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SCOTUS will hear SB8 appeals

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

And Slate tries to read some tea leaves.

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

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

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

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

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

Third Court rejects Paxton attempt to kill whistleblower lawsuit

Good.

Best mugshot ever

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

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

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

[…]

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

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

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

Elections of interest elsewhere in Texas

Early voting has started for the special election runoff in HD118.

Frank Ramirez

Early voting began Monday in San Antonio to see who will replace former state Rep. Leo Pacheco, a two-term Democrat who resigned from Texas’ 118th district in August to teach public administration at San Antonio College.

The special election to replace Pacheco has produced two runoff candidates who continue to campaign against each other ahead of election day on Nov. 2, Democrat Frank Ramirez and Republican John Lujan.

Ramirez told the Signal he’s running to represent the community he grew up in and bring more infrastructure and education dollars to the region.

“I’m from the district through and through,” Ramirez said. “I grew up in the southside of San Antonio and I went to elementary, middle, and high school in the Harlandale Independent School District.”

After graduating from the University of Texas in 2016, Ramirez served as the chief of staff and legislative director to former state Rep. Tomas Uresti, a Democrat who briefly occupied the seat for one term during the 2017 session, the infamous bathroom bill session.

“Recognizing that our state has a lot of work to do to catch up educationally, to catch up in terms of business and property taxes and infrastructure. That was the motivating factor for me,” Ramirez said of running.

“And even though I saw a lot of bad things happen in the 2017 session, we also saw a number of good things happen,” Ramirez said. “85% of the bills that are filled in the Texas House of Representatives are bills that fit within the scope of an individual’s districts, and they’re doing good for as many Texans as possible.”

Ramirez then spent almost four years serving as the zoning and planning director of San Antonio City Councilwoman Ana Sandoval before departing in August to run for district 118.

The south San Antonio district has traditionally voted for Democrats. In 2020, Pacheco defeated his Republican opponent by almost 17 percentage points, a similar margin to Pacheco’s 2018 victory over Republican John Lujan.

I’ve covered this before, and there’s not much to add. It would be very nice to win this race, if only because the discourse that would follow a loss will be annoying as hell. It will still be the case that the outcome will have basically no effect on anything the Lege does at this point, even if there is another special session, and it will also be the case that the incumbent will have to run in a more normal environment next year in a district that still leans Democratic; it was made less Democratic by redistricting, but the trends remain in Dems’ favor. Frank Ramirez would become the youngest member of the House if he wins, and that’s cool.

Meanwhile, in Austin, there’s a contentious ballot proposition to deal with.

Early voting for the November 2021 election starts Monday and there are two Austin propositions on the ballot.

The most controversial is Proposition A. If approved by voters, it would increase Austin police staffing to two officers per 1,000 citizens, increase yearly training and increase minority hiring and community engagement.

The City said it would cost between $54.3 million and $119.8 million per year for the next five years, which is added on top of the department’s budget of $443 million city council approved for this fiscal year.

The Austin firefighter and Austin-Travis County EMS unions, as well as the local American Federation of State, County, and Municipal Employee Voting are against Prop A.

“This unfunded mandate that is on the ballot will cause severe layoffs, and it will also put a burden on the taxpayers,” said AFSCME Business Manager Carol Guthrie.

On the other side, the driving force behind Prop A, Save Austin Now, said the city has enough money to implement the initiative without hurting other departments.

“We know we need 300 to 350 more,” said president of Save Austin Now Matt Mackowiak.” We don’t believe that will happen in one year, but we should try.”

Mackowiak is either the current or a recent past Chair of the Travis County Republican Party (I can’t remember and I’m too lazy to look it up), and if you follow Scott Braddock on Twitter, you know he’s also a thin-skinned twerp. Prop A is yet another response to the recent actions by the Austin City Council to try to effect some modest reforms on policing and their police budget, and as with the Legislature it’s over the top and would hamstring the city’s budget for the foreseeable future. See these posts from Grits for Breakfast and this one from Keep Austin Wonky that cast doubt on the pro-Prop A cost estimates. I probably don’t have to tell those of you who live in Austin and read this blog to vote against Prop A, but I’m going to anyway. KUT has more.

On Rice and the AAC

It’s a great move for Rice. It also means they will need to step it up in men’s athletics.

On the job a few months in early 2014, Rice athletic director Joe Karlgaard met with alumni at a fundraiser in Boston.

On the trip, Karlgaard made the 50-mile drive to Providence, R.I., to meet with Mike Aresco, commissioner of the American Athletic Conference, the newest league in college athletics that debuted a few months earlier. The informal meeting included lunch at The Capital Grille and a brief tour of the AAC offices.

Over the next eight years, Karlgaard forged relationships everywhere he could, all part of a strategic plan to position Rice for the next round of conference realignment.

“Throughout the time, I’ve tried to build the right relationships, tried to listen very well to what it is that may better position us,” Karlgaard said. “The opportunity hasn’t always presented itself like it did the last several weeks.”

Calling it a “historic new direction” for the school’s athletic department, Rice accepted an invitation to join the American Athletic Conference on Thursday.

With the addition of six schools, all from Conference USA, the AAC will become a 14-team football league as early as 2023. Two other Texas schools — UTSA and North Texas — will join Rice, along with Alabama-Birmingham, Charlotte and Florida Atlantic to comprise a new-look AAC that will have a 10-state footprint.

[…]

The move will provide an increase in revenue for Rice, which received a $500,000 annual payout in C-USA. This past year, AAC schools received about $7 million.

Karlgaard pointed to ticket sales, sponsorships and fundraising as areas Rice should receive a financial bump from the change in conference. Rice will also receive increased visibility with the AAC’s deal with ESPN.

“I think it will have a significant economic impact,” he added. “I believe our distribution will be significantly better from the American Athletic Conference than they have been – ever, no matter what conference we’ve been affiliated with.”

[…]

Rice has made campus-wide facility upgrades in recent years, most notably the $31.5 million Brian Patterson Sports Performance Center in 2016.

Rice president David Leebron, who will retire in 2022 after 18 years, vowed to “invest more in the athletic program’s success.” At the top of the list on needed upgrades: 71-year-old Rice Stadium.

“We know our stadium needs some investment,” Leebron said. “But virtually everywhere else we have invested in major facilities and renovations. We’re in really good shape.” He added the move to the AAC “reflects stability in what our future looks like.”

See here for the background. Rice football hasn’t been a factor since the early David Bailiff years, the men’s basketball team last played in an NCAA tournament game in 1970, and the baseball team is trying to rebuild after a long decline (from an admittedly high peak). The women’s teams have been much more successful in recent years, so it’s up to the men to prove that they can be competitive in a tougher conference. More exposure and more money can help, but they’re not enough on their own. I speak for a lot of long-suffering Rice fans when I say we’ve been waiting a long long time for something good to happen. I sure hope this is a step in that direction.

That said, the alternative of being left behind as this was happening would have been a death knell. I have a lot of sympathy for our soon-to-be-former conference mates.

That future does not look as bright for C-USA, which is now left with eight schools: UTEP, Old Dominion, Southern Mississippi, Marshall, Louisiana Tech, Middle Tennessee, Western Kentucky and Florida International. Earlier this month, C-USA commissioner Judy MacLeod sent a letter to Aresco proposing an alliance of sorts between the two leagues. Instead, the AAC raided C-USA and the league reportedly could lose some of the remaining members to other conferences.

I feel especially bad for UTEP, who was an original WAC member when we joined that (now basically dead) conference in 1996, and for LaTech, which joined the smaller WAC after a bunch of the other schools split off to form the Mountain West Conference. At this point, I have a lot more affinity for them than for most of our former SWC rivals. Whatever happens with C-USA, I hope they land on their feet, and I hope we schedule them for some non-conference action going forward.

UPDATE: Also, too:

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Texas takes its shot at Roe v Wade

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

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

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

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

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

[…]

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

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

Abbott picks Trumpy Secretary of State

Red alert, this is not good.

Gov. Greg Abbott on Thursday appointed John Scott — a Fort Worth attorney who briefly represented former President Donald Trump in a lawsuit challenging the 2020 election results in Pennsylvania — as Texas’ new secretary of state.

As secretary of state, Scott would oversee election administration in Texas — a task complicated in recent years by baseless claims of election fraud from Republicans in the highest levels of government, fueled by Trump. The former president has filed a flurry of lawsuits nationwide and called for audits in Texas and elsewhere to review the results of the 2020 presidential elections. Trump’s own attorney general, Bill Barr, said there was no evidence of widespread voter fraud nationwide, and in Texas, an official with the secretary of state’s office said the 2020 election was “smooth and secure.”

Scott could not immediately be reached for comment.

On Nov. 13, Scott signed on as counsel to a lawsuit filed by Trump attempting to block the certification of Pennsylvania’s election. A few days later, on the eve of a key hearing in the case, Scott filed a motion to withdraw as an attorney for the plaintiffs. Scott’s motion also asked to withdraw Bryan Hughes, a Texas state senator from Mineola who works for Scott’s law firm, as an attorney for the case.

The motion said the attorneys had reached a mutual agreement that the plaintiffs would be best served under different representation. Scott’s law firm was the second in the span of a few days to withdraw from the case.

Matt Angle, director of the Lone Star Project, which supports Democrats for elected office, said Abbott’s “surrender to Donald Trump betrays every Texan.”

“Texas’ already chaotic Secretary of State’s Office will be headed by someone intent on paving the way for Trump’s ‘Big Lie,'” Angle said in a statement. “By appointing a known vote suppressor to oversee our elections, Abbott is knowingly putting Texas elections in jeopardy and our future at risk just to cruelly hang on to power.”

As a reminder, previous Secretary of State Ruth Hughs resigned after calling the 2020 election “smooth and secure”, and then not being able to be confirmed by the State Senate. John Scott may be technically qualified for this position, but the motives here are obvious, and neither he nor Abbott deserve any benefit of the doubt. There are plenty of ways a person in this position can hamstring or undermine the big urban Democratic counties as part of a greater suppression strategy. I’m sure there are some less-publicized aspects of the big voter suppression bill that will empower him to do exactly that. This is an ominous development, and it’s one we need to be prepared to deal with. The Chron and the Texas Signal have more.

Elon Musk’s underground adventure

Say what now?

When it surfaced two months ago, the notion of Teslas whizzing through underground tunnels between San Antonio International Airport and downtown seemed fanciful.

Now, there’s a sign the idea may have gained some traction.

The Boring Co., a tunneling firm backed by billionaire Elon Musk, has been talking to local leaders about building an underground transportation loop in San Antonio. Musk is the CEO of electric-vehicle maker Tesla, as well as the founder and head of SpaceX.

Under The Boring Co. proposal, a fleet of company-driven Teslas would use the below-ground circuit to shuttle visitors between the airport and downtown San Antonio, according to two people with knowledge of the discussions.

On Oct. 1, in what sources described as the first concrete step to explore the idea seriously, the Alamo Regional Mobility Authority formally invited contractors to submit plans for “a transportation project that can efficiently and economically transport people between the general vicinity of the San Antonio International Airport and the downtown area of San Antonio.”

Alamo RMA Chairman Michael Lynd Jr., a residential estate developer, said the authority issued the request for airport-to-downtown plans in “response to a proposal submitted to us by a company.” He declined to identify the firm. Sources told the Express-News it was The Boring Co.

Lynd said the authority now has opened the process to competing firms with ideas for a better, “economically viable” way to move travelers from the airport to the center city.

“First, give us an idea,” he said. “Next, give us the facts and the tangible data behind it.”

The deadline for proposals is Dec. 1.

Read the rest, because it doesn’t get any less bonkers. I have no idea how this could possibly be economically viable, but I’m not a spacefaring billionaire supergenius, so don’t pay me any mind. I will say that it’s a 15 minute drive from the San Antonio airport to downtown SA, so it’s not like the Uber/Lyft fares they’d be competing with are particularly expensive. But it would be cool, you have to admit that.

Comings and goings

Rep. Lloyd Doggett will run in a new district again.

Rep. Lloyd Doggett

Longtime U.S. Rep. Lloyd Doggett, D-Austin, has decided to run for reelection in Texas’ 37th Congressional District, opting to vie for one of Texas’ two new congressional districts — a bright-blue seat concentrated in Austin — rather than his current district, which reaches down to San Antonio.

Doggett announced the decision Sunday in an email to supporters and then shared it in person Monday outside Bryker Woods Elementary School in Austin.

“Nobody, me included, has any entitlement to public office, but Bryker Woods does issue reports cards,” Doggett said, “and I’m ready for my neighbors to grade my service in Congress and my devotion to the families of this city.”

Doggett currently represents the 35th Congressional District, which runs from Austin down along Interstate 35 to San Antonio. The proposed 37th District is far more compact, contained almost entirely within Travis County, home to Austin. Both are currently safely Democratic districts — and likely to remain so after redistricting.

[…]

Doggett also survived the last round of redistricting by switching districts, changing to the 35th District, which was new at the time. It was drawn to be a Hispanic-majority district, and Doggett faced a primary against then state Rep. Joaquin Castro of San Antonio. But Castro ultimately ran for the San Antonio-based 20th Congressional District after its Democratic incumbent, Charlie Gonzalez, announced his retirement.

Doggett’s chances of reelection in the new district are high. He has served in Congress since 1995 and a built a massive campaign war chest, totaling $5.4 million as of Sept. 30.

Doggett’s decision to run in CD-37 means there will be an open seat in CD-35.

Potential Democratic candidates for the 37th District have included state Rep. Gina Hinojosa of Austin and Wendy Davis, the former Fort Worth state senator and 2014 gubernatorial nominee who unsuccessfully challenged U.S. Rep. Chip Roy, R-Austin, last year.

Doggett was first elected in what was then CD10. In the DeLay re-redistricting of 2003, he moved to what was then CD25, then into CD35 as noted. I’m just going to leave this here:

Someone needs to start a project to track down everyone who has been continuously represented by Lloyd Doggett since 1995.

Rep. Doggett may or may not get some real competition for CD37. I’d make him a heavy favorite against pretty much anyone. As for CD35, that will likely draw a crowd.

Progressive firebrand and Austin City Council Member Greg Casar is likely to run for Congress in Texas’s 35th District, he told the Texas Observer in an interview.

“It’s very likely that I’m running,” says Casar, who has formed an exploratory committee to examine a run for the district that runs from Austin to San Antonio. “The maps haven’t been signed into law yet, but shortly after they are, I will make things much more official.”

[…]

The prospect of a newly open seat in a heavily Democratic majority-minority district sets the stage for a potential primary battle.

State Representative Eddie Rodriguez, who’s served in the Legislature since 2003, is reportedly “taking a hard look” at a run for the 35th; his southeast Austin state House district sits almost entirely within the new 35th boundaries. Also, longtime San Antonio Representative Trey Martinez Fischer requested that lawmakers draw him into the 35th, indicating that he may also run. Claudia Zapata, a progressive activist in Austin, is currently the only officially declared candidate. Casar’s home and his north-central council district are in the 37th, right along the border with the 35th.

That story is all about CM Casar, and you can read it if you want to know more about him. I’m mostly interested in the name game at this point.

Moving along, we will have a new open State House seat in Bexar County.

State Rep. Lyle Larson, R-San Antonio, who bucked his party on a number of major issues this year, announced Wednesday he will not seek reelection.

In an email to constituents, Larson said he was following through on legislation he has repeatedly introduced that imposes a term limit of 12 years on any elected official at the state level.

“As a strong proponent of term limits, will follow the limits we previously proposed in this legislation,” Larson wrote.

Larson was first elected in 2010 to represent House District 122 in the San Antonio area.

He had been increasingly expected to pass on a 2022 reelection campaign as he grew disillusioned with his party and potential GOP candidates lined up for his seat. Larson was the only Republican to oppose the GOP’s priority elections bill that led House Democrats to break quorum this summer. He also was the only Republican to vote against legislation that Republican supporters argued would crack down on the teaching of critical race theory in Texas classrooms. More recently, he filed a long-shot bill during the current special session to provide rape and incest exemptions for Texas’ new near-total abortion ban, despite previously voting for it.

Rep. Larson, who had been targeted by Greg Abbott in the 2018 primary, was sure to draw challengers this primary as well. He’s also now got his 12 years in, which means he’s fully vested in the pension. That’s always a propitious time to pull the plug. As noted before the current HD122, which began the decade as the most Republican district in Bexar County, has moved sharply towards Democrats. It was also significantly changed in redistricting, and was made more red than it had been in 2020, but could still be competitive in the near future. Maybe if a more wingnutty Republican wins, that timetable could move up.

Also moving districts due to the new map:

State Rep. James Talarico, D-Round Rock, announced Wednesday he is moving to run for reelection in a different House district because his current district is being redrawn to be more favorable to Republicans.

Talarico said he would run in nearby House District 50, where the Democratic incumbent, Celia Israel, is not seeking reelection as she prepares to run for Austin mayor. He announced the new campaign with the support of the biggest names in Democratic politics in Texas, including Beto O’Rourke, Wendy Davis and Joaquin Castro.

Talarico currently represents House District 52, which is set to become redder in redistricting — going from a district that President Joe Biden won by 10 percentage points to one that Donald Trump would have carried by 4. HD-50, meanwhile, is likely to remain solidly blue after redistricting.

[…]

Whether Talarico can avoid a competitive primary for HD-50 is an open question. Earlier Wednesday, Pflugerville City Councilman Rudy Metayer announced he was exploring a run for the seat. Metayer is also the president of the Texas Black Caucus Foundation, and he released a list of supporters topped by two of the state’s most prominent Black politicians, state Sens. Borris Miles of Houston and Royce West of Dallas.

HD-50 is more diverse than the district Talarico, who is white, currently represents. In a series of tweets announcing his new campaign, Talarico prominently highlighted how he “call[s] out White supremacy on the floor,” a reference to his outspoken advocacy against Republican legislation aiming to restrict the teaching of “critical race theory” in Texas classrooms.

Talarico was part of the over 50 House Democrats who broke quorum this summer in protest of the GOP’s priority elections bill, though he was part of the first several to return, causing friction with some in his own party.

See here for more on Rep. Israel. I have to think that HD52 will still be attractive to someone on the Democratic side; that person may have a harder time of it than Rep. Talarico, but a 4-point Trump district is hardly insurmountable, and I’d bet on further change in a Dem direction. As for Talarico, I’ll be very interested to see how big a deal his coming back in the first wave from the quorum break is in his primary. I’m sure the subject will come up.

Closer to home:

State Rep. Dan Huberty, R-Houston, announced Tuesday he will not seek another term to the Texas House.

Huberty, who has represented House District 127 since 2011, said in a statement that “it is time for new opportunities in life.”

“I have thought long and hard about this decision,” Huberty said. “It’s been an honor to represent the people and communities of District 127 at the Texas Capitol, and I’m proud of the work our team has accomplished.”

During the 2019 legislative session, Huberty helped spearhead reforms to the state’s school finance system, which included $6.5 billion to improve public education in the state and pay teachers, plus $5.1 billion to lower school district taxes.

Huberty said Tuesday that his “interest in and passion for public education remains at my core” and said he believed that the school finance reform legislation from 2019 “will have a lasting impact for the school children of Texas for a long time to come.”

Another fully-vested-in-the-pension guy. Funny how those things work out. Rep. Huberty, like several of his colleagues, is one of those increasingly rare serious-about-policy types, who has done some good work with public education. As his district remains pretty solidly Republican, at least in the foreseeable future, the best we can hope for is someone who isn’t a total clown emerging from the Republican primary. Say a few Hail Marys and toss some salt over your shoulder.

And speaking of Republicans with policy chops, this was not unexpected but is still bad.

Amarillo state Sen. Kel Seliger, a Republican who often butted heads with Lt. Gov. Dan Patrick and was known to be a key swing vote for his party, will not seek reelection.

“After thoughtful consideration and with the reassurance of my family, including my new very vocal granddaughter, I have decided not to be a candidate for re-election to the Texas Senate,” Seliger said in a statement. “I am forever grateful for my family, supporters, staff, and those who. have worked on my behalf since 2004. Thank you for placing your trust in me as your Texas State Senator.”

Seliger said he will serve out the remainder of his term, which ends in January 2023. He has represented Senate District 31, which covers the Panhandle, South Plains and the Permian Basin, since 2005. Prior to that, he served four terms as mayor of Amarillo.

In the Legislature, Seliger was known as an advocate issues of public education, higher education and local control. He led the Senate Higher Education Committee for three sessions between 2013 and 2017. But as parts of the Republican Party in Texas shifted toward support of private school vouchers and against policies passed in Democrat-leaning municipalities, Seliger was often criticized for not supporting those stances and derided as a “liberal.”

[…]

As recently as Monday, Seliger was still breaking with Republican leadership in what he said was deference to his constituents. He was one of the only Republicans in office who openly opposed legislation to ban employers from requiring COVID-19 vaccines, saying the proposal, pushed by Gov. Greg Abbott, was “anti-business.” Earlier in the 30-day special session, Seliger was the sole GOP vote in the Senate against a bill that would clear the way for party officials to trigger election audits. Seliger reportedly said he opposed the legislation because it is an “unfunded mandate of the counties, and I’m opposed to big government.”

His maverick streak led to frequent conflict with Patrick, a conservative firebrand who presides over the Senate. In 2017, Seliger voted against two of Patrick’s legislative priorities: a bill restricting local governments’ abilities to raise property tax revenues and another one providing private school vouchers. The next session, Patrick stripped Seliger of his chairmanship of the Higher Education Committee prompting a back and forth with Patrick’s office that escalated to Seliger issuing a recommendation that a top Patrick adviser kiss his “back end.” (Seliger ultimately apologized, but only for directing the comment at the adviser and not at Patrick himself.)

There used to be a lot of Kel Seligers in the State Senate, and in the Republican Party. Now they run the gamut from Joan Huffman to Bob Hall, and the next person to be elected in SD31 is almost certainly going to be on the Bob Hall end of that spectrum. We sure better hope we can beat Dan Patrick next year.

Finally, here’s a non-legislative vacancy that may have an effect on the House delegation in 2023.

The race for Bexar County judge is wide open as the 2022 election approaches.

Bexar County Judge Nelson Wolff confirmed last week that he would not seek reelection next year. Wolff has served as the county’s leader since 2001. Local political scientists say they expect a packed Democratic primary, though the number of officially declared candidates currently sits at zero.

So far, only state Rep. Ina Minjarez has publicly announced interest in the seat; she tweeted that she was exploring a run after Wolff announced his decision not to run again.

“I’ve received countless calls from community members for me to consider running for Bexar County Judge; with today’s news I’ve decided to form an exploratory committee,” she wrote on Oct. 6.

Rep. Minjarez was the only legislator mentioned in that story, but County Judge is a pretty good gig, so others may check this out. Being a County Judge is also a decent stepping stone to higher office, if that’s on one’s path. I will keep an eye on that.

With the mapmaking done, I expect we’ll start to hear about more people getting in, getting out, and moving over. And the January finance reports are going to tell us a lot. Stay tuned.

A long story about the bail industry

It’s complicated.

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

American Athletic Conference to expand

Time for some more dominoes to fall.

The American Athletic Conference is set to consider expansion this week after six Conference USA programs applied for membership on Wednesday. If all six teams are added to the AAC, it would expand to become a 14-team league once realignment shakes out.

The six potential institutions looking to join the American from Conference USA include FAU, Charlotte, North Texas, UTSA, Rice and UAB, sources told CBS Sports on Monday. It’s expected that all six programs will be approved as new AAC members. Yahoo Sports’ Pete Thamel first reported the movement.

Adding North Texas, UTSA and Rice would allow the AAC to retain a strong geographical foothold in Texas, while FAU would join South Florida in the conference, Charlotte and UAB would have regional partners in East Carolina and Memphis, respectively.

The potential moves comes months after AAC members Cincinnati, Houston and UCF opted to depart for the Big 12, leaving the league with just eight football-playing members. The AAC previously looked to the West by courting Mountain West institutions Boise State, San Diego State, Air Force and Colorado State. However, all four schools declined the possibility of moving conferences.

“We do want to get back to either 10 or 12 [schools],” AAC commissioner Mike Aresco told the Orlando Sentinel in September. “We have some good candidates and we’re only dealing with candidates who have approached us — who have expressed an interest in us. It’s proceeding and I’m reasonably confident we’re going to end up as a strong conference and our goal is to be even stronger than before.”

The AAC is banking on safety in numbers. At 14 teams with many important geographic footprints under its belt, the American would stand with the Mountain West as the two strongest non-Power Five conferences. The move would also gouge Conference USA, which may now seek teams from the Sun Belt or a partnership with that conference after itself being reduced to eight members.

This round of realignment would leave Conference USA with just eight remaining members, which is one reason why it recently sought but failed to convince the AAC and Sun Belt to regroup along geographical lines. It is believed that there will remain 10 FBS conferences following this round of realignment.

[…]

The group puts an emphasis on big markets, featuring teams in Houston, San Antonio, Birmingham, Charlotte and on the edge of the Dallas-Fort Worth Metroplex. Other schools that will compete in the hypothetical AAC include SMU, Memphis, East Carolina, Temple, Tulsa, South Florida, Navy and Tulane.

It’s not clear what a 14-team AAC would be worth in media rights revenue. Conference USA schools get about $500,000 annually in their current TV deal. The AAC, as it currently exists, averages $7 million per team. That figure is expected to decline significantly after the loss of three schools to the Big 12.

Something like this was highly likely after UH and others left for the Big XII. As the story notes, it could have been the Mountain West adding members, but they decided it was better financially to stand pat. The AAC isn’t as strong as it was before the departures, but some of these schools look like up-and-comers, in particular UTSA, a large public school with a big city market all to itself in college sports. It’s a great move for Rice, which has had far more success in women’s sports in recent years (the women’s basketball, volleyball, and soccer teams all went to the NCAA tournament last year) than the men’s, but the step up in competition is a double-edged sword, to say the least.

The timing of this all hinges on when UT and Oklahoma make their actual move to the SEC, as everything else will follow that. I continue to believe that UT and OU will suit up for the SEC no later than the spring of 2023, and it won’t surprise me at all if they’re there for football in 2022. I guarantee, there’s plenty of talk going on about that right now. ESPN and the Chron have more.

Congressional map passes

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

The Trib on Collier/Dowd

Good story.

Mike Collier

Mike Collier is willing to bet Texas voters know his name.

In fact, he’s confident that when he last ran for lieutenant governor three years ago and came within 5 percentage points of winning, it was because most of the 3.8 million Texans who checked his name were voting in support of his candidacy, and not just against Republican incumbent Dan Patrick during a watershed year for Democrats.

“They’ll only do that if they like the candidate they’re voting for,” Collier said. “Yes, a lot of people voted against Dan Patrick but they’re not going to vote for just anybody. They looked and they [said], ‘I don’t like Dan Patrick, he’s bad for the state. I like Mike Collier, I think he’s good for the state.’”

His evidence? In two-thirds of Texas counties, he outperformed Beto O’Rourke, who led the top of the ticket in 2018 against U.S. Sen. Ted Cruz and sparked a flurry of excitement among Democrats that year.

But several other statewide Democratic candidates with little name recognition and no real campaign funding also outperformed expectations against their GOP counterparts that year, largely on O’Rourke’s coattails. Collier wasn’t even the party’s second-highest vote-getter statewide. That was Justin Nelson, who came within 295,000 votes of unseating Attorney General Ken Paxton.

Collier, a 60-year-old accountant and auditor from the Houston area, will have his chance to prove his bonafides next year after announcing earlier this month that he is officially running for a rematch against Patrick.

“I came very close to beating Dan Patrick. I came within 4.8 points,” he said. “And I decided that looking at the numbers, that I can beat him.”

But first, he’ll have to get past Matthew Dowd, a former George W. Bush strategist turned Democrat, and any other candidate that joins the race in a Democratic primary. Collier said he looks forward to the contest.

“My strategy is to keep talking to every Texan and have a much better team, much more money and a network of surrogates and friends and volunteers and champions and validators all over the state,” he said. “I think I win the primary.”

The rest of the story is a nice profile of Collier, hitting on some of the things he did in his 2018 campaign, his case against Dan Patrick, and how he is differentiating himself from Matthew Dowd. If you didn’t know anything about him to begin with, it’s a good introduction and I think it makes him look very presentable. My hope is that there are stories like this to be done around the state, in newspapers and for local TV stations. They can be about Dowd too – really, I hope there are stories about both of them. But to whatever extent that happens, both Collier and Dowd are going to have to show they can raise enough money to fund a robust statewide campaign, and get their names in front of as many voters as they can. There’s a quote in the story from a poli sci professor about how Collier’s vote total in 2018 was more a reflection of what people thought of Dan Patrick than of Mike Collier, and I agree with it. The next step is to be more than “not Dan Patrick”, and that’s going to take some money. I very much hope the January finance reports reflect that.

UPDATE: Almost as if on cue, here’s the Chron’s Erica Greider writing about the Dowd/Collier race from a more Dowd perspective.

Endorsement watch: Wrapping it up

The Chron counsels a Yes vote on Prop 2.

For 30 years, the Texas Constitution has allowed the Legislature to authorize cities to issue bonds to raise needed funds to more quickly build roads, bridges and other vital infrastructure. On Nov. 2, and in early voting that begins Monday, voters can give counties that same authority.

We recommend that they do so by voting yes on Prop 2.

Counties, just like cities, need all the tools available to keep up with the basic needs of residents. In places such as Harris County, with more than 2 million residents living in unincorporated areas, this is not just a good idea but an urgent necessity.

Issuing bonds means taking out large loans secured by promises to use a portion of future property tax revenues to repay them — usually at low interest rates and over decades. Doing so means residents’ daily lives are improved right away rather than years later.

This is especially important here. By 2050, the population of the Houston area is expected to double. Just imagine how much more time you will spend staring at the rear fender of the car in front of you on the 610 Loop in 30 years if the county doesn’t continue investing in mobility solutions, from mass transit to smarter highways, better roads and safer and more plentiful bike lanes.

Harris County has dozens of infrastructure projects on its wishlist, from highway to transit to bike trails. Building those projects would increase nearby property values and add new properties to the tax rolls as well. That new revenue would repay the bonds and ease pressure to raise tax rates.

The Chron had earlier recommended a No vote on Prop 3, and unless they have some late endorsements sitting around, that’s all we’ll get from them on the Constitutional amendments. As noted before, the guidance from Progress Texas is a No on 3, 4, and 5, and a Yes on the others. The H-Town Progressive podcast differs slightly, recommending a slightly qualified Yes on 4 but concurring with the rest. I’m leaning in that direction but could still be persuaded otherwise on Prop 4. The Austin Chronicle is a Yes only on 1, 2, 6, and a No on the rest.

Finally, for those of you in The Woodlands, the Chron says incorporate yourselves by other means than the proposition on your ballot.

Nearly 50 years after George Mitchell charted the master-planned community that is The Woodlands, an inevitable fight has broken out beneath the tall trees 28 miles north of Houston over how to best protect the founder’s vision of suburban utopia.

In a 5-2 vote Aug.13, the board of Texas’ only “township” decided to put incorporation on this fall’s ballot. If passed, The Woodlands — beloved by residents for low taxes, low crime, green parks and good schools — would become an incorporated city.

Supporters say it’s time for The Woodlands’ residents to fully govern themselves, electing a mayor and a city council who can draft a charter, pass noise ordinances and zoning rules, and establish a dedicated police force so the community doesn’t have to depend on Harris and Montgomery counties for law enforcement.

Township board chair Gordy Bunch told us The Woodlands, because it’s not a city, is missing out on as much as $30 million in COVID relief funds — and that Montgomery County hasn’t properly shared.

Opponents ask “If it ain’t broke, why fix it?” The unusual governance system is central to what makes The Woodlands appealing to families and businesses.

[…]

It’s unclear to residents we talked to, and to us, how daily life in The Woodlands would really change with incorporation — and more importantly, if it would improve. The township — whose board is elected, albeit at-large, without distinct districts — already uses local tax revenue to provide some services and contracts out others, such as trash pickup.

But running a full-fledged city — including having a direct role in roads and other infrastructure and establishing a police department from scratch — is different. The question isn’t whether costs will go up for residents but how much.

No one we talked to could say for sure. And that’s a problem. Township board members say they have a plan to keep the tax rate consistent over the first few years but their critics say they’ve seriously underestimated the startup costs of incorporation.

Eventually, incorporation may well be the best option for this growing community whose need for autonomy, efficiency, transparency and influence over its own destiny will only increase.

But the current effort feels hasty. While incorporation has been the topic of conversations and public meetings and research for years, the decision isn’t something that should be rushed through in a low-turnout election in a year where distractions, including the pandemic, abound.

I have no skin in this game. Mostly, I hope the Woodlands does whatever will make them the biggest possible pain in the ass for Montgomery County’s government, because that would be hilarious. Whether this would be the best way to go about doing that or not, I have no idea.

First lawsuit filed against the redistricting maps

Why wait? We already know they suck.

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

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

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

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

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

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

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

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

Justice Department officially asks SCOTUS to halt SB8

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

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

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

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

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

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

[…]

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

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

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

The Lege may fail to enshrine Abbott’s max anti-vaxx order into law

One bit of good news.

Legislation intended to block any Texas entity, including hospitals and private businesses, from mandating COVID-19 vaccines for employees has stalled out in the Senate with less than two days left in the third special legislative session this year.

State Sen. Kel Seliger, R-Amarillo, said he opposes the bill, which makes entities requiring the vaccines vulnerable to discrimination lawsuits. Seliger said the legislation — added to the session agenda as a late priority by Gov. Greg Abbott — does not have the votes to pass in the upper chamber.

“At the moment it’s not too well developed,” Seliger said of Senate Bill 51, authored by state Sen. Bryan Hughes, R-Tyler, calling it “anti-business.”

“I’ve got some real reservations because I think it’s another example of big government,” Seliger said. “And we don’t do that.”

SB 51 has been on the Senate’s calendar since Thursday, but the chamber has not taken action, even as it passed other priority legislation.

The special session is scheduled to end Tuesday, and the vaccine legislation is one of only a few outstanding Abbott priorities that appears unlikely to get through the finish line.

“It’s dead,” state Sen. Juan “Chuy” Hinojosa, D-McAllen, said of SB 51.

[…]

More than two dozen medical and business advocacy groups quickly criticized SB 51, pushing back against the legislation in the days after it was introduced last week. Hughes filed the bill after Abbott asked lawmakers last week to take up this issue to ensure Texans aren’t required to get vaccinated, saying that vaccines are “safe, effective, and our best defense against the virus, but should remain voluntary and never forced.”

Abbott called for the legislation as he took executive action to ban private companies from requiring employees or customers to be vaccinated against COVID-19, which will be in effect statewide even if lawmakers don’t act. His order came four weeks after Democratic President Joe Biden announced that federal contractors must have all employees vaccinated against COVID-19 and that businesses with more than 100 employees must mandate vaccination against the virus or require regular testing.

The organizations opposing the bill, including several chambers of commerce, the Texas Association of Business, the Texas Hospital Association, the Texas Association of Manufacturers, the Texas Hotel & Lodging Association and the Texas Trucking Association, have warned lawmakers of the legislation’s risks to small businesses, workplaces that rely on federal funding and immunocompromised Texans.

The warnings were notable in a state where business interests work closely with pro-business Republicans to influence legislation.

“We’re getting tremendous amount of communications from the business community saying this is their job,” Seliger said. “They set the rules and working conditions in their places of business.”

See here and here for some background. From the jump there were stories of strong opposition from business groups, who are normally very friendly to Republicans, to this bill. Given that the session ends today, I’d say the odds that this bill dies with it are pretty good. But I don’t want to get too overconfident, because it is entirely possible that enough objectionable pieces of that bill could get filed off, and it would be at the top of the agenda for a fourth session, whether or not one is needed. So count this as a provisional win, and hope for the best from here.

More on the Spring Branch ISD single member district lawsuit

Good story from KTRK.

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

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

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

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

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

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

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

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

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

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

Down to the wire for Congressional redistricting

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

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

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

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

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

[…]

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

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

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

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

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

[…]

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

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

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

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

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

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

The Lege is now 3/4 done with redistricting

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The poisoned fruit of the anti-Critical Race Theory tree

Pass stupid, racist laws, get stupid, racist outcomes.

A top administrator with the Carroll Independent School District in Southlake advised teachers last week that if they have a book about the Holocaust in their classroom, they should also offer students access to a book from an “opposing” perspective, according to an audio recording obtained by NBC News.

Gina Peddy, the Carroll school district’s executive director of curriculum and instruction, made the comment Friday afternoon during a training session on which books teachers can have in classroom libraries. The training came four days after the Carroll school board, responding to a parent’s complaint, voted to reprimand a fourth grade teacher who had kept an anti-racism book in her classroom.

A Carroll staff member secretly recorded the Friday training and shared the audio with NBC News.

“Just try to remember the concepts of [House Bill] 3979,” Peddy said in the recording, referring to a new Texas law that requires teachers to present multiple perspectives when discussing “widely debated and currently controversial” issues. “And make sure that if you have a book on the Holocaust,” Peddy continued, “that you have one that has an opposing, that has other perspectives.”

“How do you oppose the Holocaust?” one teacher said in response.

“Believe me,” Peddy said. “That’s come up.”

Another teacher wondered aloud if she would have to pull down “Number the Stars” by Lois Lowry, or other historical novels that tell the story of the Holocaust from the perspective of victims. It’s not clear if Peddy heard the question in the commotion or if she answered.

Peddy did not respond to messages requesting comment. In a written response to a question about Peddy’s remarks, Carroll spokeswoman Karen Fitzgerald said the district is trying to help teachers comply with the new state law and an updated version that will go into effect in December, Texas Senate Bill 3.

“Our district recognizes that all Texas teachers are in a precarious position with the latest legal requirements,” Fitzgerald wrote, noting that the district’s interpretation of the new Texas law requires teachers to provide balanced perspectives not just during classroom instruction, but in the books that are available to students in class during free time. “Our purpose is to support our teachers in ensuring they have all of the professional development, resources and materials needed. Our district has not and will not mandate books be removed nor will we mandate that classroom libraries be unavailable.”

[…]

The debate in Southlake over which books should be allowed in schools is part of a broader national movement led by parents opposed to lessons on racism, history and LGBTQ issues that some conservatives have falsely branded as critical race theory. A group of Southlake parents has been fighting for more than a year to block new diversity and inclusion programs at Carroll, one of the top-ranked school districts in Texas.

Late last year, one of those parents complained when her daughter brought home a copy of “This Book Is Anti-Racist” by Tiffany Jewell from her fourth grade teacher’s class library. The mother also complained about how the teacher responded to her concerns.

Carroll administrators investigated and decided against disciplining the teacher. But last week, on Oct. 4, the Carroll school board voted 3-2 to overturn the district’s decision and formally reprimanded the teacher, setting off unease among Carroll teachers who said they fear the board won’t protect them if a parent complains about a book in their class.

Teachers grew more concerned last Thursday, Oct. 7, when Carroll administrators sent an email directing them to close their classroom libraries “until they can be vetted by the teacher.” Another email sent to teachers that day included a rubric that asked them to grade books based on whether they provide multiple perspectives and to set aside any that present singular, dominant narratives “in such a way that it … may be considered offensive.”

You can click over to see that rubric for what books are “good” and “bad”; it’s every bit as ridiculous and impenetrable as you think. It’s grimly amusing to see Republican legislators defend their stupid bill, in the story and on Twitter. They’re out there pleading “this isn’t what the bill says”, but what they really mean is “just teach what we agree with or else”. That was clear from the beginning, and the backtracking now is just to deflect blame.

The Trib came in a couple of days later with more on this.

The Texas law states a teacher cannot “require or make part of a course” a series of race-related concepts, including the ideas that “one race or sex is inherently superior to another race or sex,” or that someone is “inherently racist, sexist, or oppressive” based on their race or sex.

Since Texas Gov. Greg Abbott signed the anti-critical race theory bill into law June 15, reports of schools struggling to comply with it have surfaced, most notably in Southlake.

[…]

After news surfaced this week about Southlake’s Holocaust guidance to teachers, state Sen. José Menéndez, D-San Antonio, wrote a letter Thursday to Mike Morath, the Texas Education Agency commissioner, requesting a review of how school districts are implementing the law to “refute hateful and racist rhetoric in our Texas public schools.”

“When this bill passed legislators warned that racist attacks would occur. It is our job to take every step possible to ensure an open and diverse forum, without subjecting our children to racism and hateful rhetoric,” Menéndez wrote.

State Sen. Kelly Hancock, R-North Richland Hills, tweeted Thursday simply that “Southlake just got it wrong.”

He added, “School administrators should know the difference between factual historical events and fiction. … No legislation is suggesting the action this administrator is promoting.”

Paul Tapp, attorney with the Association of Texas Professional Educators, said his organization has received questions from teachers because they don’t know what they can teach. A biology teacher asked if they should give equal time to creationism and evolution.

“These are two good examples of what the dangers of this kind of law are,” Tapp said. “The point of public education is to introduce the world to students. It’s not there to protect students from the world.”

[…]

Following the Legislature’s intent may get even more complicated for schools, teachers and parents in the coming months. This December, Senate Bill 3, authored by state Sen. Bryan Hughes, R-Mineola, and passed in the state’s second special session in August, will place more restrictions on a school’s curriculum.

SB 3 says that at least one teacher and one campus administrator at each school must undergo a civics training program. Also, it says teachers cannot be forced to discuss current controversial topics in the classroom, regardless of whether in a social studies class or not. If they do, they must not show any political bias, the law says.

“What I would hope most of all is that school districts will actually read the law, and apply the law as written and not go beyond what the law actually requires them to do,” Tapp said. “As soon as I read the bills, I expected that this would be the result of it, and I don’t think we’ve heard the last of it.”

I agree, it’s just the beginning. I would point out that bills like this were in response to things like the 1619 Project, which was all about correcting historical fictions and untruths, and yet would very much get any teacher who used it in a classroom in trouble. That’s the whole reason for these laws. I guarantee we’re going to see a lot more of this kind of thing, especially in wealthy and historically conservative but now changing suburbs like Southlake and Katy, and it will be every bit as stupid and alienating and racist each time. If it hasn’t happened at a school near you yet, just wait. Slate has more.

SCOTx puts San Antonio ISD’s vaccine mandate on pause

Ken Paxton finally gets what he wants.

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

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

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

[…]

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

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

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

Justice Department goes to SCOTUS over SB8

As expected.

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

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

[…]

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

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

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

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

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

House passes anti-trans sports bill

Disgraceful.

The Texas House approved legislation on Thursday that would restrict transgender student athlete participation in school sports, clearing a notable hurdle for supporters of the measure after similar legislation sailed through the Senate and stalled in the House three times prior this year.

House Bill 25, authored by state Rep. Valoree Swanson, R-Spring, passed with a 76-54 vote. Before Thursday’s vote, House Speaker Dade Phelan signaled that the House would have enough votes to pass the restrictive sports legislation. The bill will now head to the Senate, where it is expected to pass.

Under HB 25, student athletes in K-12 public schools would be required to compete on sports teams that correspond with the sex listed on their birth certificate received at or near the time of their birth. The legislation singles out transgender children who would be prohibited from participating on sports teams that match their gender identity.

HB 25 would not allow recognition of these legally modified birth certificates unless changes were made because of a clerical error. It’s not clear though how it will be determined if a birth certificate has been legally modified or not. According to the UIL, the process for checking student birth certificates is left up to schools and districts, not the UIL.

Transgender advocates and parents of transgender children have argued HB 25 unfairly targets children who may see sports as a refuge. And they note that bills such as HB 25 and others that have targeted transgender children this year — such as legislation that limits gender-affirming care — have already inflicted a mental toll on youth and families.

See here and here for the background. I don’t have anything new to say. This is an atrocity, it has already done a great deal of harm, and the most likely outcome, at least in the foreseeable future, is for athletes who are biologically female but who don’t look feminine enough to be harassed about their appearance. I am still waiting for the NCAA to follow through on its threatened actions, if only to serve as a reminder that this sort of crap does have some consequences. The Chron, The 19th, and Mandy Giles have more.

The Constitutional amendments

Hey, remember how in odd numbered years there are some number of constitutional amendments to vote on in November? This is the one thing that guarantees you have a reason to turn out regardless of what your city or school district is doing. Reform Austin runs down this year’s tableau. I’m going to zoom in on two of them, one of which I think is good and one of which I think is bad.

Proposition 3 (SJR 27)

What it says: “The constitutional amendment to prohibit this state or a political subdivision of this state from prohibiting or limiting religious services of religious organizations.”

What it means:  Proposition 3 would amend Article 1 of the Texas constitution by adding a new section to prohibit the state or any political subdivision from enacting a law, rule, order, or proclamation that limits religious services or organizations. Arguments against this amendment cite COVID as one valid reason to suspend religious services, approving this proposition would prevent authorities from banning this type of events even during a worldwide pandemic.

Proposition 4 (SJR 47)

What it says: The constitutional amendment changing the eligibility requirements for a justice of the supreme court, a judge of the court of criminal appeals, a justice of a court of appeals, and a district judge.”

What it means: The amendment would change the eligibility requirements for the following judicial offices: a justice of the supreme court, a judge of the court of criminal appeals, a justice of a court of appeals, and a district judge.

New requirements would include:

  • Candidates should be residents of Texas as well as citizens of the United States;
  • Candidates should have 10 years of experience in Texas as a practicing lawyer or judge of a state or county court for candidates of the supreme court, Texas Court of Criminal Appeals, or a court of appeals;
  • Candidates should have  8 years of experience in Texas as a practicing lawyer or judge of a state or county court for candidates of a district court;
  • It would disqualify candidates if their license to practice law was revoked or suspended during experience requirement; and
  • These requirements would be applied to individuals elected or appointed to a term beginning after January 1, 2025.

You can probably guess which one I think is which, but just so we’re clear I’ll be voting for Prop 4 and against Prop 3. I suppose given the recent shadow docket rulings from SCOTUS about local restrictions on religious services during COVID that Prop 3 isn’t actually doing anything that isn’t already the law, but it’s still a bad idea and I refuse to put it in our overstuffed Constitution.

Beyond that, none of the remaining bunch looks all that bad to me. Progress Texas endorses all but Prop 3 endorses five of the eight, opposing 3, 4, and 5. I noted during the session that the one thing missing this time around was an ugly fight over a nasty amendment – on that front at least, it was pretty boring – and you can see why. What do you think about these proposals?

UPDATE: The Trib has more.

UPDATE: I swear, when I looked at the Progress Texas page, I saw Yes for Props 4 and 5. Either I just misread it or they had an error. I actually think those props are OK, though I understand the objections. I’ll have to think about it some more.

Fifth Circuit does the expected with the SB8 appeal

Was it ever in doubt?

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

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

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

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

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

[…]

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

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

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

Endorsement watch: Vote No on Prop 3

Yes, there are Constitutional amendments on the ballot this fall. Most of them are pretty innocuous, but one of them is not, and you should vote No on it.

Proposition 3, on this year’s ballot, would enact a constitutional amendment barring any Texas jurisdiction from adopting any limits on religious services. The Texas Freedom to Worship Act, passed this year in the regular legislative session, after lawmakers, including all but three senators and all Republicans in the House and nearly half its Democrats, voted to forbid government officials from requiring churches to cancel or limit services when disaster strikes.

The idea was a bad one as a statute, and even worse as an amendment to the Texas Constitution, which would mean not even lawmakers could act to limit public worship in the face of a health emergency.

It could have severe “unintended consequences,” Rice University political scientist Mark Jones told us.

If state or local officials needed to close a church even temporarily due to fire damage or a nearby chemical spill, the congregation could simply refuse.

The amendment is also unnecessary. For decades, courts have recognized religious freedom, especially when it comes to freedom to worship as one chooses, as one of the U.S. Constitution’s most powerful protections. The Supreme Court ruled in November, for instance, that New York Gov. Andrew Cuomo’s order limiting congregations to 10 or 25 worshippers in areas of New York City with high infection rates violated the First Amendment. As of April, the high court had ruled five consecutive times that California’s pandemic-related limits on religious services were illegal.

But even so, the court has never gone so far as saying that no state interests can ever justify limiting religious services in public. Some dangers are just too large, and restrictions sufficiently reasonable, for such a blanket approach to make sense. Many faith leaders agree, and spoke out last spring against the legislation.

I’ve got a longer look at the Constitutional amendments here, and this one just stands out as being a Bad Idea. (No, I don’t know why it attracted so much Democratic support. Ask your Rep and your Senator how they voted on this and why.) I expect this will pass – these things usually do – but that doesn’t mean you should help it. The Chron doesn’t address the other seven propositions, all of which I’m fine with, in this piece. They may do so later, but if not take a look at my other post and see the links there for more guidance.

House approves its map

We’re getting close to the finish line.

Donuts – they’re not just for breakfast anymore

The Texas House on Wednesday approved proposed political boundaries for the lower chamber’s 150 districts that aim to fortify Republicans’ strength in the state House for the next decade.

House Bill 1, authored by state Rep. Todd Hunter, a Corpus Christi Republican who chairs the lower chamber’s redistricting committee, will now head to the Senate for consideration.

The House’s 83-63 vote comes as the Legislature rounds out its third special session of the year, an up to 30-day stretch ordered by Gov. Greg Abbott that has focused on redrawing the state’s congressionalSenate, House and State Board of Education maps based on the latest census data. Those numbers, which were delayed largely because of the pandemic, showed that people of color fueled 95% of the state’s population growth over the past decade.

Despite those growth trends, the number of districts in which white people make up the majority of eligible voters ​would increase from 83 to 89 in the new map. Meanwhile, the number of districts with a Hispanic majority among eligible voters would drop from 33 to 30, while the number of districts with Black residents as the majority of eligible voters would go from seven to six. Those numbers are based on census estimates of the number of citizens in each district who are of the voting age.

The new map includes 85 districts that would have voted for Donald Trump in the 2020 presidential election and 65 that would have voted for Joe Biden. That’s one less Trump district than was originally proposed in the House late last month. The current partisan breakdown of the House is 83 Republicans and 67 Democrats, though Trump only won 76 of the current House districts in 2020.

The special session is slated to end Oct. 19, which means lawmakers have a week left to hash out differences over those maps and other items included on the agenda set by Abbott.

See here for the background, and here for the map. This Trib story goes in deeper about that weird donut job in Bell County. At this point, the Lege might actually finish off their business in time to prevent the need for a third session, given that all they need to do is approve the other chambers’ maps. I would think that the SBOE and legislative maps would likely be easy enough for them, but maybe the Congressional map might get worked over in the House. Map drawing is a time honored way for ambitious legislators to find themselves a Congressional district to run in, after all. Or maybe they’re all sick of being in Austin and don’t have any desire to quarrel over small changes that favor one person over another. I thought it would take them longer to get this far, so who knows.

I mentioned before that the Heights was largely reunited under this new plan, all in HD145. There’s still a split in the Senate, with most of the Heights in SD15 but the eastern end in SD06. The main way that this reunification could occur was by radically moving HD148.

State Rep. Penny Morales Shaw, D-Houston, also opposed changes to her new district that she said leaves her with just a third of her current constituency.

Under the proposed map, Morales Shaw’s district would be shifted completely outside Loop 610, losing the Heights and Near Northside, most of which would be moved into state Rep. Christina Morales’ district. Morales Shaw’s District 148 would be expanded past Beltway 8 into northwest Harris County, taking in parts of Jersey Village and nearby suburbs, while cutting into area now represented by at least five other members.

The district’s Hispanic citizen voting-age population would decrease from 46 percent to 37 percent, and Morales Shaw said the residents that would be moved to other districts are from high-turnout communities.

“Chairman, from your knowledge, would you agree this dismantling and remaking of 148 is one of the most egregious examples that you’ve seen of retrogression in the Texas redistricting map?” Morales Shaw asked [State Rep. Rafael] Anchía during a round of questioning that seemed aimed at creating a record for a future lawsuit.

Anchía said District 148 is protected under Section II of the Voting Rights Act, which prevents discrimination against minorities during the political mapmaking process, “and to dismantle a protected district like that is one of the more problematic data points in the underlying map.”

Zoom in on that map and see for yourself. You know I’m pessimistic about any prospects for litigation, but that doesn’t mean we shouldn’t try.

UPDATE: Reform Austin has some more details about the latest map.

More on the Abbott max anti-vaxx order

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

Justice Department files its brief with the Fifth Circuit

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

Right there with them

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

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

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

[…]

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

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

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

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

Abbott goes max anti-vaxx

He really wants us dead.

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

HD118 runoff on November 2

Should help a bit with turnout, I guess. Better than some random day in January, anyway.

Gov. Greg Abbott announced Monday that Nov. 2 will be the date of the special election runoff to replace former state Rep. Leo Pacheco, D-San Antonio, a seat that Republicans are pushing to flip.

Early voting begins in a week.

The runoff for the Democratic-leaning seat in House District 118 features Democrat Frank Ramirez and Republican John Lujan. Ramirez is a former staffer for the San Antonio City Council, while Lujan briefly held House the seat in 2016.

Lujan finished first in the initial special election late last month, getting 42% of the vote to 20% for Ramirez. There were two other Democrats on the ballot and one other Republican.

Republicans have latched on to the race as an early test of their drive to make new inroads in South Texas after President Joe Biden underperformed there last year. Meanwhile, Democrats are working to show they will not be upset like they have been in past special elections in the San Antonio area.

Nov. 2 is also the date of the statewide constitutional amendment election.

See here for the background. Just for grins, the turnout in Bexar County in 2019 for the constitutional amendments was 9.6%, and in 2017 it was 3.7%. I’ve forgotten the entire year 2019 so I couldn’t tell you if there was something on that ballot that might have moved people – there wasn’t anything specific to Bexar or San Antonio that year that I saw. Like I said, may push the runoff totals up a bit, but probably not very much. And I am once again asking you to remember that Bexar County is not in South Texas, and that Democrats in Bexar County did better in 2020 than in 2016, including in HD118. Doesn’t mean Dems can’t lay an egg there, just that the “South Texas” narrative strikes me as misguided. Anyway, if you live in this district or know someone who does, make sure they get out and vote.

An overview of abortion attitudes in Texas

From the Texas Politics Project:

Since the political rise of the pro-life movement in the 1990s, it’s often been suggested that elected Republicans were less seriously committed to banning abortion than their public pronouncements may have conveyed. The rationale behind this logic was purely political: such a change to health, reproductive, and women’s rights would upend normal politics, resulting in a not-wholly, but largely, gendered political revolt against the GOP. But with Texas’ passage of one of, if not the, most restrictive sets of abortion laws in the country, impacting 85% of abortions in the state and sending women to Oklahoma (!), it would appear that this particular theory of a just-below-the-surface political equilibrium on abortion policy is about to face a serious test.

The reasons for the Texas GOP’s leap forward on abortion restrictions after a decade of chipping away at access are likely many, and worthy of their own piece of analysis (but the partisan sorting of college and non-college educated voters; the change in composition of the supreme court; the recent fending off of Democratic challenges in the state; and the chance to reinforce existing electoral advantages through redistricting in an increasingly competitive state are some possibilities that come to mind), but looking directly ahead to the next set of Texas elections in 2022, the sudden change in the reproductive health landscape begs the question: where do Texas voters stand on abortion?

Below, we collect some observations to answer this question based on a decade of relevant University of Texas polling.

Go read the rest, but to do the spoilers: Texas is pretty evenly divided between those who call themselves “pro-choice” and “pro-life”, very few people actually want to ban all abortions as SB8 did, the more restrictive the anti-abortion law from the Lege in recent years, the greater the opposition to them, and maybe – just maybe – this could come back to bite the Republicans, if not in 2022 then soon. Check it out.

The fate of the Paxton trial location is once again with the CCA

Best mugshot ever

As you recall, the very long-awaited securities fraud trail of Ken Paxton is ticketed to go back to Collin County after the First Court of Appeals denied a request for an en banc hearing to reconsider the court’s previous ruling that had upheld the Harris County district court judge’s ruling from last year (and was itself a confirmation of a previous ruling). Special prosecutor Brian Wice has argued that the reason for that ruling is in error, and as such has filed a petition for a writ of mandamus with the Court of Criminal Appeals to overturn the First Court and keep the trial in Harris County.

The main thrust of the petition is that the First Court erred in its ruling, and for a detailed explanation of why it erred can be found here. The TL;dr of that is basically that Team Paxton has been playing fast and loose with its arguments about the original judge’s appointment to the case – if you read that petition, you will see multiple uses of the word “sandbag” or “sandbagging” – and it makes heavy use of the dissenting judge’s opinion from that First Court case. The Court of Criminal Appeals is notoriously pro-prosecutor, except when it isn’t, so who knows what they’ll do and who knows how long it will take. But we are at a point in this ridiculously long and drawn-out saga where the next step will be for the question of where the trial should be is resolved, and we will presumably move on to fighting about the actual trial. (There are still questions about the pay for the special prosecutors, which is a whole ‘nother can of worms.)

Anyway. Since people like to make snarky comments on Facebook and Twitter about how long Ken Paxton has been under indictment without having gone to trial, the least I can do is update you on the legal bits and pieces as we wend our way every so slowly towards that day. You’re welcome.

Federal lawsuit over mask mandate ban in schools has its hearing

A big case with potential national implications.

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

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

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

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

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

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

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

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

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

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

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

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

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

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