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Republicans threaten businesses over abortion access

If you didn’t see stuff like this coming, you haven’t been paying attention.

With Texas poised to automatically ban abortion if the U.S. Supreme Court overturns Roe v. Wade, some Republicans are already setting their sights on the next target to fight the procedure: businesses that say they’ll help employees get abortions outside the state.

Fourteen Republican members of the state House of Representatives have pledged to introduce bills in the coming legislative session that would bar corporations from doing business in Texas if they pay for abortions in states where the procedure is legal.

This would explicitly prevent firms from offering employees access to abortion-related care through health insurance benefits. It would also expose executives to criminal prosecution under pre-Roe anti-abortion laws the Legislature never repealed, the legislators say.

Their proposal highlights how the end of abortion would lead to a new phase in — not the end of — the fight in Texas over the procedure. The lawmakers pushing for the business rules have signaled that they plan to act aggressively in the next legislative session. But it remains to be seen if they’ll be able to get a majority on their side.

The members, led by Briscoe Cain, R-Deer Park, laid out their plans in a letter to Lyft CEO Logan Green that became public on Wednesday.

Green drew the lawmakers’ attention on April 29, when he said on Twitter that the ride-share company would help pregnant residents of Oklahoma and Texas seek abortion care in other states. Green also pledged to cover the legal costs of any Lyft driver sued under Senate Bill 8, the Texas law that empowers private citizens to file lawsuits against anyone who assists in the procurement of an abortion.

“The state of Texas will take swift and decisive action if you do not immediately rescind your recently announced policy to pay for the travel expenses of women who abort their unborn children,” the letter states.

The letter also lays out other legislative priorities, including allowing Texas shareholders of publicly traded companies to sue executives for paying for abortion care, as well as empowering district attorneys to prosecute abortion-related crimes outside of their home counties.

Six of the 14 signers, including Cain, are members of the far-right Texas Freedom Caucus. How much political support these proposals have in the Republican caucus is unclear. House Speaker Dade Phelan, R-Beaumont, declined to comment. Lt. Gov. Dan Patrick and Gov. Greg Abbott did not respond.

Since the legislative session is more than seven months away, Cain said in an email that “a quickly drafted and sent letter can hardly be said to reflect the pulse of my Republican colleagues.” He was confident, however, that his ideas would find some support in the Senate.

“Knowing that chamber and its leadership, I’m willing to bet legislation targeting this issue will be promptly filed in January,” Cain said.

But doing so would likely mean targeting companies that the state has wooed as potential job creators. Tesla, for instance, announced this month that it would pay for employees’ travel costs when they leave the state to get an abortion. Abbott celebrated the electric car company’s move to Austin last year and this year urged its CEO, Elon Musk, to move Twitter’s headquarters to Texas, too, if he completes his purchase of the social media firm.

Joke all you want about how Republicans used to be the party of big business, because that hasn’t really been true for awhile. They’re the party of “give us your donations and keep your mouth shut about anything we don’t like regardless of what your employees and customers and stockholders say and maybe we’ll leave you alone and toss you a tax cut” now. You may say that it’s unthinkable that Republicans might actually chase large employers out of the state, but a lot of unthinkable things have been happening lately. Remember how the business community helped defeat the “bathroom bill” in 2017, and issued sternly-worded statements about voting rights and further anti-trans bills last year? How’s that been going?

We are living in Briscoe Cain’s Texas now. If he doesn’t get what he wants now – and mark my words, he wants to arrest people who have anything at all to do with abortion – he’ll get it next time, as long as his Republican Party is in charge. The business community needs to recognize that they are right in the crosshairs along with the rest of us. Daily Kos has more.

The coming fight over medical abortion

Sure is a good thing SCOTUS will leave this up to the states, isn’t it?

Republican-led states are moving swiftly to restrict access to medication abortion.

The efforts so far have focused on regulations around the pills, such as banning them from being shipped or prescribed. But can states ban the actual abortion pill itself, even though the Food and Drug Administration has approved it? That question could be the next frontier in the abortion wars.

The short answer comes down to this: The issue isn’t settled law and will likely be litigated in the courts. Some argue states may be hard-pressed to ban the federally approved medication, though antiabortion advocates disagree.

[…]

Some states have introduced bills focused on banning abortion pills, but they haven’t gotten a lot of traction, per Elizabeth Nash, an interim associate director at Guttmacher Institute, a research group that supports abortion rights. (A recent exception is Oklahoma, whose Republican governor is poised to sign legislation banning abortions – including medication abortions – from the moment of “fertilization.”)

Rather, states are banning the practice of medicine around the pills. For instance: At least 19 states ban the use of telehealth for medication abortion, and some states have additional restrictions, like prohibiting pills from being mailed.

Yet, if Roe v. Wade is overturned, some states may try to ban the actual medication. And states already have gestational limits and other abortion bans on the books that could kick in quickly if Roe is overturned — and those likely encompass limitations on the pills, experts said.

Can states ban a medication the FDA has signed off on?

There’s no clear precedent here.

Some states may argue they can ban medication abortion because states have the authority to regulate the practice of medicine. The FDA, on the other hand, is the acknowledged authority on medical products, such as the abortion pill. But the line between medical practice and medical products is not always clear.

And if a state squared off against the federal government over an FDA-approved drug … “We don’t know how the court would rule. It’s an open question,” Patti Zettler, an associate professor of law at Ohio State University and former associate chief counsel in the FDA’s Office of the Chief Counsel.

See here for some background. Reminder #1: The state of Texas has made it a felony to provide abortion medication after seven weeks, after having already banned anyone but doctors from dispensing such medication, and only via an in-person office visit – no telemedicine. You can be sure that Texas will take this to the next level in the next legislative session if it is in position to do so.

Reminder #2: The same medicine that is used for abortion is also used to treat miscarriages. Needless to say, women who are suffering through a miscarriage will face – and as that story notes, are already facing – barriers to medical care that could threaten their health, their future ability to get pregnant and carry a child to term, and even their lives. That’s our future, and if you think I’m being alarmist, go back and read all those soothing articles about how this Supreme Court was never ever going to overturn Roe v Wade because it would cause too much upheaval.

State Bar complaint filed against Ted Cruz

Good.

Not Ted Cruz

A group of lawyers want the State Bar of Texas to investigate Republican U.S. Sen. Ted Cruz for his “leading” role in attempting to overturn the 2020 presidential election results.

Lawyers with the 65 Project, an organization aiming to hold attorneys accountable for trying to keep former President Donald Trump in power despite his reelection loss, filed an ethics complaint with the association Wednesday. It cites Cruz’s role in a lawsuit seeking to void absentee ballots, numerous claims he made about voter fraud, plus an attempt to stop four states from using 2020 election results to appoint electors — all of which failed.

“Mr. Cruz knew that the allegations he was echoing had already been reviewed and rejected by courts. And he knew that claims of voter fraud or the election being stolen were false,” the complaint says.

[…]

Cruz represented Pennsylvania Republicans in their efforts to cast out nearly all 2020 absentee ballots in their state, which the Pennsylvania Supreme Court rejected. Cruz accused the state court of being “a partisan, Democratic court that has issued multiple decisions that were just on their face contrary to law.”

The complaint wants to see Cruz disciplined. It does not say how, though it mentions a New York appellate court’s suspension of Rudy Giuliani’s law license. Guiliani was one of Trump’s lawyers who also repeated false voter fraud claims.

Cruz also agreed to represent Trump in a Texas lawsuit aiming to bar Pennsylvania, Georgia, Michigan and Wisconsin from using its election results. The complaint argues Cruz pushed forward with a frivolous claim, which the U.S. Supreme Court quickly denied.

Here’s the 65 Project webpage; the “65” refers to the “65 lawsuits based on lies to overturn the election and give Trump a second term” that were filed by “an army of Big Lie lawyers. You can see the complaint filed against Cruz here, and the tracker they have of other complaints here. There were several filed on March 7 of this year; the one filed against Cruz was the first since then. None have been resolved yet so it’s too soon to say how effective this group will be. The one thing I can say is that this group was not involved in any of the State Bar complaints against Ken Paxton. Here’s a Vanity Fair story dated March 8 with some background on the group and its members.

Will this work? The State Bar complaints against Paxton over his dangerous and frivolous lawsuit against four Biden-won states is proceeding, though the formal lawsuit that represents the next step has not yet been filed as far as I can tell. I’d say there’s a reasonable argument that Paxton was more directly involved in the seditious and unethical behavior than Cruz was, which may make the State Bar less receptive to the filers’ case, but he wasn’t just a bystander either. Given how long it’s taken the Paxton case to get to a resolution point I’d say don’t hold your breath waiting on something to happen with this one. If it does move forward, great. Hope for the best. But do please put your energy into beating Ted Cruz in his next election, and if he steps away from the Senate to run for President do what you can to elect a Democrat to replace him. That will ultimately have a much bigger effect.

One more thing: This NYT story is headlined “Group Seeks Disbarment of Ted Cruz Over Efforts to Overturn 2020 Election”. While the complaint lays out multiple alleged violations of the Texas Disciplinary Rules of Professional Conduct (TDPRC), it does not suggest a remedy. Instead, it merely asks that the State Bar investigate and “apply the standards set for lawyers within the TDRPC, and impose sanctions against Mr. Cruz for violating those requirements”. Certainly, based on the complaints against Paxton for similar behavior, having Cruz’s law license suspended would be on the table if the State Bar were to rule against him, but I presume there would be other options as well. We’ll see if and when it ever gets that far. TPM has more.

UPDATE: Texas Lawyer provides a bit more detail.

In Cruz’s case, the 65 Project alleges he agreed to act as a lawyer in litigation before the U.S. Supreme Court in two bogus cases, Kelly v. Pennsylvania and Texas v. Pennsylvania. Acting in tandem with Trump’s legal team, Cruz had a significant role in an “anti-democratic plot, intentionally amplifying false claims about the 2020 election on multiple occasions,” the complaint states.

The Texas v. Pennsylvania lawsuit, filed by Paxton and Assistant Attorney General Brent E. Webster, has to date resulted in a State Bar lawsuit against Webster in Williamson County’s 368th District Court. Also, Paxton acknowledged on May 6 that the bar would be filing suit against him.

The Commission for Lawyer Discipline’s petition in the Webster case is instructive in that it lays a roadmap for how the bar might proceed against Paxton and Cruz.

The Texas v. Pennsylvania suit, which also challenged the vote count in Georgia, Michigan and Wisconsin, alleged without evidence several forms of vote rigging.

“Respondent’s representations were dishonest. His allegations were not supported by any charge, indictment, judicial finding, and/or credible or admissible evidence, and failed to disclose to the court that some of his representations and allegations had already been adjudicated and/or dismissed in a court of law,” the commission’s petition states.

The filing against Webster refers to the bar rule against lawyers engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

See here for more on the Webster case. We’ll see if indeed the State Bar follows this roadmap.

Texas asks SCOTUS to not block its stupid social media law

As you’d expect.

The Supreme Court should allow a sweeping Texas law to remain in effect that restricts the ability of Facebook, Twitter and YouTube to moderate their platforms, according to the state’s attorney general.

In a filing to the Court on Wednesday, Texas argued that its law, HB 20, which prohibits large social media firms from blocking, banning or demoting posts or accounts, does not violate the First Amendment.

It contrasts with claims by opponents, including the tech industry, that the legislation infringes on the constitutional rights of tech platforms to make editorial decisions and to be free from government-compelled speech.

[…]

A group of states led by Florida has also submitted a Court filing defending Texas’s law. The friend-of-the-court brief, which was authored by a dozen states including Alabama, Arizona, Kentucky and South Carolina, among others, reflects how the legal battle over HB 20 has nationwide ramifications.

Justice Samuel Alito is currently considering whether to grant an emergency stay of a lower court decision that had allowed the law to take effect last week. The law is being challenged by advocacy groups representing the tech industry.

[…]

The case has already drawn “friend of the court” briefs from interested third parties including groups such as the Anti-Defamation League and the Texas State Conference of the NAACP, who urged the court to block the law, arguing it will “transform social media platforms into online repositories of vile, graphic, harmful, hateful, and fraudulent content, of no utility to the individuals who currently engage in those communities.”

Also seeking to file a third-party brief was former Rep. Chris Cox, co-author of the tech platform liability shield known as Section 230 of the Communications Decency Act, a federal law that explicitly permits websites to moderate content and which has become a lightning rod in the wider battle over digital speech.

Social media operators have repeatedly cited Section 230 to successfully nip many suits in the bud concerning user-generated content. But HB 20 conflicts with Section 230 by saying platforms can be sued in Texas for moderating their online communities, raising questions about the future of the federal law that’s been described as “the 26 words that created the internet.”

See here and here for some background. Alito will either issue a decision on his own or refer the matter to the full court. Insert shrug emoji here.

SCOTUS asked to again block that stupid social media censorship law

Please save us from the lawless Fifth Circuit. Having to make such an ask of this SCOTUS sure is a jaw-grinding experience.

Lobbying groups representing Facebook, Twitter, Google and other tech companies filed an emergency request with the U.S. Supreme Court on Friday, seeking to block a Texas law that prohibits large social media platforms from banning users based on their political views.

The Texas law went into effect on Wednesday when the 5th U.S. Circuit Court of Appeals granted the state’s request for a stay of a district judge’s injunction blocking the law.

The law forbids social media companies with more than 50 million active users per month from banning members based on their political views and requires them to publicly disclose how they moderate content.

[…]

Internet lobbying groups NetChoice and the Computer & Communications Industry Association filed a lawsuit against the measure, and U.S. District Judge Robert Pitman in Austin, Texas, issued a preliminary injunction in December.

Pitman had found that the law would harm social media companies’ free speech rights under the First Amendment of the U.S. Constitution.

The tech groups, in their emergency request, asked the Supreme Court to “allow the District Court’s careful reasoning to remain in effect while an orderly appellate process plays out.”

See here for the previous update, and here for a more detailed analysis of why the Fifth Circuit’s no-words ruling was so bad. You know how much faith I have in this court to ever do the right thing, but maybe this was a bridge too far. Maybe. Ars Technica and The Verge have more.

How will the evisceration of abortion rights affect the election in Texas?

I don’t know. You don’t know. Nobody knows.

Less than two hours after Politico reported Monday evening that the U.S. Supreme Court appeared ready to overturn Roe v. Wade, Beto O’Rourke leaped into action.

“It’s never been more urgent to elect a governor who will always protect a woman’s right to abortion,” the Democratic gubernatorial candidate tweeted.

The next morning, he hosted an Instagram Live with Cecile Richards, the former president of Planned Parenthood and the newest member of his campaign. By noon, he emailed supporters asking for a donation to help him fight for reproductive rights. He quickly scheduled abortion rights events in Austin and Houston through the end of the week.

O’Rourke, who is polling 11 points down from Gov. Greg Abbott, is seizing on a moment that Democrats have long feared was coming — the end of a constitutional protection for the right to have an abortion. But many Democrats said they’re hopeful that the looming threat of such a stunning political sea change could provide the strongest opportunity yet to energize their voters heading into an election year in which Republicans have been expected to dominate in Texas and beyond.

“Everyone’s got to pull their oar in the same direction, and we’ve got to do it with a common purpose,” said Wendy Davis, a former Democratic state senator who rose to prominence in 2013 for a 13-hour filibuster of a bill to restrict abortion access in Texas. “I know I intend to really lean into that message as we go into November — that we have a real opportunity to break through and elect Democrats at the statewide level from Beto O’Rourke down in a way that we haven’t before.”

The poll cited is one by the Texas Politics Project; It was from mid-April, so well before the draft opinion leaked. It was also the first poll result we’ve seen since mid-March, and looking at the Reform Austin poll tracker, it’s on the high end of results for Abbott. I suppose it made sense to cite the most recent polling data, but a little more context might have helped.

Beyond that, who knows? Maybe there will be a polling effect – the first national poll since the opinion leaked didn’t show much of an effect, but it’s very early days. It’s also important to remember that the words and actions, or lack of actions, by the various political actors will have their own effect, either to amplify or dampen people’s initial reactions. We also don’t know how long any of this may last, or if the official release of the opinion, whether toned down a bit or not, will stir everything up again or just get an echo of the current reaction since it will be in a sense old news. There’s a 100% chance that numerous red states will use the Dobbs ruling as a springboard for all kinds of crazy things, and who knows how that will go. Right now, there are big crowds attending protest rallies and Beto events that are doubling as protest rallies; Beto’s been drawing good crowds for months now, but the protest part of it is new. How long will that last? What will Greg Abbott and his team of dark artists do with the millions he’s been hoarding in response? What might come along to take attention away from what is happening now? Like I said, I don’t know. Neither do you, and neither does anyone else. We’ll all learn about it in real time.

More State Bar disciplinary stuff

A new twist, as a new player enters the picture.

Best mugshot ever

The Texas State Bar has filed a suit in Williamson County district court against First Assistant Attorney General Brent Webster for his involvement in the state’s lawsuit seeking to overturn the results of the 2020 election, alleging Webster committed professional misconduct by making false and misleading statements in the petition.

A similar disciplinary suit is expected against Paxton, who reiterated Friday his contention that the group is targeting him because it disagrees with his politics. As of Friday afternoon, no suit had been filed.

Texas’ 2020 suit before the U.S. Supreme Court was almost immediately tossed, and Trump’s own Justice Department found no evidence of fraud that could have changed the election’s outcome. The bar is treating the case as a frivolous lawsuit as it seeks sanctions including possible disbarment for the two public officials.

“I stand by this lawsuit completely,” Paxton said on Twitter. “I am certain that the bar will not only lose, but be fully exposed for what they are: a liberal activist group masquerading as a neutral professional association.”

Then-Solicitor General Kyle Hawkins, the state’s chief litigator who resigned about a month after the election challenge was tossed, was notably absent from the filing, though Hawkins never explained why, raising questions about whether he supported the legal challenge. Solicitor generals are typically involved in all major appellate litigation.

[…]

The bar complaints against Paxton and Webster alleged that their petition to overturn the 2020 election was frivolous and unethical, and that it includes statements that they knew to be false. In Webster’s case, it is clear that the bar agrees.

“Respondent’s representations were dishonest,” the suit states. “His allegations were not supported by any charge, indictment, judicial finding, and/or credible or admissible evidence, and failed to disclose to the court that some of his representations and allegations had already been adjudicated and/or dismissed in a court of law.”

The suit also alleges that Webster “misrepresented” that Texas had “uncovered substantial evidence,” raising doubts about the integrity of the election and had standing to sue before the U.S. Supreme Court. The four battleground states that Texas sued — Georgia, Pennsylvania, Michigan, and Wisconsin — were then forced to have to spend time, money and other resources responding to these claims, it said.

The suit does not specify what type of punishment the bar recommends for Webster.

The suit against Webster was sparked by a March 2021 complaint by Brynne VanHettinga, an former member of the bar who described herself as a “citizen concerned about fascism and illegal overthrow of democracy.” VanHettinga could not be immediately reached Friday.

See here and here for some background. Looking at that Trib story that I based yesterday’s post on, I see it also includes a couple of paragraphs about the action against Brent Webster, who replaced Jeff Mateer after he was purged as a whistleblower against Paxton, and who co-authored the self-exoneration report from that saga. I was not aware of any State Bar complaints against Webster in this matter – the two against Paxton were filed after the VanHettinga complaint against Webster. A Google News search on VanHettinga’s name only yielded the Chron and Trib stories. You can see what a challenge it is to keep up with all this.

As for the Paxton piece of it, this is more of the story I blogged about yesterday. The main thing to learn, which the Trib story also noted, is that there hasn’t yet been a lawsuit filed against Paxton. It sounded like that would be filed in Travis County when it happens, but maybe this means it will happen in Williamson instead. Since it seems that the judge will be selected from the broader judicial administrative region, it’s not clear that where the trial itself is matters.

Paxton whines about the disciplinary process he selected

My head hurts.

Best mugshot ever

Texas Attorney General Ken Paxton, the state’s top lawyer, said Friday the state bar was suing him for professional misconduct related to his lawsuit challenging the 2020 presidential election.

“I have recently learned that the Texas State Bar — which has been waging a months-long witch-hunt against me — now plans to sue me and my top deputy for filing Texas v. Penn: the historic challenge to the unconstitutional 2020 presidential election joined by nearly half of all the states and over a hundred members of Congress,” Paxton said in a statement released on social media. “I stand by this lawsuit completely.”

A few hours after saying he was being sued by the bar, Paxton’s office announced an investigation into the Texas Bar Foundation for “facilitating mass influx of illegal aliens” by donating money to groups that “encourage, participate in, and fund illegal immigration at the Texas-Mexico border.” The foundation is made up of attorneys and raises money to provide legal education and services. It is separate from the State Bar of Texas, which is an administrative arm of the Texas Supreme Court.

Representatives for the Texas Bar Foundation could not immediately be reached for comment. Trey Apffel, executive director of the State Bar of Texas, said the bar and the foundation are privately funded and don’t receive taxpayer funds.

“The foundation is separately funded through charitable donations and governed by its own board of trustees,” Apffel said. “While we are unsure what donations are at issue here, we are confident that the foundation’s activities are in line with its mission of enhancing the rule of law and the system of justice in Texas.”

Paxton, an embattled Republican seeking a third term, said state bar investigators who now appear to be moving on a lawsuit against him are biased and said the decision to sue him, which comes a week before early voting in his GOP runoff for attorney general, was politically motivated. He is facing Land Commissioner George P. Bush in the May 24 election.

“Texas Bar: I’ll see you and the leftists that control you in court,” he said. “I’ll never let you bully me, my staff or the Texans I represent into backing down or going soft on defending the Rule of Law — something for which you have little knowledge.”

In fact, the investigation into Paxton has been pending for months. Last July, a group of 16 lawyers that included four former state bar presidents filed an ethics complaint against Paxton arguing that he demonstrated a pattern of professional misconduct, including his decision to file a federal lawsuit seeking to overturn the 2020 presidential elections in battleground states where former President Donald Trump, a Paxton ally, had lost. The attorneys said the lawsuit was “frivolous” and had been filed without evidence. The U.S. Supreme Court dismissed it, saying Texas had no standing to sue.

In March, the investigation moved ahead and Paxton was given 20 days to decide whether he wanted a trial by jury or an administrative hearing to resolve the complaint.

On Friday, a spokesperson for the state bar said the group had not been notified of a decision. Jim Harrington, a civil rights attorney and one of the lawyers who filed the ethics complaint, said he also had not been notified of a trial but that Paxton would have received notification.

“I was as surprised as you were to see that tweet this morning,” Harrington said.

See here for some background. You may note that happened in early March, almost two months ago, which is considerably more than 20 days. I don’t know if time moves more slowly in this context or if there just wasn’t any mechanism to enforce the decision Paxton had to make. Whatever the case, he made it and now he’s fundraising off of it. At least that much is par for the course, at least for him. While this case will be heard in Travis County, the judge who oversees it will be selected from the Texas Judicial Branch’s administrative region, which is a fairly large area. I don’t know how any of that works, either – this whole thing is kind of a black box. But it’s moving along, which is more than we can say for some other messes involving Ken Paxton.

UPDATE: Via email, a statement from the Texas Bar Foundation:

“The Foundation is extremely disappointed to learn that AG Paxton has decided to use taxpayer dollars on a fruitless exercise. Had AG Paxton taken the time to come and speak with us rather than issue a press release, I am confident that he would have found no wrongdoing on the part of the Foundation. Nevertheless, the Foundation is happy to cooperate and provide the AG’s office with documents and information relevant to the investigation.

Thousands of Texans have had their lives changed because of grants received from the Texas Bar Foundation. General Paxton is misinformed. The Foundation does not receive funding from taxpayer dollars. To the contrary, our grants are made possible by the generosity of Texas lawyers. We receive voluntary contributions from the Fellows of the Foundation, and those contributions enable the Foundation to award millions of dollars in grants. We will proudly continue to award grants to much-needed charities throughout Texas going forward.”

There’s a story in today’s Chron that has more information than this Trib story. I’ll do a separate post on that.

Abbott sees another opportunity to hurt children

He is definitely making this a habit.

Gov. Greg Abbott wants to “resurrect” a court challenge over a 1975 Texas law withholding state funds from school districts for kids who were not “legally admitted” into the United States. That law was struck down by the Supreme Court in 1982.

He made the remarks in an interview Wednesday on the Joe Pags radio show.

“The challenges put on our public systems is extraordinary,” Abbott said before referencing Plyler v. Doe, the ruling that overturned the Texas law. “I think that we will resurrect that case and challenge this issue again because the expenses are extraordinary and the times are different than when Plyler v. Doe was issued many years ago.”

In that case, the court ruled that “education has a fundamental role in maintaining the fabric of our society,” and withholding it from the children of immigrants in the country without paperwork “does not comport with fundamental conceptions of justice.” People living without documentation in the country remain people “in any ordinary sense of the term” and are thus entitled to the same basic rights as anyone else in the country.

We’re going to see a lot more of this, because people like Abbott have realized that SCOTUS is now a cheat code for achieving whatever policy ends they want, without having to legislate them. You could say that the policy he seeks to achieve here is the reversal of one that had been done via the court and not the legislative process. The difference is that the litigants in the Plyler case had to win on the merits and could have lost. They didn’t get to count on having a majority on the court that was ideologically on their side and willing to use their power towards that end.

If you can’t see what a public policy disaster it would be, not to mention a moral catastrophe, to prevent children from getting an education, I’m really not sure what to tell you. As Stace says, it’s yet another reason to vote Abbott and the rest of his crew out of office in November. TPM, Daily Kos, the Texas Signal, and Amanda Marcotte have more.

Southlake keeps on Southlaking

On brand.

Seven months after teachers at the Carroll Independent School District in Southlake, Texas, went public with their concerns about an administrator’s advice to balance books on the Holocaust with titles that show “opposing” perspectives, district employees this week discovered that a new clause had been added to their annual employment contracts, listed under the heading: “Non-Disparagement.”

“You agree to not disparage, criticize, or defame the District, and its employees or officials, to the media,” it read.

Four Carroll teachers, speaking on the condition that they not be named because they feared retaliation, said they were disturbed by the new contract language.

“Only a district that is knowingly doing something wrong would choose to silence its entire staff,” one of them wrote in a text message to a reporter on Thursday.

“I hadn’t yet decided if I was going to leave, but it seems the district decided for me!” another wrote.

Officials for both the National Education Association and the Texas State Teachers Association, unions that represent teachers nationally and across Texas, condemned the contract language as an attempt to silence teachers.

“This is the first time we have heard of a school district putting that language into a teacher contract,” said Clay Robison, a spokesman for the Texas State Teachers Association. “It is a rejection of a teacher’s fundamental First Amendment rights. A teacher also is a taxpayer, who is entitled to criticize a public school district.”

Michael Leroy, a labor law expert at the University of Illinois Urbana-Champaign, said that prohibiting public school employees from criticizing their district “is absolutely indefensible under the Constitution,” adding that the new clause in Carroll’s teacher contracts is “clearly unconstitutional. I mean, that’s not even a close call.”

Nondisparagement clauses are more common in the employment contracts of private companies, which are not subject to the First Amendment, Leroy said.

[…]

Leroy, the University of Illinois law professor, said the nondisparagement clause appears to violate a half-century-old U.S. Supreme Court precedent that established the right of government employees to speak on matters of public importance, even if it means criticizing their employer.

In that 1968 case, Pickering v. Board of Education, the court found that a school district in Illinois violated a teacher’s First Amendment rights when it fired him for writing a letter to a local newspaper criticizing the school board for prioritizing funding for athletics over teacher salaries.

“If a teacher, and for that matter if a public employee, is speaking on a matter of public concern, it is protected speech,” Leroy said, noting that the only time he’s seen government employees asked to sign a nondisparagement clause has been in settlement agreements after public employees have been fired, not as a condition of their employment.

Two other labor law experts agreed that a blanket ban on teachers criticizing a public school district is probably unconstitutional.

A Carroll teacher, texting a reporter from her lunch break, summarized her reaction to the new contract language this way: “It seems like if we say anything to anyone then we’re screwed. What happened to freedom of speech?”

See here for the previous example. Maybe they need Elon Musk to buy Carroll ISD, if he has any cash left over after Twitter.

The polling data on abortion in Texas

From the Trib:

At a time when Texas is poised to outlaw the vast majority of abortions if the nation’s highest court overturns constitutional protections for the procedure, a recent University of Texas at Austin poll shows most Texan voters think access to abortion should be allowed in some form.

Texas would make performing most abortions a felony if the U.S. Supreme Court overturns Roe v. Wade — a future that looks considerably more likely after a nonbinding draft opinion was leaked from the high court Monday. Constitutional protections for abortion could be struck down as soon as this summer.

The university conducted the poll in April before the court’s document was leaked. The survey found that 78% of respondents believe abortion should be allowed in some form while only 15% said it should be never permitted.

If Roe is overturned, Texas would allow doctors to perform abortions only to save the life of a pregnant person or if that person risked “substantial impairment of major bodily function.”

Around 39% of poll respondents said Texans should always be able to obtain abortions as a matter of personal choice, and 11% of respondents thought abortions should be available for other reasons in addition to pregnancy resulting from rape.

The poll shows that 28% of respondents believe abortions should be available only in cases of rape or incest or when a person’s life is endangered by their pregnancy. And 7% said they didn’t know.

Respondents fell mostly along party lines. Of the Republicans surveyed, 42% said abortions should be allowed only in cases of rape, incest or when a person’s life is in danger. The majority of Democrat respondents — 67% — said Texans should be allowed to seek an abortion as a personal choice.

But there were outliers. Among Republicans, 15% said Texans should always be allowed to seek an abortion and 12% said the law should allow Texans to seek abortions for reasons outside of just rape. On the flip side, 5% of Democrats said abortion should be completely outlawed and 13% said it should be allowed only in cases of rape or incest.

From the Chron:

The Texas Politics Project at the University of Texas at Austin has been tracking abortion trends for years. The researchers’ most recent poll, released in February, found that 53 percent of Texans oppose a complete ban on abortion if the Supreme Court overturns Roe v. Wade. (Thirty-four percent supported such a policy, and 13 percent didn’t know or had no opinion.)

“When we look at polling of Texas voters, what we find is an issue that people are, broadly, pretty split on,” said Joshua Blank, the research director of the Texas Politics Project. “But ultimately, you find most Texans supportive of at least some access. It’s much more nuanced to the electorate than, certainly, is being portrayed by elected officials looking to take victory laps.”

In February, 43 percent of Texans said they believed abortion laws here should be less strict, while 23 percent said they should stay the same. An additional 23 percent said they should be stricter, and 12 percent had no opinion. Texas banned abortions after roughly six weeks of pregnancy last September.

An overwhelming majority of Texans — 81 percent — believe abortion should be legal when a woman’s health is seriously endangered. About 73 percent support exceptions for rape or incest, and 58 percent say abortions should be legal if “there is a strong chance of a serious defect in the baby,” according to an October poll by the Texas Politics Project.

Texas’ six-week abortion ban provides no exceptions for rape, incest or severe fetal abnormality.

Ten years of aggregated polling data from Gallup estimates that 70 percent of Texans believe abortion should be legal at least in some circumstances. About 18 percent believe it should be legal under all circumstances, while 10 percent said it should be legal in most and 42 percent said it should be legal in only a few. An additional 26 percent said the procedure should be outlawed entirely.

That’s in line with most other GOP-led states, according to Gallup.

“Although technically a competitive or ‘purple’ state in terms of how it voted in the past two presidential elections, Texas is more closely aligned with ‘red’ — that is, strongly Republican — states when it comes to its residents’ views on abortion,” Gallup analysts wrote in October.

Another October survey, by researchers at the University of Houston and Texas Southern University, found that nearly 7 in 10 Texans believed the state’s six-week abortion ban was overly restrictive. Still, a majority of residents — 55 percent — supported the law, according to the poll.

At least since 2014, roughly equal portions of Texans have identified as “pro-choice” or “pro-life.” The Texas Politics Project is scheduled to release another poll Wednesday showing roughly similar trend lines, Blank said.

In February, 42 percent of voters said they were pro-choice; 38 percent said they were pro-life. Thirteen percent said they were neither, and 7 percent didn’t know.

“When we talk about abortion attitudes in the public, we’re talking about a set of opinions that, for the most part, are fixed and reinforcing,” Blank said. “Most people know what they think about abortion because they’ve been exposed to these arguments for much of their adult lives.”

But, he noted, most of those “opinions and attitudes” have been developed in a post-Roe world. That makes it difficult to predict how voters will feel or react if the high court does allow states to completely prohibit the procedure.

We’ve seen and talked about a lot of this data before. It’s important to remember three things: How the questions are worded really matters, people don’t always know exactly what the state of current abortion law is in Texas (in particular, lots of people don’t know everything about SB8), and people’s opinions on abortion may not affect how they vote or motivate them to vote.

The big question is whether this impending sea change will have a significant effect on voter behavior this year. One could argue that SB8 effectively banned abortion in Texas already and it didn’t seem to have much effect, but the confusing mechanisms of SB8 may have dampened any effect. The evisceration of Roe is a dominant national news story and will be again when the opinion in that Mississippi case is actually handed down, and there seems to be a big psychological effect in overturning Roe, as some national polls have shown that people had simply not believed that would ever happen. You could argue that the 2014 gubernatorial race was about abortion, at least to some extent, but the dynamics of that race and that year are just very different.

I don’t think we have any idea yet how this will play out, and we may not have even a vaguely decent guess at it for a few more months. We are truly in new territory, and we need to be very careful about what assumptions we make and what past events we extrapolate from. There’s clearly some energy on the Democratic side about this, but it’s May and we don’t know how long that might last. We just don’t know. But we can work to make what we want happen. Maybe now more people will be in on that. It’s our best hope.

I’m just going to say this one thing about the pending evisceration of abortion rights

Chris Tomlinson gets at the issue but doesn’t take it all the way.

The Supreme Court’s apparent decision to allow state lawmakers to make women’s health care choices puts chief executives in a tough spot, forcing them to choose between their employees’ rights and right-wing backlash.

Disney’s recent experience defending LGBT rights against Florida Gov. Ron DeSantis’s demagoguery will sadly encourage cowardice.

Millions of Texans are waiting to hear how their employee health insurance will handle abortion coverage when the procedure becomes a first-degree felony punishable by life in prison.

Texas Republicans have made banning abortion their marquee issue for decades. In addition to prohibiting government health insurance from paying for abortions, the Legislature also banned state-regulated plans from covering them.

Employers of 60 percent of Americans with company-sponsored health insurance, though, use self-funded plans. These are exempt from state regulations, according to the Kaiser Family Foundation, a health care research organization. Only 14 percent of self-funded plans exclude some or all abortions.

Polling shows 59 percent of Americans think abortion should be legal under all or most circumstances, according to Pew Research.

After Gov. Greg Abbott allowed Texans to privately prosecute other Texans who seek an abortion after six weeks of pregnancy, many companies stepped up. Amazon, Citigroup, Salesforce, Apple, Bumble, Levi’s, GoDaddy, Match, and Hewlett Packard Enterprise, have all promised to help employees get abortions outside Texas.

“We are pro-woman. We will support a woman’s right to make health care decisions for herself, even if that means traveling out of state. It’s an investment that’s not just right, but good business too,” Curtis Sparrer, a principal at Houston-based PR firm Bospar told me in an email.

The company will pay for travel and other expenditures should a Bospar staff member need reproductive health care banned in any state where they live, Sparrer added.

“We want other companies and PR agencies to join the fight, especially since many are composed of women and are led by women. The rights of women are not just on the line,” he added. “As someone who credits his same-sex marriage to the legacy of Roe, I am imploring my colleagues and friends to end their silence and speak truth to power.”

Taking a stand on anything, though, is becoming more perilous for corporations and executives who would rather generate profits than controversy. Employees, especially younger workers, expect their company’s leadership to reflect their values.

“More than half of consumers will buy or advocate for brands based on their beliefs, while six in 10 employees will choose employers based on shared beliefs and values,” according to Edelman, a global PR firm. “A stunning 81 percent of respondents want CEOs to be front and center discussing public policy.”

The first thing to realize is that the forthcoming overturn of Roe and Casey is the beginning, not the end. Next up will be a nationwide ban on abortion, for which Senate Republicans are already writing a bill. Now that they will no longer have to pretend that this has anything to do with women’s health, rape and incest exceptions will go away, and it won’t be just doctors who are targeted for arrest and prison. I guarantee you, lowlife creeps like Briscoe Cain cannot wait to throw women in jail for anything that looks like an abortion. Lizelle Herrera was not an aberraion.

If you think I’m being alarmist, go find a copy of that draft opinion and read it for yourself. Note carefully the section in which Sam Alito claims that this opinion is only about abortion and not all of those other things that people like him despise and want to get rid of, like the previous SCOTUS decisions on same-sex marriage and contraception and “sodomy”. I will remind you that most if not all of the justices who have signed onto Alito’s opinion also swore under oath during their Senate confirmation hearings that they considered Roe to be “settled law” and that they respected precedent. There’s no reason at all to believe anything that a known liar says.

So get mad, get organized, and get everyone you know who has the same concerns as you to vote. Businesses are going to have to do more as well, if they actually do care about their employees. But it’s on us, to vote and to put pressure on the people we’ve voted for to act. The clock has struck midnight. What are we going to do about it?

Providers’ federal lawsuit against SB8 is officially buried

From last week.

The 5th U.S. Circuit Court of Appeals on Tuesday ended a legal challenge to Texas’ nearly total ban on abortion brought by providers across the state, closing out a contentious court battle that reached the U.S. Supreme Court.

The appeals court dismissed the remaining challenge in the suit after the Texas Supreme Court in March said state licensing officials are not responsible for enforcing the abortion ban and therefore cannot be sued.

A three-judge panel of the 5th Circuit in January asked the state’s high court to resolve this central question to the case, an unusual move made at the request of attorneys for the state that was expected to significantly delay or end the challenge.

[…]

In December, a divided U.S. Supreme Court dismissed all but one challenge in the lawsuit brought by abortion providers. Justices allowed a narrower case, targeting state licensing officials, to proceed in Texas courtrooms.

But Tuesday’s action by the 5th Circuit officially dismisses the case.

It was all over but for the shouting when the State Supreme Court ruled that state medical licensing officials do not have authority to enforce SB8, but the real villain as always was the Fifth Circuit, which engineered the result it wanted. Like I said, the fix was in from the beginning.

As the story notes, there are two more active lawsuits to watch, one by abortion funds against several anti-abortion organizations and individuals, and one by Wendy Davis. I feel like the former is more promising than the latter, but who knows. A state judge had previously ruled that SB8 was unconstitutional but for reasons still unclear declined to issue an injunction against it; I suppose that could change at some point. Until then, here we are.

UPDATE: Yes, I’m aware of the leaked draft opinion that eviscerates Roe v Wade. I maintain that the Fifth Circuit is the prime villain of this story, given how they completely disregarded normal procedures, but SCOTUS’ villainy cannot be overstated either.

A roundup of border and lawsuit stories

Too much news, not enough time…

New federal lawsuit seeks to halt Texas’ border trespassing arrests, give more than $5 million to illegally detained migrants.

In a new challenge to Gov. Greg Abbott’s controversial border security crackdown, a lawsuit filed Wednesday is asking a federal court to shut down Texas’ system of arresting migrants en masse along the Texas-Mexico border, and make the state pay more than $5 million to men who were illegally imprisoned under the system.

The lawsuit comes nearly a year after Abbott first ordered Texas police to arrest men suspected of illegally crossing the border on misdemeanor trespassing charges. The practice skirts constitutional restrictions that bar states from enforcing federal immigration law, and the lawsuit claims it discriminatorily targets mostly Black and Latino migrant men, usurps federal authority and is carried out in a way that violates the detainees’ rights.

“Under the guise of state criminal trespass law but with the explicit, stated goal of punishing migrants based on their immigration status, Texas officials are targeting migrants,” the filing stated. “Hundreds of those arrested have waited in jail for weeks or months without a lawyer, or without charges, or without bond, or without a legitimate detention hold or without a court date.”

Abbott’s trespassing initiative has drawn numerous state and local court challenges since it began in July, but this appears to be the first time attorneys are opposing it in federal court and seeking compensation for migrants swept into the governor’s “catch-and-jail” system. State and federal Democratic lawmakers and civil rights groups have also called on the U.S. Department of Justice to intervene in the Republican governor’s operation, but the federal administration has not acted.

The lawsuit was filed in federal district court in Austin by three private attorneys on behalf of 15 individual migrants and is asking for a class certification to include everyone arrested under Abbott’s trespassing initiative. The migrants are suing Abbott, the directors of the Texas Department of Public Safety and the Texas Department of Criminal Justice, as well as Kinney County, a rural border county which accounts for the large majority of trespassing arrests, and its sheriff.

The complaint asks the court to find that the operation violates federal law and order the state to stop the arrests. It also argues each migrant illegally detained so far should be given $18,000 for each day they were imprisoned beyond what is allowed by state law. The attorneys said it is a typical amount awarded by courts in cases of over-detention. They estimated the total cost would be around $5,400,000.

Previously, state district judges have found that hundreds of men were detained illegally after trespassing arrests, locked in prison for more than a month without any charges filed against them in violation of state law. Lawyers have argued the practice is still occurring. Wednesday’s filing also alleges men have been held for days or weeks after they post bond, their charge is dropped or their sentence is complete.

This is one possible way to get this heinous activity stopped. I don’t know if it’s the most likely way to succeed, but it is the most direct.

Texas Attorney General Ken Paxton sues Biden administration over asylum plan.

Texas Attorney General Ken Paxton filed his 11th immigration-related lawsuit against the Biden administration Thursday, asking a judge to block a plan to let asylum officers, rather than immigration judges, decide whether to grant some migrants’ asylum claims at the U.S.-Mexico border.

The new plan, scheduled to take effect May 31, “upends the entire adjudicatory system to the benefit of aliens,” the lawsuit says.

Earlier this year, the Biden administration finalized its plan to overhaul the process for migrants seeking asylum. The plan is supposed to reduce the average wait time for asylum-seekers to receive a decision in their case from five years to six months. As of March, immigration judges had nearly 1.7 million pending cases — the largest backlog in the country’s history, according to the Transactional Records Access Clearinghouse at Syracuse University.

Under the new process, asylum-seekers could be released into the country pending the outcome of their cases instead of being held in custody. If a migrant apprehended at the border claims they could be persecuted or tortured if they return to their home country, the asylum officer would decide if they have a credible claim. If the officer declines an asylum claim, migrants could appeal to an immigration judge.

“The current system for handling asylum claims at our borders has long needed repair,” Alejandro Mayorkas, the Department of Homeland Security secretary, said in a statement in March when the plan was finalized. “Through this rule, we are building a more functional and sensible asylum system to ensure that individuals who are eligible will receive protection more swiftly, while those who are not eligible will be rapidly removed.”

The lawsuit, filed in U.S. District Court in Amarillo overseen by Judge Matthew J. Kacsmaryk, also argues that the new plan violates the Constitution’s appointments clause because asylum officers are members of the general civil services and are not appointed like judges are.

[…]

Texas has filed nearly two dozen lawsuits in Texas-based federal courts, most of them led by Paxton, against the Biden administration over everything from federal mask mandates to the administration’s decision to halt the long-disputed Keystone XL pipeline. Trump-appointed judges have heard 16 of the cases and ruled in favor of Texas in seven. The other nine are pending as of March 15.

The state’s favorite targets have been Biden’s immigration policies, which have sparked seven of the 20 lawsuits in Texas courts. Paxton’s office has also sued the administration in Washington, D.C., federal courts and joined lawsuits led by attorneys general from other states.

Another day, another Trump judge. I’m sure I don’t have to tell you what is likely to come next. There’s plenty that the Biden administration could and should have done differently with immigration policy, but nearly everything he has tried to do has run into this kind of legal obstacle. It would be nice if Congress were to act, but that’s just not in the cards.

Judge orders Biden administration to send Central American migrants to Mexico rather than their home countries.

A federal judge in Louisiana on Wednesday temporarily blocked the Biden administration from increasing the number of deportations of some Central Americans back to their home countries and ordered the administration to instead send them to Mexico under an emergency health order used to expel migrants from the country, including asylum-seekers.

The judge also set a May 13 hearing to decide whether to block the administration from canceling the health order, known as Title 42. The judge indicated in the order that he plans to block the Biden administration from lifting Title 42 altogether.

During a phone call with reporters on Tuesday, a Biden administration immigration official was asked about the Louisiana judge’s impending order and said the administration plans to comply with it but remarked, “We really disagree with the basic premise.”

The Biden administration had announced that it will stop expelling migrants under Title 42 starting May 23 and instead go back to detaining and deporting migrants who don’t qualify to enter and remain in the U.S.

On April 3, Arizona, Missouri and 19 other states filed a lawsuit in the Western District of Louisiana, asking District Judge Robert R. Summerhays, an appointee of former President Donald Trump, to stop the Biden administration from ending Title 42.

Then on April 20, Fox News reported that the Biden administration had stopped using Title 42 for some migrants from certain Central American countries and instead was deporting them to their home countries. The next day, Arizona’s lawyers asked Summerhays to block the Biden administration from deporting those migrants and instead expel them to Mexico.

“A major media outlet reported that ‘Border Patrol is not using the Title 42 public health order to remove many migrants from the Northern Triangle countries of Guatemala, Honduras and El Salvador,’” Arizona’s request to the judge says, quoting the Fox News article.

Immigration officials had stopped expelling some single adult migrants from those countries under Title 42 and instead processed them under Title 8, a law that allows agents to deport migrants to their home countries without a court hearing. Deportations to those countries had historically accounted for 5% of cases. After the move to process migrants under Title 8, those cases increased to 14%, and the judge has ordered the government to aim for a return to that lower historic rate.

“We’re in a strange world right now where Greg Abbott is giving free bus rides to migrants and [Arizona Attorney General] Mark Brnovich has forced [the Department of Homeland Security] to deport fewer people,” said Aaron Reichlin-Melnick, an analyst with the American Immigration Council, a Washington, D.C., group that advocates for immigrants, referring to the Texas governor’s program that transports asylum-seeking migrants to the country’s capital.

See here for the background. I don’t even know what to say about this one. I do know that Texas filed its own lawsuit over Title 42. At least that makes sense to me.

U.S. Supreme Court hears arguments on whether Biden can toss Trump’s “remain in Mexico” policy.

The U.S. Supreme Court heard arguments Tuesday morning on whether the Biden administration can scrap a Trump-era policy that forces asylum-seekers to wait in Mexico as their cases make their way through U.S. immigration courts.

During two hours of arguments, the lawyers largely focused on a central question: Does the executive branch have the sole authority to set U.S. immigration policies?

The case reached the Supreme Court after a federal district judge in Texas last year ruled that the Biden administration violated immigration law by not detaining every immigrant attempting to enter the country. U.S. District Judge Matthew J. Kacsmaryk ordered the Biden administration to restart the Migrant Protections Protocols, also called “remain in Mexico,” which the Trump administration first implemented in January 2019 and Department of Homeland Security Secretary Alejandro Mayorkas canceled in June 2021.

That decision led Texas and Missouri to sue the Biden administration in April 2021, arguing that canceling MPP violated administrative law and that without the program, human trafficking would increase and force the states to expend resources on migrants — such as providing driver’s licenses, educating migrant children and providing hospital care.

The Biden administration argued it has the discretion to end the program and that it was not an effective way to deal with migrants seeking asylum.

[…]

The court’s liberal justices brought up the issue that the lower court’s decision has forced the White House to enter into a deal with Mexico — which has to agree to receive migrants sent over the border through MPP — when presidents historically have had broad authority on foreign policy issues.

“It puts the United States essentially at the mercy of Mexico,” Justice Elena Kagan said. “Mexico has all the leverage in the world to say, ‘Well, you want to do that, you want to comply with the court’s order? Here are 20 things that you need to do for us.’ Or maybe Mexico says, ‘No, we’d like to see you squirm and not be able to comply with the court’s order.’”

Elora Mukherjee, director of the Immigrants’ Rights Clinic at Columbia Law School, said the justices will have to wrestle with the fact that at any point Mexico could change its mind on whether it wants to continue to accept migrants expelled from the U.S. through the program.

“How can a court require the secretary for the Department of Homeland Security to dump busloads of people into Mexico if Mexico doesn’t comply?” she said.

Note that this is the same judge as in the second story. Do we let federal district court judges dictate foreign policy, which is what this is, or is that something Presidents are still allowed to do? I guess we’ll find out.

Gov. Greg Abbott asks for private donations to bus migrants to D.C. after criticism for using taxpayer money.

On Sunday, Gov. Greg Abbott appeared on Fox News touting a program he’s been pushing for weeks — sending migrants who enter into Texas to Washington, D.C., by charter bus.

But this time, Abbott asked Texans to personally contribute their own money to pay for the trips.

The decision to crowdfund the free bus trips for migrants is a new development from when he initially announced on April 6 that it would be paid for by Texas taxpayers. At the time, Abbott proudly presented the trips as a tough-on-immigration act of defiance against the Biden administration.

But the shift to ask private donors to pay for the charter buses comes as his plan has been increasingly praised as an act of generosity by Democrats, immigration rights groups and even the migrants who rode the buses, while those further to Abbott’s right politically have panned it as a misuse of taxpayer dollars that incentivizes migrants to cross into Texas.

“Congratulations to Governor Abbott,” Texas Rep. Gene Wu said Tuesday in a tweet. “Word will be passed from community to community that if you can just get to Texas, the Governor there will pay for your transportation anywhere in the USA.”

[…]

Mark Jones, a political science professor at Rice University, said the governor may be trying to escape blowback.

“I think it’s a quiet way of protecting himself from criticism that he’s using taxpayer dollars to provide free transport for undocumented immigrants,” Jones said. “Many conservatives pounced on him as all hat and no cattle, in that he was talking tough but in the end all his busing was going to do was provide a free trip for undocumented migrants to the East Coast that they otherwise would have had to pay for or that liberal nonprofits would have had to pay for.”

Abbott’s office has said at least 10 buses have arrived in the nation’s capital, but his office has not provided costs for the trips or the total number of migrants who have been transported.

During the 30-some-hour coach bus ride, passengers were provided with meals, the migrants said. Many of the buses’ passengers said they had saved up thousands of dollars just to arrive at the border and had little money left by the time they arrived in Texas.

“We are very thankful for all the help that has been given to us,” Ordalis Heras, a 26-year-old Venezuelan asylum-seeker, said earlier this month to the Tribune, hours after arriving in Washington on Abbott’s first bus from Del Rio. Heras, like many other passengers, had intended to travel north of Texas anyway.

“Frankly, we did not have the money to get here otherwise, so we are very thankful for the help,” she said.

A picture is worth a thousand words.

And finally:

With the approval of Republican state leaders, Gov. Greg Abbott on Friday pulled nearly half a billion dollars from various state agency budgets to fund the swelling cost of deploying thousands of National Guard troops to the southern border.

The $495 million transfer comes weeks after Texas military leaders warned they would soon run out of money to fund the 10,000-member deployment under Abbott’s border initiative, known as Operation Lone Star. More than 6,000 National Guard soldiers are stationed along the border to help state troopers apprehend and jail migrants suspected of trespassing on private property.

State lawmakers last year allotted more than $400 million for the Texas Military Department to participate in the operation over the current two-year budget period, part of a $1.8 billion spending package that is also paying for a surge in Department of Public Safety troopers to the border region.

But in late January, facing funding shortfalls just several months into the fiscal year, Abbott and GOP state leaders shifted about $480 million from three state agencies to fund the National Guard deployment. The additional transfer Friday means it will cost Texas more than $1.3 billion to keep National Guard soldiers stationed along the border through the end of the fiscal year in August, more than triple the amount originally budgeted.

In all, Texas’ border security budget now stands at about $4 billion for the current two-year cycle, roughly five times the amount spent in 2019-2020. State leaders will need to drum up additional funds to keep National Guard soldiers stationed at the border beyond August.

Your tax dollars at work. You can do something about that this November.

Wendy Davis sues over SB8

Interesting.

Wendy Davis

Former Texas State Sen. Wendy Davis, best known for her 13-hour filibuster of a 2013 abortion bill, has filed a federal lawsuit challenging Texas’ recent abortion law. The suit claims the law is “blatantly unconstitutional” and written to “make a mockery of the federal courts.”

The law, which went into effect in September and empowers private citizens to bring civil lawsuits against anyone who “aids or abets” in an abortion after fetal cardiac activity is detected, has led abortion clinics to stop providing the procedure after about six weeks of pregnancy.

Meanwhile, abortion funds — nonprofit advocacy groups that help pay for abortions and related expenses — have seen increased demand from pregnant Texans seeking care outside the state. This financial support has put these funds in the crosshairs of abortion opponents, who have claimed on social media and in legal filings that abortion fund donors, employees and volunteers are susceptible to lawsuits and criminal charges.

Davis, who was the Democratic nominee for Texas governor in 2014 and unsuccessfully ran for Congress in 2020, donates to and works with the Lilith Fund for Reproductive Equity, an Austin-based abortion fund, according to the lawsuit. She claims in the suit that these threats against donors and volunteers “have had a chilling effect” and stop her from associating with “like-minded people to express her views and achieve her advocacy goals.”

“Accordingly, she intends not to make any additional donations to Texas abortion funds until the Court provides clarity on this issue,” the lawsuit said.

She is joined in the suit by the Stigma Relief Fund, an abortion fund associated with abortion provider Whole Woman’s Health, and Marva Sadler and Sean Mehl, who both work for Whole Woman’s Health and serve on the board of the Stigma Relief Fund. Sadler and Mehl say in the suit that they have stopped donating to abortion funds “until the Court clarifies whether and to what extent [they] can face liability for doing so.”

They are suing state Rep. Briscoe Cain, R-Deer Park, and three private citizens who have made efforts to bring lawsuits against abortion funds. Cain recently sent cease-and-desist letters to all the Texas abortion funds, accusing them of criminal conduct.

The lawsuit claims that the law violates the plaintiff’s rights to due process and free speech and asks the court to declare both this law and Texas’ older abortion law unenforceable.

“We are asking the courts today to stop the unconstitutional harassment of abortion funds by confirming S.B.8 cannot be used to silence donors with bogus threats,” Davis said in a statement. “More than that, we are asking the courts to stop the nightmare S.B.8 has created for Texans if they need abortion services.”

[…]

Last month, two abortion funds filed federal lawsuits against the anti-abortion advocacy groups that had threatened to bring lawsuits against them.

Recently, Cain claimed that the abortion funds could also face criminal charges under a Texas abortion statute that was declared unconstitutional by the U.S. Supreme Court in 1973. Cain claimed in his cease-and-desist letter that the law, which was never repealed by lawmakers, was recently reaffirmed when the state passed the new abortion law.

Davis’ lawsuit asks the judge to affirm that the old criminal statute is unenforceable and that the newer law is unconstitutional.

See here and here for more on the abortion funds’ lawsuits against two anti-abortion organizations plus two individuals. Those two individuals, plus a third person in addition to the twerp Briscoe Cain, are also defendants of this lawsuit, which you can download as a PDF here from the Quorum Report. Cain had been sent a letter accusing him of defamation after his claims that abortion funds and their donors were breaking the law; I do not know if there have been any further developments in that story.

The plaintiffs allege violations of the First and Fourteenth amendments, among other things. The claims about the First Amendment were interesting:

Because of Defendants’ threats concerning enforcement of S.B. 8 and the Criminal Abortion Ban against Texas abortion funds and their associates, Plaintiffs Sadler and Mehl intend to cease donating money to Texas abortion funds, including the Stigma Relief Fund, until the Court confirms that these laws are unenforceable because they violate the U.S. Constitution.

[…]

By threatening to chill abortion funds’ relationships with their donors, employees, and volunteers, Section 3 of S.B. 8 violates the freedom of expressive association protected by the First Amendment.

This leans into the SCOTUS holding that political contributions are free speech. I don’t doubt the zealots’ ability to double-speak their way out of this, but it’s a reasonable approach. Or at least I, a non-lawyer, think it is. I haven’t seen any commentary on Twitter, and neither Wendy Davis nor the Stigma Relief Fund have tweeted about this. We’ll see what happens. CNN has more.

Second lawsuit filed over Galveston redistricting

Similar grounds, different plaintiffs.

Commissioner Stephen Holmes

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

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

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

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

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

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

[…]

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

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

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

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

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

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

The dark side of redistricting litigation

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

Guess who’s paying for Ken Paxton’s defense against those state bar complaints?

You are, of course. What did you expect?

Best mugshot ever

Texas taxpayers are on the hook for $45,000 so far in legal defense for Attorney General Ken Paxton as he attempts to ward off multiple complaints to the State Bar over his failed lawsuit seeking to overturn the 2020 presidential election at the U.S. Supreme Court.

Paxton faces at least three professional misconduct complaints that have been filed against him since the December suit, which the high court swiftly dismissed for lack of jurisdiction. The election case involved disputed presidential election ballots in Pennsylvania, Georgia, Michigan and Wisconsin.

Two complaints — one filed in June by a Democratic Party activist, consolidated with a few others, and another in July filed by the nonprofit Lawyers Defending American Democracy and 16 Texas lawyers, including four former presidents of the state Bar — alleged the Supreme Court suit was frivolous and that it included pleadings that Paxton knew to be false.

The Lawyers Defending American Democracy complaint is moving forward and will be heard by either a district court judge or an administrative panel, the complainants say.

“This is about his individual license, which is irrelevant to his position in office, so why shouldn’t he pay for it?” said Jim Harrington, one of the lawyers who filed a complaint against Paxton and a retired founder of the Texas Civil Rights Project, a nonprofit that advocates for voting rights. “He gets to do this game on Jan. 6, this unconstitutional Supreme Court action, and then turn around and have us pay twice for it? It’s outrageous.”

[…]

Attorneys with the Austin-based Gober Group and College Station-based West, Webb, Allbritton & Gentry billed more than 94 hours at various rates for work related to the bar complaints. Chris Gober, a GOP election lawyer known for his work defending the state’s political maps, had the highest rate at $525 an hour.

Some of the work described in the invoices included reviewing documents related to the complaints, discussing strategy and considering options, preparing for meetings with the Texas State Bar and reviewing and revising correspondence with the agency.

However, a response to the June batch of bar complaints against Paxton, which the office posted on its website, was signed by Deputy First Assistant Attorney General Grant Dorfman; none of the outside attorneys’ names appear on the filing. It’s unclear why both in-house and outside counsel appear to have been engaged in Paxton’s defense.

Because there’s free money to give to Paxton’s pals. This has been another edition of “Simple Answers to Simple Questions”.

See here for the most recent update. There is of course a hypocrisy angle in all of this, because of course there is.

Steve Fischer, elected State Bar director for the Western District of Texas and one of the attorneys who filed the 2015 complaint, said taxpayers shouldn’t have to bear the cost of Paxton’s defense.

“People elect an attorney general to do child support, whatever — not for that,” Fischer said. “To turn his office into his defense team, it just doesn’t sit right with me.”

According to a response to some of the latest complaints by the attorney general’s office in July, the State Bar Disciplinary Counsel received 81 grievances against Paxton and three against First Assistant Brent Webster related to the 2020 Supreme Court suit. All were dismissed upon initial review. Some were reinstated after appeals.

[…]

While the attorney general’s office’s role in fighting bar complaints may be a legal gray area, the agency is statutorily required to defend state officials and state agencies in court. Yet Paxton’s office has declined to represent those state agencies on several recent occasions, typically when it conflicts with his political inclinations.

In 2018, for example, his office refused to defend the Texas Ethics Commission as one of his largest political donors sues to dismantle the agency. Then again, in January 2020, the office abandoned the State Commission on Judicial Conduct when it was sued by a Waco judge whom the agency disciplined for refusing to perform same-sex marriages.

Paxton’s main complaint about the State Bar allowing this matter to proceed is that both the filing and the State Bar itself are motivated by partisan politics. Not him, though, of course. Never him.

You may think well, maybe we don’t want the government to pay for this government official’s defense because he’s so odious, but what happens when we elect a Democratic AG? Should Rochelle Garza or Joe Jaworski have to pay for their own defense against the avalanche of frivolous partisan complaints that will surely be filed against them? That would be bad, except that as the story notes the vast majority of the ones against Paxton got dismissed for lack of merit. I doubt it would be any different with a different AG. At least, it better not be. As long as it isn’t, and as long as the next AG has better ethical standards than Ken Paxton – an exceptionally low hurdle to clear – it shouldn’t be an issue.

Of course Ted Cruz supported sedition

None of this is surprising. And I’m certain there will be more, that this is just the tip of the iceberg.

Not Ted Cruz

Sen. Ted Cruz was dining near the Capitol on the evening of Dec. 8, 2020, when he received an urgent call from President Donald Trump. A lawsuit had just been filed at the Supreme Court designed to overturn the election Trump had lost, and the president wanted help from the Texas Republican.

“Would you be willing to argue the case?” Trump asked Cruz, as the senator later recalled it.

“Sure, I’d be happy to” if the court granted a hearing, Cruz said he responded.

The call was just one step in a collaboration that for two months turned the once-bitter political enemies into close allies in the effort to keep Trump in the White House based on the president’s false claims about a stolen election. By Cruz’s own account, he was “leading the charge” to prevent the certification of Joe Biden as president.

An examination by The Washington Post of Cruz’s actions between Election Day and Jan. 6, 2021, shows just how deeply he was involved, working directly with Trump to concoct a plan that came closer than widely realized to keeping him in power. As Cruz went to extraordinary lengths to court Trump’s base and lay the groundwork for his own potential 2024 presidential bid, he also alienated close allies and longtime friends who accused him of abandoning his principles.

Now, Cruz’s efforts are of interest to the House committee investigating the Jan. 6 attack on the U.S. Capitol, in particular whether Cruz was in contact with Trump lawyer John Eastman, a conservative attorney who has been his friend for decades and who wrote key legal memos aimed at denying Biden’s victory.

As Eastman outlined a scenario in which Vice President Mike Pence could deny certifying Biden’s election, Cruz crafted a complementary plan in the Senate. He proposed objecting to the results in six swing states and delaying accepting the Electoral College results on Jan. 6 in favor of a 10-day “audit” — thus potentially enabling GOP state legislatures to overturn the result. Ten other senators backed his proposal, which Cruz continued to advocate on the day rioters attacked the Capitol.

The committee’s interest in Cruz is notable as investigators zero in on how closely Trump’s allies coordinated with members of Congress in the attempt to block or delay certifying Biden’s victory. If Cruz’s plan worked, it could have created enough chaos for Trump to remain in power.

“It was a very dangerous proposal, and, you know, could very easily have put us into territory where we got to the inauguration and there was not a president,” Rep. Liz Cheney (R-Wyo.), a Jan. 6 committee member, said earlier this year on the podcast “Honestly. And I think that Senator Cruz knew exactly what he was doing. I think that Senator Cruz is somebody who knows what the Constitution calls for, knows what his duties and obligations are, and was willing, frankly, to set that aside.”

It’s a long story, from the WaPo and reprinted in the Trib, and it just gets worse from there. I believe that Cruz knew exactly what he was doing and that he had no legal leg to stand on, and also that he didn’t care. Maybe he’d get lucky with the judges, who can say. It was all about winning and power anyway. Of course, it’s a fine line between that kind of blase nihilism and Ginni Thomas’ full-on Qanon ravings. For that, they both richly deserve an in depth investigation from the January 6 committee, and a criminal contempt citation if they refuse.

One more thing:

In the weeks that followed, as Trump allies lost a string of election cases, Cruz began suggesting he could lead a more effective legal strategy. He talked about his success in helping Bush’s legal team and how he had argued a total of nine cases before the Supreme Court, mostly as the Texas solicitor general. Two days later, he announced he had agreed to represent Pennsylvania Republicans in their effort to block certification of that state’s presidential results. The Supreme Court rejected that request, though, a near-fatal blow to efforts to overturn the election in the courts.

But the next day, Trump and Cruz focused on another avenue to put the matter before the Supreme Court: a case filed by Texas Attorney General Ken Paxton, who argued his state had standing to ask the court to throw out election results in Georgia, Pennsylvania, Michigan and Wisconsin.

When Trump called on Dec. 8 as Cruz dined out, the president asked whether he was surprised about the loss of the Pennsylvania case, Cruz later recalled on his podcast, “Verdict with Ted Cruz.” Cruz said he was unhappy but “not shocked” that the federal court did not take a case about state law: “That was a challenging hurdle.”

When Cruz agreed to Trump’s request to argue the Texas case, it shocked some who knew him best. One adviser said he called Cruz to express dismay, telling the senator it went against the principles on which he built his political brand.

“If you’re a conservative federalist, the idea that one state can tell another state how to run their elections is outrageous, but he somehow contorted in his mind that it would be okay for him to argue that case,” said the adviser, who spoke on the condition of anonymity to describe a private conversation.

Rep. Chip Roy (R-Tex.), who had served as Cruz’s chief of staff and was a former first assistant attorney general in Paxton’s office, tweeted that the case “represents a dangerous violation of federalism” that “will almost certainly fail.” He did not respond to a request for comment.

Cruz’s spokeswoman said that he agreed to Trump’s request because “he believed Texas deserved to have effective advocacy” but said that “he told President Trump at the time that he believed the Court was unlikely to take the Texas case.”

Just as a reminder, this ridiculous lawsuit was the basis for two State Bar of Texas complaints against Ken Paxton (and another against Sidney Powell) that in a just world will result in their disbarments. Surely a similar complaint against Cruz might be warranted. The Texas Signal has more.

SCOTUS unanimously rejects Dave Wilson

Poor baby.

Dave Wilson

The U.S. Supreme Court on Thursday ruled against former Houston Community College trustee Dave Wilson, finding that he didn’t have an actionable First Amendment claim after suing his colleagues for verbally censuring him in 2018.

In a 9-0 vote, the justices firmly sided with the community college system, whose board members reprimanded their colleague after he allegedly violated board bylaws for months and incurred thousands of dollars in legal costs for the college. The then-District II trustee — known in Houston at the time for being an anti-gay rights activist — was usually the board’s lone no-vote and frequently bit back at the administration.

Wilson continued to speak critically after his censure, making it difficult to prove that the action chilled his speech, the court ruled. And the board’s decision fell under the trustees’ own First Amendment rights.

“The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy,” Justice Neil Gorsuch wrote in the opinion. “But just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same.”

Wilson on Thursday claimed the justices did not adequately respond to what he said was his main argument — that he faced penalties beyond a verbal denouncement. After the censure, trustees decided that Wilson was not eligible for travel-related expense reimbursements and would need board approval when requesting funding for community affairs programs for the 2017-2018 college year. They also determined he could not be elected for a board officer position in 2018, all of which Wilson said violated his rights, according to court documents.

“It was poorly reasoned. The court didn’t take on any of the arguments that we made in our briefs,” he said. “The court made up facts to decide the case that it wanted to see rather than the facts that were presented.”

[…]

Hours after reading the document for the first time, Wilson conceded that he understood why the court didn’t take up the issue of nonverbal punishments. And he said he felt the loss at least affirmed his First Amendment rights in speaking out on the college’s “underhanded dealings.”

See here and here for the background. A link to the opinion plus a brief excerpt can be found here. All I can say is what a loser. Dave Wilson has been a stain on our politics for a long time. I hope he spent a lot of his own money on this ridiculous pursuit.

Divorce granted in common-law same-sex marriage case

Good result.

On March 24, a San Antonio jury returned a verdict in favor of Christopher Hoffman, a gay man who sought to prove a common law marriage existed since 1996 with his former partner, Moises Ortiz. The decision clears the way for Hoffman to legally divorce Ortiz and thus be eligible for alimony and other benefits .

Various judges have ruled a same-sex marriage existed before Obergefell vs. Hodges, the 2015 Supreme Court decision that legalized same sex marriage. However, this is the first time a jury in Texas has made such a finding within the confines of a divorce action.

[…]

The four-day trial was held in the 285th District Court of Bexar County, with Judge Aaron Haas presiding, The twelve-person jury voted 10 to 2 in favor of Hoffman. They found the couple was married on February 14, 1996, and that grounds existed for the court to grant a divorce.

In an email to Out In SA, Hoffman’s attorney, Justin P. Nichols, wrote, “To have a jury validate that the couple’s relationship constituted a marriage meant a tremendous amount to Hoffman, who has been fighting for almost three years to have his marriage recognized. This case can have broad implications for thousands of gay couples throughout Texas.”

See here for the background. It is good news, and it should have a positive effect for other same sex couples. I doubt this would be appealed, so the precedent is now there. Given the continued opposition to same-sex marriage among Republicans, though, I would not be surprised to see a bill introduced in the next legislative session to try to overturn this. I hope I’m wrong, but don’t be shocked if it happens.

Justice Department sues over Galveston County Commissioners Court map

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

Commissioner Stephen Holmes

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

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

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

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

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

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

[…]

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

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

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

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

More on the abortion funds’ lawsuits

Good overview in the WaPo.

The Texas law has so far withstood multiple court challenges by employing a highly controversial legal strategy: empowering private citizens to sue anyone who helps facilitate an abortion after the legal limit. Abortion rights advocates have tried to sue a long list of people in federal court in hopes of overturning S.B. 8, including Texas law clerks, judges and medical board officials — but, in each case, courts found that they were going after the wrong people.

After a month of fielding threats from these antiabortion groups on social media, the abortion funds argued in several lawsuits filed last week that the groups targeting them have identified themselves as the ones enforcing the law — and, therefore, the ones for abortion rights advocates to hold to account in federal court.

In these cases, the Lilith Fund and the North Texas Equal Access Fund are suing the America First Legal Foundation and the Thomas More Society, two antiabortion legal groups, in federal court, as well as two private citizens in Texas state court. Abortion funds, which raise money to help low-income patients seeking abortion care, have been instrumental in helping patients reach abortion clinics in other states since the Texas ban took effect.

The Thomas More Society’s “invocation of, and intent to enforce, S.B. 8 poses imminent and existential threats to the fundamental and constitutional rights of Plaintiffs, their staff, their volunteers, and their donors,” the abortion funds wrote in their court filing on Wednesday.

The Lilith Fund and the North Texas Equal Access Fund are filing these lawsuits to “protect themselves, their staff, their volunteers and their donors from the coordinated efforts by people and organizations across the country that have made it clear they intend to enforce S.B. 8 by filing lawsuits against abortion funds,” said Elizabeth Myers, one of the lawyers representing the abortion rights groups.

[…]

Some legal scholars think the new lawsuits by the abortion funds could pose a threat to S.B. 8 now that various people and organizations have made their intentions clear, said Steve Vladeck, a professor at the University of Texas School of Law, who specializes in the federal courts and has closely followed the Texas abortion ban.

“This case is not hypothetical because these particular defendants are in the process of pursuing various kinds of enforcement actions,” said Vladeck. After six months of trying to block the Texas law, abortion funds are probably thinking: “Now we finally have someone. Get out of our way, let’s go,” Vladeck said.

David Cohen, a law professor at Drexel Kline School of Law who specializes in gender and constitutional law, called the latest lawsuit a “brilliant move.” The abortion funds have built a legal case that “avoids many of the challenging legal problems of the previous lawsuits,” he added.

Even if a federal court judge does block the law, Vladeck said, the injunction will probably only apply to the particular defendants listed in the case. While those specific people and organizations would no longer be able to sue under S.B. 8, any other private citizen could still file a lawsuit.

At that point, Vladeck said, Texas abortion providers will have to decide whether they are comfortable resuming abortion care after six weeks of pregnancy. Abortion clinics and funds could still face other lawsuits, Vladeck said, but a favorable ruling in this case would make them more confident that they would win.

With these cases, Vladeck added, abortion rights groups are “building the defensive position.”

“They’re going to court to obtain a judgment that won’t be completely effective, but will make it easier to defend the lawsuits they will still face.”

See here and here for some background. I found that story on Tuesday, and on Thursday, the Trib had this to add.

“We are hopeful that any judge who looks at this will recognize the civil enforcement mechanism for what it is … and say these cases aren’t really about abortion,” said Elizabeth Myers, an attorney representing the abortion funds.

Instead, she said, their legal challenge is about stopping the “millions of bounty hunters who can sue in a very rigged one-sided court system” under the law’s private enforcement mechanism.

Aspects of this argument have already succeeded in state court, where a Texas judge found the law to be unconstitutional but declined to block it from being enforced. Now, the same lawyers are taking the case to federal court, where challenges to the law have faltered before.

But this attempt will have an advantage that those did not: The federal suits are filed in Chicago and Washington, D.C., rather than Texas, which allows the plaintiffs to avoid the extremely conservative 5th U.S. Circuit Court of Appeals.

The other two suits are filed in state court and have been added to ongoing multidistrict litigation, where all legal proceedings are stayed while the case is appealed.

South Texas College of Law Houston professor Rocky Rhodes said there are potential obstacles to this approach in federal court, but it’s the “best bet” to block the law that he’s seen yet.

“This is a better procedural mechanism to get the case before the [U.S.] Supreme Court … and it addresses many of the issues from the previous challenges,” he said. “And then, of course, a Supreme Court ruling is binding on all state and federal courts.”

[…]

When the Lilith Fund tweeted a request for donations, the Thomas More Society responded by saying “donors could get sued under SB8” and linking to the press release about its efforts to depose the funds’ leaders.

This makes it clear that the anti-abortion groups intend to bring lawsuits under the Texas abortion law, the new filings argue, and thus the groups can be sued proactively to stop them from doing so.

Neither the Thomas More Society or the America First Legal Foundation responded to requests for comment.

Rhodes has argued in several papers that this is a strong angle to challenge the law.

“This mechanism of ‘wait until you know someone is going to sue you, and then sue them in federal court first,’ is one of the best ways to get an offensive challenge teed up to [the law],” he said.

The filings argue that the abortion law violates advocates’ right to free speech by limiting how they talk to clients, advocate for abortion access and spend their donations, which could be considered political speech. In addition, they argue it is so vague that plaintiffs may not know what conduct is allowed or prohibited; it creates special rules that only apply to these lawsuits, which violates plaintiffs’ rights to equal protection under the law; and allows lawsuits to be brought by people who do not have standing because they have not been directly injured.

If a federal judge agrees with some aspects of these arguments, they could grant an injunction, stopping the Thomas More Society and the America First Legal Foundation from bringing lawsuits against the two abortion funds. The lawsuit also seeks a declaration that the law is “unconstitutional, void, of no effect and therefore not usable” — by anyone.

That wouldn’t stop anyone besides these two groups from bringing lawsuits, but it would create federal court precedent that could be cited in future litigation, Rhodes said.

[…]

Unlike previous legal challenges to the abortion law, these lawsuits deliberately sidestep the most highly politicized aspects of the law.

“This [case] is not really about abortion,” said Myers. “We’re not challenging the six-week ban.”

Myers said that’s not because they believe the six-week ban is constitutional, but rather because the courts may be more open to hearing arguments as to why other aspects of the law are also unconstitutional.

You gotta do what you gotta do, and if this can lead to taking the bounty hunting out of the picture, it will be a lot better. Indeed, that would allow abortions to continue in Texas, at least until SCOTUS can do more violence to Roe v Wade. But that day hasn’t happened yet, and with other states adopting similar bounty hunter laws, we have to deal with the immediate threat. Let’s hope for the best.

When a divorce helps to define a marriage

Interesting case.

A gay San Antonio man has filed for a divorce in which he seeks to prove a common law marriage existed with his former partner of 25 years when federal law prohibited same sex marriage. The law has since then been ruled unconstitutional by Obergefell vs. Hodges in 2015.

If he is successful in his divorce petition, Christopher Hoffman would be eligible for alimony and other benefits from his former partner Moises Ortiz. It would also mark the first time in Texas that a common law [informal] divorce would be granted to a same sex couple who were together prior to Obergefell.

The Texas Family Code provides two methods for establishing a common law [informal] marriage. The first is to “file a declaration of informal marriage with the county clerk. Tex. Fam. Code 2.40l(a)(l).” The second is by showing that “I) the parties ‘agreed to be married’; 2) that the parties lived together as spouses; and 3) that they ‘represented to others that they were married.’ Tex. Fam. Code 2.401 (a)(2).” Additionally, the partner seeking to establish the existence of a common law marriage “bears the burden of demonstrating the three elements by a preponderance of the evidence.”

According to court documents, Hoffman and Ortiz lived together for 25 years beginning in 1994. Hoffman filed for the common law divorce on July 19, 2019 citing adultery and mistreatment among other reasons. In responding to Hoffman’s assertion, Ortiz denies that a common law marriage existed, saying that he and Hoffman had only been roommates.

On July 30, 2019, Judge Mary Lou Alvarez of the 45th District Court of Bexar County found that Ortiz’s claim that he and Hoffman “were simply roommates that acted as partners to be incredulous testimony.” The judge went on to issue a temporary order requiring Ortiz to pay Hoffman $1,200 monthly for interim spousal support until a final jury trial’s verdict.

On January 22, 2021, Ortiz’s attorney filed a motion for a Declaratory Judgment which would have made a final, legally binding declaration that Hoffman’s petition was not valid.

Ortiz contended that there was no precedent in Texas state law to show that Obergefell applies retroactively to same sex couples. Hoffman’s attorney countered that there had been two incidents (Ford v. Freemen 2020 and Hinojosa v. LaFredo 2012) of courts in Texas recognizing “a pre-Obergefell same sex common law marriage. However no Texas appellate court has issued any binding authority on the issue.”

(Lambda Legal Senior Staff Attorney Shelly Skeen authored a brief in the Hinojosa v. LaFredo case.)

There are a couple of precedents I could cite for pre-Obergefell marriages later getting legally dissolved in Texas. Way back in 2010, a Travis County district court judge granted a divorce to two women who had been married in Massachusetts. Then-Attorney General Greg Abbott sued to undo the divorce ruling on the grounds that their marriage was not recognized by the state of Texas. That case went all the way to the State Supreme Court, which ruled against Abbott, upholding a Third Court of Appeals decision that Abbott didn’t have standing because he waited to intervene until after the original district court ruling. That ruling happened a few months before Obergefell, and SCOTx was emphatic that it was not saying anything about the constitutionality of same-sex marriage, just about the AG’s standing to intervene in that case.

In 2014, there was a divorce and child custody filing in Bexar County, also between two women who in this case had been married in Washington,. That one had been filed eight days before a federal judge ruled that Texas’s law against same-sex marriage was unconstitutional; this was the original Texas case filed by Cleopatra De Leon and Nicole Dimetman, and Vic Holmes and Mark Phariss. The judge in that Bexar County case later also ruled that Texas’s law against same-sex marriage was unconstitutional, basing her opinion on the federal case while specifying sections of the state’s Family Code as being illegal. She also cordially invited Greg Abbott to butt the hell out, which kind of makes her my hero. I don’t have any further updates on that case, so it’s my best guess that it eventually proceeded to a normal resolution in the courts.

Finally (yes, I went deep on this one; it’s a topic that fascinates me), there was a post-Obergefell divorce granted in Tarrant County, the culmination of a proceeding that had been filed in 2013. It appears that it was the SCOTUS ruling on same-sex marriage that spurred the case resolution for this one.

So with all that said, and with the usual proviso that I Am Not A Lawyer, I like plaintiff Hoffman’s chances, on the grounds that this is in every other way a pretty normal, boring divorce case that will ultimately be decided on the merits. It’s certainly possible that some bad actors might try to get involved in an effort to pursue a ruling that might draw a distinction between “traditional” marriage and same-sex marriage. I don’t know how that might happen, and I don’t know if it can happen if defendant Ortiz objects to their intervention, I just know that the there are definitely people who would like to intervene in this fashion and for this purpose, and I wouldn’t put it past them. Anyway, I’ll try to keep an eye on this one, just to see how it goes. The trial begins today, so we may know more soon.

Abortion funds file their own lawsuits

It’s good to fight back. I hope it can be successful.

This week, the Lilith Fund and Texas Equal Access Fund, two of Texas’ oldest abortion funds, announced legal action (available to view hereherehere, and here) against two private individuals in Texas and two organizations based outside the state seeking to enforce Senate Bill 8, which has been in place for more than six months.  The Texas bill deputizes private citizens to sue anyone who assists someone with getting an abortion – a move designed to intimidate abortion funds, providers, and the people they serve.

The lawsuits, filed in state and federal courts, would protect abortion funds and the people they support from being sued by anti-abortion extremists in the state and outside organizations.

The filings come as Texas’ abortion ban – the most extreme in the country – has almost entirely cut off access to abortion in a state of more than 29 million people, disproportionately harming people of color and those working to make ends meet who can’t afford to travel for care. Since the ban first took effect, nearly 1,400 Texans have left the state every month and traveled thousands of miles to get their abortions in states as far as Illinois, Washington, Ohio, and Maryland.

“We are yet again being forced to protect the work we do and show up for Texans who need abortions and the people who love them,” said Amanda Beatriz Williams, Executive Director of Lilith Fund. “We won’t be harassed or intimidated out of serving our community, in the courts or anywhere else. We are proud to fight back, even when we have no choice.”

In the face of criminalization and legal attacks, abortion funds have never stopped showing up for their communities. Senate Bill 8, along with the endless restrictions anti-abortion politicians in the Texas legislature have enacted over the last 10 years, has created an unprecedented and unsustainable situation in Texas. Now, with other states passing Texas copycat abortion bans, the impact is permeating far and wide.

“These attacks against our fund are meant to stigmatize funding abortion and prevent us from supporting Texans seeking care,” said Kamyon Conner, Executive Director of Texas Equal Access Fund. “The work we do to help people access abortion helps communities thrive. We will not be intimidated. We’ll continue to stand up to the bullies who have launched this attack on our work, our rights, and our communities.”

Anti-abortion extremists, many of whom don’t even reside in Texas, have one goal to cut off access to abortion, and have targeted abortion funds who help Texans get care. With this legal action, Texas abortion funds are fighting back  to ensure their work and the privacy of the people they serve is not threatened.

I found a DMN story and a Bloomberg Law story about this, but both are paywalled. The two organizations the suits are filed against are the America First Legal Foundation (with a name like that, you know they’re evil) and the Thomas More Society (ditto), and the two individuals are Ashley Maxwell of Hood County and Sadie Weldon of Jack County. If all of those names sound familiar, it’s because those people and those groups had previously filed petitions in state court to be allowed to depose the leaders of the Lilith Fund and the TEA Fund. I don’t know if we can call this a standoff – among other things, we’re in uncharted legal territory, so who knows how the law is going to be interpreted by the various courts – but it’s very much a seismic battle, with unknowable implications.

In the wake of the SCOTx dismissal of the abortion providers’ lawsuit, I noted that injunctions against individuals would need to be on the menu of options for abortion providers going forward. My initial reaction to this was that we were seeing the first of those, but on closer inspection that’s clearly not the case. I do think we will see a whole lot more suits and countersuits in the near future, at least until there’s some more clarity about what will and won’t work in the courts. All I can say for now is that I wish Lilith and TEA all the best, and if you’d been thinking about donating to them, now would be a good time.

How the 2030 Census could be different

A very early preview of some possibilities, which may or may not come to fruition.

Beyond the reports of undercounts and overcounts in population totals, there is another takeaway from the post-mortem of 2020 census data issued on Thursday: This could be the last census of its kind.

The next census will be taken in a nation where Amazon may have a better handle on where many people live than the Census Bureau itself. For some advocates of a more accurate count, the era in which census-takers knock on millions of doors to persuade people to fill out forms should give way in 2030 to a sleeker approach: data mining, surveys, sophisticated statistical projections and, if politics allows, even help from the nation’s tech giants and their endless petabytes of personal information.

The Census Bureau itself has yet to leap very far into that new era. But it has hinted recently at a “blended” approach in which official census figures could be supplemented with reliable data from government records and other sources.

[…]

It is an article of faith among data experts and the Census Bureau itself that data obtained directly from people are more reliable than secondhand or thirdhand data from other sources. And experts are wary that other data can raise privacy issues or allegations that it was cherry picked to fit an agenda.

The bureau itself considered tapping secondhand sources like state records to fine-tune its 2020 portraits of the population, but it often shied away unless it could find corroborating information elsewhere, according to Amy O’Hara, a former Census Bureau official who is now the executive director of the Federal Statistical Research Data Center at Georgetown University.

Professor O’Hara said the gusher of public and available data opens new avenues to a far more accurate census, but only if the numbers can be proven accurate and the Census Bureau can navigate the tricky boundary between tapping private research and issuing public statistics.

“There is no significant buy-in yet” to major changes in the census, Terri Ann Lowenthal, a longtime census expert and consultant to governments, businesses and other census “customers,” said in an email. “Too early without research, testing and transparency on those sorts of questions. And there probably will be even greater caution about using third-party commercial data.”

That said, she added, many users of census data agree that better use of outside records, conducted in a way that preserves privacy and credibility, could increase the accuracy of the head count and reduce its staggering cost — $14.2 billion, or about $117 per household counted in the 2020 census.

[…]

Mr. Prewitt and other experts say some solutions are obvious. For decades, the Census Bureau has undercounted some groups, including poorer residents and children, in part because they can be harder to find — they move more frequently, for example — and because census forms can be more confusing to people with less education or poorer language skills.

But state governments maintain accurate birth and death records and manage a range of federal programs aimed at the poor and children, such as Medicaid; the Supplemental Nutrition Program for Women, Infants and Children, or WIC; and the SNAP program once known as food stamps. None shares data with the bureau, but an agreement to do so “could probably put a bigger dent in the problem than putting more enumerators on the street,” Mr. Jost said.

There are countless other ways to improve census results. Public and private utility records, for example, assiduously track which residences are occupied or vacant, potentially making it easier for the Census Bureau to compile a more complete and accurate list of households to survey.

Consider this to be a response to the issues raised here. One thing I hadn’t realized in reading this story is that the Census first mailed forms to households in 1960, and first did online forms in 2020, and yet the non-response rate has remained at about one third over the decades. That’s what the Census workers knocking on doors are there to deal with. Obstacles to this kind of data mining plan include the questions about accuracy as noted above, questions about legality considering the 1999 SCOTUS ruling, and of course the political blowback from the revanchist wingnuts who are perfectly happy to undercount communities of color. I fully expect we’ll still be having these fights in 2030, so we may as well know what they’re going to be about.

Of course the Census undercounted people of color

This was the Trump administration’s goal from the beginning.

The 2020 census continued a longstanding trend of undercounting Black people, Latinos and Native Americans, while overcounting people who identified as white and not Latino, according to estimates from a report the U.S. Census Bureau released Thursday.

Latinos — with a net undercount rate of 4.99% — were left out of the 2020 census at more than three times the rate of a decade earlier.

Among Native Americans living on reservations (5.64%) and Black people (3.30%), the net undercount rates were numerically higher but not statistically different from the 2010 rates.

People who identified as white and not Latino were overcounted at a net rate of 1.64%, almost double the rate in 2010. Asian Americans were also overcounted (2.62%). The bureau said based on its estimates, it’s unclear how well the 2020 tally counted Pacific Islanders.

The long-awaited findings came from a follow-up survey the bureau conducted to measure the accuracy of the latest head count of people living in the U.S., which is used to redistribute political representation and federal funding across the country for the next 10 years.

Other estimates the bureau released on Thursday revealed that the most recent census followed another long-running trend of undercounting young children under age 5.

While the bureau’s stated goal is to “count everyone once, only once, and in the right place,” miscounts have come with every census. Some people are counted more than once at different addresses, driving overcounts, while U.S. residents missing from the census fuel undercounting.

Disruptions from the coronavirus pandemic and interference by former President Donald Trump’s administration raised alarms about the increased risk of the once-a-decade tally missing swaths of the country’s population. COVID-19 also caused multiple delays to the bureau’s Post-Enumeration Survey that’s used to determine how accurate the census results are and inform planning for the next national count in 2030.

During the news conference announcing the follow-up survey results, Census Bureau Director Robert Santos — who, before becoming the agency’s head, told Bloomberg CityLab that he believed the census was “being sabotaged” during the Trump administration to produce results that benefit Republicans — acknowledged “an unprecedented set of challenges” facing the bureau over the last couple of years.

“Many of you, including myself, voiced concerns. How could anyone not be concerned? These findings will put some of those concerns to rest and leave others for further exploration,” Santos, a Biden administration appointee, said during the news conference announcing the follow-up survey results.

The bureau said previously that it believes the census results are “fit to use” for reallocating each state’s share of congressional seats and Electoral College votes, as well as redrawing voting districts.

[…]

In response to the bureau reporting that American Indians and Alaska Natives living on reservations continued to have the highest net undercount rate among racial and ethnic groups, Fawn Sharp, president of the National Congress of American Indians, said the results “confirm our worst fears.”

“Every undercounted household and individual in our communities means lost funding and resources that are desperately needed to address the significant disparities we face,” added Sharp, who is also the vice president of the Quinault Indian Nation in Taholah, Wash., in a statement.

Marc Morial, the president and CEO of the National Urban League, which led a federal lawsuit in 2020 to try to stop Trump officials from cutting counting efforts short, said the group’s lawyers are considering returning to court to try to secure a remedy.

“We’ve talked about voter suppression. Now we see population suppression,” Morial said on a call with reporters. “And when you tie them together, it is the poisonous tree of seeking to diminish the distribution of power in this nation on a fair and equitable basis.”

Other longtime census watchers see this moment as a chance to reimagine what the next count in 2030 could look like.

We’ve talked about this before, and we’ve noted that Texas Republicans did their part to help suppress the count, even at the cost of adding more Congressional districts to the state. Obviously the 2020 Census had a couple of unprecedented obstacles, from the pandemic to the extremely racist presidential administration, but there are ways to do this better next time. A more functional Congress could update federal law to allow statistical sampling in the Census process, to address the 1999 SCOTUS ruling that prevented it from being used, though I would not count on the current SCOTUS being warm to the idea. Throwing more money at it is also an option. All I know is we did worse in 2020 than we did in 2010, and that cannot be allowed to continue. MOther Jones and TPM have more.

SCOTx puts the last nail in the federal lawsuit against SB8

The fix was in from the beginning.

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

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

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

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

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

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

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

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

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

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

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

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

And more people are travelling for abortions

The number of abortions performed in Texas has declined greatly since the passage of SB8. But the number of Texans seeking abortions has remained the same, which is what abortion advocates have always said would be the case.

The number of women leaving Texas to obtain abortions has grown tenfold since lawmakers here banned the procedure after early pregnancy, according to new research from The University of Texas at Austin.

The findings, coupled with a huge uptick in online orders for abortion pills, suggest that the state’s widespread crackdown has not yet led to a large decline in procedures. While abortions at Texas clinics did fall by about half after the new restrictions took effect in September, many women still sought out to end their unwanted pregnancies through other, often more challenging paths.

The law “has not reduced the need for abortion care in Texas. Rather it has reduced in-state access,” said Dr. Kari White, lead investigator at the university’s Texas Policy Evaluation Project.

More than 5,500 Texans traveled to abortion clinics in six surrounding states between September and December of last year, according to the study. That’s nearly 1,400 trips per month, up from about 130 per month in the same period in 2019. The latest tally is likely an undercount, since some clinics did not participate and the study did not include trips to states farther from Texas.

[…]

Abortion rights advocates are already preparing for states to cut access in more than two dozen states across the South and Midwest, and providers are rushing to build out clinic space in northern and coastal states more friendly to abortion rights.

The new findings from Texas may be an early picture of the scramble to come for women in other states. The vast majority of trips out of Texas were to Oklahoma and New Mexico, where clinics are on average several hundred miles from most Texans. Oklahoma has its own “trigger” abortion ban in place if the Supreme Court overturns Roe v. Wade, the 1973 decision protecting the right to abortion until about 23 weeks of pregnancy.

Women interviewed in the study said they faced heavy obstacles in seeking out abortions since the law took effect, including delays at clinics in and out of Texas. One in four said they had visited crisis pregnancy centers, which often discourage women from getting abortions. Researchers interviewed 65 women in total.

See here for the TexPEP news release, and here for the full report. You can consider this a bookend to the other recent report about the increase in demand for abortion-inducing medication. It may seem like a bit of comfort that there are still options available, but one is much more time consuming and expensive, not to mention about to get more so as states like Oklahoma and Louisiana follow in Texas’ cursed footsteps, and the other is also heavily restricted under state law, with the great likelihood of further restrictions coming in future legislative sessions if Republicans remain in control. It’s just a matter of time before the emphasis changes from “ways to make abortion more illegal” to “ways to increase enforcement of anti-abortion laws and increase the penalties for violating them”. Do not think for a minute that locking up people who seek abortions, and the people who help them, is off the table. I guarantee you, it is not.

In the “I hate it when I’m right” department, later the same day that I wrote this, I saw this on Twitter:

Don’t ask how that could be legal, or how it could possibly be enforced. The terror of it is the point. Scare people into thinking they can be locked up for seeking a legal abortion elsewhere, and you’re done.

And on that cheery note, we have this update about the largely futile efforts so far to stop this travesty in the courts.

In its 1973 ruling in Roe v. Wade, the U.S. Supreme Court created a constitutional protection for abortion through viability, the point at which a fetus could likely survive outside the womb, usually around 24 weeks.

Since then, states, including Texas, have been stopped by the federal courts when they’ve tried to ban abortions before that point in pregnancy.

But Texas’ law has so far managed to evade a similar fate. The U.S. Supreme Court declined to stop the law from going into effect before Sept. 1, instead allowing lawyers for the abortion providers to bring a pre-enforcement challenge, which was heard in November.

The U.S. Department of Justice also tried to challenge the law, and succeeded in getting it temporarily enjoined by a federal district judge. That ruling was swiftly overturned by a higher court and the U.S. Supreme Court eventually threw out the DOJ’s challenge.

In December, the Supreme Court also threw out the vast majority of the abortion providers’ legal challenge, allowing only one narrow aspect to proceed. That remaining challenge is slowly wending its way through the courts, but even if it is granted, it would not allow abortion providers to resume providing the procedure after six weeks of pregnancy.

Marc Hearron, senior counsel for the Center for Reproductive Rights, which is representing the abortion providers, said Thursday that their challenge in federal court “no longer stands a chance” of stopping these lawsuits from being filed.

“The Supreme Court greenlit this law’s unprecedented vigilante scheme and essentially said that federal courts are powerless to stop it,” he said. “There is no end in sight to this nightmare.”

Abortion providers have had more luck in Texas courts, where state District Judge David Peeples ruled in December that the law is unconstitutional. His judgment did not block lawsuits from being filed under the law, and is currently being appealed.

[…]

Immediately after Texas’ latest abortion restrictions went into effect Sept. 1, one San Antonio doctor, Alan Braid, announced in a Washington Post op-ed that he had provided an abortion after cardiac activity was detected.

“I fully understood that there could be legal consequences,” Braid wrote, “but I wanted to make sure that Texas didn’t get away with its bid to prevent this blatantly unconstitutional law from being tested.”

Three people sued Braid, including two disbarred attorneys who indicated they were more interested in seeing the law tested and getting the money than actually taking a stand against abortion.

Hearron, who is also representing Braid, said Thursday that they have filed a countersuit in federal court against the three claimants, seeking to have the law declared unconstitutional and the suits thrown out.

Beyond those initial three claims, no lawsuits have been brought against anyone for aiding or abetting in a prohibited abortion. But just last week, a group of anti-abortion lawyers asked a judge to allow them to depose the leaders of two abortion funding nonprofits to gather information for potential lawsuits.

So things are bad, and there’s no clear path to them being less bad. If you want something to happen at the federal level, we’re going to need to add at least two more Democratic Senators, which might give us enough to make changes to the filibuster, and we need to hold onto the House as well. If not, well, as the story says, there’s no end in sight.

State Bar complaint against Paxton to proceed

Nice, but I’m still not expecting there to be consequences for him. I will be delighted to be wrong about that.

Best mugshot ever

A Texas State Bar complaint against Attorney General Ken Paxton is moving forward and will be heard by either a district court judge or an administrative panel, the complainants said Tuesday.

The complaint was filed in July 2021 by the nonprofit Lawyers Defending American Democracy and 16 Texas lawyers, including four former presidents of the state Bar. It alleges that Paxton committed professional misconduct when he filed the December 2020 suit before the U.S. Supreme Court seeking to overturn the presidential election results in four battleground states. The complainants say the suit was frivolous, knowingly false and deceitful.

The deadline for a decision on whether there is just cause to move forward, prescribed by the Texas Rules of Disciplinary Procedure, was Sunday, and the complainants have not been notified of a dismissal.

“This is a big step because this rarely happens,” said Jim Harrington, one of the Texas lawyers who joined the complaint and a retired founder of the Texas Civil Rights Project, a nonprofit that advocates for voting rights. “I just know from being a lawyer for 50 years, this is very rare.”

[…]

Under the disciplinary rules, Paxton has 20 days to decide whether to request the case be heard by a district court, where proceedings are public, or by an evidentiary panel. If he chooses the evidentiary panel, the proceedings will be kept private unless public sanctions are imposed. Dismissals or private sanctions are not made public.

Harrington rejected the claim by Paxton that the complaint was guided by political bias.

“That’s the way he always is. Anyone who disagrees with him is on some sort of political witchhunt,” he said. “It doesn’t matter to me what a person’s politics are … We lawyers, it’s very clear we have an ethical responsibility. It’s very clear we have to follow the rules.”

See here for some background on the July complaint against Paxton. There was a similar complaint filed in June, to which Paxton responded in July. I do not know what the status of that complaint is – you’d think it would be ahead of this one in the queue, but as noted I don’t know how this process works. Last month, there was another complaint filed over Paxton’s thuggish attempt to intimidate the Court of Criminal Appeals for its rejection of his attempt to become the supreme prosecutor of all voter fraud allegations.

Anyway. Harrington states in the article that he believes it would be appropriate for Paxton to lose his law license over this, which is the maximum penalty the Bar can levy. I agree with that, but please note that would not disqualify him from being the Attorney General. It would just be humiliating, if it’s possible for Ken Paxton to be humiliated. My guess is that he’ll choose the evidentiary panel to proceed, but we’ll know soon enough. The Trib has more.

More people are choosing the medical abortion option

It’s not like there are good alternatives right now in Texas.

The demand for abortion-inducing medication spiked in the month after Texas significantly limited abortion access and has remained high since, according to new data from a researcher at the University of Texas at Austin.

The study reviewed requests for abortion-inducing medication made to Aid Access, an international nonprofit that provides the medication via the internet to people who cannot otherwise legally access the procedure. Prior to September 2021, the organization typically received an average of 10.8 requests a day from Texans.

Then, the Texas Legislature passed Senate Bill 8, which prohibits abortions after about six weeks of pregnancy, a point at which many people do not know they are pregnant. In the first week after the law went into effect on Sept. 1, Aid Access received an average of 137.7 daily requests from Texas, an increase of over 1000%.

“That big of a spike in requests shows us the uncertainty and chaos created by Senate Bill 8 going into effect,” said Abigail Aiken, the lead researcher on the study. “If it’s not certain that you can go to a clinic and get the care that you need, people will be looking around for what other options they have.”

The demand for the medication has remained higher than normal in the months since, Aiken found.

Medical abortion is typically a two-drug regimen of mifepristone and misoprostol that has been shown to be effective at terminating a pregnancy through the first 10 weeks of pregnancy. In December, the federal government lifted a requirement that the medication be dispensed in person, allowing it to be prescribed by telemedicine and sent through the mail.

But Texas law does not allow the medication to be prescribed through telemedicine or mailed and has limited its use to the first seven weeks of pregnancy.

[…]

Aiken, the researcher behind the study, said it’s impossible to know how and when patients use the medication they access through Aid Access — or how many patients are terminating pregnancies through other means.

But as the U.S. Supreme Court considers whether to overturn the constitutional protection for abortion, Aiken said this Texas data serves as a snapshot of what whole swaths of the country may be facing.

“It’s clear from this research and many studies that just because you make abortion harder to get, it doesn’t mean the need for abortion goes away,” she said. “And many people, they will look for other ways of doing that.”

See here and here for some background. The forced-birth contingent is of course not happy with this and murmuring about ways to pursue “legal action” against international and out of state groups like Aid Access. Not sure how they could do that without being extremely invasive, but I have no doubt that such a thought does not bother them at all. On the assumption that SCOTUS is going to gut Roe v Wade in some significant way, the main question is whether people will mostly still be able to get abortion pills freely, or whether they will have to rely on more evasive options. Both seem very much in play. The Chron has more.

SCOTx hears SB8 argument

I’ll be honest, I had not realized this was on the calendar.

The Texas Supreme Court got its first chance to weigh in on the state’s new abortion law Thursday, hearing arguments in a narrow challenge to the restrictions, which have blocked access to abortions after about six weeks of pregnancy for nearly six months.

This hearing before the nine-justice high court is an interim step in the ongoing federal lawsuit brought by abortion providers trying to challenge the law. The 5th U.S. Circuit Court of Appeals asked the Texas Supreme Court to weigh in on a question of state law before the appeals court proceeds with its own ruling in the case.

The law, passed as Senate Bill 8, is designed to evade judicial review, a goal at which it has so far been successful. It specifically precludes state officials from enforcing it, instead deputizing private citizens to bring civil lawsuits against anyone who “aids or abets” an abortion after cardiac activity is detected in an embryo, usually around six weeks of pregnancy.

Lawyers representing the abortion providers are trying to prove that the state itself actually will enforce the law, which would open a legal window for them to seek an injunction on some aspects of the law. They argued that the law is enforced by court clerks who docket the lawsuits, judges who hear them, the attorney general and others.

The U.S. Supreme Court threw out most of those arguments in a December ruling that allowed the law to remain in effect. The justices did allow one question to proceed, over whether state medical licensing officials play a role in enforcing the law.

Those agencies would potentially be responsible for disciplining or revoking the licenses of doctors, nurses and pharmacists who violate the law; an injunction would stop them from doing so, but would leave the crux of the law in place.

[…]

At Thursday’s hearing, Texas Solicitor General Judd Stone argued that there was no “ordinary English interpretation that entertains any possibility of public enforcement.”

The justices questioned whether doctors might be obligated by the rules of the state’s medical licensing board to report any lawsuits brought against them for violating the abortion law, and whether that would constitute state enforcement.

Stone said the board could simply make a rule saying that it has no role in enforcement, so even if a report was made, it would be precluded from taking further action, like revoking a doctor’s license.

That argument, and the narrowness of the challenge more generally, presented a problem for lawyers representing the abortion providers, who found themselves in the tricky position of arguing against themselves.

Their current argument is that the state’s enforcement authority, through medical licensing officials, contributes to the chilling effect on abortion providers. If the state Supreme Court decides that medical licensing officials do not have enforcement authority — or the boards add language to their rules confirming that — that chilling effect is lifted.

Justice Evan Young asked Marc Hearron, senior counsel for the Center for Reproductive Rights, whether that would be a win for the abortion providers.

“If you were to do that, that would, at a minimum, provide our clients some certainty,” Hearron said. “It would, however … essentially end our challenge.”

Without state enforcement, there is no one to bring a constitutional challenge against, and the law would remain in effect.

[…]

Abortion providers and advocates are fighting the law on several fronts, including in state court, where a judge in Austin declared the law unconstitutional. He did not enjoin the law from being enforced, though, and that ruling is being appealed.

It is possible that case will eventually return to these same chambers. The justices acknowledged that Thursday’s hearing is unlikely to be the last time they are asked to rule on this unprecedented new law.

Thursday’s case before the Texas Supreme Court is a question of whether the abortion providers can bring a federal “pre-enforcement” challenge.

If that option is foreclosed to them, one option would be to do what a San Antonio doctor did immediately after the law was passed: violate the law, get sued and challenge the statute on its merits in court.

See here, here, here, and here for some background. Perhaps the timing of this hearing on Thursday explains the forced-birthers’ move earlier in the week. I have no idea what SCOTx will do, and there’s no indication from them as to when they’ll do it, but I do know what they should do, and that’s what the federal district court did and would have done again if the Fifth Circuit hadn’t shredded normal practice to put this case before them: Issue a temporary restraining order against any SB8 activity until the matter is resolved in the courts. It’s ridiculous and infuriating how the Fifth Circuit and SCOTUS have played politics with this case. Do what is clearly the right thing under the law, and let the matter proceed from there. I don’t expect them to do this, but they should. The Chron and the Texas Signal have more.

Anti-abortion zealots make their move under SB8

This is where it really starts to get scary and ugly.

For nearly six months, as Texas’ novel abortion law has wended its way through the courts, abortion providers and opponents have been locked in a stalemate.

The law, known as Senate Bill 8, empowers private citizens to sue anyone who “aids or abets” an abortion after about six weeks of pregnancy. With one exception as soon as the law went into effect, abortion providers in Texas have stopped performing these prohibited procedures — so opponents haven’t tried to bring one of these enforcement suits.

But that could be changing. A group of anti-abortion lawyers have taken steps to potentially bring lawsuits under SB 8, claiming in state court petitions that the leaders of two abortion funds have information about illegal abortions they helped patients procure.

This is a significant escalation on the part of abortion opponents, who have so far seemed satisfied with the chilling effect that even just the threat of lawsuits has had on abortion providers and their affiliates.

The petitions were filed by two women, Ashley Maxwell of Hood County and Sadie Weldon of Jack County. They are represented by Jonathan Mitchell, the architect of SB 8 and a former solicitor general for Texas; state Sen. Bryan Hughes (R-Mineola), the law’s chief legislative advocate; and lawyers from the right-wing Thomas More Society and America First Legal Foundation.

Maxwell and Weldon are asking a judge to allow them to depose the executive director of the Texas Equal Access Fund and the deputy director of the Lilith Fund before any lawsuits are filed.

If granted, the depositions will allow the petitioners to discover “the extent of involvement of each individual that aided or abetted post-heartbeat abortions in violation of SB 8” so they can “better evaluate the prospects for legal success.”

While abortion providers have reported significant declines in patient loads since the law went into effect, abortion funds have seen a surge in demand from clients trying to access abortions before the deadline or leave the state to seek the procedure.

“What [these petitions] mean to do is chill pregnant people from seeking out the help of abortion funds,” said Elizabeth Sepper, a law professor at the University of Texas at Austin. “If someone thinks that their identity and circumstances are going to be revealed to the world at large by a lawsuit … they’re going to hesitate before they pick up the phone and call for help.”

The petitions seek to depose Kamyon Conner, executive director of the Texas Equal Access Fund, and Neesha Davé, deputy director of the Lilith Fund for Reproductive Equity, two nonprofit abortion funds that provide financial assistance to patients seeking abortions.

Conner and Davé both admitted, in sworn affidavits in state court, that their organizations helped fund abortions “after the period in which cardiac activity is usually detectable.” That would put them in violation of SB 8, also known as the Texas Heartbeat Act, and open them up to potential lawsuits.

The organizations helped fund these abortions during a brief period last fall in which a federal district judge had enjoined the law from being enforced. A higher court quickly overturned that ruling; SB 8 specifically notes that an injunction that is later overturned is not a protection from future lawsuits.

That aspect of the law hasn’t been tested in court, and experts say it’s unclear whether it would hold up.

“In part, this attempt to get a deposition is also an attempt to figure out if claims can be brought based on the abortions performed in those few days where SB 8 was not in effect,” said Sepper.

The depositions are also seeking to identify who, in the language of the law, “aided and abetted” in these abortions — and the petitions indicate they’re taking a very wide view of that term. According to the filing, they’re seeking information on the funds’ role in facilitating abortions, the identity of individuals that they collaborated with and access to documents on the funds’ sources of financial support.

See here for the background on the state lawsuit, and here for the federal suit, which as we now know was routed to SCOTx by the Fifth Circuit precisely to keep it from being enjoined again. Make no mistake, the ultimate goal here is not just to go after people like Conner and Davé (who is a friend of mine), but everyone who donated to their organizations. The point of this awful law was to stop abortion, but the cherry on top for them was the chance to get rich doing so. I’m too disgusted to say any more.

Using the Texas model to protect voting rights

Some blue state needs to do this.

In the midst of the ongoing debate over Republicans’ siege on voting rights in states they control, here’s an unconventional suggestion: Democratic state legislators should take a page from the Republican playbook and empower private citizens to sue people who are “aiding and abetting” voter suppression efforts.

After all, that’s exactly what the Texas GOP has done with the abortion bill it enacted last year, which effectively bans abortions after six weeks of pregnancy, despite the fact that our Supreme Court has ruled that women have a constitutional right to abortion until a fetus is viable, which is generally about 24 weeks into pregnancy. As the Supreme Court declared in 1992 in its ruling in Planned Parenthood v. Casey, there’s a “constitutionally protected liberty of the woman to decide to have an abortion before the fetus attains viability and to obtain it without undo interference from the State.”

[…]

While personally I believe this law is atrocious, if the GOP is going to use that legal model to infringe on the rights of women, why can’t Democrats use that same tactic to accomplish a monumental goal of their own: protecting voting rights? Democrats cannot simply roll over and let the GOP suppress the vote — and potentially rig elections — because new federal voting rights legislation was recently blocked by way of the filibuster in the U.S. Senate. Democrats need to be tenacious fighters on this all-important issue — and that means using every single tool available.

One way to show that commitment would be for states with Democratic governors and legislatures to enact laws that enable private citizens to sue anyone who is found “aiding and abetting” making it more challenging to vote. And if the person wins, they would be rewarded with $10,000 plus the cost of their legal fees from the defendant for each action they took that “aided and abetted” in restricting voting.

For example, New York could enact a law that enables people to sue any person in the state who is found “aiding and abetting” the GOP’s voter suppression efforts. This arguably would include elected New York Republican officials, such as Rep. Elise Stefanik, who championed former President Donald Trump’s election lies that have been used to justify the voter suppression laws in other states. That includes Stefanik claiming that President Joe Biden’s win in Georgia was because “more than 140,000 votes came from underage, deceased, and otherwise unauthorized voters — in Fulton County alone.” And in May, she was on Steve Bannon’s podcast, where she continued to further Trump’s “big lie.”

Lawsuits could also be potentially filed against GOP donors living in New York who give to organizations like the Republican National Committee, which has been vocally opposing federal laws to protect voting rights and continues to recognize Trump as its standard-bearer. This could all arguably be considered “aiding and abetting” the GOP’s voter restriction efforts.

The law could even be crafted so that Republicans in other states who engage in “aiding and abetting” the restriction of voting and do “business” in New York can be sued in the Empire State since it would arguably fulfill jurisdictional requirements. For example, when Florida Republican Gov. Ron DeSantis — who touted and signed into law sweeping voting restrictions in his state — traveled to New York in September for a political fundraiser, he was in effect “doing business” in New York by targeting New Yorkers for their donations. And he would be fair game to catch a lawsuit under this hypothetical anti-voting restriction law.

Further justifying this law is that voter restrictions in any state ultimately affect those in blue states since they impact races for federal office, and those federal officeholders in turn can enact laws that impact the entire nation — such as on climate change and gun safety.

I get that this sounds unconstitutional and insane — but it’s built in the exact image of the Texas abortion law. A women’s right to abortion in the first 24 weeks of pregnancy is a constitutional right — just like freedom of speech. Given that the GOP-controlled Supreme Court didn’t swiftly strike down the Texas abortion law, it would be hard-pressed to strike down these “protect the vote” laws without exposing itself as being nothing more than an arm of the Republican Party.

I have no doubt that this Supreme Court is up to the challenge of justifying the Texas abortion law while knocking down this hypothetical statute, but having the fight and making them do it would definitely be worth the effort. I also agree that it’s all ridiculous, but given all that’s happened it’s hard to avoid the conclusion that this is the most feasible path available at this time. New York and California, y’all are the best bets for this. Someone please get the ball rolling on it.