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Merrick Garland

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.

Texas takes its potty obsession to court

Oh, brother.

Texas Attorney General Ken Paxton is suing the Biden administration over recent federal guidance issued to protect LGBTQ people in the workplace, including a directive that says employees should be allowed to use the bathrooms, locker rooms and showers that correspond with their gender identity.

The guidance also clarifies that misuse of a person’s preferred pronouns could be considered harassment in certain circumstances.

The lawsuit, filed Monday in the Northern District of Texas federal court, Paxton claims that the U.S. Equal Employment Opportunity Commission violated Title VII of the Civil Rights Act of 1964 when it issued a technical assistance document outlining the impact of a landmark U.S. Supreme Court ruling last year. That ruling prohibited employer discrimination on the basis of sexual orientation and gender identity. Title VII prohibits discrimination against employees on the basis of sex.

Defendants in the lawsuit include the EEOC, commission Chair Charlotte A. Burrows and U.S. Attorney General Merrick Garland.

The EEOC guidance, released on June 15, specifies that employers must not prohibit transgender employees from dressing in correspondence with their gender identity or using bathrooms, locker rooms or showers that are consistent with their gender identity.

In a statement, Paxton called the guidance “illegal” and an “unacceptable” attempt “to force businesses, including the State of Texas, to align with their beliefs.”

“If the Biden Administration thinks they can force states to comply with their political agenda, my office will fight against their radical attempt at social change,” Paxton said.

In the lawsuit, Paxton also argued that the EEOC violated the First and Eleventh Amendments, as well as the Administrative Procedure Act, which specifies how government agencies issue regulations.

The EEOC said in an email on Monday that it does not comment on pending litigation, but that it will be represented by the Department of Justice, which declined to comment Monday.

For a variety of reasons, not the least of which being my searing contempt for the walking dirtbag that is Ken Paxton, it’s hard to take his nakedly political lawsuits seriously. We’ve certainly seen plenty of examples of shoddy lawyering on his part, not to mention him lying about court actions in a way that makes him look good to his knuckle-dragging base, and that always makes me think he’s in this more for the publicity (which he can get immediately) than the (often years-off) results. That said, if there’s one thing Ken Paxton is unquestionably good at, it’s picking federal judges who are likely to give him what he wants. As such, we have no choice but to take this seriously. Daily Kos has more.

Justice Department files its motion for an injunction against SB8

Let’s hope they get a quick win.

The Justice Department has asked a federal judge to grant a temporary restraining order or injunction that would prevent Texas from enacting a law that bans nearly all abortions in the state, heating up a battle between the Biden administration and Texas Republicans, led by Gov. Greg Abbott.

The department argued in a court filing late Tuesday that Texas had adopted the law, known as Senate Bill 8, “to prevent women from exercising their constitutional rights.”

The move comes less than a week after the Biden administration sued Texas to try to block the nation’s most restrictive abortion law, which bans the procedure as early as six weeks into pregnancy and allows private citizens to take legal action against anyone who helps someone terminate their pregnancy.

In Tuesday’s emergency filing, the department argued that even though the Supreme Court has ruled that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,” Texas has banned abortions months before viability — at a time before many people even know they are pregnant.

The brief said Texas had devised “an unprecedented scheme that seeks to deny women and providers the ability to challenge S.B. 8 in federal court. This attempt to shield a plainly unconstitutional law from review cannot stand.”

See here for the background, and here for a copy of the motion. For those of you who’d like to get the highlights, here you go:

By all accounts, the arguments being made by the Justice Department are strong. We’ll just have to see what the courts – specifically, the Fifth Circuit and SCOTUS – make of it. There was no indication as of the time of those tweets when the court would hear arguments or issue a ruling, but now there is:

After the United States Department of Justice filed a preliminary injunction/restraining order against Texas in another attempt to halt Senate Bill 8, a federal judge granted the Biden administration a hearing on Oct. 1 to review temporarily banning the anti-abortion law.

In the signed statement, Judge Robert Pitman stated that Texas shall file in response to the motion no later than Sept. 29, 2021 and the U.S. shall file its reply in response no later than the morning of the hearing.

Mark your calendars. You can see a copy of the judge’s order here, and as Steve Vladeck notes doing it this way rather than granting a temporary restraining order prevents the state from running to the Fifth Circuit and getting the TRO halted. The Trib, the Chron, and the Current have more.

UPDATE: 24 Dem AGs File Amicus Brief Backing DOJ Challenge To Texas Abortion Ban. Good.

Going after the snitch sites

I approve of this.

When an anti-abortion group last week created a “pro-life whistleblower” website encouraging people to anonymously report violations of Texas’ new six-week abortion ban, a group of politically active Texans noticed one potentially fatal flaw.

“They’re trying to use the internet to retaliate against people who were raised on the internet,” said Olivia Julianna, an 18-year-old student and activist from Sugar Land who is among the leadership of a group called “Gen Z For Change.” The group was formerly known as “TikTok for Biden.”

Olivia, who goes by only her first and middle names on social media due to safety concerns, said the goal was clear: “This website, if we can mess with them in any way, if we can stop even one woman from having a lawsuit filed against her or waste even a second of their time, we need to do it.”

The tip site was meant to help enforce Senate Bill 8, the Texas law that went into effect at the start of this month that prohibits abortions after six weeks of pregnancy, before most women know they’re pregnant.

The law has so far avoided being blocked by the courts because the government does not enforce it. Instead, it puts enforcement in the hands of any private citizen who wishes to sue an abortion provider or others who “aid or abet” someone getting an illegal abortion, with a possible reward of at least $10,000 per successful suit.

Olivia was one of several young left-leaning activists who immediately took to social media to sabotage the site by flooding it with false reports and other information — some suggested anti-Gov. Greg Abbott sayings. Others recommended off-the-wall responses or nonsense.

She and other members of Gen Z For Change — Generation Z is typically defined as those who are now 18 to 24 — quickly got to work.

“It would be really, really bad and morally wrong of all of you to go to ProLifeWhistleblower.com and send in an anonymous tip that is fake,” Olivia sarcastically told her more than 137,000 followers in an Aug. 23 video she posted on TikTok. “It would be even worse if your anonymous tip was about Greg Abbott.”

Another popular content creator and Deputy Executive Director of Gen Z for Change, Victoria Hammett, 22, saw her video and found it “absolutely brilliant” and encouraged her followers to do the same.

“Wouldn’t it be so awful if we send in a bunch of fake tips and crashed the site?” she said in a TikTok that’s been liked over 240,000 times.

Create a morally reprehensible website, you’re going to face some consequences. Three cheers for the activists who are giving them the response they deserve.

And it’s not just the Gen Z activists, too.

After a Texas law restricting abortion went into effect Wednesday, an antiabortion organization had hoped to out those involved in unlawful procedures by collecting anonymous tips online.

But Texas Right to Life’s website, ProLifeWhistleblower.com, which invited people to inform on those obtaining or facilitating abortions, has not stayed up for long, as website registration providers have said the online form to submit “whistleblower” reports violates their rules. On Monday, the organization confirmed that the website redirects to its main page as it seeks to find a new digital home for the form.

“We’re exploring various long-term plans for the domain registration,” the group’s spokeswoman, Kimberlyn Schwartz, told The Washington Post. “For now, ProLifeWhistleblower.com is redirecting to TexasRightToLife.com only while we move hosts.”

After hosting provider GoDaddy booted the group from its platform last week, the site’s registration changed to list Epik, a Web hosting company that has supported other websites that tech companies have rejected, such as Gab and 8chan. The site went offline Saturday, however, after the domain registrar told the Texas organization that lobbied for the abortion ban that it had violated the company’s terms of service.

After speaking with Epik, which never hosted the site, Texas Right to Life agreed to remove the form, Epik general counsel Daniel Prince said Monday. By late Saturday, the website had redirected to Texas Right to Life’s main page.

But Schwartz said the group still hopes to solicit tips.

“It will be back up soon to continue collecting anonymous tips,” she said, adding that the group is reviewing its options, including seeking another company to register the site’s domain.

Prince said Epik would no longer offer its services if the group continues to collect private information about third parties through its digital tip line.

I’m sure they will eventually find a hosting company that is sleazy enough to allow them to use their services. Putting all of the politics aside for a moment, however, that bit about “[collecting] private information about third parties” should raise some serious data privacy red flags. I guarantee you, the owners of the snitch site have no plan to protect any of that data, and any information they do get will be at serious risk of being abused. Merrick Garland, as you formulate your response, please take note of that as well. The Current has more.

Justice Department sues over “heartbeat” law

Good.

The Justice Department sued Texas on Thursday over its new abortion restrictions law, Attorney General Merrick Garland told reporters, a week after the U.S. Supreme Court refused to block the law.

Garland announced the lawsuit, filed in a federal district court in Austin, after abortion rights advocates, providers and Democratic lawmakers called for the Biden administration to act. Other legal challenges have been stymied due to the design of the law, which opponents say was engineered to flout a person’s right to an abortion established by Roe v. Wade in 1973.

“This kind of scheme to nullify the Constitution of the United States is one that all Americans, whatever their politics or party, should fear,” Garland said.

The Texas statute, which went into effect Sept. 1, is considered one of the most restrictive abortion laws in the nation. It prohibits abortions once a “fetal heartbeat” — a term medical and legal experts say is misleading — can be detected, which can be as early as six weeks into pregnancy, before many people know they’re pregnant. Providers say that the law prevents at least 85% of the procedures previously completed in the state.

Garland said Texas’ statute is “invalid under the Supremacy Clause and the 14th Amendment, is preempted by federal law and violates the doctrine of intergovernmental immunity.” He called the law a “statutory scheme” that skirts constitutional precedent by “thwarting judicial review for as long as possible.”

Previous laws aimed at restricting or stopping abortions have been struck down over the years by the Supreme Court. But this law uses the novel mechanism of relying on private citizens filing lawsuits to enforce the law, not state officials or law enforcement. This makes it especially difficult to strike down in court because there is not a specific defendant for the court to make an injunction against.

The law empowers any private citizen in the nation to sue someone found to be “aiding and abetting” an abortion, including providers, doctors and even Uber drivers.

The law has seemingly brought most abortions to a halt in the state. Major clinics canceled appointments, fearful of being inundated with lawsuits in which they’d have to pay a penalty of at least $10,000 if they are found to be in violation of the law. Some clinics have even stopped performing abortions allowed under the new restrictions — before fetal heart activity is detected — out of fear of getting hit with lawsuits.

“The United States has the authority and responsibility to ensure that Texas cannot evade its obligations under the Constitution and deprive individuals of their constitutional rights,” the lawsuit stated. “The federal government therefore brings this suit directly against the State of Texas to obtain a declaration that S.B. 8 is invalid, to enjoin its enforcement, and to protect the rights that Texas has violated.”

[…]

Abortion providers and advocates applauded the Justice Department joining the legal battle to overturn the statute.

“It’s a gamechanger that the Department of Justice has joined the legal battle to restore constitutionally protected abortion access in Texas,” Nancy Northup, president of Center for Reproductive Rights, said in a statement. “Right now, and every day this law is in effect, patients are being denied access to essential health care, and the hardest hit are people of color, those struggling to make ends meet, undocumented immigrants and others with pre-existing obstacles to access healthcare.”

Alexis McGill Johnson, Planned Parenthood Federation of America president, said in a statement the lawsuit was “a needed announcement” and thanked Biden and the federal government for the action.

Prior to Thursday’s announcement, legal experts expressed doubts as to how a federal lawsuit might work or how successful it might be. Because of the way the law is constructed, experts have been dubious about how the legal saga will play out in courts and those same challenges could impede efforts by the Justice Department. Federal lawmakers have also vowed to overturn the new restrictions by codifying Roe v. Wade in federal law, but those efforts likely face their own political challenges.

See here and here for some background, and here for a copy of the lawsuit. I am of course no legal expert, but I see this case in terms of two simple principles. One is that a state cannot abrogate a constitutional right. I think we all agree on that basic principle. Given that, and given that abortion is still a constitutional right under current law and precedent, this should be a slam dunk, despite SCOTUS’ cowardly and scurrilous hiding behind the “it’s too clever and complex for our wee little brains” dodge. And two, the targeting of completely unrelated people like Uber drivers is such an egregious overreach that it could be argued as an unconstitutional taking of their property. This law would still be unconstitutional if it didn’t put Uber drivers at risk, but their inclusion makes it extra special unconstitutional.

But really, we shouldn’t even be having this argument. This law is “clever” in the way that a grade schooler claiming that they can’t be made to do homework because it violates their religion is “clever”. It’s time that a court treated it with the contempt it deserves. The 19th, Mother Jones, Slate, Daily Kos, and the Chron have more.

More on the AG response to the “heartbeat” bill

Yes, like this.

Democrats on the U.S. House Judiciary Committee are calling on U.S. Attorney General Merrick Garland and the Department of Justice to prosecute people who are now empowered to file lawsuits against abortion seekers under Texas’ new abortion law.

In the letter signed by all Democratic members of the committee, including Texas Reps. Sylvia Garcia, Sheila Jackson Lee and Veronica Escobar, Committee Chairman Jerrold Nadler of New York urged the department to take legal action against “would-be vigilantes” and reiterated Supreme Court Justice Sonia Sotomayor’s dissent in the ruling.

“The Department of Justice cannot permit private individuals seeking to deprive women of the constitutional right to choose an abortion to escape scrutiny under existing federal law simply because they attempt to do so under the color of state law,” the Democrats’ letter said. “Indeed, the Department is fully empowered to prosecute any individual who attempts, ‘under color of any law,’ to deprive a United States citizen of ‘any rights, privileges, or immunities secured or protected by the Constitution.’”

The members went on to call the new Texas law a clear violation of women’s right to choose an abortion under the landmark Roe v. Wade decision.

[…]

This call for action comes after Garland issued a statement Monday saying law enforcement officials were exploring options to challenge the law “to protect the constitutional rights of women and other persons, including access to an abortion.”

Garland said DOJ officials have contacted U.S. attorneys and FBI field offices to “discuss our enforcement authorities,” but did not go into detail on specific enforcement measures.

That’s in line with what I wanted. There’s plenty of ideas out there. We need to see them get translated into action. Sooner rather than later would be nice. The Chron has more.

The federal response to the “heartbeat” bill

I hope it amounts to something, and I hope they’re quick about it.

U.S. Attorney General Merrick Garland said Monday the Department of Justice is “urgently” exploring ways to challenge Texas’ strict new abortion law, but did not specify what options were being considered.

Garland’s statement in a press release comes days after the U.S. Supreme Court denied Texas abortion providers an emergency injunction against the new law banning abortions after fetal cardiac activity can be detected, which can occur as early as six weeks into pregnancy, when many don’t know they are pregnant.

The Supreme Court stated it was not ruling on the constitutionality of the law but was refusing to block it at this point.

Twenty abortion providers originally filed the lawsuit against the state in July to try and shield themselves from the law, which allows private citizens to sue providers and others suspected of helping women get what are now illegal abortions. Gov. Greg Abbott signed Senate Bill 8 into law in May, after abortion providers already began sounding alarms about its potential impacts.

In his statement Monday, Garland also said that federal officials will rely on the decades-old Freedom of Access to Clinic Entrances Act to “protect those seeking to obtain or provide reproductive health services.” That federal law bans threats of force or physical obstruction against those seeking such health services.

“The department will provide support from federal law enforcement when an abortion clinic or reproductive health center is under attack,” the statement said.

Garland said DOJ officials have contacted U.S. attorneys’ offices and FBI field offices to “discuss our enforcement authorities.”

[…]

President Joe Biden denounced the Texas law in a statement released on Wednesday, also without specifying a course of action.

“My administration is deeply committed to the constitutional right established in Roe v. Wade nearly five decades ago and will protect and defend that right,” Biden said.

We don’t know what the specifics of this will be, so let me state a general principle that I hope they follow: Roe v Wade remains the law of the land, abortion remains a constitutionally protected right, and any interference in the expression of that right will be met with the full force of the federal government. Bring the pain, scorch the earth, and don’t back down. Talking tough is easy, we need to see action. Slate and Daily Kos have more.

Judge halts Abbott’s “pull over migrants” executive order

For now, anyway.

A federal judge on Tuesday blocked Gov. Greg Abbott and the state of Texas from ordering state troopers to pull over drivers transporting migrants “who pose a risk of carrying COVID-19.”

U.S. District Judge Kathleen Cardone granted a temporary restraining order against Abbott’s move, meaning it will be blocked while the case continues to unfold. The U.S. Justice Department sued Abbott and Texas on Friday, a day after U.S. Attorney General Merrick Garland threatened to take legal action if Abbott didn’t rescind his order, calling it “dangerous and unlawful.”

In a statement later Tuesday, Abbott’s press secretary said the state looks forward to presenting evidence that supports his order.

“The Court’s recent order is temporary and based on limited evidence,” Press Secretary Renae Eze said in the statement.

Cardone still must decide whether Texas’ move is constitutional, and her temporary restraining order is set to last until the court’s next hearing on Aug. 13. Abbott has defended his order as necessary to help prevent the spread of COVID-19 in Texas, while advocates for migrants say it would disrupt federal immigration efforts and invite troopers to racially profile people.

See here for the background, and here for a copy of the restraining order. This is all pretty technical and I don’t have the knowledge to say anything cogent, so I will give you a bunch of links at the end of the story for more reading, and we’ll go from there. This tweet made me think about what may come next:

It certainly won’t surprise me if Abbott takes another crack at this if he loses. He has every incentive to push at this until he can claim a victory of some kind. Buzzfeed, the Chron, Daily Kos, and TPM have more.

Justice Department sues over Abbott’s anti-migrant executive order

Good.

The Biden administration sued Texas on Friday, asking a federal judge to block Gov. Greg Abbott’s order that state troopers pull over drivers transporting migrants who pose a risk of carrying COVID-19 as a way to prevent the spread of the virus.

The lawsuit comes a day after the U.S. Attorney General Merrick Garland, in a letter to the governor, threatened to take legal action against Texas if Abbott didn’t rescind his order. Garland described the order as “dangerous and unlawful.”

The Department of Justice said in the lawsuit that Abbott’s order will contribute to the spread of COVID-19 and it will disrupt immigration officials’ network of contractors and non government organizations that help host recently arrived migrants as their legal cases are pending.

“In our constitutional system, a State has no right to regulate the federal government’s operations,” the DOJ argued in a motion asking the judge to block Abbott’s order, adding “this restriction on the transportation of noncitizens would severely disrupt federal immigration operations.”

[…]

The lawsuit says that if migrants are not allowed to be transported by volunteers or contractors they would have to be confined to immigration facilities where there would not be enough space for every migrant.

I’d not blogged about this before, so here’s the background for you:

Gov. Greg Abbott draws criticism for ordering state troopers to pull over vehicles with migrants, saying it will stem COVID-19 risk
U.S. attorney general blasts Texas Gov. Greg Abbott’s latest border directive and threatens a legal battle
‘Dangerous and unlawful.’ AG Merrick Garland threatens to sue over Gov. Abbott’s latest border order

Yes, the same Governor who has banned mask mandates and vaccine mandates for local government employees somehow thinks this will have a positive effect on COVID, even though 90% of migrants are vaccinated, nearly double the rate of the Texas population as a whole. For more on the lawsuit, which is an emergency motion seeking an injunction or temporary restraining order, see here. For a copy of the lawsuit itself, see here. For an analysis of why the Abbott executive order is “*flagrantly* illegal and unconstitutional”, see here. For more in general, see Dos Centavos and the Chron.

Let a thousand Justice Department probes of Texas voter suppression bloom

Just don’t expect too much to happen.

With Texas lawmakers poised to push for new voting restrictions in a special session next week, the state’s congressional Democrats are urging U.S. Attorney General Merrick Garland to investigate Texas’ existing voting laws.

In a letter to Garland on Thursday, the Democrats — led by U.S. Reps. Joaquin Castro of San Antonio and Marc Veasey of Fort Worth — urged the U.S. Department of Justice to examine what they called “unconstitutional voter suppression” in Texas. They pointed to a number of existing practices that they say disproportionately affect Black and Latino voters, including the closure of polling sites across the state, reports of voter intimidation and a lack of Spanish-language voting materials.

They also reminded Garland that Republicans are likely to bring back a revised version of a controversial elections bill as early as next week, asking that federal officials keep a close eye on any changes.

“The Department of Justice must protect voting rights for all Texans,” wrote the group of 12 lawmakers, which includes all of the state’s Democratic members of Congress except U.S. Rep. Henry Cuellar of Laredo. “I am requesting that the DOJ Civil Rights Division focus its investigative powers in key areas reported over the last several elections that present a pattern of racially discriminatory voting practices in Texas.”

This was motivated in part by AG Garland puttint Texas on notice after suing Georgia over its voter suppression law. I applaud the move, but I don’t expect much from the federal courts, especially now. Put the maximal pressure on the poll watcher stuff and the “mistaken” provision to make it easier to overturn elections. Make some noise and hope to score some PR wins, if nothing else.

Justice Department sues Georgia over its voter suppression law

Good to see.

In its first major action to combat GOP voter suppression laws, the Biden Justice Department announced on Friday that it is suing the state of Georgia over its new voting restrictions. The lawsuit was first reported by Mother Jones.

“Today the Department of Justice is suing the state of Georgia,” Attorney General Merrick Garland announced at a press conference at the Justice Department headquarters.

The lawsuit challenges a number of provisions of the law, including a ban on election officials sending unsolicited mail ballot request forms to voters, a shorter period of time for voters to request absentee ballots, new voter ID requirements for mail ballots, restrictions on the number of mail ballot drop boxes, a ban on giving out food and water to voters in line, and throwing out provisional ballots cast in the wrong precinct.

Gov. Brian Kemp has said “there is nothing Jim Crow” about the Georgia law, enacted in March, but it includes 16 different provisions that make it harder to vote and that target metro Atlanta counties with large Black populations.

The lawsuit is being overseen by Kristen Clarke, the head of the Justice Department’s Civil Rights Division, and Vanita Gupta, the associate attorney general—two longtime civil rights lawyers with extensive records litigating against new restrictions on voting.

[…]

The Supreme Court’s 2013 gutting of the Voting Rights Act means that states with a long history of discrimination—including Georgia—no longer need to get their voting changes approved by the federal government. Since that decision, 26 states have enacted new restrictions on voting, according to an analysis by Mother Jones published on Friday. Garland said Friday that if not for that Supreme Court ruling, “it is likely that SB202 would have never taken effect.”

If successful, and assuming that SCOTUS doesn’t use this as an opportunity to gut the Voting Rights Act further (or that they haven’t already by then), this could put Georgia back under preclearance. And the stakes are obviously higher than that. You can easily see the parallels between Georgia’s SB202 and Texas’ SB7, which will get a new number in the special session. AG Garland has announced his intention to make the defense of voting rights a top priority for the Justice Department, and this is the down payment on that promise. It seems very likely that the Texas bill will end up as another installment, unless somehow the bill tanks again or gets watered down to the point where Dems can reasonably shrug and move on to the next fight. Yeah, I don’t think either of those things will happen, either. Daily Kos and the Current have more.