s “ordinary English interpretation” of the law.

“The Court concluded that Texas law does not authorize the state-agency executives to enforce the Act’s requirements, either directly or indirectly,” they wrote.

Abortion advocates, including those who brought this challenge, were unhappy with the ruling.

“We have been fighting this ban for six long months, but the courts have failed us,” Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance, said in a statement. “The situation is becoming increasingly dire, and now neighboring states—where we have been sending patients—are about to pass similar bans. Where will Texans go then?”

See here for the background and here for a copy of the ruling. I don’t have a good answer to Miller’s question. I don’t have much of anything to say because it’s hard not to feel numb. This is the best I can do:

See here and here for more on the Justice Department’s lawsuit, and here for more on the state lawsuit; you may recall that the judge ruled SB8 unconstitutional but declined to issue a statewide injunction. Maybe the plaintiffs can ask him to reconsider that, I dunno. Vladeck’s option 1 above involves individual providers getting injunctions against individual potential plaintiffs, which should be pursued as a stopgap but is obviously inadequate and unsustainable. That’s where we are today, and you can see why I don’t have much to add. The Chron, the Statesman, WFAA, The 19th, Reform Austin, and Daily Kos have more.

SB8 lawsuit moves to SCOTx

Like I said, the fix was always in.

The 5th U.S. Circuit Court of Appeals on Monday sent the legal challenge to Texas’ restrictive abortion law to the state’s Supreme Court, a move that is expected to significantly delay the case and that abortion opponents had hoped would occur.

“This decision now keeps the case in limbo — and abortion after 6 weeks in the nation’s second-largest state — a dead-letter, indefinitely,” wrote Steve Vladeck, a University of Texas School of Law professor, on Twitter.

The U.S. Supreme Court has largely declined to intervene in the Texas case three times, most recently in December when justices kept the ban in effect while allowing a legal challenge to move through a lower state court.

[…]

A divided Supreme Court found that most challenges against the Texas law should be dismissed, except for one filed against medical licensing officials. That case was sent that to the 5th Circuit, one of the most conservative appellate courts in the country, rather than a federal district court as abortion providers and supporters had hoped.

The three-judge federal panel, based in New Orleans, wrote in their 2-1 decision Monday that the Texas Supreme Court must certify the case and decide whether the U.S. Supreme Court was correct in allowing a challenge to proceed against the licensing officials. Circuit Judges Edith H. Jones and Stuart Kyle Duncan, both appointed by Republicans, said the state’s highest court should determine whether the Texas attorney general, the Texas Medical Board and other licensing officials can enforce the law if it is violated.

Judge Stephen A. Higginson, a Democratic appointee, argued the U.S. Supreme Court had already decided that matter.

“This further, second-guessing redundancy, without time limit, deepens my concern that justice delayed is justice denied, here impeding relief ordered by the Supreme Court,” he wrote in his dissent.

State supreme courts do not have to take up cases that are sent to them by federal courts, but it’s likely Texas will this time. Lawyers said it’s unusual to ask the Texas Supreme Court to make this decision after the U.S. Supreme Court has already weighed in.

See here, here, and here for the background. I still don’t have anything to say that I haven’t said before. I’m fresh out of invective. The following is part of a longer thread, but these two tweets sum it up nicely:

SCOTUS doesn’t even care about the insult to their authority, because in the end it serves their larger goal. Burn it all down. The Chron has more.

Fifth Circuit gets set to put the final nail in SB8 legal challenges

The fix was always in.

In a contentious hearing Friday, a federal appeals court indicated it is likely to send Texas’ restrictive abortion law to the state supreme court, a move that could add months or longer before the case is resolved.

Since Sept. 1, abortions after about six weeks of pregnancy have been banned in Texas through a novel law that empowers private citizens to sue anyone who “aids or abets” in a prohibited procedure. The law explicitly removes enforcement authority from state officials, making it extremely difficult to challenge in court.

In December, the U.S. Supreme Court threw out most challenges to the law and left only state medical licensing officials as possible lawsuit targets because they can revoke a doctor, nurse or pharmacist’s license if they violated the law.

On Friday, a three-judge panel from the New Orleans-based 5th U.S. Circuit Court of Appeals heard arguments about where the case goes next. Judges Edith H. Jones and Stuart Kyle Duncan indicated they believe there are state law questions that must first be resolved by the Texas Supreme Court, while Judge Stephen A. Higginson strongly disagreed, arguing the case should be remanded to federal district court.

In a move that surprised court watchers, Jones also raised the idea of taking no action on the case for months, until the U.S. Supreme Court has ruled on a Mississippi abortion case that could overturn the constitutional protection for the procedure.

Lawyers for the abortion providers believe the federal district court route is the best hope to getting the law, originally passed as Senate Bill 8, struck down. If the case is sent to the Texas Supreme Court, it could take months to return to the federal level, leaving the law in effect.

This is exactly what abortion opponents are hoping for.

See here and here for the background. There’s nothing I can say that I haven’t already said. The only way forward is winning more elections, both to change the laws in Texas and to get some court reform at the federal level. I wish I had something more hopeful, but this is all I’ve got. The 19th and the Chron have more.

SB8 plaintiffs want their lawsuit moved back to district court

As is usually the case, the lawless Fifth Circuit is the problem, with a generous assist from SCOTUS.

With the 5th U.S. Circuit Court of Appeals set to hear arguments about Texas’ restrictive new abortion law Friday, abortion providers have asked the U.S. Supreme Court to again intervene and instead send the case to a lower court.

Abortion providers filed the request Monday, along with a motion to expedite the high court’s ruling on the matter ahead of Friday’s hearing. Lawyers for the providers argue that the 5th Circuit should send the case to district court, which in October temporarily blocked enforcement of the law.

[…]

In December, the Supreme Court threw out most of the providers’ challenges to the law and allowed only one narrow challenge, against medical licensing officials, to proceed. The court also allowed the restrictions on the procedure to remain in place.

Then, in an additional blow to abortion providers, the Supreme Court sent that one remaining challenge to be reargued before the 5th Circuit, considered one of the most politically conservative circuit courts in the nation. Providers had been expecting it to be sent to the district court, which was seen as a more favorable venue. They argued in Monday’s filing that district court is the proper venue for the case to proceed.

“It’s unconscionable that the Fifth Circuit Court of Appeals is defying the Supreme Court’s ruling last month by refusing to send our case back to the district court so that we can continue fighting Texas’ six-week abortion ban,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said in a statement. “The Supreme Court must step in to prevent the appeals court from needlessly delaying our lawsuit against Texas’ bounty-hunting scheme and compounding the harm this ban has already inflicted on Texans.”

Rather than remanding the case to the district court, though, the 5th Circuit decided in a split decision to hear arguments in the case on Friday and will consider whether the case should be sent to the Texas Supreme Court to proceed. Legal experts say certifying a case to the state supreme court can extend the appeals process by months, if not years.

Circuit Judge Stephen A. Higginson dissented from the majority, arguing that the Supreme Court’s ruling does not require reargument before the 5th Circuit and should not be sent to the Texas Supreme Court. Higginson also wrote that he believes the Supreme Court ruling indicates that the medical licensing officials should be blocked from enforcing the law.

But Higginson noted that he had been “unpersuasive,” and unless the Supreme Court weighs in before Friday, the case is likely to proceed at the 5th Circuit. Abortion providers argue that this delay is harming women seeking abortions.

See here for the background. The plaintiffs had also asked the Fifth Circuit to just send this back to the district court, but they declined and instead scheduled this hearing, which is not a thing that appellate courts normally do. It’s clear that the purpose of this is to just flat-out delay if not deny sending the case back to the district court judge, who will surely enjoin it for the duration of the lawsuit, and wait for SCOTUS to officially throw out Roe v Wade in the Mississippi case. The Fifth Circuit is rogue and lawless and needs to be gutted. Simply calling it some variation of “very conservative” does not accurately describe it. The news media needs to wake up and get with the program. The 19th has more.

SCOTUS finds another way to screw abortion rights

Surely you’re not surprised.

The Supreme Court has formally returned a lawsuit over Texas’ six-week abortion ban to a federal appeals court that has twice allowed the law to stay in effect, rather than to a district judge who sought to block it.

Justice Neil Gorsuch on Thursday signed the court’s order that granted the request of abortion clinics for the court to act speedily. But the clinics wanted the case sent directly to U.S. Judge Robert Pitman, who had previously though briefly blocked enforcement of the Texas abortion ban known as S.B. 8.

When Pitman ordered the law blocked in early October, the appeals court countermanded his order two days later.

Texas has said it will seek to keep the case bottled up at the appeals court for the foreseeable future.

Marc Hearron, the Center for Reproductive Rights lawyer who represented the clinics at the high court, said, “The Supreme Court left only a small sliver of our case intact, and it’s clear that this part of the case will not block vigilante lawsuits from being filed. It’s also clear that Texas is determined to stop the plaintiffs from getting any relief in even the sliver of the case that is left.”

[…]

In last week’s majority opinion written by Gorsuch, the Supreme Court limited who can be sued by the clinics in their effort to win a court order preventing the law’s enforcement and allowing them to resume providing abortions without severe financial risks.

The court held that only state licensing officials can be sued, an outcome the clinics said would not stave off the filing of lawsuits against providers if abortions were to resume.

Gorsuch wrote that “it appears” the licensing officials can be sued. “Of course, Texas courts and not this one are the final arbiters of the meaning of state statutory directions,” he wrote.

The state told the justices it plans to ask the appeals court to, in turn, seek a definitive ruling from the Texas Supreme Court over the role the licensing officials play in enforcing the abortion ban.

The appeals court would decide whether to involve the state high court, which would put the case on hold.

See here for the background. I’m going to outsource the commentary, as it’s hard for me to form the right words here.

I suppose it’s possible that the Fifth Circuit will do the right thing and hand this back to the district court so the process can play out. And I suppose that if they try to hand it to SCOTx that they will refuse to take it, on the grounds that they don’t like having to deal with messy political questions. Or either the Fifth Circuit and/or SCOTx just sits on the ball until SCOTUS officially drives a spike through Roe v Wade and moots the whole thing. I’m going to go scream into a pillow now. The Trib has more.

Come watch Ken Paxton light your tax dollars on fire

I mean, Theranos would have delivered a greater return on investment than this.

Best mugshot ever

Texas Republican Attorney General Ken Paxton has been one of former President Donald Trump’s most reliable allies in spreading the myth of widespread voter fraud, particularly in the 2020 election, and frequently boasts that few states are as vigilant.

His office’s election integrity unit added two lawyers to the team in the last year, bringing it up to six staffers total, and worked more than 20,000 hours between October 2020 and September 2021. Its budget, meanwhile, ratcheted up from $1.9 million to $2.2 million during that time.

Yet records from the office show that the unit closed just three cases this year, down from 17 last year, and opened seven new ones. That includes the newly created unit focused on the 2021 local elections, which has yet to file a single case.

“This is an exorbitant amount of money that has resulted in no benefit for the average Texan,” said Austin Evers, executive director of American Oversight, a left-leaning nonprofit government watchdog that regularly files public information requests and files suits to force compliance with those requests. The organization shared some records it obtained from the Texas Attorney General’s Office with Hearst Newspapers for this report; others were obtained independently by Hearst Newspapers.

Evers added: “Taxpayers are funding a political stunt meant to fuel the false claim of a stolen election and justify voting restrictions.”

[…]

Richard L. Hasen, an election law professor at the University of California at Irvine, said there’s a more likely explanation, noting that Paxton, who is running for re-election, has “every incentive,” politically speaking, to vigorously go after voter fraud, as it’s an issue that energizes his party’s base.

“He’s finding very little of it despite spending a lot of money and using a lot of resources looking for it,” Hasen said. “The reason is not that such fraud is too hard to find. Those that commit voter fraud tend not to be brain surgeons. The reason he’s not finding a lot of it is because voter fraud is rare.”

Multiple academic studies and journalistic reviews have uncovered no evidence of widespread voter fraud, nor did a wide-ranging investigation of election fraud in 2020 conducted by the U.S. Justice Department.

There’s more, and the story does a good job of highlighting how Paxton takes the ridiculously small numbers involved in his crusade and exaggerates them to make them sound slightly less small, so read the rest. Just understand that facts have nothing to do with any of this, and won’t do anything to deter Paxton and his raving band of saboteurs. The argument here is exactly the same as the ones that Republicans have been using for at least the last 20 years for spending on “border security”: If they catch more cases of “vote fraud” it means that what they’re doing is working and so they need to get more money for it. If they catch fewer cases, it means that they’re falling behind and need to get more money to keep up. There are no circumstances under which spending less on this useless and harmful exercise makes sense.

One more thing:

While it’s true that the office has more cases pending this year over last year, 44 up from 38, that’s not because of a surge in new prosecutions. It’s because the vast majority of cases that were pending around this time last year are still making their way through the court system.

Among the cases pending include that of Hervis Rogers, a Black man from Houston who was charged this year with illegally voting while on parole, after he had made national headlines for waiting six hours to vote in the 2020 primary election.

A new ruling from the state’s highest criminal court Wednesday may afford legal relief to Rogers and potentially others, after it found that Paxton’s office does not have the constitutional right to prosecute voter fraud without the consent of local prosecutors.

Yes, given that recent ruling, one has to wonder how much of this activity is even legal at this point. I would suggest that attorneys for every one of the defendants in Paxton’s crosshairs, as well as all of those that have been convicted or pled guilty to something, start filing briefs to have cases and convictions tossed. Let’s expose this for the mockery it is.

SCOTUS allows providers’ lawsuit against SB8 to proceed

There’s a lot to unpack here.

The U.S. Supreme Court on Friday ruled that the legal challenge brought forward by abortion providers against Texas’ abortion restriction law may continue, bringing new life into what has become the most significant effort to overturn the statute so far.

The court allowed the suit to continue on an 8-1 decision but did not stop the law’s enforcement. Instead, the suit will continue in a lower federal court where abortion providers will resume seeking to block the law, commonly referred to as Senate Bill 8.

Justice Sonia Sotomayor agreed with allowing the suit to continue but condemned the high court’s decision to leave the law in effect, saying it has had “catastrophic consequences for women seeking to exercise their constitutional right to an abortion in Texas.”

“The Court should have put an end to this madness months ago, before S. B. 8 first went into effect,” she wrote. “It failed to do so then, and it fails again today.”

In a separate decision, the court dismissed a separate challenge from the Biden administration.

The justices also allowed the abortion providers to sue some state licensing officials, but not state court clerks, citing difficulties surrounding sovereign immunity. This could make it difficult for providers to get the law’s enforcement blocked overall in court.

“By blessing significant portions of the law’s effort to evade review, the Court comes far short of meeting the moment,” Sotomayor said. “By foreclosing suit against state court officials and the state attorney general, the Court clears the way for States to reprise and perfect Texas’ scheme in the future to target the exercise of any right recognized by this Court with which they disagree. This is no hypothetical. New permutations of S. B. 8 are coming.”

[…]

The providers’ suit returns to U.S. District Judge Robert Pitman, who previously blocked enforcement of the law for two days. It was resumed by the 5th U.S. Circuit Court of Appeals, which is known as perhaps the nation’s most conservative appellate court.

The suit could now follow a similar trajectory as before: If Pitman blocks the law again, abortion opponents will likely appeal to the 5th Circuit as well — and then the case could land before the Supreme Court once more.

[…]

Katherine Franke, a professor of law at Columbia University and director of the university’s Center of Gender and Sexuality Law, said she was pleased that the Supreme Court allowed the provider’s lawsuit to continue — but the court continues to make concessions over a person’s right to an abortion.

“What the [Supreme Court] has done is reiterate what their earlier ruling was, which is that a majority does not see a constitutional emergency in this case, even though SB 8 clearly and intentionally violates established Supreme Court law,” she said.

Franke said allowing the law to stay in effect while court proceedings continue proves that abortion rights are in jeopardy more than something like religious freedom. Although Friday’s decision allows the fight against Texas’ law to continue, she said more should have been done to protect abortion rights.

“The decision could have been much worse than it was … but this decision takes place within a larger legal landscape where the underlying right that’s at stake — that the court has not even addressed yet — could very well be eliminated and overruled,” she said. “It’s not a complete loss. I wouldn’t say it’s a partial victory, but it’s not a complete loss.”

See here for the previous entry, here for this ruling, and here for the dismissal of the Justice Department lawsuit. I’d like to see some more commentary on that ruling, because I don’t like it at all. The most thorough analysis I’ve seen of the main ruling so far comes from Slate’s Mark Joseph Stern.

The upshot of Friday’s decisions is this: Abortion providers can now ask U.S. District Judge Robert Pitman to block S.B. 8. Pitman will swiftly grant their request by issuing an injunction against “executive licensing officials” tasked with enforcing the law, a decision that should stand in the 5th U.S. Circuit Court of Appeals. Texas’ clinics will presumably begin providing abortions again, though they are not fully protected from civil suits.

In the meantime, all parties will await the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, due by June, which may overturn Roe v. Wade and permit Texas to implement a more straightforward abortion ban. And other states may still pass S.B. 8–style laws that empower vigilantes to sue abortion providers, as long as they tweak the language to comply with Friday’s decision.

[…]

Now the court has issued the narrowest possible decision to let the providers’ suit proceed. Justice Neil Gorsuch’s opinion for the court rejected their primary theory: that providers could sue state court judges and clerks to prevent the docketing of S.B. 8 cases. Gorsuch held that these agents of the state enjoy “sovereign immunity,” the doctrine that states are generally immune from private lawsuits. There is an exception from this rule called Ex parte Young that permits individuals to sue state officials, but Gorsuch held that it does not apply to state court judges and clerks. “Usually, those individuals do not enforce state laws as executive officials might,” he wrote; “instead, they work to resolve disputes between parties.”

Gorsuch identified other roadblocks, asserting that there is “no case or controversy” between providers and state courts and no remedy that “permits clerks to pass on the substance of the filings they docket—let alone refuse a party’s complaint based on an assessment of its merits.” He also rejected the plaintiffs’ attempt to sue Texas Attorney General Ken Paxton, writing that Paxton has no authority to enforce S.B. 8. And even if Paxton did have such power, Gorsuch concluded, federal courts cannot “parlay” an injunction against an attorney general “into an injunction against any and all unnamed private persons who might seek to bring their own S.B. 8 suits.”

This part of Gorsuch’s ruling is a victory for providers—albeit an extremely limited one, for two reasons. First, it’s not clear that an injunction against licensing officials would stop bounty hunters from filing lawsuits under S.B. 8; it would only restrict the state’s ability to punish those clinics found liable under the law. Similarly, an injunction against licensing officials may not stop citizens from suing “abettors” who facilitate an abortion. Second, Texas and other states can easily work around Friday’s decision. Wary of that outcome, Chief Justice John Roberts—along with Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor—dissented from Gorsuch’s refusal to let providers sue state court clerks and the Texas attorney general. Roberts and Sotomayor wrote separate dissents, both focusing on Texas’ flagrant attempt to “nullify” rights protected by the federal Constitution.

Gorsuch did, however, identify one slim route around S.B. 8’s blockades: He allowed providers to sue the “executive licensing officials” who “may or must take enforcement actions against the petitioners if they violate” the law. These officials implement state law in a traditional manner, Gorsuch explained, and thus cannot claim sovereign immunity. They fall squarely into the Ex parte Young exception. And so there are no constitutional barriers stopping clinics from naming these parties as defendants in their federal lawsuit to freeze S.B. 8. Every justice except Clarence Thomas joined this part of Gorsuch’s decision; Thomas, alone, would have foreclosed all avenues of relief. So there are five votes to shield state court judges and clerks from federal suit, five votes to shield the attorney general from suit, and eight votes to let the suit against “executive licensing officials” proceed.

“Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review,” the chief justice wrote. “The clear purpose and actual effect of S.B. 8 has been to nullify this Court’s rulings.” And if legislatures can “annul the judgments of the courts of the United States,” then “the constitution itself becomes a solemn mockery.” He asserted that state court clerks and Paxton were “proper defendants” because both play a role in imposing “burdens on those sued under S.B. 8.” An injunction against such defendants, Roberts acknowledged, may be “novel.” But “any novelty in this remedy is a direct result of the novelty of Texas’s scheme.”

Sotomayor’s dissent was substantially fierier. She criticized the majority for failing to “put an end to this madness months ago, before S.B. 8 first went into effect.” By allowing for such limited relief, Sotomayor wrote, the majority “effectively invites other States to refine S. B. 8’s model for nullifying federal rights,” betraying “not only the citizens of Texas, but also our constitutional system of government.”

[…]

There is a vast chasm between the two blocs in this case. The five most conservative justices appear to view S.B. 8 as a one-off, a desperate attempt to evade a decision (Roe v. Wade) that they themselves probably view as illegitimate. The four other justices see S.B. 8 as a direct threat to the Supreme Court’s authority to “say what the law is” by shielding constitutional liberties from state infringement. It seems the majority is troubled just enough to carve a path around some of S.B. 8’s blockades—but its solution is a ticket good for one ride only. Texas can pass nearly identical legislation that eliminates the powers of “executive licensing officials” and, apparently, lock providers out of federal court once again. Copycat bills have already cropped up in four other states, and Gorsuch has given legislators a road map to ensure that they can fully insulate their legislation from federal court review. He and his hard-right colleagues appear to believe that blue states won’t have the spine to deploy these tricks against rights favored by conservatives, like the right to bear arms.

Not much I can add to that, though you should read Dahlia Lithwick’s companion piece about the pile of failure that is John Roberts as well. The state lawsuit has drawn some boundaries, and if we get another injunction from Judge Pitman that survives the chainsaw massacre of the Fifth Circuit, we’ll be in a somewhat better place than we are right now. But the damage has been done to the clinics, and even without the looming threat of the Dobbs ruling, they may never recover. Mother Jones, The 19th, The Nation, and the Observer have more.

Justice Department sues Texas over redistricting maps

Add it to the queue.

The Department of Justice is suing Texas over its new redistricting maps, alleging that lawmakers intentionally discriminated against Latino and Black voters while redrawing the state’s political districts this year.

The lawsuit, filed in federal court in El Paso, takes aim at Texas’ new maps for Congress and the state House of Representatives. The Biden administration alleges that several of the districts were drawn “with discriminatory intent” to increase the electoral power of the state’s white voters despite massive population growth among racial minorities.

“Our complaint today alleges that the redistricting plans approved by the Texas State Legislature and signed into law by the governor will deny Black and Latino voters an equal opportunity to participate in the voting process and to elect representatives of their choice, in violation of the Voting Rights Act,” Associate Attorney General Vanita Gupta said in a news conference.

Texas’ new maps, redrawn this year to reflect the state’s population increases since 2010, are already facing seven legal challenges in state courts. Critics have assailed them as attacks on Texas’ minority voters, noting that the state’s GOP-led Legislature declined to add any new majority-minority districts even as people of color drove 95 percent of the state’s 4 million-person population growth. Hispanic Texans comprised roughly half of that total.

“Our investigation determined that Texas’ redistricting plans will dilute the increased minority voting strength that should have developed from these significant demographic shifts,” Gupta said.

She added that the new maps were adopted through a “rushed process” that allowed for “minimum” public participation. The department is asking the court to prevent any elections from taking place using the new maps; the state’s primaries are scheduled for March 1.

Politico adds some details.

The suit notes that Texas’ past redistricting maps have repeatedly been smacked down by courts over the last several decades. But [Attorney General Merrick] Garland acknowledged during the press conference that this case presents more challenges than past decades because the so-called preclearance requirement, which mandated that jurisdictions with a history of discriminatory election laws get changes approved by either the Department of Justice or a D.C.-based federal court, was gutted by a mid-2010s Supreme Court decision.

“There are two problems: One, it means that we don’t get a chance to look at these things before they go into effect, which is a very significant aspect of our tools, and instead requires that we challenge every case individually,” Garland said. “And second, it flips the burden of proof.”

[…]

The suit takes particular issue with the 23rd Congressional District — a sprawling West Texas seat now held by GOP Rep. Tony Gonzales — accusing Texas Republicans of intentionally eliminating its status as a district where Latinos could elect their candidate of choice.

More than 50 percent of the voting age population in the new 23rd District is Latino, but the Department of Justice claims — as it has in previous litigation against other iterations of this seat — that GOP mapmakers swapped out Latinos who vote regularly with low-propensity Latino voters.

The end result, the suit says, is “an effort to strengthen the voting power of Anglo citizens while preserving the superficial appearance of Latino control.”

The suit also noted the lack of a new Latino opportunity seat in Houston’s Harris County and accused the legislature of having “surgically excised minority communities from the core of the Dallas-Fort Worth Metroplex (DFW) by attaching them to heavily Anglo rural counties, some more than a hundred miles away.”

The suit also singles out the new 24th Congressional District, held by freshman GOP Rep. Beth Van Duyne. By reducing the district’s swath of northwest Dallas County, the mapmakers dropped the Latino citizen voting age population from 40 percent to 23 percent. The suit says the map again strengthens the Anglo voting bloc.

GOP mapmakers created three new deep blue seats — in Austin, Houston and Dallas — to accommodate a growing number of left-leaning voters and keep them from overwhelming the red-leaning districts surrounding them. None of those seats have a Latino-majority. Republicans will likely control at least two dozen of the state’s 38 seats under this new map.

In the Houston area, the suit notes that the new 38th Congressional District was drawn “to give Harris County’s shrinking Anglo population control of yet another Congressional seat” even though “most of that population growth occurred within the Latino community.” That seat leans heavily Republican, and the current frontrunner in the GOP primary, Wesley Hunt, is Black.

Garland also urged Congress to restore those preclearance requirements that were effectively stripped out of the Voting Rights Act by the Supreme Court in Shelby County v. Holder, which was decided in 2013.

As noted before, there are multiple lawsuits that have already been filed, and with the exception of the Gutierrez/Eckhardt suit, which raises different questions, have been combined into one action. Michael Li expects this lawsuit to be assigned to the same three-judge panel as the others as well. He also says this:

Not really much else to say here – if the Senate can ever get around to passing one of the voting rights bills that the House has sent them, it could make the plaintiffs’ case even stronger, but unless that happens it’s hard for me to have a lot of optimism, despite the glimmer that Michael provides. It’s barely possible that the panel could put the March primary on hold, but to say the least I don’t expect that. A copy of the lawsuit is here, and the Trib and the Texas Signal have more.

Fifth Circuit puts school mask order on hold

This effing court.

A federal appeals court has reinstated Gov. Greg Abbott’s executive order banning mask mandates as it weighs a federal judge’s ruling that the ban violates the rights of disabled students.

U.S. District Judge Lee Yeakel previously ruled that the order violated the Americans with Disabilities Act and the American Rescue Plan, which gives discretion to school districts to follow Centers for Disease Control and Prevention guidance on the virus. Yeakel, an appointee of former President George W. Bush, had banned state Attorney General Ken Paxton from enforcing the order, including suing school districts that required masks.

Texas appealed the judge’s ruling to the Fifth Circuit U.S. Court of Appeals in New Orleans, a court composed mostly of judges appointed by Republican presidents that has historically trended conservative in its legal decisions. Wednesday’s decision was made by a three-judge panel, two of whom were appointed by former President Donald Trump.

The lawsuit was brought by Disabled Rights Texas on behalf of a number of children with disabilities in Texas. Lawyers for those children argued the law banning mask mandates goes against CDC advice and that it doesn’t allow schools to consider mask mandates as an accommodation for kids with disabilities who are particularly vulnerable to COVID-19. They argued that it violates the ADA, which requires equal access to public goods for people with and without disabilities.

See here for the background. Other than the Bloomberg News story linked in the Chron piece, which says that the order was made by the court without any explanation, I can’t find any coverage of this, so this is what we know. But honestly, how much more do we need to know? As with the SB8 case and the detailed ruling given by the district court judge, the Fifth Circuit exists to enforce a partisan orthodoxy on whatever comes before it. When was the last time the state of Texas went running to them to ask for a stay on a ruling they didn’t like and got a No answer? All of the things that reformers want to do to the Supreme Court need to be done with even more urgency to this abomination.

Still waiting on SCOTUS

They’re in no rush.

More than two weeks have passed since the Supreme Court’s extraordinarily rushed arguments over Texas’ unique abortion law without any word from the justices.

They raised expectations of quick action by putting the case on a rarely used fast track. And yet, to date, the court’s silence means that women cannot get an abortion in Texas, the second-largest state, after about six weeks of pregnancy.

That’s before some women know they’re pregnant and long before high court rulings dating to 1973 that allow states to ban abortion.

There has been no signal on when the court might act and no formal timetable for reaching a decision.

The law has been in effect since Sept. 1 and the court has been unable to muster five votes to stop it, said Mary Ziegler, a legal historian at Florida State University’s law school. “While there is some sense of urgency, some justices had more of a sense of urgency than others,” Ziegler said.

[…]

The Texas law is doing what its authors intended. In its first month of operation, a study published by researchers at the University of Texas found that the number of abortions statewide fell by 50% compared with September 2020. The study was based on data from 19 of the state’s 24 abortion clinics, according to the Texas Policy Evaluation Project.

Texas residents who left the state seeking an abortion also have had to travel well beyond neighboring states, where clinics cannot keep up with the increase in patients from Texas, according to a separate study by the Guttmacher Institute.

The Supreme Court is weighing complex issues in two challenges brought by abortion providers in Texas and the Biden administration. Those issues include who, if anyone, can sue over the law in federal court, the typical route for challenges to abortion restrictions, and whom to target with a court order that ostensibly tries to block the law.

Under Supreme Court precedents, it’s not clear whether a federal court can restrain the actions of state court judges who would hear suits filed against abortion providers, court clerks who would be charged with accepting the filings or anyone who might some day want to sue.

People who sue typically have to target others who already have caused them harm, not those who might one day do so and not court officials who are just doing their jobs by docketing and adjudicating the cases.

The justices’ history with the Texas law goes back to early September when, by a 5-4 vote, they declined to stop it from taking effect.

At the time, five conservative justices, including the three appointees of President Donald Trump, voted to let the law take effect. Chief Justice John Roberts joined the court’s three liberals in dissent.

The abortion providers had brought the issue to the court on an emergency basis. After they were rebuffed, the Justice Department stepped in with a suit of its own.

U.S. District Judge Robert Pitman granted the Justice Department’s request for an order that put the law on hold. Pitman wrote in a 113-page ruling that the law denied women in Texas their constitutional right to an abortion and he rejected the state’s arguments that federal courts shouldn’t intervene.

But just two days later, the 5th U.S. Circuit Court of Appeals overrode Pitman and allowed the law to go back into effect.

The Justice Department made its own emergency appeal to the Supreme Court. Rather than rule on that appeal, the court decided to hear the two suits just 10 days later and without the benefit of an appellate court decision.

You know the story. It’s hard to see this as anything but deliberate foot-dragging at this point. It would have been completely normal at the beginning for SCOTUS to put the law on hold while the litigation played out, but they chose not to do so in the most obsequious way possible. That they still haven’t sure looks like a choice to me. And barring an unexpected holiday week order, this atrocity of a law will remain in place as the Mississippi challenge to Roe v Wade gets its hearing. Stay mad, y’all. The Chron and Daily Kos have more.

Federal judge blocks Abbott’s ban on school mask mandates

Excellent news.

A federal judge ruled Wednesday that Gov. Greg Abbott’s executive order prohibiting mask mandates in schools violates the Americans with Disabilities Act — freeing local officials to again create their own rules.

The order comes after a monthslong legal dispute between parents, a disability rights organization and Texas officials over whether the state was violating the 1990 law, known as the ADA, by not allowing school districts to require masks. U.S. District Judge Lee Yeakel barred Attorney General Ken Paxton from enforcing Abbott’s order.

“The spread of COVID-19 poses an even greater risk for children with special health needs,” Yeakel said. “Children with certain underlying conditions who contract COVID-19 are more likely to experience severe acute biological effects and to require admission to a hospital and the hospital’s intensive-care unit.”

The judge said the governor’s order impedes children with disabilities from the benefits of public schools’ programs, services and activities to which they are entitled.

The advocacy group, Disability Rights Texas, filed the federal lawsuit on behalf of several Texan families in late August against Abbott, Paxton and Texas Education Agency Commissioner Mike Morath. It states that the governor’s order and the TEA’s enforcement of it deny children with disabilities access to public education as they are at high risk of illness and death from the virus.

Kym Davis Rogers, litigation attorney with Disability Rights Texas, said in a statement that the court found that Texas is not above federal law and state officials cannot prevent school districts from providing accommodations to students who are especially vulnerable to the risks of COVID-19.

“No student should be forced to make the choice of forfeiting their education or risking their health, and now they won’t have to,” Rogers said.

Rogers said she doesn’t rule out the state appealing the decision in the 5th U.S. Circuit Court of Appeals because the state has done so before, most recently with its new law that bans abortions after as early as six weeks.

[…]

In court documents, Ryan Kercher, the attorney representing the state, argued that neither the attorney general nor the state education agency were enforcing the executive order so they couldn’t be sued.

But Disability Rights Texas attorneys said the three were enforcing the order and provided the court with a letter that the TEA sent to the attorney general’s office. In it, the education agency listed school districts that appeared to be operating in violation of the governor’s order. The plaintiffs also noted how Paxton sued several school districts over requiring masks and sent “threatening” letters to districts telling them that they were violating the order.

This isn’t the first time state attorneys argued that Paxton and Abbott didn’t actually enforce the law. In an August lawsuit against the state over the mask order, Paxton made the same argument and indicated that it was up to local county prosecutors to enforce the order.

See here, here, and here for the background, and here for a copy of Judge Yeakel’s ruling. As the story notes, the US Department of Education is also doing an investigation into Texas’ mask mandate ban; it’s not clear to me what effect this ruling, if it stands, could have on that. Also as the story notes, Paxton had filed multiple lawsuits against school districts that had mask mandates, getting most if not all of them to stop. We’ll see what happens next with that.

I do expect the state to appeal to the Fifth Circuit, and why wouldn’t they? The Fifth Circuit gives them everything they ask for pretty much all of the time, whatever the facts or merits of the case in question. This is still a significant ruling, and we should always take the opportunity to revel in any defeat suffered by Greg Abbott and Ken Paxton. May this be the start of a very long losing streak. The DMN and the Chron have more.

Justice Department sues Texas over the voter suppression law

Specifically, they are challenging a couple of specific provisions of the law.

The U.S. Justice Department on Thursday sued Texas over its new voting law, expanding its effort to challenge Republican-backed measures passed in state legislatures.

The lawsuit, brought by the DOJ’s civil rights division in the U.S. District Court for the Western District of Texas, challenges provisions in the Texas law, known as SB 1, that place new procedural requirements on voting by mail and restrict the assistance voters with disabilities or those who struggle to read and write are able to receive in filling out a ballot.

Those provisions “deny eligible voters meaningful assistance in the voting booth and require rejection of mail ballot materials for immaterial errors or omissions,” the department’s complaint alleges.

The lawsuit is the second one the DOJ’s civil rights division has brought this year challenging a state law placing new restrictions on voting. The department sued Georgia in June over a law the federal government alleged disproportionately harmed voters of color.

[…]

Unlike the case against Georgia, the DOJ’s suit against Texas was not brought under the section of the Voting Rights Act that focuses on voter discrimination based on race.

Rather, the complaint filed Thursday focuses on a section of the law requiring voter assistance for those who need it based on “blindness, disability or inability to read or write.” The suit was also filed under a provision of the Civil Rights Act of 1964 banning people from being denied the right to vote based on clerical errors or omissions that are “not material” in determining if someone is qualified to vote.

The complaint does mention the history of voting discrimination in Texas and the growth of minority populations in the state in recent years, but the claims based on race or ethnicity all have to do with the restrictions the law places on help made available to voters who speak languages other than English.

The Texas law confines the role of voting “assistors” to reading the ballot or helping to mark the ballot, barring individuals who provide help from “answering a voter’s questions, explaining the voting process, paraphrasing complex language, and providing other forms of voting assistance that some qualified voters require to cast an informed and effective vote,” according to the complaint.

The lawsuit also takes aim at measures that require voters to provide an identification number, such as a driver’s license or election identification certificate, in requesting a mail-in ballot.

“Conditioning the right to cast a mail ballot on a voter’s ability to recall and recite the identification number provided on an application for voter registration months or years before will curtail fundamental voting rights without advancing any legitimate state interest,” the lawsuit alleges.

It’s been a little while since the initial flurry of lawsuits against SB1, long enough that I had forgotten that there were already six lawsuits over this thing: Two lawsuits filed before the bill was signed, by Harris County and a coalition of voters, one filed in Austin and one in San Antonio; a trio of lawsuits filed right after it was signed, one each in federal court by Democracy Docket and the NAACP Legal Defense and Educational Fund, and one in state court by the Lawyers’ Committee for Civil Rights Under Law; and one a month later, which is to now say a month ago, by Mi Familia Vota. As I said at the time, it was not clear to me why the Lawyers’ Committee one was filed in state court. Those lawsuits were all presented as being broader claims about racial discrimination, much like that DOJ lawsuit against Georgia, while this one is more focused on a couple of specific items in the law. I don’t know if that was a strategic choice or just a recognition that the broader issues were already being addressed.

The Trib adds a few more details.

The state has long allowed voters who need assistance casting ballots to have someone help them, as long as those assisting don’t try to influence the actual votes. SB 1 places new constraints on what those assistants may do. They cannot answer questions, clarify translations, explain the voting process or paraphrase complex language, the federal lawsuit says.

The law also creates potential criminal penalties for people who assist voters. A person assisting a voter is required to fill out paperwork disclosing their relationship to that voter. They must also recite an expanded oath — now under the penalty of perjury — that states they did not “pressure or coerce” the voter into picking them for assistance.

The oath no longer allows explicitly answering the voter’s questions. Instead, an assistant must pledge to limit their assistance to “reading the ballot to the voter, directing the voter to read the ballot, marking the voter’s ballot, or directing the voter to mark the ballot.”

The limits on assistance will hit particularly hard voters with limited English proficiency and those with disabilities, the lawsuit contends.

“There is a history of discrimination against voters with disabilities in Texas,” the lawsuit claims, noting estimates that 28% of Texans have conditions impairing their mobility, cognition or vision.

The suit also takes aim at SB 1’s new rules for mail-in voting. Texas traditionally has placed more limits on mail-in voting than other states. The legitimacy of mail-in ballots was largely determined by comparing signatures on applications and ballots.

SB 1 created new ID requirements. Voters who want to be mailed a ballot must provide their driver’s license number or, if they don’t have one, the last four digits of their Social Security number when they send in an application for one.

They then must provide the same numbers on the envelope used to return their completed ballot. Critics point out that many voters — particularly elderly applicants — may have their votes thrown out simply because they didn’t remember which ID number they used the first time, or have lost their ID card.

The law, set to take effect in time for the 2022 primary elections, already faced legal challenges generally argue it will disproportionately impact voters of colors and voters with disabilities. Those challenges, along with Thursday’s lawsuit, could delay its implementation.

Here’s where I shrug and say that I have no idea what the courts will make of this. I will also remind everyone that the Texas voter ID law specifically excluded mail voters from needing to provide ID because at the time more Republicans voted by mail, and they had no interest in inconveniencing their own voters. Now that Democrats also use mail ballots, that consideration no longer applies. The Chron, Reform Austin, and Daily Kos have more.

SB8’s day before SCOTUS

The good guys appear to have the upper hand in this case. It seems unlikely that will last for very long, however.

The U.S. Supreme Court on Monday grilled attorneys for abortion providers, the federal government and Texas over the state’s near-total abortion ban — and possibly hinted at support for allowing at least one legal challenge to the law to stand.

The majority of justices pushed back on the enforcement mechanism that has allowed the law to skirt judicial review so far but seemed skeptical of the federal government’s claims that it had a right to sue the state over the law.

The Supreme Court heard hearings over Texas’ abortion law, also known as Senate Bill 8, as part of two lawsuits — one lodged by abortion providers and the other by the U.S. Department of Justice. Both focused on procedural technicalities surrounding the law and the suits challenging it, not on abortion rights nor the constitutionality of the law itself.

Those questions centered on whether Texas’ enforcement strategy for the law is allowable — which empowers private citizens to sue those who perform or help someone get an abortion disallowed by the law — and whether the United States has the right to sue Texas over the statute.

Notably, conservative Justices Amy Coney Barrett and Brett Kavanaugh seemed to push back on Texas’ unique enforcement mechanism. Their line of questioning and comments suggested they might side with abortion providers in condemning the “loophole” that the law exploits to thwart judicial review. Kavanaugh and Barrett, along with three other conservative justices, voted against temporarily blocking the law on Sept. 1, when the law took effect.

Texas’ law, which blocks abortions at about six weeks into a pregnancy, skirts constitutional precedent by forbidding state officials from enforcing it and instead relying on private citizens to sue those in violation. Typically, in suits aiming to overturn laws considered unconstitutional, courts don’t block the laws themselves — they block their enforcement. This is the reason opponents have struggled to name the right defendants to block the law.

Much of the discussion Monday centered around how that enforcement mechanism could be replicated to cast a chilling effect other rights protected by the Constitution: not just abortion rights, but also gun ownership, freedom of the press and same-sex marriage.

See here for the details about what was to be argued in the case. The 19th goes into more depth about how Monday’s hearing went.

The significance of SB 8’s unusual structure and what that might mean for constitutional rights more broadly was a key focus. It is a point newly confirmed Solicitor General Elizabeth Prelogar honed in on during the second argument of the day.

“If the state can just take this simple mechanism of taking its enforcement authority and giving it to the general public, backed up with a bounty of $10,000 or $1 million, if they can do that, then no constitutional right is safe,” Prelogar argued. “No constitutional decision from this court is safe. That would be an intolerable state of affairs and it cannot be the law. Our constitutional guarantees cannot be that fragile, and the supremacy of federal law cannot be that easily subject to manipulation.”

Three of the court’s conservative justices — Chief Justice John Roberts, Justice Brett Kavanaugh and Justice Amy Coney Barrett — indicated openness to the arguments made by Texas’ abortion providers, noting in particular that the law turns state officials into enforcement agents. Both Barrett and Kavanaugh previously voted the opposite way, joining the court’s conservative wing in a September 2 decision allowing SB 8 to take effect.

Barrett asked leading questions about the clinics’ inability to obtain constitutional relief in state court under SB 8, which reveals she might vote in the providers’ favor, said Joanna Grossman, a professor at Southern Methodist University’s Dedman School of Law.

Kavanaugh had already been deemed a likely swing vote. Kavanaugh showed particular skepticism of Texas’ argument and questioned whether the law could be used as a blueprint for other issues beyond abortion, such as restricting gun rights.

Those questions spoke to a deeper issue: Allowing the Texas law to stay in effect could weaken not only the federal government, but the Supreme Court’s overarching authority, by giving states a blueprint for writing laws that violate court precedent but circumvent judicial review.

That appears to be a powerful motivator, suggested Leah Litman, a constitutional law expert at the University of Michigan.

“The court is likely to protect its institutional authority, and that desire will probably unify and unite Democratic appointees and Republican appointees,” she said.

Focusing on the Whole Woman’s Health lawsuit could also allow the court to avoid some of the thornier constitutional questions raised in the U.S. government’s case, she added.

“The U.S. v Texas lawsuit might be — by asking what is the injury to the U.S. — that may be seen as teeing up bigger questions they don’t want to address,” [Melissa Murray, a reproductive law expert at New York University] said. “There may be more appetite for the provider suit.”

As both The 19th and Slate point out, whatever SCOTUS does here, they can clear a path for Texas to more cleanly ban abortion in the coming months.

In exactly one month, the justices will hear a more important case, Dobbs v. Jackson Women’s Health Organization, that gives them an opportunity to overrule Roe v. Wade. And if Roe goes, Texas will simply ban abortion outright, obviating the need for the convulated workaround at the center of today’s oral arguments. For the three justices who are torn over S.B. 8, the solution may be simple: Affirm the federal judiciary’s supremacy over states that undermine their authority, then hand those states the power to ban abortion whenever, wherever, and however they please.

[…]

Previously, the big stumbling block for the conservative justices was the question of who to sue; in their shadow docket decision, the justices sounded uncertain about whether abortion providers can sue state judges and clerks to halt S.B. 8 in its tracks. Under a doctrine known as Ex parte Young, plaintiffs can sue government officials tasked with enforcing a law, though it’s unclear whether judges qualify. On Monday, Kavanaugh seemed to propose a compromise: close the “loophole” that Texas has “exploited” by allowing providers to sue clerks but not judges. The case would then go back down to the district court, who could bar Texas clerks from docketing S.B. 8 cases, thereby defanging the law. As a result, the Justice Department’s lawsuit would become irrelevant, because abortion providers could protect their own interests in federal court.

The best part of this compromise, to the conservatives, is that it could become irrelevant to abortion within months. On Dec. 1, the court will hear arguments in Dobbs, which asks them to overrule Roe v. Wade. If the majority accepts this invitation, Texas won’t need to worry about S.B. 8 anymore; it has already passed a “trigger law” that will automatically ban abortion if Roe falls. At the same time, blue states will not be able to deploy S.B. 8–style schemes against disfavored rights like the Second Amendment. We may remember S.B. 8 not as the start of a new era in state supremacy over constitutional rights, but as a last gasp of defiance before the Supreme Court plunged us into a post-Roe world.

So yeah, keep the bigger picture in mind. Reform Austin, Daily Kos, TPM, and the Chron have more.

The SCOTUS hearing on SB8 is today

I have no idea what to expect.

The U.S. Supreme Court will take up on Monday the highest-profile legal challenges to Texas’ new abortion law. The Supreme Court previously declined to act on the near-total abortion ban, making next week’s proceedings the first time the high court is stepping in on lawsuits seeking to stop it.

The court will consider two suits against the law, commonly referred to as Senate Bill 8, which blocks abortions as early as six weeks into a pregnancy. One is waged by the federal government, the other by a group of abortion providers and advocates.

The Supreme Court’s review will focus on how SB 8 is enforced, not abortion rights themselves. It’s hard to predict what the court could decide, but its ruling will likely determine the future of abortion care in Texas and shape the legal battles to come.

See here for the more in depth look at the legal questions; the Trib story is a recap of where are are now. Like I said, I have no idea what to expect. There are too many members of this court that cannot be trusted. What they do with this case will tell us how deep that goes.

SCOTUS will hear SB8 appeals

Both of them, on November 1. The law remains annoyingly in effect until then.

The U.S. Supreme Court has agreed to fast-track two Texas cases involving the state’s near-total ban on abortion, but refused to halt the law from being enforced.

The high court has scheduled oral arguments for Nov. 1.

The court will take up the cases brought forward by abortion providers and the U.S. Department of Justice against the ban, according to a court opinion from Justice Sonia Sotomayor on Friday. It will review the procedural merits of both cases, rather than the constitutionality of abortion, while enforcement of Senate Bill 8 remains in effect.

In her opinion, Sotomayor offered a partial dissent of the Supreme Court’s decision to keep the law in place while the court deliberates over the two cases.

“By delaying any remedy, the Court enables continued and irreparable harm to women seeking abortion care and providers of such care in Texas—exactly as S. B. 8’s architects intended,” Sotomayor wrote.

The court’s decision to expedite its involvement was a rare move, brought upon by a law that has garnered national attention because of its extensive limits on abortions and its particular mechanisms of enforcement: not by state officials but by private citizens who are empowered to sue those who may help someone receive an abortion after fetal cardiac activity is detected.

“The last time [the Supreme Court] moved this quickly was Bush v. Gore,” said Josh Blackman, a law professor at South Texas College of Law Houston whose expertise includes constitutional law.

[…]

Normally, the Supreme Court considers getting involved in a case only after an appeals court has had a chance to make a decision on it. But abortion providers filed a request called a “certiorari before judgment,” a rarely used procedure in which the high court immediately reviews a district court’s ruling without waiting on an appellate court to take action.

One of the abortion providers included in the challenge is Whole Woman’s Health, a provider with four clinics in Texas. Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, said Friday’s decision will mean Texans will continue to be denied safe and accessible abortion care.

“The legal limbo is excruciating for both patients and our clinic staff,” Miller said in a statement. “Lack of access to safe abortion care is harming our families and communities and will have lasting effects on Texas for decades to come.”

See here. here, here, and here for some background. The 19th adds some details.

The court will not specifically examine the constitutionality of a six-week ban. Rather, the justices will be looking at the legality of Texas’ private enforcement setup, as well as whether the Justice Department has the right to challenge the law. But regardless of the specific questions at play, a decision in favor of Texas could still signal to other anti-abortion lawmakers that a ban like Texas’ is a viable path to pursue.

The law has virtually eliminated access to the procedure in Texas. Many clinics have stopped providing abortions altogether. Those who can afford the journey and are past six weeks of pregnancy are seeking abortions in surrounding states, including Oklahoma, New Mexico, Arkansas and Kansas. But many others — particularly those without the time off, financial resources or child care to travel out of state — may end up carrying unwanted pregnancies to term.

Abortions are now virtually unavailable for minors in Texas, who are required to either get parental consent or go through a special judicial approval process that makes it very difficult to meet the six-week deadline. Undocumented teens who are seeking abortions have been sent to immigration facilities in other states, because most of them already past six weeks when they discover they are pregnant.

And Slate tries to read some tea leaves.

The plaintiffs got half a loaf on Friday, or maybe less. SCOTUS will hear both cases, holding oral arguments in just 10 days. (With these orders, the court acted at breakneck speed, which is nearly unprecedented in modern times; the closest analogue is Bush v. Gore.) But SCOTUS restricted the scope of its review in a curious and confusing way. The court will not consider the Justice Department’s request to rule on the merits of S.B. 8. Instead, it will ask only whether the United States may sue the state of Texas, as well as all “state officials” and “private parties,” to “prohibit S.B. 8 from being enforced.” The abortion providers’ application likewise focuses on procedural issues, asking the court to decide “whether a state can insulate from federal-court review a law that prohibits the exercise of a constitutional right” by delegating enforcement to the public.

Neither of these questions squarely presents the constitutionality of a six-week abortion ban to the Supreme Court. The justices could interpret the abortion providers’ request as an invitation to consider the merits by declaring that the court must decide whether abortion is “a constitutional right” before determining “whether a state can insulate” S.B. 8 from review. (If there’s no right to abortion, there’s no clear constitutional flaw in S.B. 8.) But that seems unlikely; after all, the justices took pains to avoid confronting this question in the Justice Department’s case, where it is directly presented. They also ignored Texas’ request to recast these cases as a direct challenge to Roe. It appears, rather, that the court is committed to deciding only whether private plaintiffs or the federal government can sue a state when it makes an end run around the Constitution, as Texas did with S.B. 8.

Several aspects of the court’s orders suggest that at least one justice has not made up their mind about this question. If a majority believed Texas’ scheme is permissible and federal courts cannot stop it, why would it rush to hear these cases? It could have let them languish on the shadow docket, or decline to intervene at this early stage, just as it did last time around. Conversely, if a majority believed Texas’ scheme is impermissible and federal courts can stop it, why would it let S.B. 8 remain in effect? Why not halt the law while the court prepares a formal ruling?

Friday’s orders thus read like a compromise. But for whom? Chief Justice John Roberts and the three liberals have already said they want to pause the law. No one seriously argues that the overtly anti-Roe justices—Clarence Thomas, Sam Alito, or Neil Gorsuch—would lift a finger to stop S.B. 8. That leaves Justices Brett Kavanaugh and Amy Coney Barrett, who probably want to overturn Roe but may want to move slower than their hard-right colleagues. It appears either Kavanaugh, Barrett, or both aren’t yet sure which way they’ll vote in the Texas litigation. Now they’ve preserved every option.

I don’t have anything to add to that. Hold your breath and hope for the best.