Off the Kuff Rotating Header Image

Ken Paxton

The Paxton subpoena-fleeing saga gets more ridiculous

Because of course it does.

Best mugshot ever

Lawyers in an abortion lawsuit tried for days to subpoena Attorney General Ken Paxton before sending a process server to his home Monday, and notified his office that their server was there before Paxton fled in a truck driven by his wife, according to court records detailing the communication.

Paxton said he left his house in a truck driven by his wife, state Sen. Angela Paxton, because a “strange man” made him fear for his safety; his attorneys say they didn’t know he’d be served the subpoena at his home.

U.S. District Judge Robert Pitman quashed the subpoena on Tuesday, but attorneys for the plaintiffs have asked him to reconsider and require Paxton to testify. Pitman has not yet ruled on that motion, or the merits of the case, which concerns whether nonprofit groups, known as abortion funds, can help Texans pay to get abortions out of state.

The lawsuit, filed in federal court in August, names Paxton as one of the defendants, and the plaintiffs sought to call him to testify at the preliminary injunction hearing Tuesday.

Four days before the hearing, on the morning of Friday, Sept. 23, Austin attorney Elizabeth Myers emailed assistant attorney general Amy Hilton, saying that since it was not clear whether Paxton intended to be at the hearing, they were going to issue a subpoena out of “an abundance of caution.”

“I assume you’d like for us to serve that through you, but will you please confirm by noon today that you will accept service,” Myers wrote. “Otherwise, we’ll start the personal service process. I’d really prefer not to have to do that, of course.”

Hilton did not confirm whether they could accept the subpoena on Paxton’s behalf, so the lawyers had a process server deliver the subpoena to Paxton’s office Friday afternoon, emails indicate.

But on Sunday, attorneys from the Texas attorney general’s office told Myers that the subpoena was invalid because it was served through Paxton’s office but sought to depose him in his individual capacity, according to the plaintiffs’ motion before Pitman.

Attorneys for the state said that Paxton would be represented in his official capacity at the hearing by assistant attorneys general, and “declined to clearly indicate whether they would accept a revised subpoena,” according to that motion.

“Myers then indicated that this meant General Paxton needed to be served personally, and Ms. Myers asked if General Paxton’s counsel knew where General Paxton was so that he could be located and served,” the filing reads.

The representatives from Paxton’s office declined to provide that information but said they would determine whether they could accept a subpoena on his behalf, the filing says. By Sunday evening, though, Hilton said they did not yet have an answer for the plaintiffs’ legal team.

“Please let me know ASAP if you are authorized to accept service so I can adjust our process server instructions,” Myers wrote in an email sent Sunday at 6:50 p.m.

The attorney general’s office acknowledged in a motion filed Tuesday that they were aware that the plaintiffs’ attorneys were going to attempt to serve Paxton with a subpoena. But they did not know that that meant they “intended to attempt personal service on Ken Paxton at his private residence.”

See here and here for the background. The story goes on from there, with the plaintiffs trying to get an answer from the AG’s office about how best they can do this totally normal procedural thing and getting stonewalled, then a flunky from the AG’s office whining about the plaintiffs doing what they said they would do if they couldn’t get an answer from them. It’s a level of clownishness from the AG’s office that even I hadn’t expected from them, which probably means I need to recalibrate my cynicism again. There was a time when I would have wondered if the people who keep defending Ken Paxton might be feeling even a little bit of shame at these displays, and then I remember that those people haven’t felt any shame since at least 2015, so there you have it. I don’t know what else there is to say.

Texas to appeal that ridiculous ruling that forbade banning handgun sales to those under 21

Good. Now we’ll see if their heart is in it.

Texas is gearing up to fight a judge’s ruling that the state can’t ban adults under 21 from carrying handguns, a move that’s drawing anger from some gun rights groups.

Last week, Attorney General Ken Paxton’s office filed a notice of an appeal of the ruling on behalf of the Texas Department of Public Safety. It came almost a month after U.S. District Judge Mark Pittman, who was appointed to the bench by former President Donald Trump, issued the original ruling on Aug. 25, writing that the Second Amendment protects all adults’ right to bear arms without an age limit. The suit was brought on by two plaintiffs within the 18-to-20 age range and the Firearms Policy Coalition Inc. against the state of Texas.

The notice, which includes Paxton’s name on the filing, did not say the ground on which it would base its appeal. Paxton’s office did not respond to a request for comment. A spokesperson for DPS said the agency does not comment on pending legal cases.

But in prior filings in the case, the state has argued that the law does not violate the Second Amendment as it is consistent with Texas’ “longstanding tradition” of restricting access to guns based on age.

See here for the background, and here for a reminder that Greg Abbott is either a bad lawyer, a bad liar, or both. A couple of gun-worship groups are quoted as being disappointed in this decision; I’m sure you can imagine my reaction. I’m glad that the state didn’t just punt on this, but I’ll want to see how they actually act before I give them any credit for it beyond that.

CCA tells Paxton again that he’s not the supreme prosecutor

Good, but this isn’t over. It just means that the fight will have shifted.

Best mugshot ever

Texas Attorney General Ken Paxton’s last-ditch attempt to regain the power of his office to unilaterally prosecute election cases was rejected by the state’s highest criminal court Wednesday.

The Court of Criminal Appeals instead upheld its previous ruling that says that the attorney general must get permission from local county prosecutors to pursue cases on issues like voter fraud. Paxton had been fighting to overturn that ruling as the issue of prosecuting election fraud has become fraught in recent years. Paxton sought to overturn the results of the 2020 presidential election and has aggressively pursued individual cases of fraud, outraging some voting rights advocates who see the punishments as too harsh for people who made honest mistakes.

Last December, eight of the nine members on the all-GOP court struck down a law that previously allowed Paxton’s office to take on those cases without local consent. The court said the law violated the separation-of-powers clause in the Texas Constitution.

In the aftermath, Paxton, joined by Gov. Greg Abbott and Lt. Gov. Dan Patrick, led a political push to get the court to reconsider its decision, warning that it would allow cases of fraud to go unpunished. His office filed a motion asking the Court of Criminal Appeals to rehear the case, vacate its previous opinion and affirm an appellate court’s judgment, which was in his favor.

The court’s decision Wednesday came with no explanation, though one judge wrote a concurring opinion.

“I still agree with our original decision handed down in December, when we recognized that the specific powers given to the Attorney General by the Texas Constitution do not include the ability to initiate criminal proceedings—even in cases involving alleged violations of the Election Code,” Judge Scott Walker wrote.

Two judges dissented in the case.

See here and here for the background. It’s good that the CCA was able to withstand the political pressure to change their ruling to something that sated Paxton’s blood lust, but that pressure isn’t going to just dissipate on its own. The usual suspects are now agitating for the Legislature to step in and change the law. As far as I can tell, the CCA made its ruling not on statutory grounds but on Constitutional grounds (*), and as such it would take a Constitutional amendment to change this. Which is good news because the Lege won’t have a two-thirds Republican majority in both chambers, which would be needed for this to happen. But that doesn’t mean they won’t try it anyway, and if it comes back through the courts again on those grounds, who knows what could happen. You know what the solution to this is, I don’t have to tell you. The Chron has more.

(*) Noted in some of the coverage of this is that the same ruling means that Paxton couldn’t unilaterally decide to pursue prosecutions of any abortion “crimes” he likes, either. The Lege is sure to work on bills that would allow DAs from other counties to prosecute such charges in the event that the DA of the county in question chooses not to, so that may not make much difference. That same logic might also apply to whatever “vote fraud” charges these guys want to include, too.

The hearing that Paxton was trying to flee from

It’s about whether the First Amendment rights of abortion funds have been abridged by threats of prosecution from people like Ken Paxton. You know, no big deal.

Leaders of Texas’ most prominent abortion funds on Tuesday implored a federal judge to give them clearance to resume providing assistance to people seeking abortions in states where the procedure is legal.

The funds filed the class-action suit in August seeking to block state and local prosecutors from suing them if they get back to work offering Texans funding and support for travel, lodging, meals and child care, among other expenses incurred while they obtain abortions. On Tuesday, they sought to temporarily block any potential prosecutions until the case is decided.

The groups halted abortion support operations in June after the Supreme Court issued its decision this summer overturning federal protections for the procedure. The decision also led clinics throughout the state to stop providing abortion services.

The legal battle carries immense implications for thousands of Texans seeking abortions, who will inevitably incur higher costs as they depend on other states due to Texas’ near-total abortion ban. Studies show the vast majority of pregnant people pursue abortion for financial reasons, and most who obtain abortions are low-income people of color.

Texas Attorney General Ken Paxton, a Republican, is named as a defendant in the suit, as well as a number of county and district attorneys who are responsible for enforcing the state’s abortion bans. Some local prosecutors in liberal-leaning counties have pledged not to prosecute, while others in redder counties have said they will.

The plaintiffs point to “myriad threats” of prosecution by the attorney general “and his associates,” including social media posts, statements and cease-and-desist letters sent by members of the hard-line conservative Texas Freedom Caucus to corporations.

Caucus member and Deer Park Republican state Rep. Briscoe Cain has also sent similar letters to Texas abortion funds, including plaintiff organizations, saying their donors, employees and volunteers are subject to prosecution under the pre-Roe statutes, according to the suit.

The Texas Supreme Court ruled in July that the state’s pre-Roe statutes, which make it illegal to “(furnish) the means for procuring an abortion,” are enforceable.

The plaintiffs also cited an advisory issued by Paxton just hours after the Dobbs decision was announced that stated the pre-Roe statutes could be enforced by district and county attorneys immediately.

[…]

The abortion funds claim in their suit that charitable donations are a protected form of freedom of speech and association under the First Amendment, but the possibility of debilitating litigation has chilled their exercise of those rights. It has also, they argue, scared some donors out of giving freely to the group.

“Despite their strong desires and commitment to assisting their fellow Texans, Plaintiffs will be unable to safely return to their prior operations until it is made clear that Defendants have no authority to prosecute Plaintiffs or seek civil penalties from them for their constitutionally protected behavior,” they state in the suit.

See here for some background, and I’ll get back to this in a minute. The Trib adds some details.

They have asked U.S. District Judge Robert Pitman for a preliminary injunction that would stop Paxton from pursuing criminal charges or civil penalties against abortion funds. The state has countered that their fear of prosecution is “self-imposed,” as the attorney general cannot bring criminal charges and the law that allows him to bring civil penalties does not apply to abortion funds.

At the end of the seven-hour hearing Tuesday, Pitman noted that while attorneys for the state had repeatedly implied that the abortion funds had “nothing to worry about,” they had stopped short of saying so directly.

Pitman is expected to rule on the request for a preliminary injunction in the coming weeks but in the meantime is also considering a motion to require Paxton to testify himself. Before the hearing Tuesday, Pitman quashed a subpoena seeking the attorney general’s testimony, but lawyers for the plaintiffs have asked him to reconsider. Paxton fled his home Monday to avoid being served with the original subpoena.

The lawsuit also seeks clarity on whether a Texas-based abortion provider can perform abortions for Texans in other states where the procedure remains legal, or provide telehealth services from Texas to patients in other states.

On that question, the attorney for the state was even less definitive about whether the attorney general would try to enforce the civil penalties in the law, saying that situation was not amenable to a clear “up or down” answer but would have to be handled on a case-by-case basis.

[…]

But all of that changed when the U.S. Supreme Court overturned Roe v. Wade in late June, allowing states to set their own laws on abortion. Immediately, Paxton issued guidance that said prosecutors could “immediately pursue criminal prosecutions based on violations of Texas abortion prohibitions predating Roe that were never repealed by the Texas Legislature.”

“Under these pre-Roe statutes, abortion providers could be criminally liable for providing abortions starting today,” Paxton wrote.

But those pre-Roe statutes don’t criminalize just abortion providers — they also criminalize anyone who “furnishes the means” for an abortion, punishable by up to five years in prison.

Immediately, abortion funds in Texas stopped their operations, citing confusion over whether paying for abortions out of state constituted furnishing the means for an illegal abortion. As the leaders of several abortion funds testified to on Tuesday, they were particularly alarmed by Paxton’s statement that his office would “assist any local prosecutor who pursues criminal charges.”

Their fears were exacerbated, according to testimony, when a group of conservative lawmakers in the Texas House, including Cain, issued a letter to Sidley Austin, a prestigious law firm that had offered to pay for its Texas-based employees to travel out of state to get abortions. In the letter, the lawmakers threatened the law firm with criminal prosecution for their actions.

Based on these indications from Paxton and lawmakers, “we believed we would be prosecuted, to be frank,” Anna Rupani, the executive director of Fund Texas Choice said Tuesday.

This freeze on their work came with other consequences, according to Tuesday’s testimony. Several of the funds said they had lost donors or had to spend more time reassuring donors who were confused and worried. Some said they had lost staff or board members over fear of criminal prosecution.

Lawyers for the state, though, argued that this chilling effect was “self-imposed” and “unreasonable.” None of the people the abortion funds cited threats from — Cain, the other legislators or Paxton himself — have the ability to bring criminal charges against anyone.

Only district and county attorneys can bring criminal charges in Texas; the prosecutors named on this lawsuit have agreed not to press charges against abortion funds for paying for out-of-state abortions until the case is fully resolved.

Paxton, though, still has the ability to pursue civil cases and, in the case of Texas’ more recent abortion laws, is actually required to by state statute.

To me, the most salient fact of this case is this, and here I quote from my earlier post: “[I]n their amicus brief to a writ of mandamus that blocked a lower court order that would have enjoined the 1925 state law criminalizing abortion, 70 Republican legislators argued that criminal penalties should apply to people who help others get an abortion.” I Am Not A Lawyer, but it seems to me that a very credible threat of being thrown in jail for your political advocacy is a First Amendment issue. That said, I think we all know what will happen here: Judge Pitman will grant the restraining order, and the Fifth Circuit will block it for no good reason. And so back to SCOTUS we go, and I sure hope they enjoy being constantly dragged into every abortion fight that they said should have been a state issue. What happens from there, I have no idea.

Hispanic Policy Foundation: Abbott 51, Beto 44

One more poll to look at.

There’s an old adage that says the more things change, the more they stay the same. And according to our new poll, that applies to politics in Texas as well, as support for Republicans remains strong across the board heading into the November elections.

“Texas Decides” is a joint effort between the Texas Hispanic Policy Foundation (THPF) and TEGNA Texas stations WFAA, KHOU, KENS and KVUE. It draws on a survey of 1,172 likely Texas voters that was taken between September 6, 2022, and September 15, 2022. It has a confidence interval of +/- 2.9%. The report reviewed the vote intention for the November 2022 Texas elections.

The election will be held November 8. Early voting starts October 24.

Part 1 of this poll, released here, takes a look at the major statewide races across Texas in the coming election. Parts 2 and 3, which will be released later this week, will respectively focus on the Hispanic population’s opinions of the candidates and on culture war issues.

The poll found that Republican incumbent Greg Abbott leads Democrat Beto O’Rourke by seven points (51% to 44%) among likely voters. Among most likely (almost certain) voters, the lead grows to 10 points (53% to 43%). Just 1% of voters in both categories (likely/most likely) says they’ll vote for Libertarian Mark Tippetts and Green Party candidate Delilah Barrios.

“Gov. Abbott’s strength among rural and Anglo voters continues to bolster his intransigent structural support in the 2022 race for Texas Governor,” THPF CEO Jason Villalba says of the poll’s results. “While O’Rourke has shown himself to be a worthy and hard-working adversary, unless there is a marked shift in the composition of the November electorate, Governor Abbott will remain the political and thought leader of Texas politics. Only new voters will be able to shift the tide.”

Perhaps the poll’s most significant finding in the gubernatorial race is the fact that voters seem hardened in their choices, with little room for movement come November. In fact, 95% of all likely voters who say they’ll vote for Abbott tell us they are “certain” about their vote choice. On the other side, 94% of all likely voters who will back O’Rourke say they are “certain” about that choice.

And when you break down support among race, Abbott holds a nearly two-to-one advantage over O’Rourke among white voters, with the incumbent being a 63% choice to his challenger’s 33%. O’Rourke has a strong advantage with Black voters, however, up 79% to Abbott’s 16%. The support margin is closer among Hispanic voters, with 53% intending to vote for O’Rourke and 39% for Abbott.

Poll data is here. In April, this pollster had the race at 50-42 for Abbott. Since I made such a big deal about it the last time I blogged about a poll, this one has a partisan split of 43 GOP, 41 Dem, 14 Indie, 2 “other”. Other results from this poll:

Dan Patrick 48, Mike Collier 42
Ken Paxton 47, Rochelle Garza 42
Dawn Buckingham 46, Jay Kleberg 38
Sid Miller 48, Susan Hays 41
Wayne Christian 44, Luke Warford 37

No love for the Comptroller’s race, I guess. As I have said before, I don’t care for the distinction between “likely” voters and “super duper extra likely” voters, but you do you. This poll shows very little change between April and now, which is to say pre-Dobbs and post-Dobbs, so either not much has changed in the Texas landscape since then, or something has changed but pollsters other than the UT/Texas Politics Project aren’t picking it up. I’m just going to leave it there.

Run, Kenny, run!

Peak Ken Paxton.

Best mugshot ever

Texas Attorney General Ken Paxton fled his home in a truck driven by his wife, state Sen. Angela Paxton, to avoid being served a subpoena Monday, according to an affidavit filed in federal court.

Ernesto Martin Herrera, a process server, was attempting to serve the state’s top attorney with a subpoena for a federal court hearing Tuesday in a lawsuit from nonprofits that want to help Texans pay for abortions out of state.

When Herrera arrived at Paxton’s home in McKinney on Monday morning, he told a woman who identified herself as Angela that he was trying to deliver legal documents to the attorney general. She told him that Paxton was on the phone and unable to come to the door. Herrera said he would wait.

Nearly an hour later, a black Chevrolet Tahoe pulled into the driveway, and 20 minutes after that, Ken Paxton exited the house.

“I walked up the driveway approaching Mr. Paxton and called him by his name. As soon as he saw me and heard me call his name out, he turned around and RAN back inside the house through the same door in the garage,” Herrera wrote in the sworn affidavit.

Angela Paxton then exited the house, got inside a Chevrolet truck in the driveway, started it and opened the doors.

“A few minutes later I saw Mr. Paxton RAN from the door inside the garage towards the rear door behind the driver side,” Herrera wrote. “I approached the truck, and loudly called him by his name and stated that I had court documents for him. Mr. Paxton ignored me and kept heading for the truck.”

Herrera eventually placed the subpoenas on the ground near the truck and told him he was serving him with a subpoena. Both cars drove away, leaving the documents on the ground.

On Twitter, the attorney general said his sudden departure was motivated by concerns for his family’s safety.

“It’s clear that the media wants to drum up another controversy involving my work as Attorney General, so they’re attacking me for having the audacity to avoid a stranger lingering outside my home and showing concern about the safety and well-being of my family,” he wrote in a tweet.

You can see the affidavit here. I mean, seriously. If this had been a story in The Onion, I’d have rolled my eyes at it for being too on the nose. All this because Paxton was too much of a weenie to give a deposition in a lawsuit that had little to do with him. Other people have righteously mocked Paxton for his Brave Sir Robin impression, and now I will as well.

I think I’m done now. What a miserable, sniveling coward Ken Paxton is. The kindest thing we can all do for him now is to vote for Rochelle Garza, so that he and his family can go back home.

Spectrum News/Siena College: Abbott 50, Beto 43

A new pollster enters the chat.

Less than two months from Election Day, Republican Governor Greg Abbott has a seven-point, 50-43%, lead over Democratic challenger, former Congressman, Beto O’Rourke. In the race for Lieutenant Governor, incumbent Republican Dan Patrick is up by nine points, 49-40%, over Democratic challenger Mike Collier. In the race for state Attorney General, incumbent Republican Ken Paxton has a five-point advantage, 47-42%, over Democratic challenger Rochelle Garza according to a new Spectrum News/Siena College (SCRI) poll of likely Texas voters released today.

Abbott has a 47-46% favorability rating, while O’Rourke has a negative 39-52% favorability rating. Patrick has a negative 33-36% favorability rating, compared to Collier’s 13-12% favorability rating. Paxton has a negative 29-41% favorability rating while Garza, like Collier is unknown to about threequarters of Texas likely voters, and has a 13-12% favorability rating.

“Governor Abbott, who won a landslide thirteen-point race against Democratic challenger Lupe Valdez four years ago, has a seven-point lead with over six weeks until Election Day. Abbott has the support of 95% of Republicans and O’Rourke has the support of 93% of Democrats, while independents tilt toward Abbott by one point,” said Don Levy, SCRI’s Director. “White voters favor Abbott by over two-to-one, 64-31%, while Black voters prefer O’Rourke 79-10% and a majority of Latinos, 58-36%, plan to vote for O’Rourke.”

The crosstabs are here. The headline on the Chron story for this refers to Abbott’s lead “widening”, which I object to on the grounds that there’s no earlier Spectrum/Siena poll to compare this one to. I don’t like comparing one pollster’s poll to another’s because they all do slightly different things. Nobody asks me these about these things, so here we are.

Now, if we want to do comparisons to other polls, I will note that this one actually has solid numbers for Beto in terms of support from Dems, as well as from Black and Latino voters. Compare to the DMN/UT-Tyler poll from earlier this week that had Beto only winning Dems by a 77-12 margin, and multiple polls saying that Abbott is getting upward of 15% of Black voters. Why is the overall result not so great if these subsamples are so good? My guess would be that this sample’s partisan distribution is a bit weird – 27% Dem, 34% GOP, 32% Indie/Other (the remaining 8% are a mystery). The DMN/UT-Tyler poll had those distributed as 33-40-27, and in general I expect the Dem share to be higher than the Indie share.

Having written that, I decided I had to go back through earlier poll results to do a comparison. With one exception, my expectation matched the data:

UT-TPP: Dem 42, GOP 48, Indie 10

Echelon: Dem 35, GOP 43, Indie 20

UH/Hobby Center: Dem 41, GOP 46, Indie/unsure 13

Quinnipiac: Dem 24, GOP 30, Indie 36, Other 10

I went back as far as June. Not all of the recent results I’ve blogged about included partisan breakdown data that I could find. Color me surprised at some of the ranges here. You can make of all this what you will, it’s what I noticed.

The Biden student loan forgiveness plan will help a lot of Texans

Hope they’re all voters, because it’s very clear who is on their side and who is against them.

More Texans would benefit from President Joe Biden’s plan to forgive student loan debt than residents of nearly any other state — and 1.6 million would have their balances completely cleared — according to new White House estimates released as Republicans call it an unconstitutional giveaway to the elite and seek to derail it.

More than 3.3 million Texans would be eligible to have at least $10,000 forgiven and most people in that group, 2.3 million, would have $20,000 forgiven. Texas is second only to California in the number of residents that would benefit from the debt forgiveness plan, according to the estimates, which were compiled by the U.S. Department of Education.

[…]

Officials have said they plan to have applications available early next month, but the plan is likely to face a long legal battle.

Texas is among the red states looking for ways to stop it from becoming a reality. Attorney General Ken Paxton said in a recent interview on Fox News that Texas is “definitely looking at a strategy.”

It is the first time a president has sought to unilaterally cancel swaths of student debt and whether the administration has the authority to do so has been the point of heated debate. The administration says it can, citing a 2003 law that grants the secretary of education authority to offer loan relief during times of war or national emergencies.

But Republicans say Biden is going too far.

“The reality is, I don’t actually think Joe Biden thinks he can do this,” Paxton said. “We are absolutely looking at something we can do to protect the American people from a president that is just making up his own rules as he goes along.”

Republicans argue the plan is unfair to those who have already paid off their debt, as well as the vast majority of American adults who do not have student loans. They say the plan will cost too much — with some estimates as high as $600 billion — and will help those who need it the least.

“College may not be the right decision for every American, but for the students who took out loans, it was their decision: able adults and willing borrowers who knowingly agreed to the terms of the loan and consented to taking on debt in exchange for taking classes,” Gov. Greg Abbott wrote in a letter to Biden with other Republican governors last week. “For many borrowers, they worked hard, made sacrifices, and paid off their debt. For many others, they chose hard work and a paycheck rather than more school and a loan. Americans who did not choose to take out student loans themselves should certainly not be forced to pay for the student loans of others.”

Paxton and Abbott are gonna do what they’re gonna do, and we’ll have to deal with it as we always do. There are absolutely root-cause issues here that are not addressed, but one of the big ones is the underfunding of state universities, which is why they’re so much more expensive now than they were even 20 years ago. Remember tuition deregulation, which the Lege did under Tom Craddick back in 2003 as an exercise in budget-cutting? Not much the President can do about that, and I don’t see Greg Abbott lining up to offer solutions. Anyway, policies that offer a lot of people a tangible benefit are usually good, and certainly attractive from a vote-getting perspective. I hope everyone involved in this remembers that.

District court judge dismisses State Bar complaint against Brent Webster

This is a bad ruling, and it needs to be appealed.

A Texas district judge has dismissed a professional misconduct lawsuit against a top aide of Attorney General Ken Paxton seeking to discipline them for their effort to overturn the 2020 presidential election.

Milam County Judge John W. Youngblood ruled last week that his court lacked the jurisdiction to rule on the matter, agreeing with the attorney general’s argument that doing so would violate the separation of powers doctrine by interfering in an executive branch matter.

“To find in the commission’s favor would stand for a limitation of the Attorney General’s broad power to file lawsuits on the state’s behalf, a right clearly supported by the Texas Constitution and recognized repeatedly by Texas Supreme Court precedent,” Youngblood wrote.

A similar case filed by the State Bar against Paxton is still before a Collin County judge and has not yet been decided.

[…]

Jim Harrington, a member of Lawyers Defending American Democracy, a coalition of lawyers including two former State Bar presidents, who filed a friend-of-the-court brief in support of the State Bar, called the ruling a “legal charade.” The group also filed complaints that prompted the bar to file suits against Paxton and Webster.

“The logic of the judge’s decision is that, if a lawyer works for the Attorney General, there is no way to hold the lawyer accountable for ethical violations and professional misconduct,” Harrington said in a statement. “In other words, the attorney general’s office is above the law. That is contrary to the principle of the Constitution, and we hope the State Bar will appeal the ruling.”

Ratner, a co-founder of the group and a Maryland attorney, said he, too, was disappointed in the ruling and added that it misconstrued the premise of the suit.

“While separation of powers authorizes the Attorney General to decide what lawsuits to file on the State’s behalf, we believe it does not authorize him to make misrepresentations and dishonest statements to a court in violation of his duties as a Texas-licensed lawyer,” Ratner said. “That’s what’s involved here.”

See here for the background, and here for a copy of the letter the judge sent. Not a formal opinion, though I suppose he could still write one, just a one page letter. Obviously, if this judge fully bought into Ken Paxton’s sleazy and self-serving line of defense, it doesn’t bode well for the complaint against him. I think Jim Harrington has this exactly right, and I hope the State Bar has the wisdom and the guts to appeal this. Anything less would be a dereliction of their duty. The Trib has more.

DMN/UT-Tyler: Abbott 47, Beto 38

Insert shrug emoji here, and insert link to the unreadable DMN story here. I’ll give you the main results of interest and then a few comments after that.

Abbott 47, Beto 38
Patrick 39, Collier 28
Paxton 37, Garza 30
State House GOP 50, Dem 48

The August poll had Abbott up 46-39. As I said in other posts while resisting the urge to attribute “momentum” to Beto, I find the claim that a one point shift for each candidate represents a “gain” for Abbott to be a bit tendentious. Like with other polls, the subsample that I tend to look at when considering these results is the partisan subsamples. Here, Beto wins Democrats by a lethargic 77-12, with Abbott at 85-8 among Republicans. It was 81-12 for Beto in August, with Abbott at the same level among Rs. I find the claim that more than ten percent of people who would credibly self-ID as Democrats support Greg Abbott to be implausible. I’ll just leave it at that.

I know that the Lite Guv and AG races are lower profile, but as I’ve said before, poll results this late in the cycle that can’t give me a better idea of how many people will vote for “the Republican” versus “the Democrat” are not ones I put much weight in. It is possible to do better than that. It’s especially humorous to me given the near-100% response rate for the Texas House race. The conjunction of these things doesn’t make much sense to me.

One last thing, in their suite of issues questions, this poll finds slightly less support overall for abortion rights, as approval for overturning Roe v Wade went from 42-49 in August to 46-46 in September, while the question on abortion being mostly or completely illegal versus mostly or completely legal went from 44-55 in August to 49-50 in September. This stands at odds with other recent polling. Which doesn’t mean it’s wrong, just that I will cast a skeptical eye at it. The claim I saw in the snippet of the story I could read that this had to do with Abbott doing a lot of advertising strikes me as not very likely. Polls can be weird, which is why we try to look at them in bunches where possible.

UPDATE: I missed on first reading that this was a poll of registered voters, not “likely” voters, which is what all of the other recent polls have been. That explains the lower response numbers in the Lt. Governor and AG races. With their likely voter screen, this poll has Abbott up 50-39. My stated concerns about the likelihood of so many self-described Democrats saying they will vote for Greg Abbott remain.

Ken Paxton keeps trying to kill the SAISD vaccine mandate

On brand, always on brand.

Texas Attorney General Ken Paxton has filed another petition seeking to reverse a Bexar County judge’s decision that rejected the state’s bid for a temporary injunction to block the San Antonio Independent School District’s staff vaccine mandate.

Even though SAISD’S vaccine mandate remains on pause despite the court’s ruling in its favor, Paxton said he will “continue fighting for medical freedom.”

“Nobody should be bullied, coerced, and certainly not fired because of their COVID-19 vaccination status,” said Paxon in his announcement, adding the decision is not only an affront to individual liberty, but “illegal under Texas law.”

“The governor’s executive order specifically protects workers from the type of mass firings that San Antonio ISD is seeking, and I will continue to fight in court to defend GA-39 and Texans’ medical freedom,” he said.

The petition was filed Sept. 7 with the Texas Supreme Court.

An SAISD spokeswoman said in a statement that the vaccine mandate remains suspended and that no employee was ever disciplined for refusing to get the vaccine.

See here and here for the previous updates. There’s a recitation of the long history of this legal saga in the story if you want that. I remind you that this mandate was never enforced and remains on pause, not that these things matter to Ken Paxton. The appellate court ruling that Greg Abbott doesn’t have the power he claimed to have when he forbade these mandates seems pretty clear to me, but you never know what SCOTx will do. Now we wait to see if they’ll take this up.

Broader injunction issued to halt DFPS investigations of trans kids’ families

Good.

Texas’ child welfare agency is once again blocked from investigating parents who provide gender-affirming care to their transgender children. The injunction applies to any family that belongs to PFLAG, an LGBTQ advocacy group with more than 600 members in Texas.

The injunction also specifically protects a handful of families named in the suit, including the Briggles, outspoken advocates for transgender youth who were among the first to be investigated under this directive.

This is the latest chapter in a monthslong legal battle over whether providing medically indicated gender-affirming health care, under the guidance of a doctor, could result in a finding of child abuse by the state.

In February, following a nonbinding legal opinion from Attorney General Ken Paxton, Gov. Greg Abbott directed the Department of Family and Protective Services to investigate parents who provide gender-affirming care to their transgender children.

The Texas Supreme Court has ruled that Abbott had no grounds to direct DFPS to investigate these families but overturned a statewide injunction on procedural grounds.

The American Civil Liberties Union and Lambda Legal brought another lawsuit after that first injunction was overturned, seeking protections on behalf of all members of PFLAG. Travis County District Judge Amy Clark Meachum granted that injunction Friday, three months after hearing arguments.

See here for the previous update and here for a copy of the ruling. This injunction will benefit a lot more families as noted by the story, but we know that it will be appealed and ultimately the Supreme Court will have the final word, so celebrate responsibly. Assuming it hasn’t been mooted by that point, there will be a trial on the merits in Judge Meachum’s court next June. The ACLU, Lambda Legal, Amber Briggle, and the Chron have more.

Paxton to be deposed in Servergy-related lawsuit

This gets into some deep lore about the Paxton crime saga.

Best mugshot ever

Attorney General Ken Paxton will face lawyers for the men who accused him of securities fraud seven years ago in a one-hour deposition after the November elections.

The Dallas Morning News reported Thursday that Collin County District Court Judge Cynthia Wheless ordered Paxton to sit for the deposition on Nov. 28, three weeks after the culmination of Paxton’s reelection race. He is running against Democrat Rochelle Garza.

Paxton did not immediately respond to requests for comment through his government or campaign offices. Phil Hilder, the lawyer representing Paxton in his securities fraud case, declined comment.

[…]

The deposition is part of a lawsuit that is separate but related to the seven-year-old securities fraud indictment in which two men, Byron Cook and Joel Hochberg, accuse Paxton of encouraging them to invest in McKinney-based technology company Servergy Inc., without disclosing he would make a commission from those investments. Cook is a former state legislator who served in the Texas House with Paxton.

A year after Paxton was indicted on three felony charges alleging securities law violations, an associate of his, Charles “Chip” Loper III, sued Cook and Hochberg, accusing them of creating a scheme to profit off the investment funds of Unity Resources, a mineral assets company. Loper said the scheme hurt him and his father financially.

Cook and Hochberg’s lawyers said that lawsuit was retaliatory. Last year, they were able to add Paxton as a “responsible third party” to the case by arguing that he was also an investor and the company’s lawyer. As such, they said, Paxton should be held responsible for any alleged wrongdoing.

In a deposition in the Unity case, Cook and Hochberg’s lawyers can ask Paxton about his other securities fraud case.

Here’s the origin story of this part of the crime timeline. This branch eventually led to SEC charges that Paxton subsequently beat; you will note that the SEC took two cracks at him. The lawsuit that this story is based on is one of two that were later filed by Paxton buddies against Cook and Hochberg. The other was filed by Paxton’s pastor, a fellow named Mike Buster. I had completely forgotten about all of that – those two lawsuits were filed in 2017, which is to say approximately 372 years ago – and as far as I can tell from my archives this is the first update I’ve seen since then. I have no idea what to expect, and I’m a little confused by the reference to Paxton’s “other securities case” in the story. I suppose it means the federal case that got dismissed, but who knows. We’ll find out a bit after Thanksgiving, I hope.

UT/Texas Politics Project poll: Abbott 45, Beto 40

Feels kind of familiar.

Gov. Greg Abbott leads his Democratic challenger Beto O’Rourke by 5 percentage points, according to a new poll from the Texas Politics Project at the University of Texas at Austin.

The survey found that Abbott received 45% of support among registered voters, while 40% supported O’Rourke and 4% supported third-party candidates. Three percent of respondents named “Someone else” as their choice, and 8% said they have not thought about the race enough to have an opinion.

The result is almost identical to the margin from when the pollsters last surveyed the race in June, finding Abbott ahead of O’Rourke 45% to 39%.

The latest survey also gave Republican incumbents single-digit leads in two other statewide races. Lt. Gov. Dan Patrick led Democrat Mike Collier by 7 points, and Attorney General Ken Paxton registered a 5-point advantage over Democrat Rochelle Garza. More voters remain undecided in those contests than in the gubernatorial election — 20% in the lieutenant governor’s race and 21% in the attorney general one.

See here for the previous UT/TPP poll, and here for the pollsters’ report. The Lite Guv and AG numbers are 39-32 for Patrick and 38-33 for Paxton, and I just don’t give much weight to results that have such high numbers of non-responses. Joe Biden clocks in with a 40-52 approval rating, up from 35-55 in June. Abbott was at 46-44, up from 43-46 in June.

You may look at this and conclude that there’s been no noticeable boost in Democratic fortunes since the Dobbs ruling. Based just on post-Dobbs polls (minus that Echelon poll) that may be correct. I will note, however, that Abbott has slowly been losing ground to Beto in this particular poll over time:

February: Abbott 47-37
April: Abbott 48-37
June: Abbott 45-39
August: Abbott 45-40

I will also note that this poll, like previous ones, has generic US House/Texas House questions. If you look in the crosstabs for this poll (questions 21 and 22), those numbers are 47-43 and 46-43 in favor of Republicans, respectively. It was 46-41 GOP for both in June, and 48-39 (Congress) and 47-39 (The Lege) for the GOP in April. So while maybe not a sharp turn, there has been a gradual bend all along.

UH-TSU Texas Trends poll: Abbott 49-Beto 42, and Hidalgo 52-Mealer 42

From their webpage, scroll down to Report 1 and Report 2:

  • In the race for governor, Republican Greg Abbott leads Democrat Beto O’Rourke by 7% among likely voters, 49% to 42%, with 7% undecided and 1% intending to vote for Libertarian Mark Tippetts and 1% for the Green Party’s Delilah Barrios.
picture3.png
  • Abbott holds a 29% (61% to 32%) lead over O’Rourke among white voters while O’Rourke holds a 57% (72% to 15%) lead over Abbott among Black voters, a 15% (53% to 38%) lead among Latino voters and a 9% (48% to 39%) lead among those voters with a mixed or other ethnic/racial identity.
  • Abbott and O’Rourke are deadlocked at 45% among women voters, while Abbott enjoys an 18% (55% to 37%) lead over O’Rourke among men.
  • In the race for lieutenant governor, Republican Dan Patrick leads Democrat Mike Collier by 6% among likely voters, 49% to 43%, with 8% undecided.
picture4.png
  • Patrick holds a 26% (60% to 34%) lead over Collier among white voters while Collier holds a 63% (78% to 15%) lead over Patrick among Black voters, a 14% (51% to 37%) lead among Latino voters and a 5% (44% to 39%) lead among those voters with a mixed or other ethnic/racial identity.
  • Collier holds a narrow 1% lead over Patrick among women voters (46% to 45%) while Patrick enjoys a 15% (54% to 39%) lead over Collier among men.
  • In the race for attorney general, Republican Ken Paxton leads Democrat Rochelle Mercedes Garza by 3% among likely voters, 45% to 42%, with 10% undecided and 3% intending to vote for Libertarian Mark Ash.
picture5.png
  • Paxton holds a 23% (56% to 33%) lead over Garza among white voters while Garza holds a 61% (75% to 14%) lead over Paxton among Black voters, a 16% (51% to 35%) lead among Latino voters, and a 15% (45% to 30%) lead among those voters with a mixed or other ethnic/racial identity.
  • Garza holds a 5% lead over Paxton among women voters (45% to 40%) while Paxton enjoys a 13% (51% to 38%) lead over Garza among men.

In addition to the statewide election analysis of likely voters, the 2022 Texas Trends survey looks at the race for county judge in Harris County, the nation’s third largest county and Texas’ largest, with a population of more than 4.5 million residents.

While the non-election related reports we will subsequently release focus on all Harris County adults aged 18 years and older, this county-specific election report is based on the analysis of a sample population of 195 likely voters, with a confidence interval of +/- 7.0%. Given the small size of this population, caution should be used in interpreting the results due to the comparatively large margin of errors surrounding all of the estimates.

This county-specific election study is presented as the second report in the overall series, and it includes the preferences for candidates running for governor, lieutenant governor and attorney general in addition to county judge.

  • The vote intention in the race for Harris County judge is 52% for Democrat Lina Hidalgo and 42% for Republican Alexandra del Moral Mealer, with 6% undecided.

picture1.png

  • This 10 percentage point lead by Hidalgo is notably higher than the 1 percentage point lead she garnered in the Hobby School election survey released in July.
  • Del Moral Mealer holds a 19 percentage point advantage over Hidalgo among white voters, 58% to 39%.
  • Hidalgo holds a 71 percentage point advantage over del Moral Mealer among Black voters, 79% to 8%, and a 44 percentage point advantage among Latino voters, 69% to 25%.
  • Hidalgo enjoys a 14 percentage point lead over del Moral Mealer among women, 53% to 39%, but only a 2 percentage point lead among men, 50% to 48%.
  • Del Moral Mealer enjoys a 16 percentage point lead over Hidalgo, 56% to 40%, among the combined Silent Generation/Baby Boomers cohort, and Hidalgo a comparable 16 percentage point lead over del Moral Mealer among Generation X, 54% to 38%.
  • Hidalgo is the overwhelming favorite of the combined Millennials/Generation Z cohort, with a 40 percentage point lead in vote intention over del Moral Mealer, 67% to 27%.

That’s a lot to take in, but it’s all there on their site. Note that while this poll references the UH/Hobby poll from July that had Abbott up 49-44 and had Judge Hidalgo only up by one point, 48-47, this one is different in two ways. One is just simply that this poll is a collaboration between UH and TSU whereas the previous one was all UH. I don’t think that makes any real difference, but there it is anyway. The other is that the July poll of Harris County was (I assume, anyway) a separate sample of 321 voters, while this one is (again, I presume) a subsample of 195 likely voters from the larger all-state population of 1,312. I don’t know why they chose to do it this way, and I hope someone will correct me if I’m wrong, but that’s how I read it.

The full data for the statewide report is here, and for the Harris County subsample here. My observations, bullet-point-style:

– The July poll was also post-Dobbs, so at least as far as these surveys go there’s not been any change in the overall environment since then. Insert anodyne statement about individual data points and move on.

– In the July poll, Beto was down five overall and led in Harris County by nine; in this poll Beto is down seven overall and leads in Harris County by 13 (it was 51-42 in July and it’s 53-40 in September, as you can see in the second report). Again, if there were a live feed of me as I typed up this post, you would have seen me shrug right there. Beto beat Cruz in Harris County by a 58-41 margin in 2018, and he’s within range of that in this poll, though as noted one with a higher-than-usual margin of error. All I’m saying here is that historically there’s been a relationship between the statewide percentage for a Dem candidate and that same candidate in Harris County. As such, in general if Beto is doing better in Harris I’d expect him to be doing better across the state. But we’ll see.

– That July poll had Mealer leading Hidlago among Latino voters by three points. This one has Hidalgo up among those same voters by 44. I feel very confident saying that it cannot be the case that both of those figures were accurate. Maybe they’re both off, but if one is right then the other is extremely wrong.

– I didn’t post the generational numbers for the statewide races, but overall Hidalgo did much better than the others. Of course, this is a subsample of a subsample, so be super duper cautious in drawing any conclusions from this. For what it’s worth, in the three statewide races the Dems were around 55% for the Millennial/Gen Z cohort and the Republicans were in the 30-35 range.

– The main reason Rochelle Garza is closer to Ken Paxton than Beto and Collier are to Abbott and Patrick is that Paxton has less support overall, clocking in at 45%. Most likely, this is just a number of Abbott/Patrick voters moving into the “don’t know” pile in this race. Maybe they’re really not sure how they’re voting, and maybe they’re Republicans who don’t want to admit, even in a webpanel, that they’re voting for Paxton. I do think Garza has a chance to be the top Dem performer, but I don’t think you can necessarily conclude that from this poll, as her level of support is in line with Beto and Collier. She did do best in Harris County, leading Paxton 54-36 in that sample, compared to 53-40 for each of the other two Dems.

– This is not the first poll I’ve seen this cycle that had Abbott getting about 15% of Black voters, which is about five points better than I’d normally expect. I don’t know if this is sample weirdness or if there’s something there, like the Trump bump among Latinos was visible in some 2020 polls, though not all.

– Finally, as far as Latino voters go, imagine me shrugging again. Some of what we saw in 2020 was low-propensity voters turning out, but not all of it. I genuinely have no idea what to expect.

More on the Gillespie County elections office resignations

From Votebeat, how this mess got started.

Last November’s sleepy constitutional amendment election nearly came to blows in Gillespie County, a central Texas county known for its vineyards. A volunteer poll watcher, whose aggressive behavior had rankled election workers all day, attempted to force his way into a secure ballot vault.

The burly man was repeatedly blocked by a county elections staffer. Shouting ensued. “You can’t go in there,” the staffer, Terry Hamilton, insisted to the man, who towered over Hamilton. “We can see anything we want!” the poll watcher and his fellow election integrity activists yelled, according to an election worker who witnessed the scene. They accused Hamilton and Elections Administrator Anissa Herrera of a variety of violations of the state elections code, which they quoted, line by line.

“Oh Lord, they can cite chapter and verse,” recalled Sue Bentch, a Fredericksburg election judge who saw the confrontation that night. “But you know, just as the devil can cite scripture for its own purposes it seemed to me that it was often cited out of context and misinterpreted.”

“Finally, I called the sheriff’s officer,” said Bentch. The officer barred the activists from the vault. “Poor Terry was coming to fisticuffs.”

Previous elections had been no better. In 2020, a poll watcher called the cops on Herrera and filmed election employees in a dark parking lot. The same year, Herrera received a clutch of obscene, often racist, emails. And in 2019, a group of activists filed suit after Fredericksburg voters overwhelmingly rejected an obscure public-health ballot measure. That election, the activists argued, had been irrevocably tainted by fraud.

Three years of these hostilities were clearly enough for Herrera, who resigned this month.

The rest of the office staff — one full-time employee and one part-time employee — also departed, leaving the elections office completely vacant.

Recent media coverage of the exodus attributed it to threats of the type that have become common since the 2020 presidential election. In fact, Votebeat’s review of court documents, emails, and social media postings show Herrera and others struggling to combat fringe election conspiracy theories in Gillespie County long before former President Donald Trump encouraged his supporters to question the integrity of the 2020 vote.

In Gillespie County in 2019, the fringe was focused on fluoride.

See here for the background, and go read the rest, there’s a lot more. This is a reminder that shitty paranoid conspiracy theories existed well before The Former Guy, but as with most other bad things, he amplified and intensified them, in this case with some generous assistance from the Gillespie County Republican Party. I have no idea what a good way forward for Gillespie County is, but it’s not my problem to solve. I feel bad for the people of good faith who are trying to solve it. The problem is a lot bigger than they are.

Paxton still trying to intervene in the Genecis case

Never stop never stopping.

Best mugshot ever

Texas Attorney General Ken Paxton is attempting for the second time to intervene in a legal fight over gender-affirming medical care at two Dallas hospitals.

In an appeal filed this month, Paxton said that a lower court judge erred in ruling the state could not intervene in Dr. Ximena Lopez’s lawsuit against Children’s Medical Center of Dallas.

Lopez sued in March to reverse the decision to halt certain treatments for new patients and remove the branding at Genecis, a program for transgender youth that Children’s ran with the University of Texas Southwestern until November. While the program itself remains dismantled, a lower court judge ruled in May that Lopez could treat new patients using puberty blockers and hormone therapy while her case is being litigated.

In his appeal, Paxton said the state has an interest in the case because Lopez is challenging his interpretation of Texas law and has accused the governor of pressuring the hospitals to make changes at Genecis. He added the state acted “through” UT Southwestern, a public university, to discontinue certain treatments for new trans patients at Genecis.

See here and here for the background. I got this from the Daily Kos pundit roundup on Saturday, so that’s all I’ve got. In May, the district court judge in Dallas County gave Dr. Lopez and Genecis an injunction through April of 2023 to continue their work. Paxton had petitioned to intervene in the case, since the Children’s Medical Center of Dallas did not pursue an appeal, and we denied at the district court. He’s now appealing to the Fifth Court of Appeals – the state appeals court, not the federal one – with the goal (I presume) to put a hold on the injunction as the litigation proceeds. That’s about all I can glean from this excerpt, so we’ll see what that court has to say. I would expect Paxton to continue on to SCOTx if he loses again.

Paxton finds a new way to be two-faced

I mean, what were we supposed to believe?

Best mugshot ever

Texas Attorney General Ken Paxton stunned election administrators across the state last week when he released an opinion that, in theory, would allow anyone to access ballots almost immediately after they were counted.

Records show that, as recently as five days before the office released that opinion, it was providing the exact opposite guidance to counties.

“The information at issue is confidential for at least 22 months after election day,” a public records opinion from the office, dated Aug. 12, reads. “Accordingly, the district attorney’s office must withhold the information at issue.”

Then, five days later, Paxton released his new opinion. “Members of the public” the new guidance read, are welcome to inspect “voted ballots during the 22-month preservation period.”

“What a difference five days makes,” said Chris Davis, elections administrator in Williamson County.

The record shows that Tarrant County did not receive the opinion telling it not to release the ballots until Aug. 22 — five days after Paxton issued his new opinion. This left the county unsure of how to proceed, and by that time, it had already challenged the new opinion in court. Paxton’s office did not respond to questions about what, if anything, changed in the five day period between the contradictory opinions.

[…]

Tarrant County’s court challenge to Paxton’s new opinion was filed as part of an ongoing records dispute. Citing yet another opinion issued to the office this summer, this one dated July 26 and also instructing the county not to release ballots, attorneys for the county’s election department asked the judge to find Paxton’s new opinion “erroneous.”

“On August 17, 2022, the Attorney General issued a formal opinion concluding for the first time in almost 40 years that voted ballots are not confidential,” they wrote. “The Attorney General’s most recent interpretation is erroneous, and the Court should not follow it.”

In addition to the opinions issued to Tarrant County and dated July 26 and Aug. 12, records provided to Votebeat show Paxton’s office provided identical advice in opinions dated June 16 and Aug. 1.

“We have two documents coming from the same office saying opposite things,” Tarrant County Elections Administrator Heider Garcia told Votebeat. “We’ve got to figure out what’s the path we’re going to walk to do our job.”

Garcia has clear reason to be concerned about the ruling. Earlier this year, after the 22 month window for the March 2020 primary lapsed, a group of activists spent weeks inside his office examining the 300,000 ballots cast by Tarrant County voters. The request took Garcia weeks to fulfill, and then required a dedicated room with videotaped surveillance and a staffer’s supervision.

“You want it as safeguarded as possible in case you actually do have a criminal investigation or some sort of proceeding where [ballots] become evidence,” Garcia said. “Ballots are really easy to alter. You just grab a Sharpie and draw a line on them and now how do you know if it’s been altered or not? Having absolute protection on the physical document, to me, is extremely important.”

See here for the background. I cannot think of a good reason for the sudden turnaround, not to mention the chaos caused by the out-of-order delivery of the contradicting opinions in Fort Worth. The simplest explanation is sheer incompetence. Which would be a surprise given that office’s track record – they’re evil, but they’ve been pretty effective at it. If you have a better idea, by all means say so.

I trust that the irony of Heider Garcia’s words in that last paragraph aren’t lost on anyone. The single biggest threat to the security of the ballots is the idiots that demand to “audit” them, who have to be watched like hawks to ensure they don’t accidentally or deliberately spoil them. I hope that the madness this all represents is helping to drive home the message that Republicans are a clear threat to democracy, as the January 6 hearings and confidential-document-theft-a-palooza have been doing. There are plenty of other things to be talking about as well, from guns to abortion to LGBTQ rights to climate change and renewable energy, but we can’t lose sight of this one. Whatever it’s going to take to convince people they can’t trust the Republican Party as it now exists, we need to be doing it.

Paxton issues deranged opinion on access to ballots

This is utterly chaotic. And completely out of the blue.

Best mugshot ever

A legal opinion released by Texas Attorney General Ken Paxton last week will almost certainly throw county elections offices into chaos after November, experts say, exposing election clerks to possible criminal charges and materially reducing the security of every ballot cast in the state.

Federal and state law require that ballots be kept secure for 22 months after an election to allow for recounts and challenges — a time frame Texas counties have had set in place for decades. Paxton’s opinion, which doesn’t stem from any change to state law, theoretically permits anyone — an aggrieved voter, activist or out-of-state entity — to request access to ballots as soon as the day after they are counted. Such requests have been used by activists all over the country as a way to “audit” election results.

The opinion from Paxton doesn’t carry the force of law, but experts say it will almost certainly serve as the basis for a lawsuit by right-wing activists. The opinion has already impacted elections administrators across the state, who told Votebeat that they’ve seen an onslaught of requests since Paxton released it.

“[Paxton’s office wants] to throw a monkey wrench into the operations of vote counting, especially if they think they might lose, and Paxton is in a close race as far as I can tell,” said Linda Eads, a professor at Southern Methodist University’s Dedman School of Law and a former deputy attorney general for litigation for the state of Texas. She said she was “shocked” by the opinion.

[…]

Paxton’s office sought input from the secretary of state’s office prior to issuing the decision, which was requested by state Sen. Kelly Hancock and state Rep. Matt Krause, both Republicans. In no uncertain terms, the secretary of state’s office  — which is run by a Republican appointed by Gov. Greg Abbott — recommended keeping the current waiting period.

“The voted ballots are the core of the election process and the prohibition on disturbing the ballots (except in limited circumstances as permitted by the Election Code) preserves the integrity of the election itself,” wrote Adam Bitter, general counsel for the office, in a letter obtained by Votebeat through a public records request. “Handling of the voted ballots themselves opens up the possibility of accidental or intentional damage or misplacement that could call into question the election after the fact.”

Paxton’s office did not respond to specific questions about why he disagreed with Bitter’s conclusion, nor did he respond to requests for comment.

For months, election administrators in Texas and across the country have been fielding records requests from activists intent on re-examining every ballot cast in every election since November 2020 — or, in some cases, even earlier. In Tarrant County, volunteers with a conservative group occupied a room in the elections office for weeks this summer, examining 300,000 ballots from the March 2020 primary, which were made available by the county 22 months after the election.

Ballots are kept in secure lock boxes for 60 days, and then transferred to another secure facility for the remainder of the waiting period in order to comply with the Civil Rights Act of 1960, a federal law which, in part, requires ballots be securely stored for 22 months. In 2017, the Republican-dominated Texas Legislature even amended state law to specify “22 months,” updating state standards to mirror federal requirements.

In the letter to the attorney general’s office, Bitter, the general counsel for the secretary of state’s office, wrote that an election clerk may effectively have to break state law in order to comply with a request for ballots so soon after an election.

Texas law says that if the ballots’ legal custodian, typically a local election official, “makes unauthorized entry into the secure container containing the voting ballots during the preservation period, or fails to prevent another person from making an unauthorized entry, the custodian has committed a Class A misdemeanor,” Bitter wrote.

Paxton’s opinion, experts say, does not appropriately address the potential criminal exposure.

Matthew Masterson, who previously served as the Trump administration’s top election security official and now is Microsoft’s director of information integrity, said that Paxton’s opinion will make it impossible for election administrators to appropriately ensure that ballots are kept secure. The security controls exist for a good reason, he said, and undermining them has serious implications.

“If you open up the floodgates and give anyone access to the ballots throughout that process, you have broken that chain of custody to the point where you would not be able to prove that this was the ballot a given voter cast,” Masterson said.

The opinion itself provides little guidance as to how long or for what reasons election administrators can block access to such ballots, leaving administrators across the state concerned about their ability to appropriately comply.

“If I read this literally as a layman, I think I’m required to provide ballots the day after an election before the results have even been canvassed,” said Chris Davis, elections director in Williamson County, who said such a release would make it impossible for counties to confidently conduct recounts that would stand up to legal scrutiny.

“I don’t know if the drafters of this opinion have a firm grasp on how ballot security and ballot processing is done at the county level,” he said.

There’s more, go read the whole thing, and add on this tweet thread from story author Jessica Huseman. There’s absolutely no justification for this – state and federal law are clear, and nothing has changed about them. It’s just chaos intended to give a boost to Big Lie enthusiasts, and as the story notes later on, it’s potentially a conflict of interest for Paxton since he himself is on the ballot this year, and everyone agrees it’s likely to be a close race.

County election officials around the state are already reporting getting a bunch of requests, some of which appear to be part of a coordinated effort. I think Harris County has the right response here.

Harris County Attorney Christian Menefee says the county is not releasing the ballots, arguing the opinion Paxton issued in the name of election integrity last week runs afoul of the law.

“Attorney General Ken Paxton is distorting the law to fuel conspiracy theories, encouraging reckless behavior that erodes public trust in our democratic process,” Menefee said in a statement. “The law is clear that these voted ballots are confidential and it’s a crime for anyone to access them unless authorized by law.”

Menefee said Harris County had received more than three dozen requests to inspect ballots since Paxton issued his opinion. The county attorney’s office did not respond to a request for more information about the requests, including who submitted them.

[…]

Federal and state laws requires ballots be securely stored for 22 months after an election, in part to preserve them for recounts or challenges to election results. Menefee said Paxton’s opinion “directly contradicts” a separate opinion his office issued last month, as well as an opinion issued by the AG’s office more than 30 years ago, which both concluded that ballots are confidential for 22 months following an election.

“Our election workers should not have to fear being criminally prosecuted because the attorney general wants to play politics and try to rewrite laws,” Menefee said. “Everyone who has closely read the law agrees the ballots are confidential: the Secretary of State’s Office, counties across the state, and his own office just a month ago. Harris County will continue to follow Texas law, not the Attorney General’s ‘opinion.’”

That’s what I, a non-lawyer who has no responsibilities in these matters, would have done. It is highly likely that a lawsuit will result. No one wants that, but sometimes having the fight is the most straightforward way to resolve the dispute. If that’s what we have to do, then so be it.

A different EMTALA ruling in Idaho

As expected. You know where this goes from here.

A federal judge on Wednesday blocked Idaho from enforcing a ban on abortions when pregnant women require emergency care, a day after a judge in Texas ruled against President Joe Biden’s administration on the same issue.

The conflicting rulings came in two of the first lawsuits over Biden’s attempts to keep abortion legal after the conservative majority U.S. Supreme Court in June overturned the 1973 Roe v. Wade decision that legalized the procedure nationwide.

Legal experts said the dueling rulings in Idaho and Texas could, if upheld on appeal, force the Supreme Court to wade back into the debate.

[…]

In Idaho, U.S. District Judge B. Lynn Winmill agreed with the U.S. Department of Justice that the abortion ban taking effect Thursday conflicts with a federal law that ensures patients can receive emergency “stabilizing care.”

Winmill, who was appointed to the court by former Democratic President Bill Clinton, issued a preliminary injunction blocking Idaho from enforcing its ban to the extent it conflicts with federal law, citing the threat to patients.

“One cannot imagine the anxiety and fear (a pregnant woman) will experience if her doctors feel hobbled by an Idaho law that does not allow them to provide the medical care necessary to preserve her health and life,” Winmill wrote.

The Justice Department has said the federal Emergency Medical Treatment and Labor Act requires abortion care in emergency situations.

“Today’s decision by the District Court for the District of Idaho ensures that women in the State of Idaho can obtain the emergency medical treatment to which they are entitled under federal law,” U.S. Attorney General Merrick Garland said in a written statement.

“The Department of Justice will continue to use every tool at its disposal to defend the reproductive rights protected by federal law,” Garland said. The DOJ has said that it disagrees with the Texas ruling and is considering next legal steps.

See here for the background. TPM goes deeper into the two rulings and also provides copies of them, but the bottom line is that the Texas judge said that the federal guidance went too far, didn’t go through the formal rule-change process (even though it was guidance on an existing rule and not a change), didn’t take the rights of the fetus into account, and could only apply when the mother’s life was in danger, not just when her health was threatened. The Idaho judge didn’t do any of that.

Both rulings will be appealed, and as Idaho is in the more liberal Ninth Circuit, there’s a very good chance that this ruling will be upheld. The same is true for Texas, where the radical and lawless Fifth Circuit will get its paws on it. While it is usually the case that a split in the appellate courts means that SCOTUS will weigh in, it seems possible to me that they will duck the issue, perhaps on the grounds that this is really a dispute over state laws, and since the Texas case applies only to Texas, there’s no need for them to step in. I’m just guessing, I could easily be wrong. We’ll know soon enough. DAily Kos has more.

Paxton’s State Bar disciplinary hearing

We are slowly moving towards finally having some kind of result in this saga.

Best mugshot ever

Lawyers for Texas Attorney General Ken Paxton argued Wednesday that a Kaufman County judge should toss a lawsuit alleging he acted unethically in a legal challenge that sought to overturn the 2020 presidential election.

The first public hearing in the case inside a near-empty Kaufman County courtroom was not to determine the merit of the lawsuit lodged by a disciplinary commission of the state bar, but whether the group can seek sanctions against Texas’ top lawyer.

Paxton’s lawyers said the case, which could threaten his law license, is an unconstitutional attempt to control his office’s work and could have a chilling effect on future attorneys general. But an attorney for the commission countered that all lawyers should be subject to the same rules of professional conduct, no matter their position.

Judge Casey Blair, a Republican, did not issue a decision from the bench Wednesday. The outcome could establish the limits of the commission’s power to sanction lawyers who serve in high-ranking elected positions.

Any ruling will likely be appealed, meaning it could be months before the bar’s complaint over Paxton’s 2020 election lawsuit is heard in court, if ever.

[…]

In the hearing Wednesday, Christopher Hilton, a state attorney representing Paxton, argued that if the court allows the lawsuit to go forward, then “every future attorney general will have to fear for their law license rather than represent the state of Texas to the best of their ability and the way their voters expect that they would do.

“They would be hamstrung on unelected bureaucrats,” he said.

Royce LeMoine, a lawyer for the commission, said Paxton is being sued for his actions as a lawyer, not as the state’s attorney general, and that this is not a “select prosecution.”

“The commission’s disciplinary rules do not violate the respondent’s ability to advocate for his clients and the state of Texas,” LeMoine told the judge.

See here, here, and here for the previous updates. The Chron had a preview story on Tuesday.

“I hope it proceeds,” said Jim Harrington, one of the Texas lawyers who filed the State Bar complaint. “I hope [the judge] bites the bullet and denies the plea because it’s the right thing to do.”

[…]

In seeking to dismiss the disciplinary case, Paxton’s lawyers argue that it would violate the separation of powers doctrine for the Texas courts to “police” what they say was an executive branch decision. They also claim Paxton is protected by sovereign immunity, the legal principle that generally shields public officials from lawsuits.

In a separate motion, the attorney general’s office is asking the judge to allow the agency to intervene in the case on Paxton’s behalf.

The 2020 suit was not “dishonest, fraudulent, or deceitful,” they write in filings, and the State Bar’s issues with it essentially amount to a “political disagreement.”

“If Texans disapprove of the how the Attorney General exercises his authority, the remedy is to vote him out of office,” Paxton’s attorneys write. “The bar has no veto over how the Attorney General exercises his constitutional authority.”

Paxton was not the first attorney general to be asked to spearhead the case, and lawyers in his own office, including then-Solicitor General Kyle Hawkins, had argued against it, according to the New York Times. Hawkins, who would normally represent the state in such litigation, had no involvement in the case when it was filed and resigned within a month.

Top lawyers at the Florida attorney general’s office ridiculed the suit as “bats—t insane,” emails revealed.

Recent polls have shown the attorney general’s race is highly competitive between Paxton and his Democratic opponent Rochelle Garza, a former ACLU attorney. Garza, who has portrayed herself as the candidate who will bring integrity to the attorney general’s office, isn’t buying Paxton’s legal argument in this case.

“Political disagreements have to do with policies, not facts,” Garza said in a statement. “Even first-year law students know that legal accusations of wrongdoing require evidence, yet two years later, Paxton continues peddling his baseless lies about the 2020 election. Texans deserve an attorney general who believes in the rule of law and ethically uses the power of the office to serve Texans, not for their own political ends.”

Any decision in the case could foreshadow the result of a suit filed against Paxton’s First Assistant Attorney General Brent Webster by the Texas Bar for his involvement in the 2020 Supreme Court petition. Webster is also seeking to dismiss his case, and a hearing will be held Sept. 6 in Williamson County.

Paxton and Webster are being represented by lawyers from the attorney general’s office, as well as outside counsel. The office has not responded to questions about why they need both. The cost to taxpayers so far is over $46,000, and that’s before today’s initial proceedings.

The attorney general’s office has said the four in-house attorneys working on the case are not keeping track of their billable hours. The office did not explain why no timekeeping was done, despite its policy of doing so for other types of cases.

“To me, it’s really outrageous they’re using taxpayer money,” Harrington said. “This has nothing to do with his role as attorney general, absolutely nothing. It’s only his role as an attorney. Even if the State Bar disbars him, it has no effect on him being attorney general.”

You will not be surprised to know that I am on the State Bar’s side in this dispute. Paxton’s argument has merit to the point that elected officials should not be held accountable for political decisions by non-political offices like the State Bar. Where that falls apart is that he was also acting as a lawyer, and in doing so was violating the ethical and professional rules that lawyers are supposed to abide by. The evidence for that is overwhelming, from the sheer brazen falsity of the the claims he was making to the way similar lawsuits had been routinely batted aside by a myriad of courts to the fact that his own Solicitor General, whose job it is to make these arguments in court, refused to participate. If he can’t be held accountable for that then he has a blank check to do anything. That cannot be the right answer.

Anyway. If Paxton is found guilty, he will be subject to discipline from the State Bar, which could be anything from a scolding to being disbarred. While the latter seems unlikely to me – from what I have observed, it’s usually lawyers that do things like misappropriate clients’ money that get the boot – I don’t think it would be inappropriate given the seriousness of the issue. If that did happen, Paxton would still be able to hold the office of Attorney General. We’re not getting rid of him that easily. I don’t know what to expect and I don’t know how long it might take. With Paxton, we’re used to waiting on these things. Reform Austin has more.

Restraining order granted in Paxton’s EMTALA lawsuit

Ugh.

Texas hospitals will not be required to provide emergency abortions after a federal judge ruled the Biden administration was unauthorized to enforce such a rule.

U.S. District Judge James Wesley Hendrix in Lubbock ruled that the guidance by the U.S. Department of Health and Human Services went beyond the text of a related federal law, Reuters reported. The judge’s ruling agreed with Republican Texas Attorney General Ken Paxton.

Hendrix, who was appointed by former President Donald Trump, only barred federal regulators from enforcing the guidance and its interpretation of the Emergency Medical Treatment and Active Labor Act in Texas, and against two anti-abortion groups of doctors. The judge declined to enjoin the guidance nationwide.

[…]

The Biden administration’s guidance was an attempted response to concerns about the health of pregnant patients being turned away or delayed care by hospitals worried about abortion bans. The Texas Medical Association wrote a letter asking state regulators to “prevent any wrongful intrusion into the practice of medicine.”

See here for the background. At least this time it’s just limited to the state and not nationwide, though of course it’s our effed-up state that needed this to be decided differently. As TPM notes, there’s a similar case in Idaho that may have a ruling by the time you read this, so we’re going to be fighting this out in the appeals courts and then very likely SCOTUS. Joy.

I often say that I Am Not A Lawyer in posts about legal things. I say that in part to make it clear that my analysis is that of a layperson, and one should be wary of accepting my acumen of the finer points of legal theory. But that also frees me to an extent of the concern about the technicalities and lets me just focus on the things that should matter, whether they actually will in a real courtroom or not. As a prime example of this, let’s look at a bit of the judge’s ruling. I’m quoting from that TPM story now:

“That Guidance goes well beyond EMTALA’s text, which protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict,” Hendrix writes.

Siding with the two groups of anti-abortion physicians as well as the state of Texas, Hendrix writes that the HHS guidance requiring physicians to act when the woman’s health is at risk is too generous.

“The Guidance states that EMTALA may require an abortion when the health of the pregnant woman is in serious jeopardy,” he says. “Texas law, on the other hand, limits abortions to when the medical condition is life-threatening, and HLPA goes further to expressly limit the condition to a physical condition,” he adds, referring to Texas’ trigger law that outlaws abortions in most cases.

He argues that the guidance also does away with consideration for the embryo or fetus. The government contends that, when the wellbeing of the woman and embryo or fetus are in conflict, it should be the pregnant patient who decides whether or not to go forth with an abortion. Hendrix says that the decision should be taken out of the woman’s hands and put into the doctor’s — who has to then comply with state law.

He also dips into agency power arguments to hack back the guidance, claiming that Congress has not resolved the specific question at play.

“Specifically, the question at issue here is whether Congress has directly addressed whether physicians must perform abortions when they believe that it would resolve a pregnant woman’s emergency medical condition, irrespective of the unborn child’s health and state law,” he writes. “Congress has not.”

In other words, unless you the doctor who may get prosecuted for murder are sure the pregnant person is going to die, you have to let them suffer. I don’t care about the legal technicalities, I’m here to say that if you’re capable of committing these words to a document, you’re a goddamned sociopath and you have no business having power of any kind. That of course also applies to Ken Paxton and Greg Abbott and every single member of the Legislature who voted for these barbaric laws. It’s what this election is about. And I should note that Slate’s Mark Joseph Stern, who is an actual lawyer, sees this the same way I do. So there. Daily Kos and CNN have more.

There’s still a lot of confusion about how Texas’ abortion ban will be enforced

There will be chaos, in addition to the fear and danger to pregnant people that already exists.

Abortions are already effectively outlawed in Texas, where clinics closed after the U.S. Supreme Court decision overturning Roe vs. Wade. But a new law takes effect Thursday that makes performing the procedure a felony, punishable by up to life in prison and fines of at least $100,000. There are no exemptions for rape, incest or fetal anomaly — only for when the pregnant person’s life is in danger.

It’s not clear how many prosecutions will materialize or even how police will handle complaints. But the first cases will test the bounds of a sweeping new law that is prompting fear and confusion for patients, their families and the medical community alike. Experts say the few abortions that do occur in Texas are now carried out in hospitals during emergencies, or at home with medication obtained online or through other means. Pregnant women cannot be prosecuted.

“Are they going to be going after doctors who perform emergency abortions? What does that look like?” said Joanna Grossman, a professor at Southern Methodist University Dedman School of Law.

So far, Attorney General Ken Paxton has been the most bullish about enforcement. His office can only enforce the six-figure civil fines, but he offered to help local prosecutors bring criminal charges under the state’s abortion ban.

“I will do everything in my power to protect mothers, families, and unborn children, and to uphold the state laws duly enacted by the Texas Legislature,” Paxton, aRepublican up for a third term in November, said in an advisory.

[…]

In Tarrant and Denton County, officials said prosecutors will evaluate each case and present it to a grand jury only if the facts warrant prosecution. Neither office specified what circumstances might qualify.

“Prosecutors do not make the law – we follow it,” Tarrant County Criminal District Attorney Sharen Wilson said in a written statement. “We followed Roe v. Wade when it was the law and we will follow Texas state law now.”

“Police agencies bring us cases, we don’t go out and investigate cases ourselves,” said Denton County First Assistant District Attorney Jamie Beck. “If an agency brings us a case that deals with this issue and these laws, we will treat it like any other case.”

Yet, how the police will handle complaints remains a question mark.

Some city councils, including in Dallas and Denton, voted to restrict the resources that can be used to investigate abortions or request that police deprioritize those cases. Several police groups said they don’t know how enforcement will work, and one questioned whether law enforcement would want to be involved at all.

“They are extremely difficult investigations and there’s all kinds of politics surrounding it,” said Kevin Lawrence, executive director of the Texas Municipal Police Association. “It’s a lot easier to say something is illegal than to actually prosecute someone for it.”

In Dallas, Police Chief Eddie García said that depending on priority and call type, there will be instances “that we may have to respond and take a report.” But he echoed the uncertainty, saying it’s “too soon to tell how the state plans to enforce this new law, and who will be enforcing it.”

While almost every felony complaint is looked into, final decisions about how to proceed rest with district attorneys, said James McLaughlin Jr., executive director and general counsel for the Texas Police Chiefs Association. “What proof would they want to see in order to accept a case?” he said. “We’re pretty used to filing burglary cases, robbery cases, homicide cases, but this is different.”

We’ve talked about this in various forms. Dallas County’s DA, along with several other large county DAs (not, as far as I know, including Harris County, at least at this time), has said he won’t pursue prosecutions of abortion-related charges. Which is nice and noble and morally correct and certain to be turned into roadkill by the next Legislature if they have the power to do so. It’s interesting to see what these cops are saying about investigating abortion-related allegations – as we have discussed, they can seek out evidence in various privacy-intruding ways, but we just don’t know yet what they actually will do. Again, the Lege is sure to meddle in this if they can. We also have the TDCAA’s analysis and guidance on Texas’ new laws that criminalize abortion, which among other things show that the zeal to continuously be passing anti-abortion laws has introduced quite a bit of chaos and more than a little potential for contradictions and double jeopardy possibilities. The courts are going to have so much fun with all this. That touched on the vigilant bounty hunter law SB8, which so far as served only as a tool of intimidation rather than of enforcement. But with the “trigger” law going into effect today, it’s a whole new ball game. And just a matter of time before someone gets arrested.

UPDATE: The Trib now has a story on the enabling of the trigger law. The 19th notes that four other states have similar laws coming online this week.

Abortion funds file First Amendment lawsuit for their right to assist others access abortion

We’ll see what SCOTUS does with this one, because for sure that’s where this will end up.

Reproductive rights groups on Tuesday filed a federal class-action lawsuit to head off possible prosecution from Texas officials for helping Texans gain access to legal abortions in other states.

The suit filed in Austin names Texas Attorney General Ken Paxton as well as a class composed of the county and district attorneys who could enforce the state’s near-total abortion ban, which goes into effect on Thursday.

The law, known as House Bill 1280, was passed last year. It is “triggered” into taking effect on Thursday by the U.S. Supreme Court’s ruling in June on Dobbs v. Jackson, which overturned Roe v. Wade’s constitutional protection for abortion access.

The plaintiffs want a federal judge to issue an injunction barring Paxton and prosecutors from using that law and other statutes to target those reproductive rights groups for activities the groups say conservative state leaders may politically oppose but are still legal.

The groups want the court to confirm that “the Trigger Ban cannot be enforced by any Defendant … in a manner that violates Plaintiffs’ rights to freely travel, freely associate, freely speak, and freely support members of their communities through financial assistance, as guaranteed by the United States Constitution and federal law,” according to the suit.

The named plaintiffs are Fund Texas Choice, the North Texas Equal Access Fund, the Lilith Fund for Reproductive Equity, Frontera Fund, The Afiya Center, West Fund, Jane’s Due Process, Clinic Access Support Network and Dr. Ghazaleh Moayedi, an outspoken Texas provider.

They’re asking for legal protection to continue fundraising and paying for out-of-state abortion expenses, including raising funds for travel or other costs or for the procedure itself, as well as helping pregnant Texans with logistical information about legal abortions out of state, according to the lawsuit.

[…]

The suit argues that Paxton, along with “activist legislators and their associates,” are waging a coordinated effort to harass organizations exercising their right to free speech by defending access to abortions and helping pregnant Texans seek them legally under the current bans. Most of the latter involves financial or logistical help in obtaining an abortion in another state where the procedure is still legal.

The court filing points to, as an example, several statements in late June by state Rep. Briscoe Cain, R-Deer Park, asserting that donors, volunteers, employees and anyone else connected to these groups are guilty of violating the law for helping people legally outmaneuver the Texas ban. He also has suggested that the constitutionally protected right to travel interstate for any reason doesn’t translate to the right to pay for someone else to do it, such as for an abortion.

To set the table a bit here, in their amicus brief to a writ of mandamus that blocked a lower court order that would have enjoined the 1925 state law criminalizing abortion, 70 Republican legislators argued that criminal penalties should apply to people who help others get an abortion. I’m sure we can comprehend how far they believe that definition of “help” should be pushed; we need only note what spurts out of Briscoe Cain’s mouth if we’re ever uncertain. There is also a separate federal lawsuit filed by Wendy Davis making similar claims about her right to donate to abortion funds. I don’t know if there has been any action on that front. Two abortion access funds had previously filed lawsuits against anti-abortion activists to protect themselves from SB8-related litigation. There’s a lot going on.

If you for some reason believe what the justices in the majority of the Dobbs opinion said at the time, the right to travel for an abortion should still be upheld on constitutional grounds. As you can tell, I don’t have much faith in anything those charlatans say, but they did say it. Litigation like this will be the first test of that proposition, and whether SCOTUS allows an injunction against the trigger law to stand will give us an early indication. Place your bets now.

I don’t know why anyone thinks that IVF will be safe in Texas

That’s what people are saying now.

Abortion bans across the country have thrown into question the fate of in vitro fertilization, an expensive medical process that helps people become pregnant.

But experts and anti-abortion groups say Texas’ laws shouldn’t apply to IVF treatment, and clinics across the state are proceeding with the procedures for now.

Similar to other “trigger laws” enacted to ban abortion after the U.S. Supreme Court’s reversal of Roe v. Wade, a Texas law passed last year broadens the definition of an “unborn child” to begin at “fertilization” and include “embryonic” stages.

That type of language can raise questions about the “personhood” and rights of embryos in IVF and other fertility treatments, said Dr. Natalie Crawford, who is co-founder of Fora Fertility in Austin.

In IVF, Crawford said, doctors use hormone injections to save more of a woman’s eggs during a menstrual cycle and take them out to fertilize them with sperm in a lab. The eggs are then allowed to grow into a blastocyst, or an implantation-stage embryo.

Crawford said this allows doctors to select the embryo they believe has the “highest chance of success” for a pregnancy to put back inside the woman’s uterus and save the other embryos so patients can try again or grow their family in the future. Doctors can also use these embryos to test for genetic diseases.

Once a person or couple no longer need the embryos, they decide whether to discard them as medical waste, donate them for scientific research or to donate them to another couple, she said. It’s this step in particular that is posing a question for IVF treatments in the face of abortion bans.

“The thing that we’re the most uncertain about is, ‘could it impact discarding embryos, like when somebody is done with their family and they have remaining embryos?’” Crawford said. “Or if they have genetically abnormal embryos, could it potentially make it harder to discard those?”

Some also worry about doctors’ ability to conduct genetic testing.

Right now, Crawford and other fertility doctors in Texas and other states are continuing IVF treatments because most laws against abortions focus on embryos during pregnancies, not outside of the womb.

“While they contain phrases like ‘every stage of human development,’ or ‘from the moment of conception,’ which makes us nervous, they are written in a statute that is clearly about terminating an established pregnancy,” said Sean Tipton, chief policy and advocacy officer for the American Society for Reproductive Medicine.

The American Society for Reproductive Medicine broke down “trigger laws” across the country, based on its lawyers’ analysis, and says Texas’ trigger law “does not appear to be applicable to IVF and reproductive medicine services prior to implantation of embryos.”

[…]

In Arkansas, Alabama and Oklahoma, attorney generals’ offices have clarified anti-abortion laws should not have implications for IVF, but Idaho’s attorney general said it would be up to local prosecutors to decide how to enforce the state’s trigger law, according to NBC News. Texas Attorney General Ken Paxton’s office did not respond to a request for comment from The Texas Tribune.

[…]

[John] Seago said Texas Right to Life has concerns about the “destruction” of “excessive” embryos, particularly in medical research, but the issue is not one of its priorities for Texas’ 2023 legislative session. Instead, its priorities include enforcing existing laws against abortion and providing more support for pregnant women.

Amy O’Donnell, a spokesperson for the Texas Alliance for Life, said the group had not finalized its legislative priorities yet, but said the group supported a law passed in 2017 requiring the Texas Department of Family and Protective Services to post information on its website about embryo donations to other people to promote the option.

A bill filed in 2019 aimed to ban state agencies from contracting with vendors affiliated with “destructive embryonic stem cell research,” human cloning and abortions, but the legislation didn’t gain traction.

Do you trust Ken Paxton, the guy who’s now suing to force doctors to let women die rather than perform an abortion that would save them, to take a reasoned and nuanced view of this? Do you trust the forced-birth advocates, who worry about the “destruction” of “excessive” embryos, to sit this one out? They could force you to pay for storage of your unused embryos for literally all of eternity, or to give them to strangers, if they get their minds to it and still have the legislative majorities. Do you trust the same legislature that passed SB8 to refuse to do their bidding if it comes to that?

If I were in this position, this is what I would do.

[Dr. Robert] Hunter runs a fertility clinic offering in vitro fertilization (IVF) in Louisville, Kentucky, where a blocked abortion law could soon put IVF in jeopardy, too. Now, many patients are scrambling to make decisions about their future. Kentucky is one of a handful of states that wants to use an abortion regulation to define life as beginning at fertilization, common language that is present in several other abortion bans that have gone into effect or will soon, including in UtahTexas and Louisiana.

The Kentucky law is currently blocked by courts, but that could change soon and, in November, voters will determine whether the state can even guarantee the right to an abortion.

Other states want to move further, giving embryos constitutional rights through what are called “personhood” bills, even though, scientifically, most will never become babies. Roe was the largest roadblock stopping these kinds of bills from becoming reality, but without it, patients in states including GeorgiaIowaOhioOklahomaSouth Carolina and Nebraska, where personhood laws have been proposed but have not yet passed, could face the same questions as Hunter’s patients in Kentucky.

Both kinds of laws could affect embryos created through IVF, causing spillover effects into other areas of reproductive care. Hunter’s patients likely now have a small window before those laws become more concrete realities in Kentucky, putting into question what they can do with their own embryos. Moving embryos to another state could buy patients some time. It may also afford them something even more valuable: a choice.

“IVF is just another side of the reproductive choice coin,” Hunter said. “You think about abortion as being a woman’s right to choose ‘no.’ IVF is their right to choose ‘yes.’”

And if it comes to it, this same legislature that will if unchecked start passing bills to criminalize everyone even tangentially involved with abortion will make it a crime to transport embryos across state lines. It’s just a matter of time. Get them to another state now while you still can. The Chron has more.

All of Gillespie County’s elections staff resigns

Who could blame them?

Citing threats and even stalking, all three employees at the Gillespie County elections office have resigned from their positions, leaving the office empty with less than three months before the primary election in November.

The Fredericksburg Standard-Radio Post first reported the wave of resignations last Wednesday, after staff say they received numerous threats and in some cases, even stalking. Now former Gillespie County Elections Administrator Anissa Herrera told the Standard that after the 2020 election she was threatened, stalked and called out on social media.

“The year 2020 was when I got the death threats,” Herrera told the Post. “It was enough that I reached out to our county attorney, and it was suggested that I forward it to FPD (Fredericksburg Police Department) and the sheriff’s office.”

[…]

Josh Blank, director of research at the Texas Politics Project at the University of Texas at Austin, says that with the threats election workers are facing — coupled with an already difficult job — it is more surprising that additional election workers have not yet resigned.

“You’re asking people to do more work under greater scrutiny, and now, threats of physical violence. So it’s not so surprising that this sort of, you know, election workers has decided to resign.” Blank said.

Gillespie County voter Victoria McClurd says that she was both shocked and not shocked that resignations occurred.

“If they’ve been receiving death threats, then I would too, because we’ve gotten to a point where the threats are not benign,” McClurd said. “[In] the last election I was going to be a poll person, and they were talking to us about what to do if someone comes in and is violent. That’s not what happens in a civilized society.”

Sam Taylor, the assistant secretary of state for communications, said the state is already working with Gillespie County officials to help them move forward and prepare for the upcoming election.

“We have already committed to sending trainers from our office to ensure that the County will have the tools and resources they need to conduct a successful election in November,” he said in an email statement.

As we know, it’s not just in Gillespie County that election workers are being terrorized. These folks were just the highest profile to date to say screw it, my life and my family’s life aren’t worth this shit. Note that Gillespie County voted 79% for The Former Guy in 2020. At the risk of trying to impute rational thought on these idiots, what exactly do you think was going on there?

Obviously, the bulk of the blame here lies with our felonious ex-president, but it certainly doesn’t stop there. Every statewide elected Republican that has ever dabbled with election conspiracies, unsubstantiated claims about voter “fraud”, casting suspicion on mail ballots or ballots cast in Democratic counties, they all share the blame for this. State Rep. Kyle Biederman, who “represents” Gillespie County, is one of the worst offenders out there. If they would like for their own elections to be handled in a smooth and competent manner, now would be a good time to say something to push back on the paranoia and rage that they’ve been stoking. Greg Abbott could ask the Texas Rangers to step in and investigate the threats made against Anissa Herrera and her colleagues. Ken Paxton could personally vow to prosecute whoever gets arrested to the fullest extent of the law. Dan Patrick could promise to pass a law that would offer more protection to election workers and provide harsher penalties for making these kinds of threats. That won’t undo their damage but it ought to make the jackals doing the threatening think twice about it. It would also be the right thing to do, and might help turn the temperature down a bit.

This is a five-alarm fire. For once, the arsonists have a chance to try to atone for their sins. What are they going to do about it?

UPDATE: From the Express News, as carried by the Chron:

Gillespie County Judge Mark Stroeher told the Standard-Radio Post that the entire staff resigned for similar reasons, leaving the county in a dire situation for the upcoming November election.

He said that the county has “some people who are pretty fanatical and radical about things” and drove out Herrera and the staff. Stroeher said that the job became more difficult than it probably should be “because of some individuals who are continuing to question how they are doing things,” according to the Standard-Radio Post.

“Elections are getting so nasty and it’s getting dangerous,” Stroeher said to the Standard-Radio Post.

Stroeher told the outlet that he will be contacting the Texas secretary of state for guidance about holding the November elections.

“It’s unfortunate because we have candidates that need to be elected, and we have voters who want their voices to be heard by the ballots,” Stroeher said. “I don’t know how we’re going to hold an election when everybody in the election department has resigned.”

And what have you been doing to combat that fanaticism and radicalism you mention, Judge Stroeher? This is your responsibility, too.

DMN/UT-Tyler: Abbott 46, Beto 39

Here we go again with the DMN/UT-Tyler poll, which if nothing else always provides something to talk about. The unreadable DMN story is here. The Chron has a story with a semi-ridiculous headline about how Abbott has slightly increased his lead in the race. This is semi-ridiculous because the topline result is 46-39 in his favor, exactly what it was in the DMN/UT-Tyler poll from May. The comparison they are making is to polls from July, so if you want to go there it’s up from a five point lead in the UH Hobby Center poll, up from a six point lead in the UT Politics Project poll, but down from an eight point lead in the CBS News poll. This is why I prefer to compare between polls of the same type, and why I specify when comparing to other polls. It’s also why I preferred to stay away from “Beto is gaining” narratives in July, because as I said all it takes is one poll that shows a slightly bigger lead for Abbott and it all gets blown up.

Anyway. The poll data is here and I’ll give you the highlights with a few comments.


Abbott    46
Beto      39
Other     13
DK         1

Patrick   36
Collier   28
Other     15
DK        21

Paxton    34
Garza     32
Other     15
DK        18

Dem       48
GOP       50

“Other” is the sum of named Libertarian and Green candidates (one of each in the Governor’s race, just one in the other two) plus the “Other” response. For obvious historic reasons, I don’t expect any of these numbers to be that high in November; this is mostly people not committing to an answer at this time for whatever the reason. The fourth listing is for the generic “which party are you voting for in the US House race” question. Note that this was 49-48 for Republicans in May, and 52-45 for Republicans in February.

The main thing I’ll say about these individual results is that Beto gets only 81-12 support among Dems, with Abbott getting 85-8 among Republicans. Somehow, this poll reports 21% of Black voters supporting Abbott, which at least would explain the overall Dem numbers. Let’s just say I don’t find that particularly credible and move on. Beto has taken the lead among independents in this poll at 34-31; it was 36-29 among indies for Abbott in February and a bizarre 16-6 for Abbott in May – as I noted in the earlier post, that reporting seemed to be screwed up. Both Mike Collier (20-19) and Rochelle Garza (24-19) lead among indies as well. Neither was tested in May as they were still in primary runoffs.

Next is the approvals questions:


Name       Approve  Disap  None
===============================
Biden           41     56     3
Abbott          47     49     4
Beto            43     43    13
Patrick         41     39    20
Paxton          41     40    19

For Beto, the question is asked as whether you have a favorable or unfavorable opinion of him. President Biden was at 39-58 in May, so this is an improvement. Abbott was at 46-50 in May, Beto was 42-44, Paxton basically the same at 42-41. Dan Patrick had a strange 50-41 approval result in May – this is more in line with other results and overall expectations.

Two issue questions about abortion:

Do you approve or disapprove of the Supreme Court’s decision to overturn Roe v. Wade and allow states to decide abortion policy?


Strong approve        31
Somewhat approve      11
Somewhat disapprove   10
Strong disapprove     39

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


All illegal     31
Mostly illegal  13
Mostly legal    30
All legal       25

I’ve copied the exact wording. Abortion polling is complex and highly dependent on how questions are worded. The one thing that is totally clear is that there is little support for the current law, which basically allows for no exceptions.

We’ll see if we get more results soon. August and September is usually a busy time for such data. As always, take any individual result with skepticism, not because they are untrustworthy but because they are each just one data point.

Most of the lawsuit against the voter suppression law survives a motion to dismiss

Some good news.

In a limited order this week, a federal judge threw out some civil rights and discrimination claims brought as part of a complex and ongoing legal dispute over strict new voting rules in Texas.

The lawsuit filed last year alleges that the rules violate the U.S. Constitution, the Voting Rights Act and the Americans with Disabilities Act by restricting voter assistance and making it easier for “partisan poll watchers to intimidate voters and poll workers.”

[…]

In his order on Tuesday, U.S. District Court Judge Xavier Rodriguez, a George W. Bush appointee, did not provide a clear win to either side in the protracted legal fight.

On one hand, Rodriguez did agree with Texas officials that civil rights groups had in some cases failed to a state a claim, meaning they could not adequately show a violation of federal law or a potential injury to voters. He dismissed a handful of claims brought by the civil rights groups, which include the League of Women Voters of Texas and the Workers Defense Action Fund.

On the other hand, Rodriguez’s order was hardly kind to Texas officials. Over the course of 61 pages, he detailed not only why civil rights groups had standing to sue, but also how they’d “clearly” established that SB1 could have discriminatory effects on voting rights.

The judge waved off efforts by Texas officials to have more or all of the lawsuit dismissed — including the state’s unusual argument that civil rights groups shouldn’t be able to sue because “the organizations themselves do not have a disability.”

“It is well settled,” Rodriguez wrote, “that an organization may sue as the representative of its members.”

While past filings in this lawsuit have largely hinged on nuances of civil rights law, Tuesday’s order was interesting because it detailed the lived experiences of disabled voters in Texas.

The civil plaintiffs presented examples from at least three voters — all members of the disability voting-rights group REV UP — whom they said could be harmed by Texas’ new voting law.

These examples were “non-exhaustive,” plaintiffs said, and represented just some of the disabled Texans who could face voting difficulties if SB 1 is allowed to stand.

See here for the background. There were multiple lawsuits filed, with the Justice Department getting involved later on. This is the San Antonio lawsuit from that first blog post. I assume that most if not all of these cases have been combined but it’s hard for me to say from the information I have easily available. Democracy Docket has some information on this one, and they provide a PDF that combines multiple orders from Judge Rodriguez; the Courthouse News story only has one of them, which threw me for a minute as I was trying to verify that I was referring to the correct case. This stuff is complicated, y’all.

Anyway. That story goes into two of those examples, and you should read about them, they’re quite compelling. I’m never quite sure if the Republicans who pass these voter suppression bills legitimately don’t care that people such as these plaintiffs won’t be able to vote as a result, or if they just can’t be bothered to hear their stories while the bills are in progress, lest they have some feelings of guilt or remorse, if those are possible for them. The end result is the same, I just want to know how to calibrate my contempt. Anyway, this is in addition to the other voter suppression bill that was struck down – we are apparently at a point where a bunch of these are getting some action, which is always exciting. As usual, nothing is safe until the Fifth Circuit is done with it, and we know what that usually means. So celebrate responsibly, we may be mourning later on.

San Antonio passes its abortion access ordinance

Good.

With a 9-2 vote, San Antonio City Council approved a resolution on Tuesday that condemns Texas’ abortion ban and recommends that no local funds be used to investigate criminal charges related to abortions.

“By passing this resolution, the City of San Antonio is committing to not using any city funds or data to sell out persons seeking out a safe abortion,” said Councilwoman Teri Castillo (D5), who spearheaded the resolution. “Furthermore, council is communicating to our governmental relations team that … protecting persons seeking an abortion is a priority heading into the state legislative session.”

More than 100 people signed up to speak during the raucous, nearly five-hour meeting. The speakers offered impassioned, often emotional testimony in favor and opposed to the resolution and the right to choose. Mayor Ron Nirenberg paused the meeting briefly after shouting erupted during testimony.

“While the legal authority over reproductive health policy lies with the state and federal governments, we do refuse to stand idly by and watch an important constitutional right, be taken away without speaking on behalf of our constituents,” Nirenberg said. “As federal and state law changes in the future, we must do all we can to support and gain ground for reproductive freedom.”

The resolution makes exceptions for investigations into instances where “coercion or force is used against the pregnant person, or in cases involving conduct criminally negligent to the health of the pregnant person seeking care.”

Several proponents of the resolution asked that more specific language be added to direct police to “deprioritize” abortion investigations.

The resolution does not prevent local law enforcement from investigating criminal cases of abortion, because the council cannot tell police departments how or whether to investigate criminal cases, according to state law and the city’s charter. Council can only make recommendations.

The resolution “does not decriminalize” abortion, City Attorney Andy Segovia said. “It does articulate a policy recommendation from the council.”

Bexar County District Attorney Joe Gonzales has said he doesn’t plan on prosecuting abortion providers under the ban.

See here for the background. As we know, Dallas and Waco are also in the queue for similar action. As yet, I haven’t seen any response to ordinances like this one and the one passed by Austin from the likes of Abbott or Patrick or Paxton; they may just be talking on their channels and it hasn’t gotten to the regular news yet, or maybe they’re just keeping their powder dry for now. It’s just a matter of time, I’m sure. The Current has more.

Dallas joins the abortion decriminalization queue

Good for them.

The Dallas City Council could consider a resolution in August aimed at blunting the impact of the Texas Legislature’s trigger law that will go into effect following the Supreme Court’s decision that overturned Roe vs. Wade.

Dallas’ measure would direct city staff—which includes the Dallas Police Department—to make investigating and prosecuting accusations of abortion “the lowest priority for enforcement” and instructs City Manager T.C. Broadnax to not use “city resources, including … funds, personnel, or hardware” to create records regarding individual pregnancy outcomes, provide information about pregnancy outcomes to any agency, or to investigate whether an abortion has occurred, a draft copy of the resolution obtained by D reads.

“I would say that it technically really does accomplish the decriminalization here locally,” said Dallas City Councilman Adam Bazaldua, who worked on the resolution and chairs the committee that will consider the matter before it goes to the full Council. “Being the lowest priority, … there’s not much of an investigation that could be done if there’s no resources that are able to be allocated.”

The measure does not apply to instances where law enforcement officials might need to investigate cases of criminal negligence by a practitioner in the care of a pregnant person, or where force or coercion is used against a pregnant person.

The resolution will be introduced in a special-called meeting of the council’s Quality of Life, Arts, and Culture Committee Tuesday. If approved by the committee, he aims to have it before the full Council at its Aug. 10 meeting. If it passes, Dallas would join many cities that have sought restrictions with similar resolutions, including Denton, Waco, and Austin. The San Antonio City Council will vote on its resolution Tuesday.

Yes, Denton and Waco. You knew about San Antonio and Austin, now you can add these three to the list.

Bazaldua said he knows the city can do little about the law itself, but he hopes this resolution would provide a measure of protection for healthcare providers who could face felony charges if suspected of providing an abortion. Pregnant people would also have similar protections, he said.

“There’s only so much that can be done at the local level and this is about as much as we can get,” he said, adding that after the resolution is passed, ideally the city would begin working with nonprofit and private-sector partners to help people locate resources if they need to travel to another state for an abortion.

He also doesn’t see this resolution endangering the city when it comes to another recently passed law that would penalize cities that “defund” their police departments. He argues that funding isn’t being reduced.

“What can they do? Punish a city for saying this should not be a priority of ours?” he said. “When we have violent crime that’s going on, that we should be focusing our resources and funding on?”

I mean, I wouldn’t put anything past Ken Paxton or the forced-birth fanatics in the Lege, but on its face that’s a strong argument. It’s also consistent with the earlier advice we saw about what cities can do on their end. I don’t know how this will play out – I cannot overemphasize how much effect the November elections could have in blunting the worst possible effects of the new anti-abortion laws and preventing the creation of new ones – but it feels good to do something, even if it may be transient. One has to wonder when there will be some action in Houston on this front. Is there a campaign going on about this that I haven’t seen yet?

SAISD vaccine mandate upheld again

Also still on hold, but the state loses again at the appellate level.

A state appellate court upheld San Antonio Independent School District’s authority Wednesday to mandate its workers get vaccinated against COVID-19, almost a year after the district instituted the requirement for all staff to help stem the spread of the virus.

The 4th Court of Appeals on Wednesday denied Texas Attorney General Ken Paxton’s request to overturn a Bexar County judge’s decision not to grant the state a temporary injunction to block the staff vaccine mandate. Judge Mary Lou Alvarez of the 45th District Court issued that ruling in October, allowing SAISD to continue enforcing the mandate.

The court also ordered that the costs of the appeal be assessed against the state.

Paxton filed a lawsuit against SAISD in September, after first suing the district over the mandate in August because the vaccine had not been approved by the federal Food and Drug Administration. The August lawsuit was dropped after the FDA approved the Pfizer COVID-19 vaccine.

The lawsuit has wound its way through the state court system over the past year. Paxton’s office appealed Alvarez’s ruling to the 4th Court of Appeals and also requested the appellate court temporarily block the mandate while it considered Paxton’s appeal. The attorney general then requested the state Supreme Court step in and halt the mandate, which it did in mid-October.

The Texas Supreme Court’s ruling forced SAISD to stop enforcing the mandate while the 4th Court of Appeals considered the state’s appeal of the temporary injunction that Alvarez denied.

[…]

Paxton’s lawsuit argued that SAISD’s vaccine mandate violated Gov. Greg Abbott’s executive order prohibiting governmental entities from implementing COVID-19 vaccine mandates, which the governor claimed he had the authority to do under the Texas Disaster Act. Attorneys for SAISD challenged that reasoning, contending the Act does not give the governor the power to suspend all state laws.

Wednesday’s ruling by the 4th Court of Appeals determined that the Texas Disaster Act does not give Abbott the authority to suspend parts of the Education Code that allow school districts to issue vaccine mandates.

“The Texas Disaster Act expressly limits the Governor’s commander-in-chief authority to state agencies, state boards, and state commissions having emergency responsibilities,” the ruling states. “The District is not a state agency, a state board, or a state commission. Rather, the Texas Disaster Act defines the District as a ‘local government entity.’”

See here for the previous update. This sounds like a solid ruling, one that SCOTx ought to uphold, though who knows what they’ll actually do. It would also be written on sand to some extent, in that if the Republicans retain full control of government next year they’ll just amend the Texas Disaster Act to make it cover school districts and/or explicitly exclude anything having to do with vaccinations. In the meantime, even though the policy remains on hold during the litigation, it’s surely the case that the mandate got some holdouts vaccinated during the period while it was in effect. That will always be a win, no matter what happens from here.

Texas sues USDA over LGBTQ protections

Here’s the story, which I’ll get to in a minute. It might be best to try to summarize this more accurately, because this is one of those technical situations where it takes a lot of qualifiers to get at what’s actually at stake. So with that in mind:

Clear enough? OK, on to the story:

Best mugshot ever

Attorney General Ken Paxton and more than 20 other attorneys general are challenging the federal Food and Nutrition Service’s new policy that recipients of food assistance funds update their nondiscrimination policies to protect LGBTQ people.

In May, the U.S. Department of Agriculture announced it was expanding its interpretation of discrimination based on sex. As a result, state agencies and programs that receive funding from the Food and Nutrition Service were ordered to “investigate allegations of discrimination based on gender identity or sexual orientation” and to update their policies to specifically prohibit discrimination based on gender identity or sexual orientation.

Paxton and his counterparts claim the guidance issued by the USDA is “unlawful” because states were not consulted and did not have an opportunity to provide feedback, in accordance with the Administrative Procedure Act. They also argue that the USDA is misinterpreting the Supreme Court case Bostock v. Clayton County, which extended sexual discrimination in the workplace to include discrimination based on gender identity or sexual orientation.

“[It] will inevitably result in regulatory chaos that threatens essential nutritional services to some of the most vulnerable citizens,” Paxton’s office said in a press release.

And as we know, no one cares more about our most vulnerable citizens than Ken Paxton. TPM adds some details.

In their suit, the Republican attorneys general argued that, in its reasoning behind the new guidance, the USDA had misapplied Bostock v. Clayton. They also argued that the government hadn’t followed procedural notice-and-comment rules for the new guidance, as outlined in a federal law known as the Administrative Procedure Act.

Or, as ACLU communications strategist Gillian Branstetter put it, “The AGs argue schools have the right to deny queer and trans kids lunch money.”

Tuesday’s suit asserted “the States do not deny benefits based on a household member’s sexual orientation or gender identity.” But it challenged the “unlawful and unnecessary new obligations and liabilities” it alleged were associated with the guidance.

The lawsuit cited existing red state laws that “at least arguably conflict” with the USDA guidance, such as rules prohibiting transgender students from participating in sports programs that align with their gender identity, rather than the gender they were assigned at birth.

The Republicans’ suit comes two weeks after 20 Republican attorneys general won a preliminary injunction in the same federal court district — the Eastern District of Tennessee — against similar guidance from the Department of Education and the Equal Employment Opportunity Commission. A federal judge found the federal directive clashed with state laws regarding gender-based laws being applicable to, for example, bathrooms and sports teams.

I don’t know enough to say what the likely effect of this might be if these homophobic AGs get their way, but we can all be sure it won’t be good. If Ken Paxton can sue to force hospitals to let women die, then a few gay kids going hungry won’t bother him.

Paxton so petty

This guy, man. What a stain.

Best mugshot ever

Attorney General Ken Paxton is escalating his feud with the State Bar of Texas by banning his office’s lawyers from speaking at any events organized by the bar.

Paxton’s office also will not pay for any attorneys to attend bar-sponsored events, according to an internal email obtained by The Texas Tribune.

The state bar is suing Paxton over his 2020 lawsuit challenging the presidential election results in four battleground states. Paxton has denounced the lawsuit, which alleges professional misconduct, as political harassment.

The internal email — sent Monday by Shawn Cowles, Paxton’s deputy attorney general for civil litigation — references the lawsuit, calling it “just the latest instance in the Bar’s ongoing evolution into a partisan advocacy group.”

“Let’s be clear: these are politically motivated attacks that violate separation-of-powers principles and offend our profession’s values of civil disagreement and diversity of thought,” Cowles wrote.

The new office policies are effectively immediately.

[…]

The state bar is an agency of the judiciary that licenses lawyers to practice in Texas and hosts regular training and networking events around the state.

Let’s put aside any question for a minute about whether or not Paxton has a legitimate gripe with the State Bar’s actions against him. (He doesn’t, but for the sake of argument let’s pretend he does.) He’s taking out his anger on his employees. How would you feel if your boss forbade you from doing any professional development because he’s in trouble with the cops? You have to be an exceptionally shitty person to act like this.

Grifters always stick together

Two shitty tastes that taste even shittier together.

Best mugshot ever

Texas Attorney General Ken Paxton is pretty familiar with Catherine Engelbrecht. He’s been a guest on her podcast, chatting about their shared passion: rooting out voter fraud. They both have gone to great lengths to try to support former President Donald Trump’s lie that the 2020 election was stolen.

And when Engelbrecht, founder of the nonprofit True the Vote, has found herself in hot water, Paxton’s office has turned out to be a helpful ally.

Most recently, a state judge sided with Engelbrecht’s argument that it should be Paxton’s office – not a court – that should probe allegations made by a True the Vote donor who says he was swindled out of $2.5 million.

But more than a year after the case was dismissed, Paxton’s office won’t say whether it ever investigated the donor dispute. Last month, Reveal from The Center for Investigative Reporting found that True the Vote had engaged in a series of questionable transactions that sent more than $1 million to Engelbrecht and other insiders, while failing to back up its voter fraud claims.

In the reporting of that story, Paxton’s office withheld financial documents and email communications from Reveal and issued contradictory and inaccurate statements about the nonprofit, which has been a leading voice in driving the voter fraud movement from the political fringes to the core of GOP ideology.

The embattled attorney general this year skated through a contested primary race. But he faces potential disbarment for attempting to overturn the 2020 presidential election results, is under investigation by the FBI, is getting sued by whistleblowers in his office and awaits trial for a seven-year-old felony indictment for securities fraud. In their lawsuit, former staff members have accused him of using his office to provide legal favors to an ally, saying he appointed a special prosecutor to target adversaries of a donor who was under investigation.

His office advocated on Engelbrecht’s behalf before the Texas Supreme Court in 2016 when she got into legal trouble with her previous nonprofit organization, King Street Patriots, for being overtly political. He appeared on her podcast in July 2020, during which Engelbrecht said she considers Paxton a friend.

“I can’t say thank you enough for the dignity and the respect that you bring to that office,” she said.

“I feel blessed to have this opportunity, especially in a time like this. It’s really a crisis,” Paxton replied.

“God bless you. God bless you, Ken Paxton, God bless you. And thank you for all that you and your team do,” Engelbrecht added.

See here for the earlier story of Engelbrecht’s 2020 election-related grifting. Of course Ken Paxton would be her buddy and would be there to help cover up her misdeeds. It’s his core competency. If Rochelle Garza wins election this year, she’s going to have to create an entire division at the AG’s office to investigate all of the malfeasance that Paxton buried, including his own. She may need multiple terms just to get to the bottom of it all. Go read the rest and remind yourself of what could be if she does win this fall.