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I think we are going to have a regular March primary

This happened in the second special session, after the Dems came back from Washington DC.

Senate Bill 13, from Senator Joan Huffman (R-Houston), has been sent to Governor Greg Abbott after being approved by the House and Senate this week.

The bill gives the Secretary of State the authority to change the dates of the primary election and any runoff election, along with related dates for candidate filings, depending on when a redistricting plan is finalized.

If the bill is signed into law, it would keep all current primary election and associated administrative dates the same, as long as a redistricting plan is completed by November 15th. This would set a primary date of March 1, 2022 and a runoff of May 24, 2022, with candidate filing taking place between November 29th and December 13th.

However, if a redistricting plan is not finished by November 15th, but is completed before December 28th, the primary election would be delayed to April 5, 2022 and the runoff would shift to June 21, 2022. Candidate filing would occur from January 10-24, 2022.

If the redistricting plan is not completed until after December 28th but before February 7, 2022, the primary would move to May 24, 2022, while the runoff would be pushed back to July 26, 2022. Candidates would be able to file between February 21 and March 7, 2022.

There was a bill to do this in the regular session that passed the Senate but did not come up for a vote in the House. As you may have noticed, all of the redistricting bills have been passed, and they await Greg Abbott’s signature, which I assume will happen shortly. Given that it’s not even November yet, we’re in plenty of time for that deadline. So, barring a court ruling that puts those maps on hold, I assume that the filing season will begin on November 15 as usual, with the primaries to follow in March. I haven’t seen any news stories to confirm this, perhaps because everyone had been assuming this all along, but we very much could have had delayed primaries, so I wanted to make note of this. If you have some reason to think otherwise, let us know in the comments.

SCOTUS will hear SB8 appeals

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

And Slate tries to read some tea leaves.

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

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

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

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

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

Third Court rejects Paxton attempt to kill whistleblower lawsuit

Good.

Best mugshot ever

A state appeals court found Thursday that former deputies of Attorney General Ken Paxton who were fired after accusing the Republican official of abusing his office are protected under the state’s whistleblower law, allowing their lawsuit against Paxton to proceed.

Paxton’s lawyers had argued in court that he’s exempt from the Texas Whistleblower Act because he’s an elected official, not a public employee. But the court upheld a previous lower court decision that denied Paxton’s attempt to dismiss the case.

In its opinion, Texas’ 3rd Court of Appeals rejected the attorney general’s interpretation of the Texas Whistleblower Act, “which would have the effect of stripping whistleblower protections from employees who might report misconduct by the thousands of elected officials throughout the State — particularly by those who direct and lead the agencies of this State.”

[…]

In its opinion, the court wrote that the former employees “sufficiently alleged illegal conduct by their employing governmental entity as contemplated by the Act” and disagreed with Paxton’s characterization of the whistleblower law, writing that while “Texas is an employment-at-will state,” the act “provides an exception to that general rule.”

“Although loyalty and confident are important considerations in employment matters,” it wrote, “the Act provides that a State employer cannot fire an employee because he reports illegal conduct by the employer, even when it is that act of reporting that causes the employer to lose confidence or feel the employee lacks loyalty.”

See here for the previous update, and here for a copy of the ruling. The justices seemed pretty skeptical of Paxton’s argument at the hearing, so this is no surprise. Paxton could ask for an en banc hearing or he could appeal to the Supreme Court. The former means another couple of months that the lawsuit is on ice, but the odds of success are low. The latter is more likely to get a favorable ruling for Paxton, but if he loses he’s out of options and we move on to the next phase. I’m guessing he would rather avoid discovery, because it seems very likely that a weasel like Paxton has stuff to hide, so we’ll see if he decides to draw it out or not. Maybe, if we’re very lucky, we’re a step closer to Ken Paxton facing a bit of accountability for once in his life. The Chron has more.

Texas takes its shot at Roe v Wade

We were always headed in this direction. It was just a matter of when we were going to get there.

Texas on Thursday asked the U.S. Supreme Court to keep in place a law that imposes a near-total ban on abortion and urged the justices that if they quickly take up a legal challenge brought by President Joe Biden’s administration they should overturn the landmark ruling that legalized the procedure nationwide.

Texas Attorney General Ken Paxton in a legal filing responded to the U.S. Justice Department’s request that the Supreme Court quickly block the Republican-backed state law while litigation over its legality goes forward.

The Justice Department on Monday suggested that the justices could bypass the lower courts already considering the matter and hear arguments in the case themselves. Paxton’s filing said that if the justices do that, they should overturn Supreme Court precedents including Roe v. Wade, the 1973 decision that recognized a woman’s right under the U.S. Constitution to terminate a pregnancy.

“Properly understood, the Constitution does not protect a right to elective abortion,” Paxton’s filing said, adding that the state law furthers “Texas’s interest in protecting unborn life, which exists from the outset of pregnancy.”

[…]

Paxton on Thursday also asked the Supreme Court to reject a bid by the abortion providers to have the justices immediately hear their case.

See here, here, and here for some background. The forced-birth fanatics on SCOTUS already have an opportunity to overturn or functionally eviscerate Roe in December with that Mississippi case, so this may at least tell us how screwed we all are. Just remember all this in 2022 when we get to vote out some of the zealots that got us here, starting with our felonious Attorney General. The Trib and CNBC have more.

A long story about the bail industry

It’s complicated.

Judges set bail, but it’s the bondsmen who decide how much a defendant pays to get out of jail.

The long-held 10 percent standard — with defendants or their loved ones paying a tenth of the bail amount to a private company — is not gospel anymore in Harris County and likely never was. People have been securing their release from jail on lower fees for years, according to county data and bail agents.

Bondsmen recently have been accepting lower-percentage fees on an increasing number of violent felonies. The discount makes it clear that judges are not always determining what people have to pay to get out of jail, and the implications for defendants, victims and the system are far-reaching.

“That means the cash bond system itself is serving a danger to the community,” state District Judge Chris Morton said. “Any time there’s a for-profit aspect to criminal justice, that creates the opportunity for oppression and inconsistencies in justice.”

Bail is the money a defendant must pay in order to get out of jail. A bond is posted on a defendant’s behalf, usually by a bail bond company, to secure his or her release. Such a surety bond is like a security deposit.

Bail is not intended as a punishment. It is rather a way of securing a defendant’s agreement to abide by certain conditions and return to court. The standard for bail in most jurisdictions — and other states — is that a bail agent requires 10 percent of the bail amount plus collateral to secure a defendant’s freedom. In Harris County, bail companies rarely pay in full and give the court an equivalent of a provisional IOU with the backing of insurance agencies, said County Court at Law No. 8 Judge Franklin Bynum.

If a defendant skips court, prosecutors can move to revoke or forfeit the defendant’s bond. Revocations trigger an arrest warrant and their return to court upon their capture. Forfeitures are a more tedious process that results in the court keeping the bail amount — but only after a judge agrees and prosecutors successfully sue to seize the money.

In Texas, the 10 percent figure is referenced in Texas Insurance Code, which states that payments above that amount could be subject to regulations. No minimum is required.

[…]

Profits diminished for bail companies after Harris County began adopting bail reform in 2017, requiring cash-free releases for most poor misdemeanor defendants. Bail licenses in Harris County have dropped by nearly two dozen since 2017, with about 80 permitted as of September to operate, records show.

One estimate from monitors tracking the implementation of bail reform indicated that bail bond earnings in Harris County went from around $3.5 million in 2015 to slightly over $500,000 in 2019.

The dwindling bail landscape caused agents to adapt or close up shop. Many padded their business with felony cases, some carrying higher bonds and more risk of defendants skipping court. Some bail agents are relying more on payment plans and are not asking for collateral — a house, car or other possession.

The Houston Chronicle reviewed hundreds of court records and found that bail bondsmen for years have been granting less than 10 percent rates on surety bonds. A sampling of data for the first six months of 2021 supported bondsmen, defense attorney and judges’ anecdotes that bail agents are more frequently charging lower fees, sometimes as small as 1 or 2 percent, at times on more violent crimes. Some of the defendants are then put on payment plans for the remainder of the money.

“We’re business people,” said Michael Kubosh, an at-large city councilman and former bondsman. “You collect what you can.”

While seemingly better for defendants, the lower fees are concerning to lawyers and jurists. Several judges worry that they no longer can count on defendants paying 10 percent for their pretrial release; others feel that even at lower rates, bail is still too much for some.

Authorities believe some defendants have committed more crime to pay bail for themselves and others, according to court records.

Jose Luis Perez — on bond for a prior offense — was charged in March with robbing a woman at gunpoint; he told officers he needed cash to pay for the bail, meaning he was likely on a payment plan, prosecutors said. He faced additional charges in federal court, and the state case was later dismissed.

Prosecutors say that the lower payments also minimize the pressure to return to court, because more money down means defendants would feel beholden to family members who put their livelihoods on the line to free them.

Advocates, meanwhile, do not believe any amount of cash bail keeps the public safe, and they feel bail discounts and payment plans show how many defendants — primarily poor people of color — remain on the hook with private enterprises after securing their freedom.

There’s more, so read the rest. As the story notes, only the US and the Philippines have this sort of cash bail system, and that just seems to me like a bad place to be. As you know, I’m a believer in getting rid of cash bail as part of a larger overhaul of the criminal justice system. We’ve taken a small but important step forward in Harris County, but there’s still a lot to do and a lot of resistance to overcome. This story will give you a feel for some of that.

Congressional map passes

And so the work is done. The lawyers are warming up their engines as we speak.

The Texas Legislature has signed off on new congressional districts that shore up the GOP’s dominance and yield little ground to the people of color who have driven the state’s growth.

Wrapping up their work to build a decade of population change into new political maps, the Senate and House on Monday each approved a negotiated, final version of the congressional map, which will go to Republican Gov. Greg Abbott for his signature. In complete control of the redistricting process, Republicans designed a map that will tighten their hold on diversifying parts of the state where the party’s grip on power was waning and lock in the GOP’s majority in the 38-seat delegation for the U.S. House.

The map also incorporates two additional House seats the state gained, the most of any state in this year’s reapportionment. Though Texas received those districts because of explosive population growth — 95% of it attributable to people of color — Republicans opted to give white voters effective control of both, which were drawn in the Houston and Austin areas.

The Senate approved the map on a 18-13 vote. The House followed with an 84-59 vote.

Previewing the legal battles that will follow, Democrats decried the lack of adequate representation for voters of color, shunning a map that diminishes their voices instead of reflecting the state’s changing racial and demographic makeup. Half of the 4 million residents the state gained in the past 10 years were Hispanic.

“What we’re doing in passing this congressional map is a disservice to the people of Texas. What we’re doing is hurtful to millions of Texans — it’s shameful,” state Rep. Rafael Anchía, the Dallas Democrat who chairs the Mexican American Legislative Caucus, told his colleagues before the vote. “I’d love to be able to say it is a stain on the legacy of voting rights, but that seems to be the playbook decade after decade after decade in this state.”

The Republicans who led the redistricting process offered little defense of the maps from the Senate and House floors before the final votes. They have previously said the congressional map was drafted based on a series of “priorities,” including partisanship and keeping communities of interest together. They’ve also argued the map complies with federal laws protecting voters of color from discrimination, though they have declined to offer specifics about their legal analysis.

[…]

Republicans placed a new district, the 37th Congressional District, in the Austin area to capture Democratic-leaning voters that were endangering the prospects of Republican incumbents in nearby districts. They also drew in a new district, the 38th Congressional District, that would offer Republicans safe territory in the Houston area. In both districts, white residents would make up more than 60% of eligible voters.

During the Senate’s first debate over the map earlier this month, state Sen. Joan Huffman, the Houston Republican who led the Senate’s redistricting process, told her colleagues her team had seen “no strong basis in evidence” to create a new opportunity district for voters of color.

Like I said, the lawyers are ready. You can see the map here. As the story notes, one significant change was to undo the scrambling of CDs 09, 18, and 29 that left Reps. Sheila Jackson Lee and Al Green living in different districts. They got what they asked for, and in the process they put most of my neighborhood, including myself, back into CD18. You should check and see where you wound up.

I don’t have much more to say about the maps at this time. I’ll keep a lookout for electoral data when it becomes readily available, and of course I’ll keep an eye on the inevitable litigation. In the meantime, the big question is are we finally done with all this crap?

Early Tuesday morning, both the House and Senate adjourned the third special session of the year, capping a grueling stretch that featured a weekslong Democratic walkout over the GOP’s priority elections bill and a series of proposals to build on what was already a triumphant regular session for conservatives.

But the latest special session ended without lawmakers passing two of Abbott’s priorities — legislation to increase an illegal voting penalty and to ban vaccine mandates by any entity in Texas.

In each of the previous three legislative sessions this year, Abbott was firm that he would keep calling lawmakers back to Austin until they addressed the legislation he required of them — most notably the GOP elections bill and changes to the bail system targeting violent offenders. He placed a bill targeting transgender student athletes on each of the three special session agendas, until it was finally passed in the most recent session.

On Monday night, as the chambers were nearing sine die, Abbott declined to say whether a fourth special session would be necessary. He also did not say anything Tuesday about the possibility, but he did issue a statement applauding lawmakers for their work in the third special session that suggested he was satisfied with what they had gotten done.

“These dynamic achievements would not have been possible without the men and women of the Texas House and Senate who worked tirelessly through the third Special Session to ensure these priorities made it across the finish line,” he said. “Because of their efforts, the future of Texas is stronger, safer, and freer.”

But the unfinished bills are fraught with intraparty politics, and could expose Abbott to attacks from his right, which he has been increasingly attuned to as he prepares for his 2022 reelection campaign.

Some lawmakers expect there to be a fourth special session, but not in the short term — and maybe closer to primary season.

May the Lord have mercy on us all. At least we know that the remaining items Abbott might want are more contentious among Republicans, and that may act as a brake on them. But man, do I never want to have to depend on Republicans doing the thing that I want them to do, because that trick never works. The Chron has more.

First lawsuit filed against the redistricting maps

Why wait? We already know they suck.

Before they’ve even been signed into law, Texas’ new maps for Congress and the statehouse are being challenged in court for allegedly discriminating against Latino voters.

Filing the first federal lawsuit Monday in what’s expected to be a flurry of litigation, a group of individual voters and organizations that represent Latinos claim the districts drawn by the Legislature unconstitutionally dilute the strength of their votes and violate the federal Voting Rights Act.

The lawsuit was filed in El Paso by the Mexican American Legal Defense and Educational Fund.

The legal challenge comes as the Legislature rounds out its redistricting work to incorporate a decade of population growth into new maps for Congress, the Texas House and the Texas Senate. Of the 4 million new residents the state gained since 2010, 95% were people of color; half were Hispanic.

Yet the maps advanced by the Republican-controlled Legislature deny Hispanics greater electoral influence — and pull back on their ability to control elections. The House map drops the number of districts in which Hispanics make up the majority of eligible voters from 33 to 30. The Congressional map reduces the number of districts with a Hispanic voting majority from eight to seven.

Here’s the MALDEF press release, and the lawsuit itself is here. From the introduction:

Plaintiffs seek a declaratory judgment that the redistricting plans for the Texas House (Plan H2316), Senate (Plan S2168), SBOE (Plan E2106) and Congress (C2193) violate their civil rights because the plans unlawfully dilute the voting strength of Latinos. Plaintiffs further seek a declaratory judgment that the challenged redistricting plans intentionally discriminate against them on the basis of race and national origin. Plaintiffs seek a permanent injunction prohibiting the calling, holding, supervising, or certifying of any future Texas House, Senate, Congressional and SBOE elections under the challenged redistricting plans. Plaintiffs further seek the creation of Texas House, Senate, Congressional and SBOE redistricting plans that will not cancel out, minimize or dilute the voting strength of Latino voters in Texas. Finally, Plaintiffs seek costs and attorney’s fees.

Glad to know that the SBOW map won’t go unchallenged this time around. The plaintiffs include include the League of United Latin American Citizens (LULAC), Southwest Voter Registration Education Project, Mi Familia Vota, American GI Forum, La Union Del Pueblo Entero, Mexican American Bar Association of Texas, Texas Hispanics Organized For Political Education (HOPE), William C. Velasquez Institute, FIEL Houston Inc., the Texas Association of Latino Administrators and Superintendents, and five individual voters. Defendants are Greg Abbott and Greg Abbott and Deputy Secretary of State Jose Esparza. I expect this will be the first of multiple lawsuits against the actual maps; we also have the still-untested lawsuit by Sens. Eckhardt and Menendez that claimed the Lege could not do non-Congressional redistricting in a special session. There’s supposed to be a hearing for that next week. Given that the three maps in question there might already be signed into law by that time it may be moot, but I’m just guessing. As you know I don’t have much optimism for any of these challenges, including the ones that haven’t been filed yet, but we have to try anyway. You never know.

Justice Department officially asks SCOTUS to halt SB8

The stakes are clear. Now we get to see if SCOTUS has any respect for the law.

The U.S. Supreme Court is considering whether to take up abortion providers’ challenge to Texas’ near-total abortion ban sooner than the high court usually would hear arguments.

While the clinics’ lawsuit has not been heard by a federal appellate court, the Supreme Court agreed Monday afternoon to expedite the request from several clinics and providers that the high court instead consider the case. Texas must respond by noon Thursday.

The move came just hours after the Biden administration — in a separate challenge to Texas’ Senate Bill 8 — asked the high court to halt the near-total abortion ban while the Justice Department’s legal challenge to the new restrictions goes through the courts.

In its request filed Monday, the Justice Department argued that allowing the law to stand would “perpetuate the ongoing irreparable injury to the thousands of Texas women who are being denied their constitutional rights,” it added. The Supreme Court previously declined to block the law from taking effect in a separate lawsuit, though it did not weigh in on Senate Bill 8’s constitutionality.

The U.S. Justice Department’s request comes after a series of federal court decisions flip-flopped on whether the law should remain in effect as its constitutionality is being challenged.

[…]

Texas, the Justice Department argued in its filing, crafted an “unprecedented” structure to thwart the courts. Senate Bill 8, which bans abortions as early as six weeks into a pregnancy, before many people know they are pregnant, has made abortion “effectively unavailable” after that time period, according to the Justice Department.

“Texas has, in short, successfully nullified this Court’s decisions within its borders,” the Justice Department wrote.

You can see the Justice Department filing here. The Justice Department had announced their intention to appeal late last week, so this was the actual filing and the request for relief from the ridiculous and lawless Fifth Circuit. The original lawsuit filed by the providers was in July, and we know what happened after that. Not really much to add here – even SCOTUS seemed to understand that SB8 had all kinds of questions surrounding it back when they first declined to step in. Now that we have seen the harm, not to mention the damage SCOTUS has done to its own standing, you’d think they would understand the need to do the normal thing and put that highly questionable law on the shelf while the courts do their thing. They have one chance to be seen as legitimate. I hope they take it. The Chron has more.

More on the Spring Branch ISD single member district lawsuit

Good story from KTRK.

The unofficial dividing line for the two sides: I-10 running through the district.

With two boys in the district, Carla Cooper-Molano has seen the battle scars, and she wants someone on the school board who represents her family living north of I-10.

“If I communicate to the board, these are my needs, this is what I need, this is what my community at school needs, they are drowned by a much larger vested interest from the south,” said Cooper-Molano.

Cooper-Molano said the majority of SBISD students come from lower-income, working-class families, whose struggles range from paying rent to buying school supplies, to putting food on the table every night.

The disconnect comes when you look at the makeup of the current SBISD school board. According to a recently filed federal civil rights lawsuit, the majority of SBISD’s board members live south of I-10, in more affluent and less diverse neighborhoods. In fact, a person of color has never won a seat on the school board. According to the district’s own data, SBISD’s student body is 59% Hispanic, and 27% white.

The lawsuit alleges that having every school board member elected “at-large,” meaning they represent the entire district instead of neighborhoods, violates the federal Voting Rights Act of 1965 because it dilutes the voting power of minorities. The plaintiff who filed the suit is Virginia Elizondo, a former teacher at SBISD with a Ph.D. in Educational Leadership. Elizondo ran twice for the school board, most recently in 2021. This time, she came up short against Chris Earnest, a Memorial area consultant.

Elizondo and supporters of the lawsuit are asking for single-member districts to be drawn. Under this scenario, board members will be elected to represent specific areas of the district, not the entire district. It’s similar to how the House of Representatives elects its members, and how Houston ISD elects its school board members. Houston City Council, for example, has a hybrid model. There are five at-large seats in addition to the district seats.

Nina Perales, the vice president of the Latino legal rights organization Legal Services for MALDEF, has fought similar battles in other cities across Texas. She explains that the plaintiff will need to show the courts there is no opportunity for minorities to elect a candidate of their choice.

“If the majority of voters consistently prefer one candidate, and minority voters consistently prefer another candidate, it’s simple math. The majority is always going to outvote the minority in every single seat,” said Perales.

See here for some background, and here for some demographic data about SBISD. The fight is contentious in part because a loud contingent of SBISD parents from the wealthy part of the district don’t think that the SBISD board is opposing it strongly enough, and they want to have one of them added as a defendant in the lawsuit. If the plaintiffs win, past history suggests they will be able to elect someone to the Board; a recent example cited in the story is Richardson ISD, in the Dallas area. I don’t know what the litigation schedule is – these things can take years to resolve – but I’ll keep an eye on it.

Down to the wire for Congressional redistricting

Time is running out in this session. Of course, there’s always the next session shudder.

A redraw of the state’s congressional map to include a decade of population growth could be headed to last-minute backdoor negotiations after the Texas House made a series of changes to the Senate’s proposed boundaries.

The House approved the congressional map on a 79-56 vote early Sunday, leaving in place district configurations that largely protect incumbents while denying Hispanics control of either of the two additional seats the state earned based on the 4 million new residents it gained, according to 2020 census results. Half of the new residents were Hispanic.

But the House late Saturday tweaked the Senate-approved map so that two Black Democratic members of Congress in the Houston area would not be pitted against each other. The chamber also amended the map to just barely restore the Hispanic-majority electorate of a Central Texas district stretching from Austin to San Antonio that the Senate plan had shrunk.

Early Sunday morning, the Senate rejected those changes and requested what’s known as a conference committee, made up of members of both chambers, to hash out the differences. That deal would require an additional vote by each chamber before this third special session ends Tuesday.

[…]

Throughout the evening, Democrats warned of “blatant legal defects” that undermine the electoral strength of voters of color in choosing their representatives in Washington, D.C. At times offering vague reasoning for their opposition, the House’s Republican majority repeatedly rejected their bids to rework the map and create additional districts in which voters of color could control elections.

A failed proposal to create such a district for Hispanics in western Dallas County grew particularly contentious as state Rep. Jacey Jetton, R-Richmond, spoke against the proposal, noting it would reduce the Hispanic population in a neighboring Democratic district.

In response, state Rep. Rafael Anchía, the Dallas Democrat who had offered the proposal, questioned why Republicans would object to the new district while signing off on a configuration that instead draws some of those Hispanics into a massive rural district with almost surgical precision.

Under the plan Republicans approved, the 6th Congressional District — which stretches across seven mostly white rural counties to the south of Dallas — extends a finger northward into Dallas County to capture Hispanic neighborhoods. That engineering simultaneously boosts white voters’ control of the district while stranding Hispanic voters who in the past were concentrated enough to influence election outcomes.

“You really have to try hard to deny Latinos in North Texas the ability to select that candidate of their choice, but that’s what’s baked in this plan,” Anchía said.

[…]

In reconfiguring the Austin-area districts, the Senate had brought the share of Hispanic eligible voters in the 35th Congressional District down from 52.6% to 48%. House Republicans voted to give Hispanic voters a marginal majority by bringing them up to 50.5% of eligible voters in the district, which is currently represented by longtime Democratic U.S. Rep. Lloyd Doggett.

In that same amendment, Republicans also upped the percentage of Hispanic eligible voters to exactly 50% in CD-27, a district that runs from the Gulf Coast up to Central Texas. But the seat would likely remain under Republican control, giving Donald Trump a hypothetical 20.5-percentage-point margin of victory at 2020 levels of support. The district is currently represented by Republican Michael Cloud of Victoria.

Democrats voted against those changes because they also served to further boost Republican performance in neighboring CD-15, which is anchored in Hidalgo County. The Senate reconfigured that district to flip it from one that Joe Biden narrowly carried to one that Trump would’ve won by 2.6 percentage points. Under the House’s changes, Trump’s margin of victory increases to 4.6 percentage points.

The CD-15 incumbent, U.S. Rep. Vicente Gonzalez, D-McAllen, has said he would move to run for reelection in the reconfigured CD-34, which was unexpectedly close in 2020 but was shored up as a safe Democratic seat. But it appears he will be able to stay put, thanks to a Democratic amendment passed Saturday that would draw his residence into CD-34.

Save for exceptions like CD-15, the GOP appeared to prioritize incumbent protection over aggressively running up the party’s numbers in the congressional delegation. But the map does in fact give Republicans a bigger edge, increasing from 22 to 25 the number of districts that would have voted for Donald Trump in 2020. The state’s current delegation consists of 23 Republicans and 13 Democrats.

See here and here for the background. I expect that the conference committee will produce a final map that will get approved in time, which would at least have the benefit of lessening the need for yet another special session. That’s all up to Greg Abbott of course, and if there’s some other dumbass wingnut thing he wants to do to fake looking tough for Republican primary voters, he can do it. Having Congressional maps in place would mean he doesn’t have to, for whatever that’s worth. This map is trash, but we know the courts will rubber stamp it, so the Republicans have no need to care. Pass it and get out of town, it’s the best we can hope for.

The Lege is now 3/4 done with redistricting

All but the Congressional maps are done. They’re just plowing through it.

The Texas Legislature is nearing the end of its work to incorporate a decade’s worth of population growth into new political maps — pressing forward with efforts to cement GOP dominance of the statehouse and deny voters of color a greater say in who gets elected.

In the final stretch of a 30-day special legislative session, the Republican majorities in the House and Senate on Friday almost simultaneously signed off on new political maps for the opposite chamber, sending them to Gov. Greg Abbott, also a Republican, for his signature. The votes were largely procedural as neither chamber made any changes. It’s customary for each chamber to defer to the other in drawing up maps for its own members, but both must give them a vote.

By a vote of 81-60, the House granted approval to a Senate map that would draw safe seats for Republican incumbents who were facing competitive races as their districts diversified over the last 10 years.

The Senate gave an 18-13 vote to a House map that would fortify the Republican majority of the 150 districts, bolstering those that had grown competitive over the last decade and devising new battleground districts.

The House also signed off on a new map for the Republican-controlled State Board of Education, which sets standards for Texas public schools. Still left on the docket is a House vote on a redraw of the state’s congressional map that would largely protect incumbents in Congress while reducing the number of districts in which Black and Hispanic residents make up the majority of eligible voters. That vote is expected Saturday.

If adopted, the maps could remain in place for the next 10 years, though it’s all but certain that they will face legal challenges that could result in changes.

[…]

Sixteen Republican incumbents will be drawn into safe districts for reelection, while two Senate seats being vacated by Republicans would almost certainly go to new GOP candidates over Democrats next year based on the percentage of voters in the district who voted for Donald Trump over Joe Biden in last year’s presidential race.

Democrats would also likely lose Senate District 10 in North Texas, represented by Sen. Beverly Powell of Fort Worth. That would shift the Senate’s partisan makeup from the current 18 Republicans and 13 Democrats to 19 Republicans and 12 Democrats under the proposed map.

Voters of color in the district, which sits entirely in Tarrant County, have banded together with white voters over the last decade to elect their candidates of choice. Its eligible voters are 21% Black, 20% Hispanic and 54% white.

But under the proposed map, SD 10’s Black and Hispanic populations are split into two other districts with majority-white electorates.

The voters who remain in the newly drawn District 10 would also see major changes. Black and Hispanic voters in urban areas of south Fort Worth would be lumped in with seven rural counties to the south and west that would drive up the district’s population of white eligible voters to 62% while diminishing its population of voters of color.

Tarrant County House Democrats warned that federal courts had ruled that a similar attempt to redraw the district last decade was discriminatory. They offered multiple amendments to keep District 10 entirely in the county.

[…]

The House’s new map also pulls back on Hispanic and Black voters’ potential influence in electing their representatives.

The map brings the number of districts in which Hispanics make up the majority of eligible voters down from 33 to 30. The number of districts with Black residents as the majority of eligible voters would go from seven to six. Meanwhile, the number of districts with a white majority among eligible voters would increase from 83 to 89.

The map moved through the Senate chamber without any discussion, save for an earlier objection from state Sen. Eddie Lucio Jr., a Democrat from the Rio Grande Valley, during a Senate Redistricting Committee meeting Friday morning.

Lucio denounced a revision to the map that would carve up predominantly Hispanic communities in the Rio Grande Valley in service of creating a new competitive House district in the typically blue region. The change, forced by a member who does not represent the affected districts, blindsided the House members from the area.

“Members, this is my fourth redistricting session,” Lucio told other members of the committee. “In my time in the Legislature, I have never seen such blatant disregard for the process.”

Meanwhile, Republicans shot down Democratic proposals to create new opportunities for Hispanic or Black Texans to control elections.

State Rep. Todd Hunter, the Corpus Christi Republican serving as the House’s chief map-drawer, has previously argued the map “achieves fair representation for the citizens of Texas” while complying with federal law.

The redraw will ultimately aid Republicans’ ability to control the chamber for years to come.

The House map creates 85 districts that would have favored Trump at 2020 levels of support and 65 that would have voted for Biden. The current partisan breakdown of the House is 83 Republicans and 67 Democrats, though Trump only won 76 of the current districts in 2020.

See here and here for some background. The speed with which these maps have been approved is I believe one part there being basically no changes proposed in the other chamber, and one part a sense of urgency on the legislators’ part to get the hell out of town already. I can hardly blame them for that, but in the end it’s up to Greg Abbott.

On the subject of litigation over these maps, on claims of racial discrimination and voting rights violations, I remain pessimistic about the likelihood of any redress from the courts. Not because I think the maps are fair and accurately reflect the population, but because I have no expectation that this Supreme Court will countenance any voting rights claims. We could still do something about that at a federal level, but until Senators Manchin and Sinema let go of their bizarre obsession with the filibuster as it is currently defined, that ain’t going anywhere.

That said, I am reasonably optimistic about the potential for gains in the State House, if not in 2022 then in the coming years. The Chron story on the passage of these maps is a reminder of why.

The new Texas House map will protect Republican control by shedding Democratic-leaning areas where the party has lost support and moving those to blue districts while shoring up red ones.

That give-and-take is evident in west Harris County where two red districts, represented by Republican state Reps. Mike Schofield of Katy and Lacey Hull of Houston, are redrawn to include red-leaning precincts from Democratic state Rep. Jon Rosenthal’s nearby district; Rosenthal’s district will get blue-leaning areas now represented by the two Republicans.

As the state’s demographics change, however, there are only so many reliably red areas from which to pull. That meant for some districts, the best Republicans could do was make changes to benefit incumbents.

For example, the Energy Corridor district represented by state Rep. Jim Murphy, a Republican who is not seeking re-election, would give up some GOP precincts to Hull. Former President Donald Trump won Murphy’s district by 4 percentage points in 2020, but under the new map, that margin would drop to 2 points.

You’ve seen me make a version of this argument in previous posts. In the House, unlike the other maps, the Republicans were constrained by the county rule, which did not allow them to extend mostly rural districts into urban and suburban counties to dilute their Democratic communities. That forced them to draw a large number of districts with a relatively modest margin for Donald Trump, and the large majority of them are in counties where the trends have been moving strongly in a Democratic direction. Things can certainly change, and any given election can favor one party or the other, but overall that seems like a highly unstable equilibrium for the GOP.

The fourth map is of course the Congressional map. The Senate approved a map a few days ago, and the House committee approved it with no changes, as House Redistricting Chair Todd Hunter insisted that any amendments be made on the House floor. That puts them in position to be done with the entire business by the time the session ends, though I expect there to be a big fight when this map comes up for debate. The proposed map does some truly outlandish things to break up urban counties and communities of color, which I’m sure will draw a ton of heat and more threats of litigation from Dems. I expect them to get the job done, though if there are changes it will have to go back to the Senate for final approval. If it needs to go to a conference committee, that will almost surely require a fourth special session to finish it off. God help us all. Daily Kos has more.

SCOTx puts San Antonio ISD’s vaccine mandate on pause

Ken Paxton finally gets what he wants.

The Texas Supreme Court temporarily halted San Antonio Independent School District’s staff vaccine mandate on Thursday, a day before the deadline for all employees to get vaccinated against COVID-19.

The ruling comes two weeks after a Bexar County judge denied the state’s request for a temporary injunction to stop the staff vaccine mandate. Texas Attorney General Ken Paxton’s office appealed that decision to the 4th Court of Appeals and also requested the court temporarily block the mandate while it considers Paxton’s appeal.

The 4th Court of Appeals denied the attorney general’s request to temporarily block the vaccine mandate. Paxton then requested the Texas Supreme Court step in and halt the mandate, which it did Thursday while stating the court’s decision is not a reflection “on the merits of the state’s claims.” The appeals court still has to rule on the state’s appeal of the temporary injunction that was denied by the Bexar County judge on Oct. 1.

[…]

While the Supreme Court’s ruling means SAISD must pause its vaccine mandate, the district said in a statement that it will continue to work with health care providers to offer vaccines to any employees, students, and families who want them.

“This is especially important as we anticipate the availability of the Pfizer vaccine for 5-11-year-old children in the next month. We remain committed to believing it’s the right thing to do,” the district said in the statement. “We are extremely proud of our efforts in providing abundant access to this life-saving protocol to all of our employees and the broader SAISD community. Based on the science, we continue to feel strongly that these vaccines help us keep our staff and students as healthy as possible and in the classroom, where learning happens best, and in giving our families stability.”

See here, here, and here for the background. Next up would be a hearing in district court on the merits of the state’s request for an injunction, followed by another round of appeals. The hope remains that in this time, whether the mandate is allowed to be enforced or not, some number of SAISD employees get vaccinated who wouldn’t have done so otherwise. If that happens, it was all worth it. The Trib has more.

Justice Department goes to SCOTUS over SB8

As expected.

The Biden administration will ask the U.S. Supreme Court to stop enforcement of Texas’ near-total abortion ban, according to a Friday statement from a U.S. Department of Justice spokesperson.

Courts have pingponged back and forth on the law’s enforceability over several weeks. The Justice Department’s move comes after a panel of federal appellate judges ordered late Thursday that the ban will remain in place while its constitutionality is decided.

[…]

“The Supreme Court needs to step in and stop this madness. It’s unconscionable that the Fifth Circuit stayed such a well-reasoned decision that allowed constitutionally protected services to return in Texas,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement.

When Texas abortion providers originally made an emergency appeal to the U.S. Supreme Court before the law went into effect, the court denied their request to stop the law’s enforcement in a 5-4 vote.

Abortion advocates remain unsure of what the Supreme Court will do and if it will ultimately uphold the precedent of Roe v. Wade’s landmark decision in a case out of Mississippi that the court will begin hearing Dec. 1.

See here for the previous update. Not much to add here, either SCOTUS does the right thing or we continue to be screwed by a bunch of partisan hacks in robes who will always arrive at their preferred outcome regardless of the facts. What do you think all those references to the Fifth Circuit’s super-duper conservatism are telling us, anyway? And yes, the Fifth Circuit’s opinion here is highly questionable:

Click over to read the rest. The Current has more.

Fifth Circuit does the expected with the SB8 appeal

Was it ever in doubt?

Texas’ near-total abortion ban can continue to be enforced while the law’s constitutionality is decided, a panel of federal appellate judges ordered late Thursday.

The three justices of the 5th U.S. Circuit Court of Appeals — considered perhaps the most conservative appellate court in the nation — also agreed to hear oral arguments in the underlying lawsuit the Biden administration filed against Texas over the law.

A U.S. district court previously blocked enforcement of the law for two days before the 5th Circuit initially froze the order. The panel of 5th Circuit justices agreed in a 2-1 decision Thursday to let the law remain in effect until it considers the U.S. Department of Justice’s challenge. Judge Carl Stewart dissented.

The decision means the appellate court will take over the legal challenge to Senate Bill 8 that was being overseen by U.S. District Judge Robert Pitman.

Oral arguments before the 5th Circuit have not yet been scheduled, but it could be months before they take place.

[…]

The 5th Circuit already issued an emergency stay in late August to stop district court proceedings and cancel a hearing in another lawsuit challenging Texas’ abortion law. That case was brought on by abortion providers and also overseen by Pitman. The 5th Circuit is set to hear oral arguments in the abortion providers’ case no earlier than December.

The same panel of 5th Circuit judges will consider both cases.

See here, here, and here for the background, and here for a copy of the order. This was what we all expected – I mean, just look at who comprised the panel, if you know who these justices are – but it still sucks. The next logical step is an emergency appeal to SCOTUS, because it’s offensive and ridiculous to continue to allow this travesty of a law to remain in effect. No guarantees there, of course, but at least there’s a chance. This one was never really in question.

More on the Abbott max anti-vaxx order

Businesses will face a choice that they would rather not have to face.

Companies doing business in Texas face new and complicated challenges after Gov. Greg Abbott this week banned COVID-19 vaccine mandates for all entities in the state — including private businesses — for employees or customers.

The ramifications for businesses could begin as soon as Friday, when companies that enter into contract work with the federal government will be required to have all employees vaccinated under orders from the White House.

This conflicts with Abbott’s ban on vaccine mandates, putting the many Texas businesses that receive federal contracts in a tough position: Comply with federal law and violate Abbott’s ban, or comply with Abbott and turn down business from the federal government.

[…]

“This harms Texans directly,” Karen Vladeck, an employment lawyer in Austin, said of the new order from Abbott. “I just think it wasn’t well thought out.”

Abbott’s office did not reply to a request for comment.

On top of prohibiting any entity in Texas from requiring vaccinations, Abbott’s order also lists several expanded exemptions. Vladeck and other employment lawyers said that this adds to the vaccine dilemma facing businesses in Texas. Under Abbott’s new rule, people may opt out of a vaccine requirement for medical reasons, including if they prove they have had COVID-19 in the past, despite scientists widely agreeing that this does not protect people against contracting the virus.

“The executive order’s medical reason language is a bit strange because usually you exempt people for medical reasons if they have a severe allergic reaction to a vaccine,” said Elizabeth Sepper, a law professor at the University of Texas at Austin. Abbott’s order is “meant to cover people who don’t want to get the vaccine because they believe, quite wrongly, that they’re completely protected by already having COVID.”

Abbott’s rule also allows people to opt out of a vaccine requirement if they prove they hold a deep personal belief against getting jabbed.

Any entity that fails to comply with Abbott’s rule could receive up to a $1,000 fine.

Abbott’s Monday order is a reversal from his position in August, when the Pfizer vaccine received final approval from the U.S. Food and Drug Administration. At the time, Abbott’s spokesperson said that businesses had the option of mandating vaccination for employees and “private businesses don’t need government running their business.”

“It’s all about company choice in Texas, except now it’s come to something that they don’t like what the companies are choosing,” Vladeck said. “It puts a big burden on employers.”

See here for the background. So far, businesses that are also federal contractors, including airlines and companies like IBM, will ignore Abbott’s order, while others are awaiting the OSHA rules before making a decision. Multiple business groups, the same organizations that often turn to the state for a legislative solution to local ordinances they don’t like, harshly criticized Abbott’s order for making their lives more difficult. Harris County Attorney Christian Menefee released a statement encouraging businesses that want to be able to get their employees vaccinated to file a lawsuit against Abbott over the order. And in the end, even wingnut talk radio hosts weren’t impressed by Abbott’s order. It’s almost as if he were a weak, gutless leader.

Justice Department files its brief with the Fifth Circuit

Good luck. They’re going to need a lot of it.

Right there with them

The Biden administration urged the courts again to step in and suspend a new Texas law that has banned most abortions since early September, as clinics hundreds of miles away remain busy with Texas patients making long journeys to get care.

The latest attempt Monday night comes three days after the 5th U.S. Circuit Court of Appeals reinstated the nation’s most restrictive abortion law after a brief 48-hour window last week in which Texas abortion providers — following a blistering ruling by a lower court — had rushed to bring in patients again.

The days ahead could now be key in determining the immediate future of the law known as Senate Bill 8, including whether there is another attempt to have the U.S. Supreme Court weigh in.

[…]

“If Texas’s scheme is permissible, no constitutional right is safe from state-sanctioned sabotage of this kind,” the Justice Department told the appeals court.

In wording that seemed to be a message to the Supreme Court, the Justice Department raised the specter that if allowed to stand, the legal structure created in enacting the law could be used to circumvent even the Supreme Court’s rulings in 2008 and 2010 on gun rights and campaign financing.

It is not clear when the 5th Circuit court will decide whether to extend what is currently a temporary order allowing the Texas law to stand.

See here and here for the background. Yesterday was the deadline for the briefs to be filed for the Fifth Court to consider whether to allow the restraining order put in place by Judge Pitman to remain or to continue to stay it and thus allow the extremely unconstitutional SB8 to be enforceable. You know my opinion of the Fifth Circuit. I figure they only bothered to ask for briefs so they’d know how to customize their order allowing SB8 to stay in place. We have to go through the motions regardless. Whatever they do, this will go to SCOTUS next. In the meantime, maybe the court should consider and address the state’s true motives, for then at least we might have some clarity. Axios has more.

Abbott goes max anti-vaxx

He really wants us dead.

Texas Gov. Greg Abbott on Monday issued another executive order cracking down on COVID-19 vaccine mandates — this time banning any entity in Texas, including private businesses, from requiring vaccinations for employees or customers.

Abbott also called on the Legislature to pass a law with the same effect. The Legislature is in its third special legislative session, which ends Oct. 19.

“The COVID-19 vaccine is safe, effective, & our best defense against the virus, but should always remain voluntary & never forced,” he said in a tweet announcing his latest order.

The order marks a significant reversal after Abbott previously gave private businesses the choice to mandate vaccines for workers. An Abbott spokesperson said in late August that “private businesses don’t need government running their business.”

For weeks, Abbott has been under pressure from some on his right to go further in prohibiting vaccine requirements, and one of his primary challengers, Don Huffines, celebrated the latest order.

[…]

The latest move appears to be at least partly motivated by President Joe Biden’s actions in September that require all employers with more than 100 workers to mandate vaccines for workers or test weekly for the virus. Biden also required all federal government workers and contractors to get vaccinated, leading nearly all the major airlines — including American Airlines and Southwest Airlines headquartered in Texas — to announce they’d abide by the mandate.

See here for more on his previous order, which as noted explicitly avoided including private companies. There’s no question that this is one part a toddler’s response to the Biden executive order, but also a coward’s response to the toxic ravings of his primary opponents. Abbott’s weakness and ineffectuality are just embarrassing. Whether it’s enough to get a plurality of voters to turn against him, that’s the zillion dollar question.

As noted in the story, big employers like airlines are going to comply with the Biden order, which applies to companies with at least 100 employees. The Abbott order, to whatever extent it has an effect, will affect smaller companies.

Experts agree Abbott’s order — which says even private companies in Texas cannot “compel receipt of a COVID-19 vaccine by any individual” — would likely be trumped by President Joe Biden’s requirements that federal contractors and businesses with 100 or more employees require vaccines. Major corporations based in Texas, including Southwest Airlines and American Airlines, said Tuesday they would abide by Biden’s rules over Abbott’s.

The federal rules are still in the works, but even after they’re enacted they won’t affect the majority of the state’s workforce. The big businesses affected by Biden’s rule employ 44 percent of Texas workers.

How much protection the governor’s latest order provides to those 56 percent of workers employed by the smaller companies, however, is another question. Legal experts were split on whether those fired for refusing to get a shot could start collecting unemployment, for instance. Some attorneys believe Abbott has clearly opened the door for those workers to get benefits, while others argued the order stops well short of making such a guarantee.

And the order is likely to prompt conflicting rulings from judges at various levels of the court system, as has Abbott’s effort to stop schools and local governments from enacting mask mandates. Repeatedly, the state has admitted in court that it has no plans to enforce the ban on mask requirements, saying that is up to local district attorneys.

“You have these orders coming down at various levels. I think if you’re a consumer or even an employee, you’re kind of in a tough spot if you’re choosing to not be vaccinated,” said Alfonso Kennard, Jr., a Texas-based employment attorney. “The path of least resistance would be to be vaccinated.

“At a minimum, all it does is give some entity the ability to point to something and say, ‘The governor said this, so I should be OK,’” Kennard said. “But a week from now, a judge could say it isn’t lawful.”

The Texas Workforce Commission would not say whether the order impacts unemployment claims, saying only that each is handled on a case-by-case basis with the “totality of the job separation” taken into consideration.

Kalandra Wheeler, an employment attorney based in Houston, said Abbott’s order would appear to make it easier for unvaccinated workers to argue they deserve unemployment.

“What they have to establish for you not to get benefits is that you either resigned and there was no good cause connected to the work, or that you were terminated for misconduct,” Wheeler said. “I think there’s less of an argument you’ve done those things when the governor issues a ban that says you’re not required to get the vaccine.”

Randall Erben, a law professor at the University of Texas who previously worked as Abbott’s legislative director, said he believes the order was “very carefully drafted, very thoughtfully drafted, and drafted in a way that makes it harder to challenge and more easily enforceable.” Importantly, it doesn’t mention anything about unemployment eligibility.

“The executive order doesn’t really get into that,” he said. “What it says is a private employer can’t compel an employee to get a vaccine. What an employer does after that is not addressed in the order. It’s not even really contemplated.”

If there’s one thing that is clear, it’s that this will be a busy time for the lawyers. Actually, it’s also clear that Abbott has no qualms about contradicting himself:

OK, it’s also clear that we are already living in Don Huffines’ Texas. Abbott is just blowing in the wind. If you like this and want it to continue, you know what to do. Same for if you don’t. The Chron and the Trib, in a truly brutal analysis that includes observations such as how Abbott is “so overwhelmed by politics that he’s become a Random Policy Generator, throwing out edicts that make sense only if you forget everything he said before”, have more.

Federal lawsuit over mask mandate ban in schools has its hearing

A big case with potential national implications.

School district leaders should have the right to make decisions about mask mandates based on the needs of their students and local coronavirus spread data, attorneys argued Wednesday in federal court.

Lawyers with Disability Rights Texas, who filed the first federal lawsuit over the ban in mid-August, allege that Gov. Greg Abbott’s prohibition on mask mandates puts students with disabilities at risk.

The organization claims that Abbott’s executive order violates federal anti-discrimination law, which prohibits the exclusion of students with disabilities from public education programs and activities.

Disability Rights Texas represents students mostly younger than 12 with disabilities and underlying medical conditions “which carry an increased risk of serious complications or death in the event that they contract COVID-19″ including children who have Down syndrome, moderate to severe asthma, and chronic lung or heart conditions.

“Doctors that treat the plaintiffs told them to avoid places without universal masking,” attorney Scott Thomas said.

Their parents submitted testimony outlining their difficult choices about whether to prioritize their vulnerable children’s educational needs or their health.

“No parent should be forced to make a decision like this,” one said.

Ryan Kercher, arguing on behalf of the state, stressed that the lawsuit hinged on data, pointing to the relatively low number of COVID-19 cases in the schools of the students suing.

Judge Lee Yeakel interrupted Kercher, asking why the data mattered. If the odds of contracting COVID-19 were 10,000-1, it would matter to the one person, he said.

Kercher pushed back, saying it is important to examine the number of cases to see if a real risk existed should masks not be mandated. Holding up Fort Bend Independent School District, which does not require masks, as an example, Kercher said the district near Houston had case totals that are on par with districts that do not require masks.

But Yeakel also questioned why not search for the most safe option to prevent the spread of coronavirus.

“That’s not a choice anyone gets,” Kercher said, noting that the speed limit isn’t 5 miles per hour everywhere. He and his co-counsel did not wear face coverings during the hearing.

Yeakel did not rule on the case Wednesday but said he would work to do so as quickly as possible. He alluded to the national interest and impact such a decision could have as states across the country are also in the midst of their own mask battles. No matter what he decides, appeals appear likely.

See here, here, and here for the background. The Justice Department got involved in the case on the side of the plaintiffs earlier this week. I think they have a strong case, and of course I’m rooting for Greg Abbott to be handed a loss, but we’ll see. I do think this one will eventually make its way to SCOTUS, perhaps quickly if there’s a question about staying a favorable ruling for the plaintiffs. KVUE has more.

We wait until at least Tuesday for a chance at justice with SB8

In case you missed it.

The 5th U.S. Circuit Court of Appeals late Friday temporarily allowed Texas’ near-total abortion ban — the strictest in the nation — to again be enforced after freezing a federal judge’s temporary block of the law. The state appealed the order just two days after it was issued.

A panel of 5th Circuit justices restored enforcement of the law hours after Texas asked the court to step into a lawsuit that the U.S. Justice Department filed against the state. Enforcement of the law will be allowed to continue until at least Tuesday, when a response from the Justice Department is due. After the court considers arguments from both sides, the court can decide whether to continue allowing enforcement of the law or allow a lower court to once again temporarily block it.

The court would not be determining the overall case’s outcome at this point — but it would decide whether the law could continue to stand while court proceedings unfold.

[…]

The abortion law allows for retroactive enforcement — meaning those who helped someone get an abortion while the law was blocked for two days can now be sued.

A day after Pitman’s order, at least one major provider in the state — Whole Woman’s Health — had quickly begun performing abortions that Texas lawmakers sought to outlaw. It appears the clinics and doctors who performed abortions outlawed by the statute would now be vulnerable to lawsuits after Friday’s order.

“We do understand that it does open us up to some risk. We have to wait and see,” said Amy Hagstrom Miller, CEO of Whole Woman’s Health. “We have a lot of lawyers on speed dial these days.”

Miller said her organization and physicians in her clinics are on edge.

“But not for a second do we question that it was the right thing to do,” she said. “People need our help, and they shouldn’t be put through this.”

The organization will comply with the law once again, she said. Already several appointments had been made for Monday, so clinics will have to cancel them.

“Unfortunately, there’s going to be a lot of phone calls we have to make,” she said.

See here for the previous entry, which had an update at the end for the Fifth Circuit action. The Justice Department may wait for a ruling from the Fifth Circuit before it appeals (because we all know what the lawless Fifth Circuit is going to do) to SCOTUS, or it may just file an emergency petition with SCOTUS and hope for a faster ruling. SCOTUS has a Mississippi abortion case on its docket this term, so one way or another it’s going to be dealing with the larger issues. It’s just a question of whether they want to allow for a de facto overturning of Roe v Wade before they rule in that case or not. Maybe take a closer look a those approval numbers, guys.

In the meantime, there’s a real danger that it won’t much matter anyway what happens.

Abortion providers have said they are hoping they get more permanent relief from the U.S. Supreme Court.

The nation’s highest court was asked to intervene when the law was first going into effect, but justices declined. Since the law has been in effect, abortion providers have petitioned the court, again. So far, the court has not responded.

Abortion providers have said one of the longer-term concerns is what will happen to their clinics if the law continues to stay in effect. Hagstrom Miller said providers are facing serious financial strains as they turn away the majority of people seeking an abortion.

She said access to abortion in the state could be permanently altered if the law isn’t blocked as the legal challenges move through the courts.

“If clinics close because SB 8 is enforced long enough,” Hagstrom Miller said, “the damage will be done, even if it’s eventually struck down.”

Abortion providers have been begging for relief from this ludicrously unconstitutional law, to no avail so far. The danger that they’ll be forced out of business for financial reasons while they wait is real, and is exactly what happened with the TRAP law that was struck down in a few years ago. Fully half of all clinics went under in the interim, and I guarantee you that was no accident. If it happens again, we may never recover. And again, that was the plan all along.

State appeals SB8 restraining order to Fifth Circuit

I’m sure they expect the usual room service from the appeals court. It’s just a matter of how quickly they can get it.

Texas asked a federal appeals court Friday to step in “as soon as possible” to restore the state’s near-total abortion ban.

The state filed its emergency request for an appeal two days after U.S. District Judge Robert Pitman temporarily blocked the new abortion law in response to a lawsuit brought by the Biden administration. The state quickly filed a notice of its intent to appeal after Pitman’s order on Wednesday night.

In Friday’s request, state attorneys argue that Pitman’s order to temporarily block the law at the United States’ request “violates the separation of powers at every turn.” They ask the 5th U.S. Circuit Court of Appeals — considered to be perhaps the nation’s most conservative appellate court — to stop Pitman’s order.

State attorneys argued the U.S. overstepped by suing the state since it will never be subject to one of the lawsuits allowed by the law and since the state does not enforce the law directly.

“This Court’s immediate intervention is necessary to vindicate Texas’s sovereign interest in preventing a single federal district court from superintending every Texas court,” attorneys wrote in Friday’s request.

[…]

“I think there is a very good chance the court grants a stay [to block Pitman’s order],” Josh Blackman, a constitutional law professor at South Texas College of Law Houston, said in an email. He said Pitman already faced many barriers to issuing his temporary order.

“Congress never authorized the United States to sue a state in this context,” Blackman explained. “And there is no history of previous suits by the federal government against an allegedly unconstitutional law. The federal government lacks a ‘cause of action’ to sue Texas.”

See here for the background. I dunno, I figure if a law can be passed to take away a right in such a way that it’s basically impossible to challenge it in court, then it wasn’t actually a right to begin with. And if a state can take away a federal right like that, it sure seems like a design flaw in the system. I don’t expect the Fifth Circuit to give a damn about that, but someone had to say it. By the way, even with this initial court ruling, the right that was taken away still hasn’t really been restored, and who knows when it might be. Like I said, if that can happen to someone’s rights, then was there ever really such a thing as “rights”?

UPDATE: Room service indeed.

The U.S. Court of Appeals for the 5th Circuit granted a temporary emergency stay in the United States v. Texas, the federal government’s suit against the state. As a result of the 5th Circuit’s ruling, a preliminary injunction — which halted the SB 8 from being enforced — no longer stands, and the vast majority of all abortions are once again banned in Texas.

The 5th Circuit has given the federal Justice Department until 5 p.m. CT on Tuesday to respond to Friday night’s action. The Justice Department will need to prepare its argument to counter Texas’ request that such a stay be a permanent one.

When I said that the Fifth Circuit already had an order printed and ready to go staying Judge Pitman’s order? I was only half-joking. Next, we’ll get to see if SCOTUS meant what they said about “procedurally proper challenges” maybe being more successful. The Chron has more.

Senate passes Congressional map

Start the litigation countdown. Yes, I know, this still has to pass the House, but still.

The Texas Senate approved a map Friday that would largely protect incumbents in Congress while reducing the number of districts in which Black and Hispanic residents make up the majority of eligible voters — stymieing the growth of the state’s Democratic Party representation in Washington, D.C.

The congressional map is focused more on protecting incumbents than on growing the power of the dominant Republican Party in the state by flipping districts from blue to red. But the map, proposed by GOP state Sen. Joan Huffman of Houston, helps Republicans by increasing the number of districts that would have voted for Donald Trump in the 2020 presidential election and decreasing those that would have gone for Joe Biden.

In anticipation of federal challenges to the map, Lt. Gov. Dan Patrick, a Republican who presides over the Senate, said in a statement Friday that the proposal approved by the chamber was “legal and fair” and represented a “commitment to making sure every Texan’s voice is heard in Washington, D.C.”

[…]

State Sen. Roland Gutierrez, D-San Antonio, proposed a map that would create three additional districts where Hispanics made up the majority, bringing the number of those districts to 10.

But Republicans rejected the proposal, with Huffman saying the amendment had been drafted less than 24 hours before the Senate’s vote on the maps and would result in a “detailed and painstaking racial gerrymander” in North Texas to draw a new Hispanic-majority district in the same area as the current Congressional District 33, represented by U.S. Rep. Marc Veasey, D-Fort Worth.

Gutierrez accused Republicans of racially discriminating against voters of color.

“How else do we describe a situation where Texas gains new political power because of the physical presence of millions of Black, Brown, and Asian bodies, and yet the political establishment does not give those very Texans the ability to elect more candidates to represent them?” he said in a statement. “It is an insult to the foundations of our democracy.”

Under the proposed maps, voters of color may end up with less representation in the congressional delegation. The new map drops the number of districts in which Hispanics make up a majority of eligible voters from eight to seven, and the districts in which Black Texans make up a majority of eligible voters from one to zero.

The number of districts where whites make up a majority of eligible voters goes up to 23 although the state’s white population — which increased by just 187,252 — was swamped by the growth of people of color.

See here for more on the initial map, which looks to be largely the same as the final map. Which we know is totally fair and representative because Dan Patrick says it is. The House will likely make some changes, but it seems unlikely to be substantively different. I’ll say this much, they’ve given Harris County Democrats a new district to target, and I feel confident that any Republican who wins the new CD38 is never going to get a free pass. I’ll be interested to see who files for this on the Democratic side.

As for the coming litigation, the arguments are clear, it’s just a matter of what SCOTUS will allow in the post-Voting Rights Act world that it wants. I will say again, it’s not too late for a new Voting Rights Act to be passed. We’re going to need an upgrade in the US Senate to make that happen, I fear.

Speaking of litigation, I would love to know what the status of the Gutierrez/Eckhardt lawsuit is. That had to do with the legislative maps, not the Congressional map, but given the speed with which those maps are moving along, we will be reaching a point of no return soon. Let’s at least have a hearing on this one before events make it moot, OK?

UPDATE: I should have spent more time looking at the District Viewer, because I have just now realized that this map moves me out of CD18, where I’ve been for 30 years, and into CD29. I feel a little weird about that.

Federal judge blocks SB8

Some justice for now, but we’ll see how long it lasts.

A federal judge temporarily blocked Texas’ near-total abortion ban Wednesday as part of a lawsuit the Biden administration launched against the state over its new law that bars abortions as early as six weeks of pregnancy.

But it’s unclear how U.S. District Judge Robert Pitman’s order may affect access to abortions in the state — or if it will at all. The state of Texas quickly filed a notice of appeal and will almost definitely seek an emergency stay of Pitman’s order in the 5th Circuit Court of Appeals, which is known as perhaps the nation’s most conservative appellate court.

In a press release, the ACLU of Texas pointed to the uncertainty on how Wednesday’s order and the state’s appeal will affect procedures in the state.

“Though the court’s ruling offers a sigh of relief, the threat of Texas’ abortion ban still looms over the state as cases continue to move through the courts. We already know the politicians behind this law will stop at nothing until they’ve banned abortion entirely,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project said in a statement. “This fight is far from over, and we’re ready to do everything we can to make sure every person can get the abortion care they need regardless of where they live or how much they make.”

Until Pitman’s order, Texas’ new law successfully flouted the constitutional right to have an abortion before fetal viability established by Roe v. Wade in 1973 and subsequent rulings. That’s because it leaves enforcement of the new restrictions not to state officials but instead to private citizens filing lawsuits through the civil court system.

The order from Pitman — a 2014 Obama nominee — forbids state court judges and court clerks from accepting lawsuits that the law allows. Pitman ordered the state to publish his order on all “public-facing court websites with a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts.”

He called the case “exceptional” and ordered that the state and “any other persons or entities acting on its behalf” be blocked from enforcing the statute. He acknowledged that his order could be appealed in another court and added: “this Court will not sanction one more day of this offensive deprivation of such an important right.”

[…]

Pitman gave a scathing response to Texas’ request that the court allow it to seek an appeal prior to blocking the law’s enforcement.

“The State has forfeited the right to any such accommodation by pursuing an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right,” Pitman wrote in his order. “From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution.”

Despite the threat of retroactive lawsuits, the Center for Reproductive Rights said the clinics and doctors it represents “hope to resume full abortion services as soon as they are able.” The organization acknowledged that the order is temporary and expected the state would appeal — but called the ruling a “critical first step.”

“For 36 days, patients have been living in a state of panic, not knowing where or when they’d be able to get abortion care,” Nancy Northup, president & CEO of the Center for Reproductive Rights, said in a statement Wednesday. “The cruelty of this law is endless.”

Whole Woman’s Health said it was making plans “as soon as possible” to resume abortions outlawed under Texas’ law.

“This is AMAZING. It’s the justice we have been seeking for weeks,” Amy Hagstrom Miller, CEO of Whole Woman’s Health, said in a statement.

See here for the previous update. We didn’t have to wait long for this ruling, but it will be likely even less time before the rogue Fifth Circuit steps in and does its damage. After that, we’ll see if SCOTUS still claims to be confused by this issue, or if they have decided to care about the constitution.

Slate provides some highlights from Judge Pitman’s opinion.

The DOJ’s bet that agents of the state could be subject to suit paid off, particularly in the face of mounting evidence that pregnant Texans had been materially harmed as a result of the law. Pitman’s decision has moments of powerful rhetoric, but it is largely devoted to the “complex and novel” threshold issues the majority of the Supreme Court was too exhausted to probe when they allowed the law to stand. “There can be no doubt that S.B. 8 was a deliberate attempt by lawmakers,” he wrote, to “preclude review by federal courts that have the obligation to safeguard the very rights the statute likely violates.” This effort failed, he noted, because the United States has standing to represent its citizens in their effort “to vindicate federal rights.” On behalf of these citizens, it also has authority to enforce the 14th Amendment against a state attempting to “supersede” it. As Pitman put it, “when the machinations of the state effectively cut off private access to the federal courts,” the scheme warrants “equitable action by the United States.”

Because the DOJ clears these hurdles, Pitman wrote, it had properly challenged S.B. 8. And on the merits, there is no question as to foundational facts: Texas’ law plainly violates Roe because it outlaws abortions well before fetal viability. In order to block the law, Pitman crafted an injunction to “halt existing S.B. lawsuits and prevent new suits from being maintained by the state judiciary.” He forbade state judges and clerks from “accepting or docketing” these cases, and, for good measure, barred “private individuals who act on behalf of the state” from filing them. Finally, he ordered Texas to “publish this preliminary injunction on all of its public-facing court websites with a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts.”

Notably, Pitman denied Texas’ request for an immediate stay of his decision. “The State has forfeited the right to any such accommodation by pursuing an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right,” he explained. To be clear, this hardly means Texas clinics will begin providing constitutionally protected abortions services tomorrow. If Pitman’s decision is eventually overturned, doctors who perform abortions in the interim can still be sued. But at least for now, the playing field tilts against the states too-clever-by-half effort to harm women while skirting judicial review.

I’ll be shocked if the Fifth Circuit allows this to stand going into the weekend, but for now we’re in a better place. Daily Kos, The 19th, the Chron, and the Trib have more.

More proof that vaccine mandates work

In the end, most people just get the damn shots. The rest is sound and fury.

Protests, lawsuits and national media coverage surrounded Houston Methodist Hospital in June when it became the country’s first major health system to require a COVID-19 vaccine as a condition of employment.

Now, as other Houston healthcare providers begin to enforce similar mandates, the drama has faded into the background. Hospitals are not facing the same pushback, officials say, and only a small portion of employees are holding out on the vaccine.

“There is a lot of noise around (mandates), and the anti-vaxx movement has been vociferous, but this is more of an outcry from the community rather than when it comes down to the brass tacks in facilities,” said Carrie Kroll, vice president of advocacy, quality and public health at the Texas Hospital Association.

Texas Children’s Hospital and Baylor College of Medicine were the first to reach their vaccine mandate deadlines following Methodist.

Baylor required its roughly 9,000 faculty and staff members to be fully vaccinated by Sept. 15. Those who did not attest to receiving their vaccine were subject to “progressive discipline,” which includes a series of warnings that ends in firing, according to a statement. The vast majority of employees complied, while about 3 percent were granted an exemption, according to numbers provided by the school.

One employee resigned. Another five will be fired after facing warnings.

[…]

Texas Children’s Hospital also passed its first-dose deadline on Sept. 21. Its doctors are employed by Baylor and already covered by the school’s mandate. In a statement, the hospital said “a very small number of employees did not receive the vaccine and therefore chose to leave the organization.”

Texas Children’s spokesperson Natasha Barrett said the hospital could not disclose a specific number of people who left or whether any exemptions were granted.

See here, here, and here for some background. A lawsuit by the (very small number of) fired Methodist employees was dismissed, though it is being appealed. There’s growing evidence from around the country that this is what happens pretty much everywhere that there’s a vaccine mandate – lots of loud whining and complaining and threats to quit, followed by near-universal compliance. This is why I’m happy for the San Antonio ISD vaccine mandate fight to move slowly through the courts, because regardless of outcome it’s going to cause people to get the damn vaccine. And don’t anyone tell Greg Abbott, but Southwest Airlines is doing a mandate now, too. The more, the very much better.

If in Texas you can’t get justice…

Try somewhere else.

An abortion provider in Texas took the unusual step Tuesday of asking a federal judge in another state to declare unconstitutional the six-week-ban on the procedure that took effect last month in Texas.

Lawyers for Dr. Alan Braid, a San Antonio physician who acknowledged performing an abortion after the state’s legal limit, wants a judge in Illinois to block three lawsuits filed against him under the ban, which has halted almost all abortions in the nation’s second-most-populous state.

Abortion providers and advocates say they are in “legal limbo,” after twice asking the Supreme Court to intervene to block enforcement of the law, which bars abortion as early as six weeks into pregnancy with no exception for rape or incest.

They are awaiting action in the three lawsuits against Braid, as well as word from a federal judge in Austin, who could rule at any time on the Justice Department’s request for an injunction to restore abortion access in Texas.

“Dr. Braid filed suit today to stop the vigilante plaintiffs and get this extreme abortion ban declared unconstitutional once and for all,” Nancy Northup, president of the Center for Reproductive Rights, said in a statement.

“He should never have had to put himself at legal risk to provide constitutionally protected abortion care. This legal limbo has gone on long enough and needs to be stopped.”

[…]

Braid came forward last month, announcing in a Washington Post column that he had performed an abortion past the legal limit and essentially inviting a lawsuit so he could directly challenge the constitutionality of the ban.

Three individuals — one in Arkansas, one in Texas and another in Illinois — quickly filed lawsuits against Braid in state court in Texas.

The Center for Reproductive Rights, representing Braid, now wants to consolidate the “competing claims” in those cases in federal court in Illinois.

Braid’s lawyers say they can take this step because three different people in three different states have filed similar claims to an award of at least $10,000.

“The likelihood of strangers filing multiple, overlapping lawsuits against a provider is a feature of SB8, and not an accident,” the court filing states, making reference to the law, which was formally classified as Senate Bill 8.

Braid said that none of the individuals has a right to damages because the law is unconstitutional under the Supreme Court’s Roe v. Wade decision guaranteeing the right to abortion before viability, usually around 22 to 24 weeks.

Braid also has a right, the filing states, “to avoid wasteful, vexatious and duplicative litigation and potentially conflicting rulings.”

See here, here, and here for some background. I knew about the Arkansas and Illinois lawsuits against Dr. Braid, but had not been aware of the third one. Looking at the defendants named in the filing, it appears that the third litigant is one of the frequent commenters here. I’ll let him explain himself about that.

These lawsuits are all in state court. There is also the bottleneck imposed by the Texas Multidistrict Litigation Panel (supported by the Supreme Court) on lawsuits by providers to get injunctions against other potential litigants, but from my read of the lawsuit that does not appear to be at issue here. The larger point is that not just Dr. Braid but every abortion patient and provider and clinic employee and volunteer and many other people have a right to their day in court, and to have a clearly unconstitutional law be put on hold while legal questions surrounding it are being decided. That’s what is being asked for here, and that is what has been denied all these people by SCOTUS, the Fifth Circuit, and the Supreme Court of Texas. If this is what it takes to finally bring a (temporary) halt to this travesty then so be it, but it should never have come to this in the first place.

UPDATE: Late in the day yesterday, the judge in the federal lawsuit filed by the Justice Department against the state of Texas issued a temporary restraining order that blocks any SB8 lawsuits from being filed. We all know that the Fifth Circuit already has an order ready to block that, but for now that would seem to moot this action. I’ll post about this ruling tomorrow.

El Paso mask mandate blocked

This is a city mask mandate. It does not affect the El Paso ISD mask mandate.

El Paso’s mandate requiring masks in indoor spaces, including schools, was ended on Thursday by the 8th Court of Appeals. The ruling does not apply to the El Paso Independent School District, which is involved in a separate court case.

The appeals court said the city’s mask mandate had to be lifted while it hears an appeal by the Texas Attorney General’s Office of a lower court ruling upholding the mandate. The ruling was based on Texas Supreme Court orders on similar mask mandates in San Antonio and Bexar County, the city said in a news release.

The mask mandate by Dr. Hector Ocaranza, the El Paso health authority, has been in effect since Aug. 17. The city’s rate of newly reported COVID-19 cases has declined in that time.

[…]

Despite Thursday’s ruling, the county’s largest district can continue to require students, teachers and staff to wear masks because it is part of a multiple school district lawsuit challenging Abbott’s executive order.

The El Paso ISD Board of Trustees voted on Aug. 17 to join a suit join a suit La Joya ISD and five other districts filed against Abbott days earlier in Travis County. The lawsuit now includes nearly two dozen districts, including a community college. EPISD was the only El Paso area district to join.

A Travis County judge granted the parties a temporary injunction against Abbott, allowing the districts to continue requiring masks. The governor is contesting that ruling with the 8th Court of Appeals. State and the districts’ attorneys are still submitting briefs before the court makes a final ruling in the case.

See here for some background. As noted, El Paso has been doing all right with the Delta outbreak. One has to assume that the mask mandate has helped with that. Hopefully the lifting of it now doesn’t set them back too far.

SCOTx denies Planned Parenthood emergency request

Not a surprise, I suppose.

Right there with them

The Texas Supreme Court denied a request Monday from Planned Parenthood to resume its lawsuit, filed in a state district court, that challenges the state’s near-total abortion ban.

Planned Parenthood asked the all-Republican court last week to overturn the Texas Multidistrict Litigation Panel’s decision to indefinitely pause its suit alongside 13 other lawsuits filed in Travis County district court. The panel of five judges stopped the cases from continuing at the request of Texas Right to Life, a prominent anti-abortion organization that helped draft Texas’ abortion restrictions.

The suit filed by Planned Parenthood asked the court to declare the abortion law, which bans the procedure as early as six weeks into a pregnancy, unconstitutional. A hearing was scheduled for this month, the organization said, before the panel of judges paused proceedings. In that case, the court temporarily blocked Texas Right to Life from being able to sue Planned Parenthood for potential violations of the abortion law.

“The Texas Supreme Court’s decision to allow the stay to remain in effect is extremely disappointing and will likely deprive Planned Parenthood of its day in court, once again,” Helene Krasnoff, Planned Parenthood’s vice president for public policy litigation and law, said in a statement.

Elizabeth Myers, a Dallas-based attorney who represents plaintiffs for the other 13 lawsuits blocked, said Monday’s ruling was disappointing, but she called the stay a temporary setback.

“We’ll present our arguments and the defendants will ultimately have to attempt to defend SB8 on the merits,” Myers said. “That is something the defendants are obviously scared and unwilling to do, so it’s not surprising that they continue to try to delay it. At some point, their delay tactics will no longer work and our clients look forward to that day.”

See here for the background. I still don’t understand what the norms are for the Texas Multidistrict Litigation Panel, so I don’t know if outrage, annoyance, or a shrug of the shoulders is the appropriate reaction. I’m going to go with “annoyance” anyway, because this whole situation is some kind of bullshit. Let’s please get a favorable ruling in the federal case ASAP, shall we?

Justice Department gets involved in federal lawsuit over mask mandate ban

Missed this over the weekend.

The Justice Department signaled its support on Wednesday for the families of children with disabilities in Texas who are suing to overturn Gov. Greg Abbott’s ban on mask mandates in the state’s schools.

The department filed a formal statement on Wednesday with the federal district court in Austin that is hearing one of the lawsuits, saying that the ban violates the rights of students with disabilities if it prevents the students from safely attending public schools in person, “even if their local school districts offered them the option of virtual learning.”

The move signals a willingness by the federal government to intervene in states where governors and other policymakers have opposed mask mandates, using federal anti-discrimination laws like the Americans with Disabilities Act. The Justice Department has often used similar statements of interest to step in to cases involving civil rights.

“Frankly I’m thrilled,” said Juliana Longoria, 38, of San Antonio. Her daughter, Juliana Ramirez, 8, is one of the plaintiffs in a suit against the ban filed in August by the advocacy group Disability Rights Texas. “It gives me a lot more hope that the federal government is serious about protecting our children,” Ms. Longoria said.

[…]

Dustin Rynders, a lawyer for Disability Rights Texas, said the department’s position put schools in Texas and beyond on notice that they had an obligation to accommodate people with disabilities, including through the wearing of masks.

“It would be discrimination for a state to prohibit ramps to enter in the school,” Mr. Rynders said. “And for many of our clients, people wearing masks to protect our clients’ health is what is required for our clients to be able to safely enter the school.”

Because masks are not required at her school, Juliana Graves, 7, has not been back to school in Sugar Land this year, according to her mother, Ricki Graves. The Lamar Consolidated Independent School District did not immediately respond to requests for comment.

Juliana has had a heart transplant, and the medication she takes to prevent rejection suppresses her immune system, her mother said. As a result, respiratory infections as simple as the common cold have landed Juliana in the hospital more than a dozen times, Ms. Graves said, adding that she worries that Covid-19 could kill her daughter.

Instead of going to school, Juliana has been receiving four hours a week of instruction from a teacher through homebound school services, Ms. Graves said. Her daughter is repeating first grade, she said, and might now be falling even further behind.

“She’s missing all her social interaction, she’s not able to go to school in person and be with her teachers and have recess and go to lunch,” Ms. Graves said. “It’s hard for her.”

See here, here, and here for the background. The story says that a hearing for the lawsuit is scheduled for this week, but I couldn’t find what the date of that hearing is, so I guess I’ll know when I see a story about that. I would like to think that an injunction barring Abbott from banning mask mandates would be in the offing, but I think a narrower ruling that would require schools that have a student that meets some definition of “disabled” to have a mandate is more likely. But I Am Not A Lawyer, so what do I know? ABC News and the Trib have more.

Medicaid and the “heartbeat” law

Of interest.

Texas’ new abortion ban makes no exceptions for pregnancies that result from rape or incest. Nearly a month after it was enacted, state health officials still won’t say whether that includes Texans on Medicaid, a small but critical population that they are required to help access the procedure.

Under federal Medicaid rules, states are obligated to cover abortions in rare circumstances, including for victims of sexual abuse. The new Texas law prohibits abortions after six weeks of pregnancy and allows nearly anyone to sue those who defy the restrictions. It is at least temporarily in place while state and federal courts review whether it is constitutional.

The law appears to have forced the state Health and Human Services Commission into a predicament: either it flouts the state ban or it violates the longstanding federal guidelines.

The agency has not said how it is complying with either directive; a spokeswoman declined to comment, citing the pending litigation. In its Medicaid handbook, the agency still provides instructions for submitting abortion claims for reimbursement.

The Department of Justice pointed to the Medicaid impact in a lawsuit it filed earlier this month against the Texas ban. A hearing on that suit is scheduled for Friday.

“The statute arbitrarily denies Medicaid beneficiaries coverage of a procedure for which Medicaid coverage is mandatory,” lawyers for the department wrote in their complaint.

See here and here for some background on the DOJ lawsuit. The subject of Medicaid did come up in oral arguments on Friday, but it didn’t appear to be a main topic of interest. As this story notes, the main lever the federal government has to enforce this is to threaten to withhold Medicaid funding, but that would mostly hurt Medicaid recipients, and it is not at all clear that Greg Abbott would be inclined to give an inch. Some states like South Dakota have routinely violated this law, without consequence. Maybe it matters in this lawsuit and maybe it doesn’t, I don’t know. But there it is.

Planned Parenthood files emergency request to SCOTx

From the inbox:

Right there with them

On Wednesday, Planned Parenthood affiliates in Texas filed an emergency request asking the Texas Supreme Court to intervene in an ongoing case against Texas Right to Life (TRTL), challenging Senate Bill 8, the state’s six-week abortion ban. Earlier this month, Planned Parenthood was granted a temporary injunction against the group and its associates, which blocked TRTL from suing abortion providers and health care workers at Planned Parenthood health centers in Texas under S.B. 8.

However, in yet another attempt to deprive Planned Parenthood of its day in court, at TRTL’s request, the Texas Multidistrict Litigation Panel stepped in and stayed all ongoing challenges to S.B. 8 in state court indefinitely. This comes despite the fact that a hearing in Planned Parenthood’s case, where it asked the court to declare S.B. 8 unconstitutional, was already scheduled for Oct. 13. Intervention by the Texas Supreme Court is urgently and immediately needed. S.B. 8 continues to cause unprecedented harm on the ground, blocking Texans from accessing their constitutional right to abortion.

[…]

The U.S. Supreme Court allowed S.B. 8 to take effect nearly one month ago, disregarding nearly 50 years of precedent by denying an emergency request to block the law’s unconstitutional pre-viability abortion ban. S.B. 8 has decimated abortion access in the state, as providers are forced to turn people away under the six-week abortion ban. Historically, the overwhelming majority — between 85 and 90% — of Texans who obtain abortions in the state are at least six weeks into pregnancy. Under S.B. 8, the first six-week abortion ban allowed to take effect since the Roe v. Wade decision, few are able to receive care in the state, forcing patients to bear the financial and emotional cost of traveling elsewhere for essential care, all during a pandemic. For many Texans, particularly those who are Black or Latino, who have low incomes, or who live in rural areas, abortion is unattainable.

Since S.B. 8 took effect, abortion has been virtually inaccessible for the 7 million women of reproductive age living in Texas. Some of the devastation caused by the law in Texas and beyond are detailed in recent declarations from Planned Parenthood Gulf Coast President & CEO Melaney Linton, Planned Parenthood of the Rocky Mountains President & CEO Vicki Cowart, and Planned Parenthood of Arkansas and Eastern Oklahoma physician Dr. Joshua Yap in support of the U.S. Justice Department’s request for a preliminary injunction to stop the enforcement of S.B. 8.

See here for a bit of background. I wasn’t sure what the context of this was until I remembered that I had seen this:

With more than a dozen lawsuits challenging Texas’ near-total abortion ban stalled in state court, Planned Parenthood has asked the all-Republican Texas Supreme Court to step in and allow the cases to proceed.

Last week, the Texas Multidistrict Litigation Panel, which is made up of five judges, indefinitely paused 14 lawsuits filed in Travis County district court at the request of Texas Right to Life, a prominent anti-abortion organization that helped draft Texas’ abortion restriction. The panel of judges typically steps in to take action on a group of similar cases. The judges didn’t list a reason for the stay, and said the cases will remain paused until the panel makes another order.

One of the suits was filed by Planned Parenthood. It asked the court to declare the abortion law, which bans the procedure as early as six weeks into a pregnancy, unconstitutional. A hearing was scheduled for Oct. 8, the organization said, before the panel of judges paused proceedings.

In that case, the court temporarily blocked Texas Right to Life from being able to sue Planned Parenthood for potential violations of the abortion law.

“Texas Right to Life championed this blatantly unconstitutional law, but now it is doing everything it can to prevent those challenging S.B. 8 from having their day in court because TRTL knows it will lose,” Helene Krasnoff, vice president for public policy litigation and law at Planned Parenthood Federation of America, said in a statement. “We’re urging the Texas Supreme Court to step in and move this critical case along so we can restore access to abortion across the state.”

Got to say, I had never heard of the Texas Multidistrict Litigation Panel before now. I can understand why it exists, but at least in this instance it seems maddeningly opaque and unaccountable. I have no idea what the rules are here, or what PP’s odds of success are, but it seems they had no other choice if they wanted to be able to pursue this kind of legal remedy. So while we all have our eyes on the federal court, this is what’s happening at the state level.

More on the San Antonio ISD vaccination mandate litigation

I’m a little confused at this point, but I’ll cope.

Judge Mary Lou Alvarez of the 45th District Court denied the state of Texas’ request for a temporary injunction Friday, allowing the San Antonio Independent School District to continue requiring its employees to be vaccinated against the coronavirus.

Former SAISD Superintendent Pedro Martinez, who has since left the district to take a job in Chicago, issued the vaccine mandate on Aug. 16, requiring all staff members to be vaccinated by Oct. 15. SAISD board President Christina Martinez said Thursday that about 90% of SAISD staff has been vaccinated.

Alvarez’s decision came after a hearing on the state’s request for temporary relief against the vaccine mandate was delayed. Another state district judge denied the school district’s challenge on Sept. 23 that the state and Gov. Greg Abbott did not have jurisdiction to sue. SAISD then appealed that ruling, pushing back the original hearing for the state’s lawsuit; the appeal was dropped earlier this week.

After Alvarez’s ruling, the state’s legal team said they planned to appeal. A trial for the lawsuit is set for Jan. 19, 2022.

[…]

Attorney Steve Chiscano, who represented SAISD, dismissed the state’s lawsuit as a political ploy.

“We are sitting in an injunction hearing that the AG is hoping to win so he can spin off another press release on how proud he is that he beat up on this district,” Chiscano said. “It is so obvious and so clear that this is happening that I believe at the end of the day, you’ll see that what the governor is doing is not supported by any law.”

See here and here for the background. I’ve decided that we had a motion by SAISD to dismiss the lawsuit, which was denied, and then the state asked for a temporary restraining order against SAISD, which was also denied. The source of my initial confusion was the change in judges between the two, but I think that may just be how Bexar County rolls. In any event, true to form and as the story notes, Paxton – who was not present for the hearing – did indeed tweet about it and how he’s fighting for the freedom of people who want to get sick and die and take others with them. Ultimately, this judge did not buy the state’s argument that the Abbott executive order was enough on its own to prevent SAISD from responding to the pandemic in this fashion. A higher court may intervene before the hearing for an injunction, but in the meantime I sure hope that SAISD is making progress in getting shots into arms. That is what really matters. The Current has more.

The “abortion bans are good for interstate commerce, actually” defense

I can never tell when Ken Paxton is trolling or sincere.

In briefs filed Wednesday in the Justice Department’s challenge to Texas’ abortion ban, Texas Attorney General Ken Paxton touted the trips Texas women are making out of state to obtain abortions as a point in his favor in defending the law.

Paxton was addressing an argument that the Biden administration had made for why it should be allowed to challenge the six-week abortion ban in federal court. The Justice Department said that the way the ban affects interstate commerce gives the United States the authority to bring a lawsuit challenging it.

Paxton shot back on Wednesday in his brief by arguing that the Justice Department did not cite any “actual evidence that the Texas Heartbeat Act burdens interstate commerce.”

“What evidence that does exist in the record suggests that, if anything, the Act is stimulating rather than obstructing interstate travel,” Paxton said, pointing to an increase in Texas women seeking to travel to Kansas and Oklahoma to obtain the procedure.

In an earlier court filing, the leader of the clinic organization Trust Women told a court that call volume for appointments at its clinics in Kansas and Oklahoma had doubled, and a significant portion of those patients were from Texas.

“About two-thirds of our [Oklahoma City clinic] patient appointment calls now come from Texas patients seeking abortions that are unavailable throughout their home state,” the provider said, noting that typically only a quarter of the clinic’s patients are from Texas. In Kansas, where in 2019 only 25 abortion patients were from Texas, approximately half of the calls to its Wichita clinic are now coming from Texas patients, according to the filing.

That’s not how I have understood the Justice Department’s case, but what do I know? Ken Paxton is a ninth-level legal ninja and we must bow before his superior wisdom.

Be that as it may, yesterday was the hearing for the motion for an injunction against SB8, which we have all been waiting for:

A federal judge Friday expressed doubt about Texas officials’ argument that the state’s virtual ban on abortion is constitutional and must stay in effect while the courts determine whether it violates the right to access the procedure.

Lawyers for the state say the law is immune from being temporarily blocked in the meantime because it is enforced by civilians who sue over violations, not the state.

“If the state is so confident in the constitutionality of the limitations on women’s access to abortion, then why did it go to such great lengths to create this very unusual private cause of action rather than simply doing it directly?” U.S. District Judge Robert Pitman asked Texas’ attorneys. “If the state had done this directly, would you still defend the constitutionality of these limitations on their merits?”

After a three-hour hearing, Pitman did not give a timeline for when he would rule on the Justice Department’s request to halt the law temporarily while its lawsuit is ongoing. Texas has indicated in court filings that it will immediately appeal any temporary block placed on the law.

“I will give careful consideration to very important issues that you have raised and argued, and we will get to work on the appropriate order in this case,” said Pitman, an Obama appointee.

[…]

The Justice Department filed the suit last month after the U.S. Supreme Court denied an emergency request to block the law as it took effect Sept. 1, citing procedural constraints because of the law’s unique construction. The high court did not weigh in on the substance of the case.

Pitman acknowledged the challenge he would face in issuing an injunction because state officials do not enforce the law.

“What would you believe that would obligate you to do, if anything?” Pitman asked Will Thompson, deputy chief for special litigation for the Texas attorney general’s office.

“Honestly, Your Honor, I’m not sure,” Thompson answered. “I think that’s part of the problem.”

The federal government is asking Pitman to specify that his order would apply to private individuals who may wish to file suits for violations of the law, Senate Bill 8, “such as by requiring Texas to post the injunction on court websites and inform all state court judges and judicial employees about the injunction.” The state has urged Pitman to be specific about who would be restricted by any order he makes, and how.

Brian Netter, a lawyer for the Justice Department, argued that the state can’t hide behind the law’s unique construction to help it “unambiguously violate” the Constitution.

“The state resorted to an unprecedented scheme of vigilante justice that was designed to scare abortion providers and others who might help women exercise their constitutional rights while skirting judicial review,” Netter said. “So far, it’s working. … Women have been left desperate, forced under sometimes harrowing circumstances to get out of Texas, if they even can.”

“The facts on the ground are quite clear and make an unambiguous case that SB 8 has already had the effect of materially diminishing the opportunity of women in Texas to exercise a constitutional right.”

Those who can travel face a difficult journey: On average, patients are traveling 650 miles each way to reach abortion clinics in the Southwest, court filings stated.

One minor, who was raped by a family member, traveled eight hours from Galveston to Oklahoma to get an abortion, the Justice Department alleges.

Another patient traveled six hours one way to get to Oklahoma by herself because she was worried that asking someone to come with her would leave that person open to a suit filed under SB 8.

Not much more to do right now but wait and hope. Zoe Tillman from Buzzfeed News has a long thread from the hearing, while law professor Leah Litman throws some water on the state’s defense. The 19th has a broader look at the legal landscape and the various cases against the “heartbeat” law, and Daily Kos has more.

More redistricting stuff

Just a roundup of some redistricting stories. We’ll start with the DMN.

The new map, part of a process of redrawing legislative boundaries every 10 years, makes significant changes in North Texas, where Democrats likely will gain a seat held by Republican Jeff Cason. The district would move to an area made up of mostly minority voters.

But the Republican proposal also adjusts the southern Denton County district represented by Democrat Michelle Beckley to make it more favorable for a GOP candidate. Beckley has opted to run for Congress in 2022 against Republican incumbent Beth Van Duyne in Congressional District 24.

Meanwhile, the North Dallas district represented by John Turner would move west and become a majority Hispanic district in Oak Cliff and Grand Prairie. Turner is retiring after his term ends, and had he stayed, he would have been paired with a Republican Morgan Meyer.

In North Texas, Republicans had the goal of protecting their incumbents who could be in trouble during the next decade. They made alterations that now have the Dallas County seats held by Republicans Angie Chen Button of Garland and Meyer, who lives in University Park. The new maps place them in areas won in 2020 by Donald Trump, but only at a 50% to 49% margin. Those districts will remain battlegrounds as Democrats try to make Dallas County a blue oasis.

Republicans bolstered their Tarrant County seats, except for the one held by Cason, which will become more Democratic. Cason also was one of only two Republicans who voted against House Speaker Dade Phelan in January. And they made the Collin County districts represented by GOP Reps. Matt Shaheen and Jeff Leach stronger for a Republican, but as with the case in Dallas County, the Collin County seats will remain targets for Democrats.

“Republicans did their best to cement their majority and, from a partisan gerrymandering standpoint, they played this very smart,” said David de la Fuente, a senior policy analysts for the center-left group called Third Way. “They didn’t go overly aggressive for new pickup opportunities for themselves because they know that a lot of this growth that’s happening in Texas is growth that could benefit the Democratic Party, so they tried to stop losses more than anything else.”

[…]

Rep. Jasmine Crockett, a Dallas Democrats who represents District 100, which includes parts of southern and eastern Dallas County, as well as West Dallas, is upset that her district is slated to incur a radical drop in its Black population. Under the new maps, the number of voting age Black residents District 100 will drop from 34.6% to 27%. The white voting age population would increase from 22% to nearly 37%. Crockett’s voting age Hispanic population drops from 41% to 29%.

“They have taken the voice away from African Americans in my district and that’s a clear violation of the Voting Rights Act,” Crockett said. “They are spitting on the legacy of HD 100. They went too far.”

Most of the Black population lost by Crockett will be moved to the nearby District 104 that is represented by Dallas Democrat Jessica González. Her new constituents would include residents from the historic Joppa neighborhood, a community built by freed slaves. District 104 has largely changed, González said. The district now extends to Mesquite and Garland.

While she would pick up Black population from districts represented by Crockett and Rose, González said the number of eligible voters with Hispanic surnames would drop from over 50% to about 48%. That could be a Voting Rights Act violation, analysts say.

Crockett and González were vocal participants of the quorum break by House Democrats to stall a controversial elections bill.

“I’m not too shocked that it ended up being me they targeted,” Crockett said. “I kind of wear it as a badge of honor…It is still a safe Democratic seat, but partisan gerrymandering is legal and when you slice and dice communities of interests, you end up with a problem.”

State Rep. Toni Rose, D-Dallas, would also have the Black population in her district sharply reduced, and she would lose Paul Quinn College. Rose’s district would see a drop in Black voting age population–from 34% to 26%. The Hispanic voting age population in the district would rise from 58% to 63%.

Black residents represented 25% of the growth in the Dallas/Fort Worth area, according to the U.S. Census Bureau.

Well, that answers my question about what Rep. Cason did to offend the redistricting gods. Gotta say, I was under the impression that doing what was done here to Rep. Crockett’s district was called “retrogression” and it was a no-no under the Voting Rights Act. It’s not clear to me if that slicing and dicing was done for strategic reasons or just out of spite. Wait for the lawsuits, I guess.

Here’s the Chronicle:

“The map gives Republicans a slight advantage,” said Ross Sherman of the advocacy group RepresentUs, which works with the Princeton Gerrymandering Project to grade redistricting proposals. “This seems to be a trend this cycle: another map producing safe seats and insulating politicians from their constituents.”

The Gerrymandering Project gave the proposed House map a “C” in fairness for its GOP advantages. It’s the highest grade a Texas map has received so far, after proposals for congressional and state Senate maps earned “F” grades.

[…]

Speaking in general about the maps, GOP strategist Brendan Steinhauser said the Republicans tried to “lock in the gains” they earned during the 2020 election, rather than “be too aggressive” and shift blue seats their way.

The House seats currently are divided almost equally between districts that favored Republican Donald Trump and Democrat Joe Biden in 2020. The current map includes 76 Trump-led districts and 74 Biden-led districts, but the new map shifts that support to 86 in favor of Trump and 64 in support of Biden.

Texas grew by roughly 4 million people over the past decade, a surge driven almost entirely by people of color, especially Latinos. Updating the political maps is required every 10 years, to account for such shifts.

Still, the proposed House map reduces the number of majority-minority districts by voting age population. Previously, 67 districts were majority-white; the new map proposes 72 districts that have mostly white voters.

Those numbers change dramatically when evaluating estimates for adult citizens. Using those figures, the House currently has 83 majority-white districts, compared with 89 under the new map. And while the current districts include 33 with Hispanic majorities and seven with Black majorities, those numbers would fall to 30 and four, respectively.

“These maps do nothing but preserve the status quo at the expense of Black and brown Texans,” said Anthony Gutierrez, the executive director of the good-government group Common Cause Texas.

Same observation about the reduction of majority-minority districts. I mean, I get that the Voting Rights Act may as well be written on toilet paper with this Supreme Court, but it’s still theoretically the law of the land. The Republicans may have had more challenges with the State House districts because of the law that requires districts to be entirely within counties where possible, which prevented them from putting pieces of urban counties in the same district with rural counties, which was not the case for the Congress or State Senate maps. Again, I figure the lawyers will have a lot to say about all this when the dust settles.

Speaking of Congress:

In a strongly-worded letter, U.S. Reps Sheila Jackson Lee and Al Green said they oppose the Republicans’ proposed redrawing of their districts and say they were not consulted before the map was released to the public.

The map “makes radical and unneeded changes to the two local congressional districts that include the majority of Black voters in Harris and Fort Bend counties,” the letter to the Texas Senate Redistricting committee states.

There are massive changes for Harris County in the congressional redistricting plan the Texas Senate released earlier this week. The county would still have nine members of Congress, but the district lines would be dramatically altered to improve the re-election chances of current Republicans and create a new congressional seat that appears to have been drafted to ensure another Republican would be elected to Congress.

The map would have a dramatic impact on the districts represented by Jackson Lee and Green, changing who represents 200,000 mostly Black residents.

Jackson Lee’s 18th Congressional District would not only lose the Third Ward, but also downtown Houston, the University of Houston and Texas Southern University — most of those areas would instead be shifted to the 29th Congressional District, represented by Democratic U.S. Rep. Sylvia Garcia.

And the Republican map would put Jackson Lee’s home in Riverside Terrace into Green’s 9th Congressional District, meaning she would not even be able to vote for herself unless she moved. It would also put Jackson Lee’s main district office for the 18th in Green’s district, forcing her to move it.

“No other member of the large Texas delegation is so severely impacted by the proposed map,” the letter notes, pointing out at Jackson Lee’s 18th Congressional District has roots that tie back to Barbara Jordan, who in 1972 became the first Black woman to represent Texas in Congress.

I said before that Reps. Green and Jackson Lee would easily win the new districts as drawn, but what was done to them is clearly an insult. For Sen. Huffman to claim that no one got in touch with her about the maps she was drawing is disingenuous, especially when she knows what effect those maps are going to have. You have the power, you have the responsibility. Spare me the whining.

More from the Statesman:

Nonwhite residents accounted for about 95% of the population growth that gave Texas two additional seats in the U.S. House.

Despite that, the number of predominantly Hispanic congressional districts in Texas would fall from eight to seven, while majority Anglo districts would rise from 22 to 23, in the Republican-drawn map unveiled this week, said Gloria Leal with the League of United Latin American Citizens.

[…]

“Toss-up seats, which presented an opportunity for Hispanics to elect candidates of choice, were cut from 12 to one,” Leal said. “This blatant attempt to increase partisanship in districts not only results in the suppression of minority votes, but it eliminates the opportunity for Hispanics to elect a candidate of their choice in violation of the Voting Rights Act and the U.S. Constitution.”

State Sen. Joan Huffman, R-Houston and chairwoman of the committee, said the map was drawn in a “color-blind way,” without taking into account the race of residents.

“We did not consider race in drawing the maps at all,” Huffman said. “Once we drew the maps, we provided them to our legal counsel … and we are advised that they were legally compliant” with the Voting Rights Act.

Michael Li, with the Brennan Center for Justice at the New York University School of Law, testified that creating the map without regard to race is not enough to insulate it from legal challenges, particularly if lawmakers know about its adverse impact on nonwhite Texans.

Li said the proposed map raised several “red flags,” particularly in the Dallas-Fort Worth area, where Black and Hispanic populations increased sharply in the past decade, yet no new districts were created to give nonwhite voters an opportunity to elect preferred candidates. At the same time, SB 6 would move a significant Latino population from a district held by U.S. Rep. Mark Veasy, D-Fort Worth, and into an Anglo majority district that includes seven rural counties, he said.

Li also questioned changes made to District 22 — centered on Fort Bend County, one of the most diverse suburban counties in America — where the voting age population would rise to 55% Anglo, up from the current 46%. Dismantling a district where rising numbers of Hispanic, Black and Asian voters were able to create voting coalitions “raises many red flags,” he said.

Have I mentioned that the lawyers are going to be busy? I don’t have much faith in the courts, but I believe in the lawyers.

Decision Desk:

Texas gained two Congressional districts through 2020 reapportionment. One district went into Austin, which the GOP previously divided between five Republican districts in 2010. All five ended up as marginal races by 2020. This new Democratic district releases pressure on the five seats allowing them to absorb Democratic voters from other parts of the state. The second new Congressional seat is roughly the successor to the old Seventh district in west Houston, with the new TX-07 traveling between Houston and her suburbs as a new, safe Democratic seat.

TX-03, TX-06, TX-07, TX-10, TX-21, TX-22, TX-23, TX-24, TX-25, TX31, and TX-32 were all potential competitive seats in 2020. TX-15, TX-28, and TX-34 became competitive because of newfound Republican strength among South Texas Hispanics. All but one of the districts are now uncompetitive. Republican Districts gain more Republican voters, and the few Democratic held seats become more Democratic. All of the former Republican suburban seats reach deep into the rural and exurban areas and drop Democratic suburbs. Former rural and exurban seats – TX-04, TX-05, TX-08, TX-13, and TX-36 – reach deeper into the suburbs to carve up Democratic areas. The result is  districts with obtuse borders where the Democrats gained the most voters, such as the north Dallas suburbs with the new TX-04.

In South Texas, past voting rights litigation prevents Republican map-makers from exploiting recent party gains. The resulting districts resemble the present lines and stretch northwards, but the most GOP-favoring Hispanic areas are now congregated in TX-15 which makes it a potential swing district. O’Rourke did win this seat by over 10%, so the district will not be competitive if the 2020 results end up as a one-off occurrence.

Texas mappers still found ways to cater to their protected incumbents. In TX-10, Senior Republican Michael McCaul gets a district that squiggles narrowly around Austin from his neighborhood west of the city to rural Texas. New TX-06 Republican Jake Ellzey’s district takes in more rural areas where he is better known and loses Arlington Republican voters who backed Susan Wright during the 2021 Special Election. TX-25 previously did not include Republican Roger Williams’ base in Weatherford, west of Fort Worth. Now it does.

Republicans also released their proposed Legislative and Board of Education district maps, which can be viewed here. Biden in 2020 and O’Rourke in 2018 won a majority or a near-majority of districts on the former maps for these bodies, so Republican mappers were even more desperate to gerrymander these lines. Both maps protect incumbents in a similar manner to the Congressional plan with the rural and exurban areas reaching into the suburbs. The legislative plans however go beyond incumbent protection and each attempt to carve up a marginally Democratic seat in the Dallas-Fort Worth Metroplex. 

The desire to protect incumbents may end up dooming State House Republicans in future years. County nesting requirements prevented the GOP from linking the Republican dominated rural areas to the suburbs. By giving former Biden-District Republicans seats Trump won, other, formerly safe Republican seats needed to take in Democratic voters. Even more districts than previously become marginal districts that could potentially swing heavily away from the GOP.

Voting rights litigation is a constant factor in Texas redistricting. For example, plaintiffs forced Texas Republicans to draw the new Dallas-based TX-33 into a Hispanic Democratic seat in 2010 (initial 2010 map here). This new Congressional gerrymander disadvantages minority communities across the state, especially since nearly all of Texas’s recent growth came from minority groups. The proposed TX-23 is only 60% Hispanic compared to the 80% or higher in other South Texas seats, limiting minority opportunity. TX-27 has several majority Hispanic counties, including the city of Corpus Christi, inside a seat where White voters historically pick the representative. TX-38 could be a second, overwhelmingly Hispanic seat in the Houston area. TX-18 was previously an African American district, but is here majority Hispanic, an example of regression. Fort Worth minority voters are distributed between four Districts and there could be a fourth minority seat in the region. A majority-minority coalition seat can be drawn in the suburbs north of Dallas. Expect this criticism and more to potentially be levied in future court cases.

I suspect he means that only CD15 is competitive, but CD23 is only Trump+7, which seems competitive enough to me. I also think that over time several others will become more competitive as well, if these districts are allowed to go into effect as is. I’m sure there will be changes, and then of course the lawsuits, though as we well know they will take years to resolve. What we eventually get here is what we’re going to have for awhile. The Current and the Trib have more.

COVID continues to run amuck at the schools

This is our reality.

Students in Texas public schools are facing another year upturned by COVID-19 as the highly contagious delta variant spreads, mask mandates are inconsistent and children under 12 cannot yet be vaccinated against the virus.

Less than two months into this school year, the number of reported coronavirus cases among students has surpassed the total from the entire 2020-21 school year. Schools are prohibited from taking precautions such as requiring masks, though some are fighting the governor’s order banning mask mandates. Far more students are on campus, since most districts do not have a remote learning option.

[…]

State data on school cases is incomplete and likely an undercount. TEA suppresses some districts’ case counts to protect student privacy, and not all districts report student and staff cases to the state, despite agency guidance requiring otherwise. The agency also retroactively updates its data from previous weeks as more districts report cases.

Some large districts, such as Houston and Dallas, have not consistently reported cases to the state since TEA started tracking COVID-19 data on Aug. 2 for this school year. Many districts publish a COVID-19 dashboard that shows cases, and TEA recommends families check for the latest data there.

Entire districts, including Angleton and Lumberton, have closed temporarily without reporting cases to the state. These districts don’t necessarily report their closures, either, since they are not required to do so. TEA informally tracks closures based on media and district reports, said Frank Ward, an agency spokesperson.

I don’t quite understand the embedded table that this story has about school districts with the most reported COVID cases, as the numbers they report for HISD don’t match up with the ones on the HISD site. I guess they’re showing active cases and not cumulative ones, but it doesn’t sound like that from their description. In any event, the point is there’s a lot of COVID in the schools, and the schools have few options right now to mitigate it other than defying Greg Abbott’s mask mandate ban and hoping for the best in the courts. The forthcoming EUA for the Pfizer shot for kids will help eventually, though that will take time as even pro-vaxx parents may wait a bit before giving it to their kids.. And that is our reality.

How the “heartbeat” lawsuits may proceed

The recent “Amicus” podcast from Slate had a bonus segment on the many lawsuits that have been filed in relation to and challenge to SB8, the so-called “heartbeat” bill. For all the normal people out there who don’t follow this sort of thing obsessively, here’s their guide to keeping track of them all.

Dahlia Lithwick: I think the question you and I have probably received the most in the last two weeks is: “How do I even watch SB 8 unfold?” I think there was a collective sigh when Dr. Alan Braid admitted in the pages of the Washington Post that he had in fact performed an illegal—under SB 8—termination of a pregnancy, inviting litigation. Two helpful litigants, both out of state, came forward to sue him.

I think there are a lot of lanes here and folks are confused about timing. So let’s walk through it:

-We’ve still got the ongoing challenge by the providers that the Supreme Court refused to enjoin. That’s going to be heard in December at the Fifth Circuit.

-We have the Biden Administration—the Justice Department has brought a suit that has not resulted in immediate injunction. That is to be heard next week.

-We have a new suit, filed Thursday night by the same group of providers who filed the Fifth Circuit case, saying they’re seeking this extraordinary relief, a petition for cert before judgment.

-We have these two civil suits against Dr. Braid.

-And then after all, we have Dobbs v. Jackson Women’s Health Organization.

Mark, can you please draw a map of the world of SB8 and what is going to happen first, if you can, and what, if anything, is going to happen before Dobbs?

Mark Joseph Stern: Sure. So let’s start with the state lawsuits. Two different out-of-state lawyers have filed suits in Texas state court against Dr. Alan Braid, who wrote a piece in the Washington Post acknowledging that he performed an abortion after six weeks in Texas in violation of SB8. Those cases are now going to be litigated in Texas state courts, and the doctor is going to raise as a defense, among other things, the fact that Roe v. Wade is still the law of the land. And so it is just not constitutionally permissible for him to be punished for performing an abortion that is legal under binding Supreme Court precedent.

Let’s assume that both of these state courts are on the level and are going to acknowledge Roe as binding precedent. In that case, they will presumably throw out the lawsuits, but that doesn’t mean that SB 8 is over or that it’s enjoined. Because the way this law is written, it’s essentially impossible for any Texas state court to block it across the state. It has to be litigated in each individual case. And so no matter the outcome of these particular Texas lawsuits, SB 8 will still be in effect.

This particular doctor may be off the hook because he’ll raise the constitutional right to an abortion as a defense, but everybody else in Texas will still be under the thumb of SB8. It will continue to work its way through the Texas court system, probably very slowly.

Then we have the Justice Department lawsuit. The Justice Department lawsuit, I think, is one of the stronger suits we’ve seen, because the Justice Department representing the United States can sue Texas directly. It can say “We are filing suit against the state of Texas, including all of its agents,” which would presumably encompass anyone who sued under SB8. That’s something a private plaintiff can’t do. Only the United States gets to sue an individual state because the Supreme Court has said sovereign immunity is not a problem in this context. And so that case is currently sitting before a federal judge in Texas, and that judge will soon hold a hearing on whether or not to issue a preliminary injunction blocking SB 8 throughout the entire state of Texas by issuing a decision directly against Texas. But we have to sit on our hands and wait for that because the federal judge is not rushing it. The Justice Department asked him to rush it, but he said, ‘No, I’m going to take my time on this.” And so we’re all waiting for early October, when that case will move forward.

Then we have the petition before the Supreme Court, which is really part of the same case that we all freaked out about in early September. This is the same lawsuit that was filed against state court judges and clerks in Texas. That was the first bite at the apple, the first effort by abortion providers to block SB8. As you recall, they went to a federal judge, the same judge who’s hearing the DOJ suit, and they said, “Please block this law.” The Fifth Circuit swooped in before the judge could do anything and prevented him from doing anything. The providers went to the Supreme Court and by a 5-4 vote, the Supreme Court threw up its hands and said, “We can’t do anything later.” A couple weeks later, the Fifth Circuit issued a decision saying, “Well, we really think you sued the wrong people. We don’t think that you can sue state judges and state court clerks. And so we are going to hold onto this case and will decide this question formally in a couple of months.”

So now, the providers have gone back up to the Supreme Court and said, “Look, we get that you ruled against us last time and we’re not asking for ruling on the merits. We’re not asking you to issue a shadow docket decision just saying up-or-down vote, whether SB8 can be blocked and should be blocked. All we’re saying, all we’re asking is for you to say that we sued the right people, that some of the folks we sued can be sued, and thus bring this case back down to the original federal judge who was hearing it in the first place and clear away all of these obstacles so that he can decide on the merits, whether to issue an injunction.”

That’s the lay of the land for SB8 and all the while, we’ve got Dobbs in the background, which is a completely different case, not directly related to the Texas case at all. That’s a challenge to Mississippi’s 15 week abortion ban. The Supreme Court will hear oral arguments in that case on Dec. 1 and probably issue a decision in June of 2022.

Couple of things. In re: the courts that will hear the two lawsuits against Dr. Braid, both lawsuits were filed in Bexar County. One is known to have been assigned to a Democratic judge, the other filing didn’t have a court assigned to it at the time of my posting. I don’t feel like checking the partisan label on every Bexar County civil district court judge, but I can say confidently that the odds are that judge is also a Democrat. They still have to follow the law, of course, but if Dr. Braid’s defense is “this law is unconstitutional and cannot be enforced” as we expect, they can make that ruling. They may be limited in how much of SB8 can be struck down, however, based on the way the law was written and a related case currently before SCOTx, as noted in the comments to that post. Someone more versed in civil procedure than I will have to explain what happens from there if that is the result in at least one of these cases. As a reminder, both of the plaintiffs have expressed some level of opposition to SB8.

There are also the various state court lawsuits against specific parties, in which groups like Planned Parenthood have sought (and so far gotten) temporary restraining orders preventing those parties from filing SB8 lawsuits. These actions are very limited in scope and will not affect the long-term future of SB8, they will just potentially create some obstacles to the lawsuits against the people that SB8 targets.

As noted later, the Fifth Circuit will get another chance to stick its nose in once Judge Pitman makes a ruling in the Justice Department lawsuit. I think we can all take a guess as to why they might do. That’s down the line, and we have plenty to occupy ourselves with until then. Hope this clarifies things. You can listen to that episode of “Amicus” at the link above, but you need to be a Slate Plus member to hear this segment.