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Census apportionment numbers are in

Texas will gain two seats in Congress, which is one fewer than had been expected based on population growth estimates.

Texas will continue to see its political clout grow as it gains two additional congressional seats — the most of any state in the nation — following the 2020 census, the U.S. Census Bureau announced Monday.

Thanks to its fast-growing population — largely due to an increase in residents of color, particularly Hispanics — the state’s share of votes in the U.S. House of Representatives will increase to 38 for the next decade. The new counts reflect a decade of population growth since the last census, which determines how many congressional seats are assigned to each state. Texas is one of six states gaining representation after the census. The other five states are each gaining one seat.

The 2020 census puts the state’s population at 29,145,505 — up from 25.1 million in 2010 — after gaining the most residents of any state in the last decade. More detailed data, which lawmakers need to redraw legislative and congressional districts to reflect that growth, isn’t expected until early fall. But census estimates have shown it’s been driven by people of color.

Through 2019, Hispanics had accounted for more than half of the state’s population growth since 2010, a gain of more than 2 million residents. And although it makes up a small share of the total population, estimates showed the state’s Asian population has grown the fastest since 2010. Estimates have also shown the state’s growth has been concentrated in diverse urban centers and suburban communities.

With its gain of two seats, the state’s footprint in the Electoral College will grow to 40 votes. But Texas will remain in second place behind California for the largest congressional delegation and share of Electoral College votes. California is losing a congressional seat but will remain on top with 52 seats and 54 votes in the Electoral College. The other states losing seats are Illinois, Michigan, New York, Ohio, Pennsylvania and West Virginia. Florida, Colorado, Montana, North Carolina and Oregon will each gain one seat.

[…]

Texas ultimately fell short of the three congressional seats it was projected to gain based on population estimates. Census Bureau officials on Monday indicated the state’s 2020 population count was slightly lower — a difference of about 1% — than the estimates.

In the lead-up to the census, Republican Texas lawmakers shot down any significant funding for state efforts to avoid an undercount in the 2020 census, leaving the work of chasing an accurate count to local governments, nonprofits and even churches. Texas is home to a large share of residents — Hispanics, people who don’t speak English, people living in poverty and immigrants, to name a few — who were at the highest risk of being missed in the count.

I’ve been blogging about this for a long time, so go search the archives for the background. We’ll never know if some effort from the state government might have yielded a higher population count, but other states with large Latino populations like Florida and Arizona did not get the apportionment gains they were expected to, while New York only lost one seat and Minnesota didn’t lose any. California grew by over two million people over the past decade, by the way, but its share of the total population slipped, and that cost it a seat. Yes, I know, it’s crazy that the US House has the same number of members it has had since 1912, when each member of Congress represented about 30,000 people (it’s about 760,000 people now), but here we are.

The Chron goes into some more detail.

“We’ll have to wait for more granular data, but it certainly looks like the Texas Legislature’s decision not to budget money to encourage census participation combined with the Trump administration efforts to add a citizenship question cost Texas a congressional district,” noted Michael Li, an expert on redistricting who serves as senior counsel for the Brennan Center for Justice at New York University.

Census Bureau officials said Monday they were confident in the results, noting the state’s actual population was within 1 percent of the estimates.

The new population figures come as lawmakers in Texas prepare to redraw political boundaries, including for the state’s congressional delegation, which will remain the second-biggest in the nation as it adds two more members, for a total of 38. That trails California, which is set to lose a seat for the first time in state history, and will have 52 members.

Republicans will control the redistricting process and are expected to use it to reinforce their control of the delegation.

[Mark] Jones at Rice University said the party now just has to decide how safe or risky it wants to be with the new seats. Republicans can play it safer by tossing the new districts to Democrats while shoring up GOP votes in the 22 seats they hold now, which would keep them in control of the delegation. Or they could use the new seats to break up Democrat districts and try to gain ground.

[…]

Li expects the two additional seats to bring “demands for increased representation of communities of color, which will be at odds with the party that will control redistricting.”

Li said chances are high that the maps Texas Republicans draw will end up in court for that exact reason, something that has happened each of the last five decades.

“That’s almost a certainty,” Li said. “Every decade, Texas’s maps get changed a little or a lot because it’s never managed to fairly treat communities of color.”

Of course, we have a very hostile Supreme Court now, and no Section 5 of the Voting Rights Act. It would be very, very nice if the Senate could find a way to pass the two big voting rights bills that have been passed by the House, but until that happens we’re looking at a lot of sub-optimal scenarios. I’ve been saying what Prof. Jones says here, that the approach the Republicans take will depend to a large degree on their level of risk aversion, but never underestimate their desire to find advantage. There will be much more to say as we go on, but this will get us started. Daily Kos, Mother Jones, and the Texas Signal have more.

Now we wait on SCOTUS

The state of Texas filed its reply to the defendants’ responses to its democracykilling lawsuit, and, well, it’s something.

Best mugshot ever

This brings us the Texas AG Ken Paxton’s reply–or, rather, replies, as there are multiple filings, including a motion to enlarge the word-count limit, a supplemental declaration dated today from Charles Cicchetti, and a new affidavit prepared yesterday from one Lisa Gage.

The first reply brief focuses on rebutting the factual and legal claims made by the four defendant states. The brief starts with the facts, and AG Paxton’s choice of emphasis here is quite interesting, as the brief leads with an extended defense of statistical stupidity contained in the initial filing and the Cicchetti declaration (hence the newly drafted supplemental declaration which is attached). Here, the Paxton brief argues “Dr. Cicchetti did take into account the possibility that votes were not randomly drawn in the later time period but, as stated in his original Declaration, he is not aware of any data that would support such an assertion.” In other words, because he does not know anything about the two sets of voters, it was okay to assume they were identical for purposes of assessing the statistical likelihood that they would vote differently. That this is the lead argument in the reply tells you most of what you need to know. (Well, perhaps not, as other parts of the factual discussion misrepresent claims made by defendant states or repeat claims that were considered and rejected in other suits over the past month.)

On the law, the Texas reply essentially argues that the handful of attorneys in the Texas AG’s office who were willing to sign on to the brief know more about the election laws of Georgia, Michigan, Wisconsin, and Pennsylvania than do the Attorneys General and Secretaries of State of those various states. It further argues that although state legislatures have “plenary” authority to set the manner in which states select electors, this somehow does not include the authority to authorize the involvement of courts and election agencies, and that the U.S. Supreme Court, not the supreme courts of the respective states, should be the final authority on the meaning of relevant state laws and constitutional provisions. (Yay federalism!)

The other Texas filing, styled as a reply in support of Texas’s plea for emergency injunctive relief, is not much better. It does, however, deploy a powerful use of capitalization in the Table of Contents (“Texas IS likely to prevail”). Note that Texas does not have to worry about any of the defendant states responding in kind (“Texas IS NOT likely to prevail”) because this is the last brief to be filed.

In this brief, Texas argues that it is not seeking to disenfranchise voters. Rather, Texas argues, “Defendant States’ maladministration of the 2020 election makes it impossible to know which candidate garnered the majority of lawful votes.” Of course, to the extent this were true, Supreme Court intervention would not be necessary. If the relevant state legislatures concluded that the results of the elections within their states were indeterminate–that the voters had failed to select electors on election day–they could act, but they have not. Here Texas repeats its arguments that federalism requires the Supreme Court ordering state legislatures to act and possibly even hold new elections because Texas does not like how other states have run their elections.

It’s already time for some tweets.

One possible way to avoid that outcome is for SCOTUS to shut this shit down hard.

The easy thing for the Supreme Court to do is simply deny Texas permission to file the complaint (and deny the motions to intervene as moot) and be done with it. No fuss, no muss.

But the court should do more. It is perfectly ordinary and appropriate for the justices to write an opinion explaining the various reasons why they are rejecting Texas’ request. Indeed, the minority of justices who think that the court is required to accept original actions like Texas’ may well write short opinions of their own or note that they think the case was properly filed. So there is nothing overreaching if a majority of the court explains why the case is meritless.

The justices’ decision whether to do that needs to account for this extraordinary, dangerous moment for our democracy. President Donald Trump, other supportive Republicans, and aligned commentators have firmly convinced many tens of millions of people that the 2020 presidential election was stolen. If that view continues to take hold, it threatens not only our national politics for the next four years but the public’s basic faith in elections of all types that are the foundations of our society.

A simple five-page per curiam opinion genuinely could end up in the pantheon of all-time most significant rulings in American history. Every once in a long while, the court needs to invest some of its accumulated capital in issuing judgments that are not only legally right but also respond to imminent, tangible threats to the nation. That is particularly appropriate when, as here, the court finds itself being used as a tool to actively undermine faith in our democratic institutions — including by the members of the court’s bar on whom the justices depend to act much more responsibly.

In a time that is so very deeply polarized, I cannot think of a person, group or institution other than the Supreme Court that could do better for the country right now. Supporters of the president who have been gaslighted into believing that there has been a multi-state conspiracy to steal the election recognize that the court is not a liberal institution. If the court will tell the truth, the country will listen.

I’m not so sure I share the optimism, but I agree it would be the best thing that SCOTUS could do.

More Republicans have lined up to join Paxton on his lemming suicide bomber dive, including some who are seemingly claiming their own elections are also tainted.

Maybe the most ridiculous thing about this ridiculous moment, is that among the 126 Republican House members who have signed on to a document that they know to be not just false in its content, but malicious in its intent, are 19 from states that are the subject of the suit.

So Representatives like Doug Collins and Barry Loudermilk in Georgia are arguing that their own elections were fraudulent. Except, of course, they’re not making that argument. They’re not making any argument. They’re just hoping to gain “street cred” from adding their signatures to a list of people who support Trump rather than America.

You know who else is on Team Dictatorship? Dan Crenshaw, that’s who. This Dan Crenshaw.

U.S. Rep. Dan Crenshaw told Veterans Affairs Secretary Robert Wilkie that a woman who reported sexual assault at a VA hospital had filed frivolous complaints when she and Crenshaw served in the same Navy command, according to testimony by several senior officials in a report by the agency’s watchdog.

Investigators said they were troubled by the way Wilkie and his agency handled the outcry of the woman, who is now a Democratic aide in the House of Representatives.

The Houston Republican’s link to matter, first reported by Newsweek magazine, was included in a report released by the agency’s inspector general on Thursday. The report details a number of apparent problems with the agency’s handling of complaints filed by the veteran, Andrea Goldstein, who alleged a VA hospital contractor “bumped his entire body against mine and told me I looked like I needed a smile and a good time.”

[…]

Senior VA officials told investigators that Crenshaw passed along information about Goldstein to Wilkie, the report says, which both Crenshaw and Wilkie have denied.

The report points to an email Wilkie sent Chief of Staff Pamela Powers and Brooks Tucker, assistant secretary congressional and legislative affairs, after a fundraiser that he and Crenshaw both attended. It said: “Ask me in the morning what Congressman Crenshaw said about the Takano staffer whose glamor (sic) shot was in the New York Times.”

While Wilkie told investigators that Crenshaw approached him at the December 2019 fundraiser and brought up the veteran, he claimed that Crenshaw merely told him they served together. When investigators asked Wilkie why that information was enough to merit the email he sent after the fundraiser, he responded, “Well, I don’t remember. I have no idea.”

Both Powers and Tucker, however, told investigators they recalled Wilkie making comments about the veteran’s reputation “based on information they understood he received from Congressman Crenshaw.”

The report also says Deputy VA Secretary Jim Byrne told investigators that Wilkie had “verified with Congressman Dan Crenshaw that the veteran had previously filed frivolous complaints when the two were serving in the same command in the Navy.”

Crenshaw and his staff refused to answer VA investigators’ questions about the matter, the report says. Crenshaw’s office did not respond Thursday to a request for comment.

The Newsweek story is here. Remember Crenshaw’s craven refusal to answer questions about this the next time he tweets some garbage about how “all cases should be heard, all investigations should be thorough”. As a reminder, the Chron endorsed Crenshaw for re-election. The Orlando Sentinel has apologized for endorsing Rep. Michael Waltz, one of Crenshaw’s fellow members of the Sedition Caucus. I await the Chron taking similar action; merely excoriating Ken Paxton and Ted Cruz, without even mentioning Crenshaw for his role in this debacle, is insufficient.

Montana Governor Steve Bullock has observed, as part of his own amicus filing against the Paxton mess, that Texas did not include his state as a defendant even though Montana made the same kind of changes that Georgia et al did that Paxton finds so objectionable. Of course, Trump carried Montana, so it’s totally different. Governor Bullock also knows how to bring the snark:

SCOTUS may act on the Texas case even before I finish drafting this post, so let me wrap up while the outcome is still unknown. First, a few words from Adam Serwer about why Trump has so many rats following behind his rancid Pied Piper act:

To Trump’s strongest supporters, Biden’s win is a fraud because his voters should not count to begin with, and because the Democratic Party is not a legitimate political institution that should be allowed to wield power even if they did.

This is why the authoritarian remedies festering in the Trump fever swamps—martial law, the usurpation of state electors, Supreme Court fiat—are so openly contemplated. Because the true will of the people is that Trump remain president, forcing that outcome, even in the face of defeat, is a fulfillment of democracy rather than its betrayal.

The Republican base’s fundamental belief, the one that Trump used to win them over in the first place, the one that ties the election conspiracy theory to birtherism and to Trump’s sneering attack on the Squad’s citizenship, is that Democratic victories do not count, because Democratic voters are not truly American. It’s no accident that the Trump campaign’s claims have focused almost entirely on jurisdictions with high Black populations.

From Elizabeth Dye at Above the Law:

But perhaps we shouldn’t get waylaid in Constitutional and procedural niceties, lest we distract ourselves from the point that THIS IS BATSHIT. The state of Texas has filed a facially nonsensical suit purporting to vindicate the rights of the Defendant states’ legislatures from unconstitutional usurpation by overweening governors and state courts, a usurpation which supposedly violates the Elections Clause. And the proposed solution is for the Supreme Court itself to violate the Elections Clause by postponing the electoral college vote, thus usurping Congress’s power to “determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”

And instead of saying, “Slow your roll, Ken Paxton! We’ve been banging the drum about states’ rights for two hundred years now. It’s kind of our thing, you know?” the intervenor states are all in on this Frankenstein hybrid of vote dilution and anti-federalism. Rather than acknowledging the reality of Trump’s loss, these attorneys general would rather attach their names to a complaint which claims that it’s just mathematically impossible for Biden to have won those four Defendant states because, ummm, Clinton lost them. Don’t ask how Trump was able to flip Pennsylvania, Wisconsin, and Michigan after Obama won them in 2012 and 2008 — that formula is still being calculated.

Never mind that Texas’s governor Greg Abbott extended early voting by a week, the same dastardly usurpation of legislative prerogative which supposedly voids the election in the Defendant states. Pay no attention to the fact that Mississippi also allows votes to be counted if they arrive within three days of the election, which Paxton argues is patently illegal. Or that Utah conducted this election entirely by mail, which is, according to the complaint anyway, prima facie evidence of intent to allow vote fraud. IOKYAR.

The Trump motion to intervene is little more than a cleaned up version of the president’s Twitter feed, drafted by John Eastman, a law professor at Chapman University who is nonetheless confused about birthright citizenship and recently penned a racist Newsweek editorial wondering if Kamala Harris was eligible to run for president.

Mentioning this John Eastman character brings us to the final tweets, because all good blog posts about election theft end with tweets. These two are embedded in that ATL article:

As noted before, Lawrence Joseph is the outside counsel Ken Paxton hired for his lawsuit, since the Solicitor General declined to come on board. Wheels within wheels, y’all.

And finally, nothing could sum up this entire experience better than this:

From the neighborhood of New Heights in the city of New Houston and the state of New Texas, I wish you all a happy weekend. CNN has more.

UPDATE: Didn’t have to wait long, as it turns out.

The US Supreme Court on Friday rejected Texas’s unprecedented last-ditch effort to challenge President-elect Joe Biden’s win in Pennsylvania, Michigan, Georgia, and Wisconsin by suing those four states in the high court.

At least a majority of the justices concluded that Texas lacked standing to bring the case at all, a threshold the state had to clear before the case could go any further.

“Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections,” the court wrote in the brief order.

No justice noted that they had dissented from the decision to knock out Texas’s case from the start. It would have taken at least five justices to agree to hear the case, but the justices don’t have to individually indicate how they voted, so there’s no way to know the vote breakdown for certain. Justice Samuel Alito Jr., joined by Justice Clarence Thomas, wrote that they believed the court had to allow Texas to file its lawsuit, but they wouldn’t have granted any other relief that the state requested.

It was a significant loss not only for Texas, but for President Donald Trump, who had asked to intervene in the case and spent the the past two days tweeting about why the justices should effectively hand him an election that Biden won. The court denied all of the other motions filed in the case as moot once it decided Texas couldn’t bring the case at all, which ended Trump’s bid to get before the justices.

There’s plenty more stories out there – go to Google News or Trending on Twitter if you haven’t come across any others. The Electoral College meets on Monday, and after that it really is over, though one presumes the delusions will continue. I’m going to finish with some more tweets. You should go outside and enjoy the day.

Not sure how I feel about this. It’s right there in the Constitution, but it’s also overturning the will of the voters, which is what the Sedition Caucus was trying to do. I am happy to have a discussion about this, however. Let these bastards explain why they haven’t violated the Constitution.

Speaking of bastards and being in opposition to the Constitution:

Yeah, I don’t even know what to say to that. But I would very much like to know what every elected Republican thinks about it. Let’s get them all on record, shall we? Rick Hasen has more.

The states respond to Paxton

Now we wait for SCOTUS. I sure hope they’re quick about it.

Best mugshot ever

Each of the four battleground states targeted by a Texas lawsuit seeking to overturn President Donald Trump’s election defeat issued blistering briefs at the Supreme Court on Thursday, with Pennsylvania officials going so far as to call the effort a “seditious abuse of the judicial process.”

The court filings from Georgia, Michigan, Pennsylvania and Wisconsin come a day after Trump asked the Supreme Court to intervene in the lawsuit brought by Texas Attorney General Ken Paxton seeking to invalidate millions of votes in their states. The lawsuit amounts to an unprecedented request for legal intervention in an election despite there being no evidence of widespread fraud.

“Texas’s effort to get this Court to pick the next President has no basis in law or fact. The Court should not abide this seditious abuse of the judicial process, and should send a clear and unmistakable signal that such abuse must never be replicated,” wrote Pennsylvania Attorney General Josh Shapiro.

The Texas lawsuit, Shapiro said, rested on a “surreal alternate reality.”

[…]

Despite the slate of inaccurate claims driving the lawsuit, more than 100 House Republicans signed on to an amicus brief in support of Paxton’s motion.

Notable Republican leadership names on this list include House Minority Whip Steve Scalise and Republican Policy Committee Chairman Gary Palmer.

“The unconstitutional irregularities involved in the 2020 presidential election cast doubt upon its outcome and the integrity of the American system of elections,” the brief said without evidence.

“Amici respectfully aver that the broad scope and impact of the various irregularities in the Defendant states necessitate careful and timely review by this Court.”

Beyond the four states subject to the Texas lawsuit, more than 20 other states and Washington, DC, also submitted an amicus brief deriding the effort and urging the high court to deny Texas’ motion.

“The Amici States have a critical interest in allowing state courts and local actors to interpret and implement state election law, and in ensuring that states retain their sovereign ability to safely and securely accommodate voters in light of emergencies such as COVID-19,” the brief said.

Shapiro’s particularly fiery brief assessed that the Texas lawsuit is “legally indefensible and is an affront to principles of constitutional democracy.”

“Nothing in the text, history, or structure of the Constitution supports Texas’s view that it can dictate the manner in which four sister States run their elections, and Texas suffered no harm because it dislikes the results in those elections.”

See here and here for the background. A copy of the court filings are at the CNN story, but the best part of the Pennsylvania filing, which uses the word “seditious”, is here. Despite the sound and fury, there’s some suggestion that even the sedition-committers know that it all signals nothing.

Six states attorneys general, led by Missouri AG Eric Schmitt, have moved to intervene in Texas v. Pennsylvania, the lawsuit filed by Texas Attorney General Ken Paxton that seeks to prevent the selection of presidential electors based upon the November election results in four states (Pennsylvania, Georgia, Wisconsin, and Michigan). Yesterday, 17 states, also led by Missouri AG Schmitt, filed an amicus brief in support of the Texas suit. I wrote about that filing here.

There are a few notable things about today’s filing. First and foremost, it is notable than only six of the states that joined yesterday’s amicus brief (Missouri, Arkansas, Louisiana, Mississippi, South Carolina, and Utah) were willing to join today’s motion to intervene and join the Texas Bill of Complaint. This suggests that some of the state AGs who were willing to say that the claims raised by Texas are sufficiently serious to warrant the Court’s attention were not willing to actually endorse the substance of those claims. Perhaps this indicates there is only so far they are willing to go to virtue-signal their support for the Trump tribe. (Yesterday’s filing from Arizona can be viewed in a similar light.) In the alternative it could simply represent discomfort with some of the claims this new briefing supports, which leads to my next point.

It gets into the legal weeds from there, so read the rest if you’re so inclined. In the meantime, there may still be a couple of respectable voices here in Texas.

The state’s Big Three — Gov. Greg Abbott, Lt. Gov. Dan Patrick and House Speaker Dennis Bonnen — have all supported the suit, and Texas Sen. Ted Cruz has reportedly even agreed to argue the case before the U.S. Supreme Court if it advances, which legal experts say is extremely unlikely.

More than half of the Texas Republican congressional delegation — 12 members including Reps. Dan Crenshaw, Kevin Brady and Randy Weber — were among the 106 House members to sign onto a brief in support of the suit.

[…]

Still, in what is shaping to be yet another with-Trump or against-Trump moment for Republicans in Congress, the Texas delegation is splitting.

Texas Sen. John Cornyn doubts that Paxton even has grounds to sue. “It’s an interesting theory,” he said, “but I’m not convinced.”

On Thursday, Cornyn — a past Texas attorney general, as is Abbott — was joined by several more prominent Republicans in his dissent.

Rep. Kay Granger, who has represented North Texas for almost two decades, told CNN she did not see the suit going anywhere and called it a “distraction.”

“I’m not supporting it,” Granger said. “I’m just concerned with the process.”

Conservative firebrand Rep. Chip Roy excoriated the suit, saying he could not join colleagues in the House in writing a brief to support the suit because he believes it “represents a dangerous violation of federalism and sets a precedent to have one state asking federal courts to police the voting procedures of other states.”

“I strongly support the continued pursuit of litigation where most likely to succeed — such as Georgia — to bring to light any illegal votes and encourage, if necessary, state legislatures to alter their electors accordingly,” Roy tweeted. “But, I cannot support an effort that will almost certainly fail on grounds of standing and is inconsistent with my beliefs about protecting Texas’ sovereignty from the meddling of other states.”

I give Kay Granger a B+, Cornyn a C, and Roy a D – he was perfectly happy to throw manure on the concept of voting by mail, so his disagreement was entirely about tactics, not principles. I remind you, as recently as 2016, Republicans in Harris County cast more votes by mail than Democrats did. As for Dan Crenshaw, I hope that the next time we try to tell the voters in his district that he’s nothing more than a faithful foot soldier for Donald Trump, they believe us.

Not that Ken Paxton cares, but I appreciate what the DMN editorial board says to him.

Your lawsuit, as you should know, will fail on the merits. Every piece of evidence shows the same result. Donald Trump lost this election. This is why the high court will turn you away, as courts have repeatedly turned away suits seeking to reverse the election’s outcome.

That is not to say that your decisions are without consequence. As the state’s attorney general, you chose to mislead the public by acting as if there were a legal case to defy the will of the voters as expressed through legally administered elections, and this will cause lasting damage to our political system and to faith in our elections. Much like crying wolf when there is no animal in sight, your lawsuit will undermine legitimate complaints in the future about voter fraud and undercut legitimate work in the future to ensure ballot integrity.

Your leadership is also fueling cynicism, empowering conspiracy theorists who operate on accusation rather than fact, and enabling those who seek election confusion rather than clear, compelling and accurate election results. This is leadership unbecoming of your office. It is a disservice to Texans who deserve a well-run office of the attorney general and who depend on a fair administration of justice.

We really need to vote him out in 2022. I’ll wrap up with some tweets.

I’ll blog about that more fully when I see a story. It just sure is hard to separate the timing, and the cravenness, of this lawsuit from Paxton’s immediate needs. We’ll see what SCOTUS has to say, and when they have to say it. Daily Kos and NBCNews have more.

We still have to talk about Paxton’s ridiculous and anti-democratic lawsuit

At least for one more day.

Best mugshot ever

President Donald Trump on Wednesday latched on to a longshot Texas lawsuit seeking to overturn a presidential election that handed the White House to Joe Biden.

Legal experts say Texas Attorney General Ken Paxton’s effort to contest election results of four key battleground states is all but certain to fail. But it has drawn support from the Republican attorneys general of 17 other states.

As the president’s legal team loses case after improbable case in federal district and appellate courts, the Texas lawsuit offers a major advantage: It goes straight to the top. Under a special legal avenue unique to states, Paxton filed the case directly with the U.S. Supreme Court, a body Trump has suggested could deliver him the victory that voters did not.

[…]

The Texas lawsuit takes issue with changes to election procedures in four battleground states: Georgia, Pennsylvania, Michigan and Wisconsin. Paxton argues those changes were unlawful and call into question Biden’s victories in those states. He is asking the high court to block the critical battlegrounds from participating in the Electoral College.

Though the Supreme Court has a six-member conservative majority, including three justices appointed by Trump himself, it has so far shown no interest in siding with him in the election cases his campaign has lobbed. On Tuesday, it decisively rejected Pennsylvania Republicans’ effort to overturn Biden’s victory there in a one-sentence order with no dissents.

Legal experts and court watchers expect a similar outcome in the Texas case. The court has asked for a response from the four battleground states Texas is suing, setting a Thursday deadline, but has given no indication about how it will decide the matter.

“This is the Hail Mary with time running out the clock kind of play here,” said David Coale, an appellate attorney in Dallas. “This is really the last little window to sort of sneak in there and try to get a court involved.”

States have a special legal ability to take cases directly to the Supreme Court, though such cases are rare, and more typically involve boundary disputes like water rights. If the high court accepts Texas’ argument that it can sue the four battlegrounds in this case, Coale said, “then any state can sue any other state about just about anything.”

Even if the court gets past tricky procedural issues, Texas’ case faces an uphill battle.

Officials in the battleground states have roundly rejected Paxton’s argument, calling it “false,” “irresponsible,” “a publicity stunt,” “genuinely embarrassing,” “beyond reckless” and “beneath the dignity of the office of attorney general.”

They also point out that many of the claims Paxton makes about election irregularities in their states have already been litigated and roundly rejected. Experts, state election officials and U.S. Attorney General Bill Barr have all said there is no evidence of voter fraud on a scale that could have affected the outcome of the election.

“Texas alleges that there are 80,000 forged signatures on absentee ballots in Georgia, but they don’t bring forward a single person who this happened to. That’s because it didn’t happen,” said Jordan Fuchs, Georgia’s deputy secretary of state.

See here for the background, and please put aside any concerns you may have for Ken Paxton’s dignity. He sure isn’t concerned about it.

Honestly, the best way to deal with this kind of pure bullshit is through Twitter.

For more responses from people who are smarter and way more honest than Ken Paxton, Texas Lawyer collected a bunch more responses, a sample of which is here:

>> Raffi Melkonian, appellate lawyer at Wright, Close & Barger: “The new Paxton lawsuit is not worth a lot of your time, but I mean, it doesn’t make any sense and is bad and has no chance of success at all. Just want to be clear on that.” [Twitter]

>> Jonathan Adler, Case Western Reserve University law professor: “Here, Texas is not only asking the Supreme Court to hear the case, it is also asking for expedited consideration and extraordinary emergency relief, in the form of injunctions barring the defendant states from relying upon the election results to appoint electors and authorizing ‘pursuant to the Court’s remedial authority, the Defendant States to conduct a special election to appoint presidential electors.’ In effect, the suit is asking the U.S. Supreme Court to supervise the Presidential election in the four defendant states.” [Reason.com]

>> J. Scott Key, Georgia appellate attorney and Mercer University law professor: “This pleading is our book club’s next selection. Over wine, we will discuss whether the text is a coded love letter subtle to a jealous suitor with pardon power.” [Twitter]

>> U.S. Sen. Ted CruzR-Texas:  “Petitioners’ legal team has asked me whether I would be willing to argue the case before #SCOTUS, if the Court grants certiorari. I have agreed, and told them that, if the Court takes the appeal, I will stand ready to present the oral argument.” [Twitter]

>> John Q. Barrett, law professor at St. John’s University School of Law: “Kudos to Sen. Cruz for giving the Court another major reason, just in case it needed any more, to deny cert.” [Twitter]

>> Philadelphia election lawyer Adam Bonin, who has represented the Democratic Party in recent election litigation in Pennsylvania: “It is embarrassing to see argument like this from a state attorney general to the Supreme Court of the United States.” [Twitter]

>> Andrew Fleischman, appellate attorney, Ross & Pines, Atlanta: “Gonna go ahead and sue the Supreme Court to enjoin them from taking up this Texas challenge. That way they’ll all have to recuse. When the Supreme court rejects the suit after dismissing my petition and ordering sanctions, I’ll go on Fox News and say they were scared of me.” [Twitter]  “Ok the absolute trolliest thing Michigan could do right now is move to recuse Paxton because his desire for a pardon is a conflict of interest. We’re not even really doing law any more so why not?” [Twitter]

>> Eric Greenberg, Seyfarth Shaw: “Would the @Nate_Cohn @nytimes needle predicting a Biden win in GA at 3 am in the morning be sufficient evidence to combat the claim as to GA?  Just kidding — but maybe not.” [Twitter]

>> Adam VanHo, Ohio attorney, former state assistant attorney general: “@KenPaxtonTX should be ashamed of himself for this frivolous filing. And if states get to sue other states over their treatment of voters, when will states like New York and Ohio sue southern states over their treatment of former felons’ voting rights.” [Twitter]

>> Pennsylvania Lt. Gov. John Fetterman: “Can the Texas AG *also* sue their Lieutenant Governor for the handsome reward of $2M he owes me for reporting voter fraud?”  [Twitter]

>> Chris Geidner, The Justice Collaborative: “As others have noted, Texas Solicitor General Kyle Hawkins is not on the SCOTUS filing—despite him being the state’s lead SCOTUS lawyer. There is, however, a ‘special counsel’ noted.” [Twitter]

>>Joyce White Vance, former U.S. attorney for the Northern District of Alabama: “This lawsuit alleges defendant states took advantage of the pandemic to expand vote by mail. It’s the ultimate expression of Trump’s view the GOP can’t win … if all eligible Americans can vote. Tx AG, himself under criminal investigation, appears to be a fan of cheat to win.” [Twitter]

>>Jocelyn Benson, Michigan Secretary of State: “This lawsuit seems to suggest that the voters of Michigan messed with Texas. They didn’t. Case closed.” [Twitter]

SCOTUS requested responses from the four targeted states by this afternoon. Everyone with integrity believes the case will be summarily dismissed shortly thereafter. Stay tuned. The Chron, Daily Kos, the Current, Political Animal, and Slate have more.

Ken Paxton sues other states to overturn their election results

It’s as stupid and pernicious as it sounds.

Best mugshot ever

Texas Attorney General Ken Paxton is suing four battleground states — Georgia, Michigan, Pennsylvania and Wisconsin — whose election results handed the White House to President-elect Joe Biden.

In the suit, he claims that pandemic-era changes to election procedures in those states violated federal law, and asks the U.S. Supreme Court to block the states from voting in the Electoral College.

The last-minute bid, which legal experts have already characterized as a longshot, comes alongside dozens of similar attempts by President Donald Trump and his political allies. The majority of those lawsuits have already failed.

There is no evidence of widespread fraud in the 2020 election, officials in most states and U.S. Attorney General Bill Barr have said. Biden won in all four states where Paxton is challenging the results.

In a filing to the high court Tuesday, Paxton claims the four battleground states broke the law by instituting pandemic-related changes to election policies, whether “through executive fiat or friendly lawsuits, thereby weakening ballot integrity.”

Paxton claimed that these changes allowed for voter fraud to occur — a conclusion experts and election officials have rejected — and said the court should push back a Dec. 14 deadline by which states must appoint their presidential electors.

“That deadline, however, should not cement a potentially illegitimate election result in the middle of this storm,” attorneys for Texas wrote.

[…]

Notably, Paxton himself is listed as the agency’s lead attorney on the case — a highly unusual role for the state official, who rarely plays a hands-on role even in the state’s major cases. Paxton’s new chief deputy, Brent Webster, signed onto the filing, but conspicuously absent is the agency’s top lawyer for appellate work, Solicitor General Kyle Hawkins, who typically argues the state’s cases before the Supreme Court and did so as recently as last month. None of Hawkins’ deputies is listed as contributing to the case, nor are any of the agency’s hundreds of other attorneys.

The agency instead appears to have hired an outside attorney, Lawrence Joseph, to contribute to the case.

The agency did not answer questions about its staffing choices for the lawsuit, nor did Hawkins himself.

Gov. Greg Abbott, a former Texas attorney general, signaled support for the lawsuit, telling a reporter the case “tries to accelerate the process, providing certainty and clarity about the entire election process. The United States of America needs that.”

We’ll discuss motives in a minute, but first, a few tweets.

You should also read this thread from Steve Vladeck, and this post from Rick Hasen, in which he calls this “a press release masquerading as a lawsuit” and “utter garbage”. And now you know all you need to know about the legal merits of this case, which by the way was filed on the legal deadline for states to certify the Presidential election.

Now then. Why would multiply-accused felon Ken Paxton do this? Two obvious reasons:

1. It’s a signal to George P. Bush and any other potential primary challengers that no one is going to out-wingnut him in 2022. We are at “drinking hemlock to own the libs” levels of depravity here. Maybe Solicitor General Kyle Hawkins will speak up and contradict the speculation about why Paxton was on his own for this, but the fact that Paxton did this on his own is surely a message to any wannabe kingslayers.

2. It’s also a message to Donald Trump, and that message is “PARDON ME! PAAAAAAAARDON MEEEEEEEEE!” Why fight an FBI investigation if you can be pre-emptively declared not guilty of any crimes you may have committed?

My guess is that Greg Abbott’s “well, we should just let the process play out” numbskullery is also an attempt to placate the seething hordes that now think he’s a liberal squish crossed with Joseph Stalin. I doubt it will work, but this is where Abbott is these days.

Anyway. On the one hand, we have already wasted too many brain cells on this. On the other, we should never forget that the official stance of way too many Republican officials is that they cannot lose elections and will do anything at all to prevent that from happening, law and decency and democracy be damned. I can only imagine the freakout they will have when Dems finally break through at the state level. For more reading than you should have time for, see the Chron, TPM, Daily Kos, Mother Jones, Reform Austin, and the Press.

NBA agrees to offer its arenas as voting centers

Nice.

“What was the plan?” was always the wrong question to ask of striking NBA players; what they wanted was to not play basketball, and they got it. But they used that time not playing to talk, to think and to make their voices heard.

But the players did get a significant commitment from their bosses: turning as many NBA arenas as possible into voting sites for November.

The league and union announced Friday that the playoffs will resume Saturday. That announcement included a concrete promise from the league. Every team-owned arena will turn into a polling place for the November election in locations where that’s still legally possible in order for voters to have a large, COVID-safe place to vote in person.

Three teams had already committed to this earlier in the summer — Bucks, Pistons and Hawks — and the Rockets made the announcement on Thursday.

Chris Paul, the Thunder point guard and longtime union president, gave an emotional interview to bubble media after the announcement.

“In 15 years in the league, I’ve never seen anything like it,” Paul said. “Everyone expects us to go out and play. I get it. But we needed some time,” he said, adding that he had spoken to Jacob Blake’s father.

We knew about the Toyota Center. I had not been aware of the other three arenas, which was apparently something that happened in early July. Here’s some more details about what this announcement means:

On Friday, the NBA and NBPA announced a three-point plan to promote social justice and racial equality, which includes converting NBA arenas into voting centers for the 2020 presidential election. The NBA playoffs will resume on Saturday in Orlando.

“1. The NBA and its players have agreed to immediately establish a social justice coalition, with representatives from players, coaches and governors, that will be focused on a broad range of issues, including increasing access to voting, promoting civic engagement, and advocating for meaningful police and criminal justice reform.

2. In every city where the league franchise owns and controls the arena property, team governors will continue to work with local election officials to convert the facility into a voting location for the 2020 general election to allow for a safe in-person voting option for communities vulnerable to COVID. If a deadline has passed, team governors will work with local elections officials to find another election-related use for the facility, including but not limited to voter registration and ballot receiving boards.

3. The league will work with the players and our network partners to create and include advertising spots in each NBA playoff game dedicated to promoting greater civic engagement in national and local elections and raising awareness around voter access and opportunity.”

In theory, that could mean voting centers in battleground states like Florida, North Carolina, Pennsylvania, Ohio, and Arizona in addition the four that are already signed on. Maybe Dallas and San Antonio will join in as well. How many of these actually happen, and what kind of response the players will have if they feel the effort fell short for whatever the reason, remains to be seen. But in terms of direct action resulting from the wildcat strike the players engineered this past week, it’s pretty impressive. Well done.

(A more recent article than the NPR story I linked above suggests some other NBA teams, as well as teams in the NFL, NHL, and MLB, are taking similar action to allow their stadia to be used for voting. Not clear to me what relation these two efforts have. For sure, there are plenty of stadia, including hundreds of college stadia and arenas, that could also be used in this capacity, in all 50 states. It would be nice to say we’re just limited by our imagination, but of course we are very much limited by the ferocious opposition to this idea that those who don’t want to make voting easy and convenient would bring. What the NBA players have done is a great start. There’s a lot more that could and should be done.)

Postal service update

Just a reminder, destroying the US Postal Service has real effects on real people.

Delays in mail sorting and processing are leaving Houston-area businesses, brides and voters wary of the coming months. Whether it’s essential medication, ballots or important letters and business items, the USPS is relied upon to deliver in a timely manner. Yet, many Houstonians are already feeling the effects of the slowdown, including month-long wait times and undelivered mail.

Melissa Palacios Gonzalez, a U.S. Navy veteran, runs an accessories and clothing shop out of her home in Spring. When customers place online orders of jewelry or sunglasses, shimmery metallic sandals or distressed baseball caps from Aesthetic Glam, Palacios Gonzalez drops them off at the U.S. post office nearby.

But over the summer, she and other Houstonians noticed shipping delays as first the coronavirus strained delivery times, then systemic cutbacks by the new postmaster general, Louis DeJoy, reduced the USPS’s delivery capacity.

A USPS Priority Mail order of flip flops, which was supposed to be delivered in one or two days, took a week to reach its destination, Palacios Gonzalez said.

“If it becomes a routine problem —” she started to explain, then stopped and sighed. “Even if I say, ‘Oh, sorry that happened, here’s a percentage savings on me,’ I’m still potentially losing money and a customer.”

[…]

Due to delays in the U.S. Postal Service, Adrienne Lynch’s baby’s clothes often come weeks late.

The East Sunset Heights resident said her 20-month-old daughter is growing so fast, she often has to order new clothes. Care packages from the toddler’s grandmother also normally come much later than originally estimated by the post office.

Lynch’s mail service is in constant flux, she said. Some weeks, she notices deliveries every day. Other weeks, the household won’t receive mail for a few days.

Lynch first noticed the delays in March and April. They have continued and worsened since then, she said.

“Sometimes our outgoing mail may not be picked up for a day or so,” she said. “Or on the package tracking, you will see that your package is out for delivery, but it’s sent back to the post office at the end of the day because the carrier’s shift is over and they can’t do overtime.”

Uju Nwankwo, 27, sent about 100 to 130 wedding save-the-dates through the mail on July 19 for her February wedding. Almost a month later, many of her Houston friends have yet to receive the letters.

“There seems to be no rhyme or reason, so I don’t really get it,” Nwankwo said of the sporadic deliveries.

When the soon-to-be bride contacted USPS, she said she was told her area was experiencing sorting delays. Now, with no way to track her letters, Nwankwo just has to wait it out.

Neither Nwankwo nor Lynch blame postal workers for the delays.

Carriers have a “really tough job” in worsening conditions, Lynch said. She’s started leaving bottles of water and thank you notes in the shade for postal workers to show her appreciation for their work.

“I think the delays we are experiencing locally are directly related to the system,” Lynch said. “Postal workers and their union want to serve the country, but their hands are tied.”

See here and here for some background. The potential consequences for some folks can be quite serious.

Operational changes at the U.S. Postal Service are causing delays in mail deliveries all over the country. A man in Humble said he had to go without his daily heart medication for a week due to the delays.

Don White, 82, said he has been tracking the package and said it remained at a north Houston mail processing facility for 10 days. He’s hoping to get in on Monday.

He said he’s irritated by the situation because his mail-order medication has never been this late before.

“There have been a few times in which it’s taken a week, week and a half, two weeks, but this is the first time I actually ran out and checking with the post office didn’t do much good, even though I had a tracking number on it,” White said.

He said in the meantime, his daughter has helped him get the medication at a local grocery store pharmacy.

Lucky for him he has someone nearby who can help him like that. Not everyone would be so fortunate.

There are lawsuits.

Let the Postal Service lawsuits begin. There are plenty of plaintiffs, including states. At least 20 state attorneys general are going to court over U.S. Postal Service delays and the threat to the November election, The Washington Post reports. “We’re trying to stop Trump’s attacks on the Postal Service, which we believe to be an attack on the integrity of election. It’s a straight-up attack on democracy,” Maryland Attorney General Brian Frosh, a Democrat, said in an interview. “This conduct is illegal. It’s unconstitutional. It’s harmful to the country. It’s harmful to individuals.

“We’re asking a court to make him stop,” he said. The ”we” in this case comprises Frosh’s fellow attorneys general from Washington State, the lead state in the case, as well as Colorado, Connecticut, Illinois, Massachusetts, Michigan, Minnesota, New Mexico, Oregon, Rhode Island, Vermont, Virginia, and Wisconsin. This suit names Donald Trump and Louis DeJoy, the postmaster general, as defendants. It and another suit from Pennsylvania, California, Delaware, Maine, Massachusetts, and North Carolina, among others, will argue that DeJoy and the Postal Service broke the law by making operational changes to slow service without the approval of the Postal Regulatory Commission. They will also argue that these changes, which they are seeking to reverse, will impede the states’ ability to run free and fair elections. All of the attorneys general signing on to these cases are Democrats, of course. They have all the standing they need: The Constitution gives states and Congress the power to run and regulate elections. “States have the right to conduct mail-in elections if they choose,” Frosh said. “Trump is trying to undermine that.”

Not Texas, of course. Our Attorney General doesn’t object to this kind of lawbreaking. But at least one prominent Texan finds this all disgraceful.

Austin resident Carolyn Lewis, a George W. Bush-era presidential appointee and 2009 chair of the USPS board of governors, told The Texas Tribune in a series of email and phone interviews Monday and Tuesday that she has been disturbed by reports of sweeping cost-cutting measures that led to a slowdown in the mail and raised concerns that the postal service will not be able to handle an influx of mailed-in ballots amid the COVID-19 pandemic.

“Mr. DeJoy is failing to fulfill the mission of the USPS to provide prompt and reliable mail delivery at a time when that mission is as important as it has ever been,” said Lewis, who served on the USPS board of governors from 2004 to 2010, in a Monday email interview with the Tribune. “He is also destroying confidence in the organization that will only make its long-term viability even harder to achieve. If he does not change course immediately I hope the [board of governors] makes a change in leadership quickly.”

[…]

Lewis’ tenure also marked a moment of transition for the postal service. With the onset of modern technology, like email, the era marked a call for modernization in order to preserve the USPS’ mission to deliver the mail to all reaches of the country in a timely fashion while also remaining financially viable.

But DeJoy’s approach to modernization “feels different in several ways,” she said.

Alluding to a dysfunctional confirmation process within the U.S. Senate that for the last 10 years left gaping vacancies on the board, Lewis said that the postmaster general and the current board members “are very new and have none of the institutional knowledge that is usually there when you have more staggered terms of Governors.”

“Yet they seem to be rushing ahead to make changes before having time to fully understand the impact of those changes on all the stakeholders and there are many: employees, mailers, Congress and the American public,” she said.

She also has not seen “evidence that the current leadership has communicated their overall plan and goals that are driving the specific actions they are taking,” and “there is clearly not a priority on ensuring prompt and reliable mail delivery or fulfilling the mission” of the USPS.

“I do not know for certain the motivation of the [postmaster general] and the Governors, but their actions are certainly inviting questions, and legitimately so,” she added.

It took a couple of days, but this issue now has the full attention of Congress.

Houston Democratic congressional delegates on Tuesday announced they will propose legislation that would give the U.S. Postal Service an emergency loan and reverse recent cutbacks.

Postmaster General Louis DeJoy announced Tuesday afternoon that he would suspend all recent changes to the postal service until after the November election.

“Even with the challenges of keeping our employees and customers safe and healthy as they operate amid a pandemic, we will deliver the nation’s election mail on time and within our well-established service standards,” said DeJoy in a statement. “The American public should know that this is our number one priority between now and Election Day.”

The postmaster general’s move did not satisfy Democratic lawmakers, who said legislation is needed to ensure the postal service can continue to operate at full capacity beyond November.

“What he’s proposing is not acceptable,” said U.S. Rep. Sheila Jackson Lee of DeJoy’s statement. “We need the changes to be reversed in totality forever. And that’s what the legislation is about.”

[…]

Previous legislation that passed in the U.S. House of Representatives would have provided the loan. Trump said he would block the funding.

The coming bill, also supported by U.S. Reps. Sylvia Garcia, Al Green and Lizzie Fletcher, would also make administrators within the postal service cease and desist from making any more cuts.

Jackson Lee said she will help oversee an investigation of the extent of recent reported actions directed by DeJoy, such as terminating mail sorting machines, reducing staffing and cutting back overtime at post offices across the country.

“We need to know whether there have been any civil rights violations or criminal acts taking place,” said Jackson Lee.

DeJoy will be testifying before Congress on Friday, and I hope it’s a painful experience for him. But clearly, simply agreeing to stop wrecking the place is insufficient. If I’m caught hauling bags of money from a bank vault, it is not sufficient for me to say “okay, fine, I won’t take any more money from the vault”. Vandals are expected to make restitution, and that should very much include Louis DeJoy. Daily Kos has more.

SCOTUS allows mercury regulations to remain in effect

Good.

Martin Lake coal plant

Martin Lake coal plant

The U.S. Supreme Court has denied a request from Texas and 19 other states to block a landmark federal rule requiring power plants to slash emissions of mercury, acid gases and other toxic metals — a setback for Texas Attorney General Ken Paxton in a case where he saw earlier success.

Without offering an explanation, Chief Justice John Roberts on Thursday denied the states’ request for a stay on the rules, according to media reports.

That decision followed a Supreme Court ruling last June — hailed by Texas Republicans — that the U.S. Environmental Protection Agency did not properly weigh the cost of compliance for coal-fired power plants against the benefits to public health while setting the new standards.

The June ruling sent the Obama Administration back to the drawing board on the regulations, which had already gone into effect. But it did not halt them.

The states, led by Michigan, had asked the justices to block the rules during the revision process. Roberts said no.

See here, here, and here for the background. Any day where Ken Paxton loses a fight to enable pollution is a good day. Think Progress has more.

We’re not #1 any more!

Looks like we’re going to need some new applause lines for our elected officials.

NumberOne

When it comes to job growth, some Rust Belt states are gaining an edge on Texas amid the fallout from plunging oil prices.

In January, Texas lost its spot as the nation’s top job creator. The state ranked No. 4 with 20,100 new jobs that month, trailing California (67,300 jobs) and the Rust Belt states of Ohio (25,100) and Michigan (24,200), according to data released Tuesday by the U.S. Bureau of Labor Statistics.

What’s going on?

Texas vs. Michigan is an example of an oil-price-induced shift happening in U.S. regional growth patterns, said Robert A. Dye, chief economist for Dallas-based Comerica Bank.

“In the last five years coming out of the Great Recession, the energy sector has driven growth in the oil-producing states from Texas to Wyoming, and that’s where the bulk of new jobs have been generated,” Dye said. “Now, what we’ve been seeing is those oil-producing states losing momentum and other states gaining momentum as they benefit from lower energy costs.”

Michigan, for example, recently has seen strong growth in manufacturing, gaining 5,000 jobs in January.

[…]

Michael Wolf, a Wells Fargo economist, isn’t too worried about Texas.

“The glaring negative comes from the [energy] industry,” he said. “Is it just the beginning of worse to come with low oil prices staying low? I’m not sure. But there’s a lot more going on in Texas than just oil.”

I’m sure that’s true, but let’s be honest. It was the oil and gas boom that led to such good job creation numbers in Texas to begin with. Without it, we’re just another big state. As long as our population keeps growing rapidly, we’ll continue to add jobs at a healthy pace regardless of what the energy sector does, but with relocations likely to slow down as oil and gas cut jobs and with the continued demagoguery about the border, who knows? Maybe the population growth will slow down, too. We’re in for some interesting times.

SCOTUS will take up same sex marriage

This is it.

The Supreme Court announced on Friday that it will take up four cases challenging state bans on same-sex couples’ marriages — a long anticipated move that could lead to nationwide marriage equality.

The cases ask the justices whether Kentucky, Michigan, Ohio, and Tennessee bans on same-sex couples’ marriages and bans on recognition of same-sex couples’ marriages from out of state violate the Constitution’s due process and equal protection guarantees.

The two questions granted by the court for argument are: 1) “Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?” and 2) “Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?”

There will be 90 minutes of argument on the marriage question and 60 minutes of argument on the marriage recognition question, per the court’s order.

The coming showdown before the justices over same-sex couples’ marriage rights has quickly become seen as inevitable following the Nov. 6, 2014, decision of the 6th Circuit Court of Appeals to uphold the bans in Kentucky, Michigan, Ohio, and Tennessee. The ruling set up a disagreement with other appeals courts to have considered the issue; the 4th Circuit, 7th Circuit, 9th Circuit, and 10th Circuit courts of appeals all have struck down such bans on various grounds.

[…]

The same-sex couples plaintiffs’ briefs will be due by 2 p.m. Friday, Feb. 27. The states’ briefs will be due by 2 p.m. Friday, March 27. The reply briefs from the plaintiffs will be due by 2 p.m. Friday, April 17.

Then, likely in late April, the justices will hold arguments over the issue — which would mean a decision, and possible nationwide resolution of the issue, would be expected by late June.

Freedom to Marry has reactions from many of the people that have been directly involved in the litigation, while TPM reports that the Obama administration will formally ask SCOTUS to rule in favor of same sex marriage. This is what we’ve been waiting for, and while I suppose it could all go horribly wrong it’s hard not to feel optimistic. I look forward to seeing the analyses of the case as the briefs get filed and replied to and whatnot. In the meantime, I wonder if this will spur the Fifth Circuit to issue its ruling prior to SCOTUS, or if they’ll be happy to let the Supremes take that task out of their hands. The Trib lists some possibilities:

  • At the very least, the Supreme Court’s ruling — which will likely come in June — will make the 5th Circuit’s decision in the Texas case less consequential, said Aaron Bruhl, an associate law professor at the University of Houston. The 5th Circuit could issue its decision in the case in a few weeks.
  • The Supreme Court’s action on Friday could also delay the 5th Circuit’s decision in the Texas case. “It is possible that at this point [the 5th Circuit] could say, ‘Whatever we say, the authoritative decision is going to come not too much later than we would rule anyway. Maybe we should just wait,'” Bruhl said.
  • Lawyers for each side in the Texas case have said they hope the 5th Circuit rules before the U.S. Supreme Court. Bruhl said it’s possible the parties in the case will ask the court to issue a ruling even though the Supreme Court has taken up the issue again.

I also wonder what the backlash from the bad guys will look like. If all goes well, this ruling could do a lot of good for a lot of people in Texas, but as we have seen, marriage is only a piece of the puzzle. There’s a lot more to be done, and it’s not clear yet who will be more energized by a nationwide defenestration of anti-gay marriage laws. But that’s a thought for another day. For now, let’s celebrate coming this far. SCOTUSBlog and Hair Balls have more.

Sixth Circuit stands up for inequality

It was bound to happen eventually.

RedEquality

Remember the big no-decision decision the Supreme Court issued on same-sex marriage just a month ago? The justices were asked — in five separate cases no less — to weigh in on whether same-sex couples have a constitutional right to marriage. The Supreme Court demurred on the question, which was a significant move in and of itself.

By declining to review any of the cases before it, the justices effectively blessed lower-court rulings that had struck down state gay marriage bans in five states. Circuit courts had been unanimous on the subject. So what more was there to say? Barack Obama even told Jeffrey Toobin recently that he thought this was the best Supreme Court decision of his tenure: a silent statement on the importance of letting cultural change spread across the country, one state at a time.

Well, so much for the power of silence. The U.S. Court of Appeals for the 6th Circuit just reversed rulings striking down gay-marriage bans in Michigan, Ohio, Kentucky and Tennessee. This means that four circuit courts have now struck down gay marriage bans, while one has upheld them. We no longer have unanimity. The Supreme Court, eventually, will have to step in.

The 6th Circuit decision is here. A lot of people had been waiting to see what the Fifth Circuit would do, if they would be the court that provided the circuit split that forced SCOTUS to act, but they took too long. They will still get a chance to have their say, of course, and perhaps now that they wouldn’t have to be the trailblazer for upholding this particular injustice they’ll feel more free to let their colors show. One hopes that in the end neither this ruling nor the one the Fifth Circuit is expected to make will matter. Daily Kos and Freedom to Marry have more.

Lots of same sex marriage appeals about to happen

Busy times in the federal appeals courts.

RedEquality

Federal appeals courts soon will hear arguments in gay marriage fights from nine states, part of a slew of cases putting pressure on the U.S. Supreme Court to issue a final verdict.

If the appeals judges continue the unbroken eight-month streak of rulings in favor of gay marriage, that could make it easier for the nation’s highest court to come down on the side of supporters.

If even one ruling goes against them in the four courts taking up the issue in the coming weeks, it would create a divide that the Supreme Court also could find difficult to resist settling.

“We’re going to be racking up more courts of appeals decisions, and every one we get puts more pressure on the Supreme Court to weigh in,” said Douglas NeJaime, a law professor at the University of California-Irvine. “It’s very likely the Supreme Court ultimately settles this question. Given how quickly things have moved, it’s hard for the court to avoid this in the short term.”

[…]

Arguments similar to those [that were] heard Wednesday will take place Aug. 26 in the 7th Circuit in Chicago, for bans in Wisconsin and Indiana, and for Sept. 8 in the 9th Circuit in San Francisco, for bans in Idaho and Nevada. The 5th Circuit in New Orleans is expected to soon set a date to hear arguments on Texas’ ban.

The flurry of arguments means an upcoming spate of rulings, possibly all issued this autumn, that could profoundly alter the nation’s marriage laws.

If the four federal circuit appeals courts rule in favor of gay marriage, then nine states with pending appeals stand to have their bans stricken down altogether or ordered to recognize out-of-state gay marriages: Ohio, Michigan, Tennessee, Kentucky, Texas, Indiana, Wisconsin, Idaho and Nevada, though the decisions likely would be put on hold for a Supreme Court ruling.

Five additional states under those four circuit courts have gay marriage lawsuits awaiting decisions by federal judges: Alaska, Arizona, Louisiana, Mississippi and Montana.

Observers say the 6th or 5th circuits could deliver the first victory for gay marriage opponents.

We know about the Sixth Circuit, in which arguments were heard this week. We still don’t know when the Fifth Circuit will hear arguments there, but we do know that 63 Texas legislators have signed a brief in the appeal in which they declare that same sex marriage is icky and they totally have Greg Abbott’s back. Hey, remember when something like that would have been bipartisan? This one was an all-R effort, with the TDP and these troglodytes’ two LGBT colleagues firing back. I’m so glad those days are over, even if there are still a few laggards on the issue. In any event, the national picture will almost certainly be a lot clearer, or a lot more complicated, in the next few months.

Marriage equality’s legal winning streak may be on the line this week

And it’s not even the Fifth Circuit Court of Appeals that might bring a halt, however temporary, to the march of progress.

RedEquality

Marriage equality has had a very good run in the federal courts ever since the Supreme Court declared the anti-gay Defense of Marriage Act unconstitutional in 2013. Every single federal court to consider the question has sided with marriage equality, although two federal appellate judges have dissented from this consensus view in the United States Courts of Appeals for the Fourth and the Tenth Circuits.

Nevertheless, equality is likely to face more skeptical judges as more of these cases advance to the court of appeals level. As ThinkProgress warned last June, “appointments to federal circuit courts have historically been much more politically charged than appointments to the lower-ranking district courts, so litigants are far more likely to encounter a judge who was selected for their loyalty to a particular ideology.” We also predicted that the Sixth Circuit, with a strong Republican majority and a history of partisan acrimony, was especially likely to treat a marriage equality case with skepticism.

Next Wednesday, a three-judge panel of the Sixth Circuit will convene in Cincinnati to hear several marriage equality cases arising out of Michigan, Ohio, Kentucky and Tennessee — and the GOP-dominated panel that will hear these cases is unlikely to bring joy into the hearts of equality’s supporters.

If the Sixth Circuit really wants to accept a bunch of ridiculous and widely discredited arguments on behalf of discrimination, there’s not much anyone can do to stop them. History will remember them unkindly, but I suppose we’ll all be dead by then, so YOLO and all that. As the story notes, there’s a chance it might not go down this way, so let’s not get ahead of ourselves. In the end, even a bad decision just means that the Supreme Court will have to take it up sooner rather than later.

Michigan, come on down

You are the next state to have your anti-same sex marriage law thrown out by a federal judge.

RedEquality

In a historic ruling that provided a huge morale boost to the gay-rights movement, U.S. District Judge Bernard Friedman today struck down Michigan’s ban on same-sex marriage, making it the 18th state in the nation to allow gays and lesbians to join in matrimony, just like their heterosexual counterparts.

And unlike other federal judges who have decided similar cases across the country, Friedman did not stay his ruling, prompting Michigan Attorney General Bill Schuette to file an emergency stay request to prevent gay couples from marrying right away. That includes the two plaintiffs in the case: Hazel Park nurses April DeBoer and Jayne Rowse, who fought for the right to marry and adopt each other’s special needs children.

“It’s just amazing,” said DeBoer, who wiped tears and hugged her parnter after learning of Friedman’s ruling. “This is what we’ve wanted for our family and families like ours…we are just so happy … We got our day in court and we won.”

Rowse was overwhelmed.

“We’re going to actually be a legalized family, a recognized family by everybody,” she said.

In his 31-page ruling, Friedman heavily criticized the state’s position that the will of the voters should have been upheld, noting that just because voters approve something doesn’t make it right, especially when it violates the Constitution.

“In attempting to define this case as a challenge to ‘the will of the people,’ state defendants lost sight of what this case is truly about: people.

“No court record of this proceeding could ever fully convey the personal sacrifice of these two plaintiffs who seek to ensure that the state may no longer impair the rights of their children and the thousands of others now being raised by same-sex couples,” Friedman wrote.

“It is the court’s fervent hope that these children will grow up to ‘understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.’

“Today’s decision is a step in that direction, and affirms the enduring principle that regardless of whoever finds favor in the eyes of the most recent majority, the guarantee of equal protection must prevail.”

[…]

Unlike most federal judges who have taken up the gay-marriage issue, Friedman opted last fall to hold a trial and give both sides the chance to present their arguments and scientific evidence – the bulk of which focused on same-sex parenting studies and child outcomes of children raised in such family structures.

The state’s experts said that their studies show that children of same-sex couples have poorer outcomes than kids raised by married moms and dads.

Friedman didn’t find the state’s experts credible, stating in his ruling that the testimony of one state witness was “entirely unbelievable and not worthy of serious consideration.” He said the states four witnesses “clearly represent a fringe viewpoint that is rejected by the vast majroity of their colleagues across a variety of social science fields.”

You can read a copy of the ruling here. You may have heard of one of the state’s witnesses:

University of Texas sociologist Mark Regnerus, who authored a 2011 New Family Structures Study, testified during the trial that children are better off being raised by a mother and father. Regnerus testified that the “odds are against” gays and lesbians raising children and that the state of Michigan should be “prudent” before changing its law because research into the area is too new.

This is why you might have heard of Mark Regnerus.

Opponents of same-sex marriage say [the Regnerus study is] the best evidence yet that children raised by gay parents suffer a disadvantage. Most experts take a different view—like Darren Sherkat, the sociologist who was tasked with completing a definitive review in 2012, they think “It’s bullshit.”

The study’s formal title is “How Different Are the Adult Children of Parents Who Have Same-Sex Relationships?”—and it set off a storm of criticism almost immediately upon publication in 2012. The New York Times’ Erik Eckholm summarized it neatly on Friday, but the story is worth revisiting here—primarily because, no matter how many times and ways other scholars try to discredit the study, it continues to shape policy in state legislatures and amicus briefs. Michigan is only the latest example.

It’s been the same bullshit used by defenders of these awful laws in case after case, and in case after case they’ve gotten their rear ends handed to them. Couldn’t have happened to be a better bunch of people. As this ruling wasn’t stayed, expect a whole lot of couples to show up at their county clerks’ offices on Monday seeking marriage licenses. I wish them all the very best. Daily Kos and Freedom to Marry have more.