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Legal matters

Lawsuit filed over mail ballot practices

We haven’t had a good voting rights lawsuit in a few months.

In a federal lawsuit filed Wednesday in San Antonio, [two] voters — George Richardson of Brazos County and Rosalie Weisfeld of McAllen — alleged that the state law that allows “untrained local election officials to arbitrarily and subjectively” reject mail-in ballots based on mismatching signatures violates the Fourteenth Amendment, the Americans with Disabilities Act and the Rehabilitation Act of 1973.

Joined by groups that represent Texans with disabilities, veterans and young voters, they are asking a federal judge to either block election officials from rejecting mail-in ballots over signature doubts or require Texas to notify voters about an alleged mismatch in time for them to “cure” their ballot.

“Even though Texas’ mail in-ballot process should make voting easier for voters from these underrepresented groups, the current flawed process leads to the unlawful disenfranchisement of these Texas voters,” the lawsuit says.

Like other states, Texas offers voting by mail to various kinds of voters — people with disabilities, Texans who are 65 and older, voters who will be outside of the county during an election, such as college students, and those in jail during an election.

Before they are counted, a committee of local election officials reviews mail-in ballots to ensure that a voter’s endorsement on the flap of a ballot envelope matches the signature that voter used on their application to vote by mail. They can also compare it to signatures on file with the county clerk or voter registrar that were made within the last six years.

But because the state election code does not establish any standards for review, the plaintiffs argued that law is applied unequally with each county “necessarily” developing “its own idiosyncratic, arbitrary, and ad hoc procedure to determine that a ballot should be rejected” with no requirement to notify voters about the rejections until 10 days after Election Day.

The lawsuit claims at least 1,873 mail-in ballots were rejected on the basis of mismatched signatures during the 2018 general election; at least 1,567 were rejected in 2016.

See here for the TCRP press release, which contains a link to the lawsuit and a video explaining things. Ideally, this should lead to a settlement. Both parties make use of mail ballots, so it’s not a partisan issue the way voter ID is. And objectively, the standard being applied, such as it is, is ridiculously arbitrary. I can tell you that my signature has changed over the years, from something that was readable as my full name to a basically meaningless scrawl. I noticed it as it was happening, but it happened anyway. I doubt I could replicate one of my older signatures even if I tried. It’s still my hand scrawling it, and it makes no sense that some bureaucrat could decide that it didn’t represent me. I don’t think Ken Paxton’s office knows how to settle lawsuits like this, though, so I expect it to be fought out in the courts. I’ll be keeping an eye on it.

TDP sues over Bonnen-MQS secret meeting

Here’s an interesting turn.

Rep. Dennis Bonnen

The Texas Democratic Party is suing House Speaker Dennis Bonnen and conservative activist Michael Quinn Sullivan, alleging they created an unregistered political action committee and violated other state election laws.

The lawsuit, filed in Travis County District Court on Thursday, stems from a June 12 meeting Sullivan had with Bonnen and Republican Caucus Chairman Dustin Burrows in Bonnen’s Capitol office. In the meeting, Sullivan has said, Bonnen and Burrows offered to give writers at his website, Texas Scorecard, House media credentials in the next legislative session in exchange for Sullivan’s political group targeting 10 Republican incumbents in next year’s primary elections. Sullivan said he rebuffed the offer.

But Democrats allege that meeting and any agreements reached in it show a coordinated effort “between political actors intended to influence the election or defeat of specific candidates” and amounts to an unregistered political committee as defined by state law.

The Democrats also allege that Bonnen and Burrows directed Sullivan to make political contributions or expenditures at their request under his political action committee, Empower Texans, which is illegal under Texas campaign finance law. They further claim that the alleged quid pro quo Bonnen offered Sullivan of public benefits in return for targeting elected officials amounts to a violation of state law.

The complaint says any contribution proposed at the meeting violated state law because it was made in the Capitol and during the Legislature’s fundraising moratorium.

[…]

As part of their lawsuit, the Democrats request that Sullivan produce the entire recording of the June meeting and any other recordings Sullivan has of Bonnen and Burrows. The Democrats also ask Sullivan to produce a list of all the people who have listened to the June recording and any documentation relevant to that meeting.

Ramos, a Richardson Democrat, is a plaintiff in the case because the Democratic Party says she “is one of the candidates mentioned in this recording as a target of the coordinated political efforts between the Speaker and Sullivan.” It is unclear whether she was named as a target, though multiple people who have heard the recording confirm Bonnen called her “awful.”

“Texans deserve to know exactly what happened on June 12, 2019 and they deserve accountability from their elected officials,” Ramos said in a prepared statement. “There needs to be accountability for any violations of ethics or the law that occurred during a meeting between a Republican activist and the Speaker of the House.”

You can see the TDP press release here, and a copy of the lawsuit here. We know about the tape. There’s no argument I can see for keeping it secret, though I’m sure MQS will come up with something. The Texas House General Investigating Committee investigation may also serve as a way to get the tape released, though I’d put more faith in the courts to serve as a fulcrum if it comes to that. One caveat about the House investigation:

But the actions of the committee – which can issue subpoenas, hire outside investigators or tap the state’s existing criminal investigative capability, such as the Texas Rangers – may complicate matters.

Under state law, a person testifying about incriminating behavior before the Legislature may not be prosecuted or indicted for any actions about which they truthfully testify, potentially giving Bonnen, Burrows and Sullivan immunity in any further legal actions if they testify before the committee.

If we didn’t have complications, we wouldn’t have anything. That said, MQS will not be able to delete the recording while the litigation is active, either, so we’ve got that going for us. Juanita and the Trib have more.

The Harris County bail lawsuit effect on Dallas County

The Trib looks to see if the recent Harris County bail lawsuit settlement might affect the bail lawsuit in Dallas County.

“Anytime one county settles, it could possibly provide a roadmap for another county, but I can’t say that it will,” said Dallas County District Attorney John Creuzot, whose county’s bail practices have also been slammed by a federal judge. “The landscape of this lawsuit is different.”

A big piece of that is because Dallas’ lawsuit, like another in Harris and one in Galveston, targets bail practices not only for misdemeanor defendants, but for felony cases, too.

[…]

“I’ve been studying very closely what’s happening in Harris County, and I think that it’s a step in the right direction and something that we should … modify or use as a blueprint for felony cases,” said State District Court Judge Brandon Birmingham, a Democrat and defendant in Dallas’ lawsuit. He was especially interested in the idea of an open-hours court.

Adding felonies to the lawsuit against bail practices in Dallas brought a new complication, however. The judges work for the state, not the county, and are being represented by the Texas attorney general’s office, which claims they have no jurisdiction over early bail decisions. County officials, who are largely Democratic, have said the attorney general’s office, run by Republican Ken Paxton, has stalled settlement talks and reform efforts.

“The fact that felony judges are part of the lawsuit complicates resolution,” said Dallas County Judge Clay Jenkins, a Democrat. “The AG office’s public positions on criminal justice reform and bail reform are not the same as the Commissioners Court or most of our elected judges.”

The attorney general’s office did not immediately respond to a request for comment.

In a court filing last month, Texas Solicitor General Kyle Hawkins wrote that the Dallas lawsuit goes too far by including felony judges. He said bail decisions are set by county judicial officers before felony judges assume jurisdiction over criminal matters.

“Despite tens of thousands of words spilled in this case so far, [the plaintiff] has yet to articulate just what she expects the felony judges to do, going forward, to remedy her alleged harm,” Hawkins wrote.

But things appear to be moving toward resolution. Two district judges, including Birmingham, recently began conducting their own bail hearings every morning and hired a lawyer to represent them instead of the attorney general. Jenkins and Creuzot confirmed that the parties are now headed to mediation to hopefully come up with a settlement proposal or consent decree.

See here for more on the second Harris County lawsuit, the one involving felony cases. It was filed in January and I haven’t seen any updates as yet, nor do I know if the AG’s office has gotten involved. Be that as it may, it seems to me that the underlying principle is the same, and should be viewed through a similar lens by the federal court. This time, Harris will follow behind Dallas, so we’ll see where they lead us.

Mediation fails again

Not really a surprise.

A third round of mediation between Mayor Sylvester Turner and the Houston firefighters union concluded in an apparent impasse Thursday afternoon, ending another attempt to resolve the long-running contract dispute and sending a lawsuit over the matter back to a state appellate court.

The mediation session, ordered by Texas’ 14th Court of Appeals, ended around 2 p.m. at the office of the Baker Botts law firm. After leaving the meeting, Houston Professional Fire Fighters Association President Marty Lancton said city officials “walked” and “absolutely decided they were not going to continue” the session.

“It was crystal clear to myself and to our team that this mayor was not interested in resolving this,” Lancton said. “This is a game of politics by this mayor trying to get past the election.”

See here for the background. This I think sums up the situation well:

The story says that the 14th Court of Appeals will likely not render a verdict until after the election. And let’s be clear, if this election was illegal as the lower court ruled, then there really isn’t much basis for mediation. The city’s position can and should be that any negotiations should be done in the context of the normal collective bargaining process, as the firefighters have been operating without a new agreement for a couple of years now. The firefighters have a good argument that some form of pay parity should be the goal of those negotiations, since the people did vote in favor of Prop B. Unless the 14th Court eventually decides that the lower court ruling was wrong, I’m honestly not sure what else there is to talk about at this point.

UPDATE: Here’s the longer version of the Chron story.

Commissioners Court approves bail lawsuit settlement

Excellent.

Harris County Commissioners Court approved a historic settlement Tuesday fixing a bail system a federal judge found unconstitutional and ushering in a new era for criminal justice in one of the nation’s largest metropolitan areas.

The deal resulted from months of intensive negotiations between the county and lawyers for indigent misdemeanor defendants who sued over a two-tiered system that jailed people prior to trial if they couldn’t pay up front cash bail but allowed people with similar backgrounds and charges to resume their lives and await trial at home.

“This was the result of careful negotiation,” County Judge Lina Hidalgo said just before the commissioner’s voted 3-2 to approve the deal.

The vote split along party lines. Commissioners Jack Cagle and Steve Radack, the only Republicans now on the the commissioners court, voted against it.

The settlement agreement — which still must be approved by a federal judge — installs a monitor to oversee the new bail protocol for seven years. It provides comprehensive public defense services and safeguards to help ensure defendants show up for court. It will allow about 85 percent of people arrested on misdemeanors to avoid pretrial detention. The settlement also calls for transparent data collection, which will allow the county to keep better track of what’s working and what isn’t.

You know the background, so see here for the previous update. I can only wonder what would have happened in a world where Democrats swept the judicial races but failed to win those two seats on Commissioners Court. I feel pretty confident saying that as of July 30 in that alternate universe, there would not be an agreement in place. Elections, they do have consequences. Congratulations one and all for getting this done.

Final bail settlement reached

We are coming to the end of a very long road.

A long-awaited settlement in Harris County’s historic bail lawsuit won tentative approval Friday from all parties, setting up a possible end to a contentious system that kept poor people behind bars on low-level charges while those with money could walk free.

The agreement — if approved by a federal judge and county officials — would formally adopt the judge’s findings and modernize the way local officials handle bail hearings for the steady stream of people arrested every day on misdemeanors.

Key reforms in the lengthy consent decree include revised judicial protocol, access to more public defense services, open court hours for defendants to clear or prevent warrants, as well as text reminders about hearings and a bail education program for officials and the public. The county will have a court-appointed monitor for seven years to oversee implementation.

The county also would agree to pay about $4.7 million in legal costs for the plaintiffs, on top of the $9.1 million already spent to contest the lawsuit. An additional $2.1 million in legal fees has been waived by the Susman Godfrey firm.

Commissioner Rodney Ellis, who has championed bail and criminal justice reform for decades, called the agreement one of the highlights of his career.

“It’s a major civil rights victory that will have national implications,” Ellis said. “This fixes a broken system that has traditionally punished people based on how much money they have before they are convicted of a crime.”

The deal could provide a road map for other jurisdictions around the country to rethink their bail systems amid widespread overcrowding and a nationwide push for criminal justice reform.

Commissioners Court is set to vote Tuesday on the proposed deal. Chief U.S. District Judge Lee H. Rosenthal could then consider approving it after a hearing Aug. 21.

See here for some background. I got a press release from the Texas Organizing Project on Thursday about this, so I’ve been eagerly awaiting the news story. I can predict with confidence that Commissioners Court will approve this by a 3-2 margin. Elections have consequences. Kudos to everyone who worked hard to make this happen.

Houston sues over water rights

This could be interesting.

The city of Houston sued the state and the Brazos River Authority Monday, seeking to block the implementation of a new law that would force the city to sell its water rights in a proposed reservoir west of Simonton to the river authority, a decree the city says is unconstitutional.

The law, which sailed through the Legislature this spring and was signed into law by Gov. Greg Abbott on June 2 over Mayor Sylvester Turner’s objections, requires Houston to sell its rights in the proposed Allens Creek Reservoir by the end of this year for up to $23 million.

The law’s backers argue Houston has developed its water rights in the Trinity and San Jacinto river basins so thoroughly that it has no urgent need and no immediate plan to build the reservoir, whereas huge petrochemical plants along the Lower Brazos have skipped expansions due to a lack of water resources.

The river authority argued it was ready and able to tackle the project immediately, and that it would charge roughly half what the city would charge for the water.

[…]

The city argues the law is unconstitutional in part because it violates prohibitions on retroactive laws and on forced sales of municipal property that have a public use.

You can see the city’s press release here. Mayor Turner has been threatening to sue since the bill (HB 28146) was passed. Note that this bill took effect immediately, which means that it passed with a two-thirds majority in each chamber. As a Houston taxpayer, I support this suit and agree with Mayor Turner’s argument that the city is not being adequately compensated for its investment. I don’t know enough about the law, or about how often the Brazos River Authority or similar agency has done this before, to guess how this may go. I’ll keep an eye on it.

Mediation 3.0

Third time’s the charm, right?

The Houston firefighters union and Mayor Sylvester Turner’s administration will return to mediation Aug. 1 in the hopes of working out a new contract amid a lawsuit challenging the constitutionality of Proposition B.

The ballot measure, which grants firefighters the same pay as police of similar rank and experience, passed last November but was struck down by a state district judge who ruled it unconstitutional and void. The Houston Professional Fire Fighters Association appealed the ruling, sending the case to Texas’ 14th Court of Appeals.

Last month, the appeals court ordered the city and fire union to hold talks within 60 days. The union announced Wednesday the parties had agreed to hold the mediation session Aug. 1, which a spokesperson for the mayor confirmed. The two sides also agreed to have Houston attorney Daryl Bristow serve as mediator.

[…]

Asked Wednesday if there was any reason to expect a deal on the third mediation attempt, Turner repeated his claim that the firefighters deserve a pay raise “the city can afford” and said he would seek to reach a deal.

“The resolution has to be one that’s good for the people of the city of Houston,” Turner said.

See here for the background, and my thoughts on this process, which doesn’t seem any more likely to resolve things now than before, but you never know. They have a different mediator this time, for whatever that’s worth. I don’t know what timeline they may have, but most likely they will either come to an agreement or declare that it’s hopeless in a fairly short period of time.

Libertarians and Greens sue over the petition process for ballot access

We’ll see about this.

Mark Miller

Ahead of the 2020 election cycle, a group of Texans, along with a number of nonmajor political parties, have sued the secretary of state’s office, alleging that Texas election law discriminates against third-party and independent candidates vying for a spot on the general election ballot.

In a lawsuit filed Thursday in Austin, plaintiffs argued that current state law would give nonmajor political parties in 2020 just 75 days to obtain over 80,000 valid signatures to gain ballot access — and that the cost of doing so could cost more than $600,000.

Currently, third parties like the Green Party and the Libertarian Party can secure a spot on the general election ballot by either having at least one candidate who wins more than 5% of the vote in a statewide race during the previous election cycle, or by collecting a certain number of required signatures. That 5% threshold will soon be lowered to 2% of the vote in one of the past five general elections once a measure that passed the Texas Legislature this year takes effect Sept. 1.

Candidates unaffiliated with a political party, meanwhile, are allowed access to the general election ballot as long as they file the required paperwork and gather a certain number of signatures, which depends on which office they’re seeking.

For both third-party and independent candidates, signatures must come from registered voters who did not vote in either the Republican or Democratic primaries or participate in another party’s convention that year.

“Collecting signatures by hand is inherently time-consuming, labor-intensive and expensive,” Mark Miller, a plaintiff in the case and a two-time Libertarian candidate for Texas Railroad Commission, said in a news release. “And collecting 80,000-plus valid signatures in the limited time allowed under Texas law is all but impossible without spending hundreds of thousands of dollars to hire paid petition circulators.”

In the lawsuit, plaintiffs suggested that Texas could modernize its signature petition procedure to help alleviate the burden they say has been placed on them. Plaintiffs pointed to Arizona, which they said has a secretary of state who recently implemented an online platform to allow voters to sign nomination petitions electronically — instead of in person and on paper.

Let me start by saying that if the minor parties win the right to collect electronic petition signatures so their candidates can get on the ballot in a state where electronic voter registration is illegal, that will be infuriating. The latter is by far the bigger affront to democracy.

Before I get to the main part of my analysis, let me add some more details about this from the Statesman.

State law offers three paths for candidates to land on the general election ballot:

Political parties that received at least 20 percent of the vote in the previous election for governor nominate their candidates for state and county office and the U.S. Congress via primary elections, with the winners advancing to the general election. “Since at least 1900, only the Democratic Party and Republican Party have qualified,” the lawsuit said.

Major-party candidates pay filing fees ranging from $75 to $5,000 or by submitting petitions with 5,000 signatures for statewide office. The law does not set a time limit on when they can begin collecting those signatures, the lawsuit said. Minor parties must nominate general-election candidates at a convention where participants equal at least 1% of the number of Texans who voted for governor in the prior election, or 83,717 participants in 2020. No minor party has met the 1% requirement in at least 50 years, the lawsuit said, but Texas law allows candidates to collect voter signatures within a 75-day window to make up the difference.

The tight deadline and limits on who may sign the petitions – registered voters cannot sign if they voted in a recent primary, attended another party’s convention or signed another party’s nominating petition for the same election – put minor-party candidates at a significant disadvantage, the lawsuit said.

Independent candidates are allowed on the general election ballot if they collect petition signatures equal to 1% of the voters in the previous gubernatorial election. Petitions cannot be circulated until after the major parties hold a primary or primary runoff election, meaning candidates could have 114 days, or as little as 30 days, to collect signatures, the lawsuit said. “This uncertainty alone imposes a significant burden that chills potential candidacies,” the lawsuit said.

Having to collect about 80,000 valid signatures by hand can cost $600,000, largely to hire people to circulate petitions, the lawsuit said. The result is an election scheme that makes it difficult, if not impossible, for candidates who are not wealthy to participate in the political arena, said Oliver Hall, a lawyer with the nonprofit Center for Competitive Democracy, which worked on the lawsuit without charge along with the Shearman & Sterling law firm, which has an office in Austin. “We think the federal courts will recognize that Supreme Court precedent prohibits Texas from limiting participation in its electoral process to those with financial means,” Hall said.

So the first thing to realize is that this cycle is an especially challenging one for parties or candidates who need to go the petition route to get on the ballot. That includes the Libertarians, whose best performance in 2018 was 3.42% in the Comptroller’s race. The Libertarians and to a lesser extent the Greens have benefited in the past from the Democrats not competing in all of the statewide judicial races, leaving at least one slot with a Republican running against an L and a G, with the two of them combining for 20% or so of the vote; there were two such races in 2014. In 2018 Dems had candidates in all of the judicial races, and that left the Libertarians (the Greens were not on the ballot because none of their candidates got to five percent in 2016) out in the cold. The other thing about 2018, you might recall, is that it shattered records for off-year turnout, which is why that “one percent of the Governor’s race” (*) requirement is as high as it is. Had the Ls and Gs needed petition signatures for 2016, they’d have only needed about 47,000 of them based on gubernatorial turnout from 2014. In addition, primary turnout, especially on the Dem side, is going to be through the roof, meaning that the pool of eligible petition-signers will be that much smaller. However you feel about the plight of the minor parties and would-be independents, this is a bad year to have to collect petition signatures.

The other fact to reckon with is that this isn’t the first time a federal lawsuit (which this one is, according to the Statesman) has been filed over this requirement. Back in 2004, after Ralph Nader tried and failed to get enough signatures to be on the ballot as an independent Presidential candidate, he sued and ultimately lost; his subsequent appeal was rejected. Federal judge Lee Yeakel ruled at the time that Texas’ ballot access laws did not create an unconstitutional burden. I’m not exactly sure what is different this time, other than the number of plaintiffs, but who knows. This is the main question, at least as far as I’m concerned, that will need to be addressed. I’ll be keeping an eye on it.

For what it’s worth, while I have no warmth for the third parties, I’d be all right with a petition process that gave them more time, and even that allowed them to solicit any voter, not just non-primary voters. If and when we get electronic voter registration, I’d concede on the electronic petition gathering item. Beyond that, I don’t see much of a problem. We’ll see what the judge says.

(*) There were 8,343,443 votes cast in the 2018 Governor’s race, one percent of which is 83,434. I have no idea where that 83,717 figure comes from, unless it’s some kind of weird typo.

The Fifth Circuit Obamacare hearing

Remember, the Fifth Circuit is where hope goes to die. Adjust your expectations accordingly.

It’s constitutional – deal with it

On the left was Judge Carolyn Dineen King, an appointee of Jimmy Carter; on the right sat Judge Kurt Engelhardt, a nominee of Donald Trump, and in the center sat Judge Jennifer Walker Elrod, the George W. Bush appointee expected to represent the critical swing vote on a three-judge panel now charged with deciding the constitutionality of the Affordable Care Act.

It was that perhaps fitting seating arrangement that greeted attorneys for Texas on Tuesday afternoon, as the state and its allies asked this three-judge panel on the U.S. 5th Circuit Court of Appeals to strike down the sweeping health law known as “Obamacare,” a legal means to a political end that has eluded conservatives for the better part of a decade.

Texas won a major victory in its bid to end the law in December, when a federal district judge in North Texas sided with the state, declaring that the law is unconstitutional in its entirety after Congress in 2017 gutted one of its important provisions, a tax penalty for individuals who chose to remain uninsured. The U.S. Department of Justice, in a highly unusual move, has declined to defend the law.

A California-led coalition of blue states that has stepped in to oppose Texas in the lawsuit quibbles with that question of “severability,” arguing that even if one slice of the law must fall as unconstitutional, its other hundreds of provisions — including a host of popular patient protections — should stand. The question of how much of the law may rightly be salvaged was a focal point of court discussions on Tuesday.

Texas’ odds of total vindication remain in question after nearly two hours of questions before the three judges.

Most of the unusually-large courtroom audience of journalists and interested but unaffiliated attorneys focused on Elrod at the center. By far the most vocal judge of the three, Elrod probed both sides on the issue of standing — whether they have the right to participate in the lawsuit at all. And she seemed highly focused on her court’s options for ordering a remedy, seeming to weigh options for sending the case back to a lower court for further consideration.

Engelhardt, who is among the newest appointees to the court, was harsh and occasionally sarcastic, asking more questions of the blue state coalition than he did of the Texas-led team. He seemed skeptical of the standing of both the California-led coalition and the Democratic-majority U.S. House of Representatives, which intervened in the case although the Republican-majority U.S. Senate did not.

The Senate, Engelhardt remarked, “is sort of the 800 lb. gorilla that’s not in the room.”

King, meanwhile, did not speak at all.

See here and here for the background. The legal basis of this lawsuit is so ridiculous that anything short of tossing it and its lawyers out of court is insufficient, but given where we are I could find a way to live with the idea of sending it back to the idiot district court judge for reconsideration. I fear we’ll get some kind of split-the-baby decision that strikes down parts of the law but leaves some crippled skeleton of it intact, which dumbass pundits will then call a “moderate compromise”, in the same way that the midpoint between “I murder you and burn down your house” and “I leave you alone” is a moderate compromise. Not much to do at this point but wait and work your ass off voting these morons out in 2020. NBC News, CNN, Daily Kos, Mother Jones, and Think Progress have more.

Some Census shenanigans short-circuited

The head, it spins.

In a scalding order that called the Justice Department’s motion to change lawyers “patently deficient,” a federal judge in Manhattan on Tuesday blocked the move by the Justice Department to withdraw several of its attorneys from the census citizenship question case in New York.

With the exception of two DOJ lawyers who are withdrawing from the case because they have left their position at the Justice Department altogether, U.S. District Judge Jesse Furman is not letting the other attorneys withdraw because the department failed to provide “satisfactory reasons” for their exit from the case.

“Defendants provide no reasons, let alone ‘satisfactory reasons,’ for the substitution of counsel,” Furman said. Furman said that the government’s vague claim in its withdrawal motion that it did not expect the withdrawal to cause disruption to the proceedings was “not good enough, particularly given the circumstances of this case.”

[…]

“As this Court observed many months ago, this case has been litigated on the premise — based ‘in no small part’ on Defendants’ own ‘insist[ence]’ — that the speedy resolution of Plaintiffs’ claims is a matter of great private and public importance,” Furman said in his order Tuesday. “If anything, that urgency — and the need for efficient judicial proceedings — has only grown since that time.”

The Department of Justice has not offered many details as to why it was shaking up its legal team, prompting speculation that the career attorneys were not comfortable with the direction the administration was going in trying to get the question re-added.

In comments to the press on Monday Attorney General Bill Barr said that he could “understand if they’re interested in not participating in this phase.” But he also said he did not know the details as to why they were exiting the case.

On Tuesday, Furman raked the Justice Department over the coals for its failures to meet the procedural requirements for replacing its attorneys.

See here for some background, though note that that post is primarily about the Maryland case, while this is about the New York case. I could not tell if there was a similar effort by the attorneys in that case to withdraw. This all happened in a hurry, from the initial announcement to the pushback by the plaintiffs, to the judge’s order. What happens next is anyone’s guess, for both cases. Remember, the whole reason why SCOTUS took this case when it did was because the Trump administration insisted they needed to have everything resolved by the end of June to have enough time to actually do the Census. So much for that. How big a chump does Donald Trump think John Roberts is? We’re about to find out. A copy of the judge’s order is here, and Daily Kos and Politico have more.

UPDATE: The Maryland judge has also rejected a request for the Justice Department attorneys to withdraw, though he will allow the request to be re-submitted.

The lawsuit to kill Obamacare has its hearing at the Fifth Circuit today

Brace yourselves.

It’s constitutional – deal with it

Last year, after a federal judge in Texas declared the entirety of the Affordable Care Act unconstitutional, throwing into question millions of Americans’ health coverage, the state’s Republican leaders promised they would come up with a plan to replace it.

But on Tuesday, after a legislative session that seemed to have no room for issues other than property tax reform and school finance, Texas will ask a federal appeals court in New Orleans to end the law in its entirety — without offering a replacement plan.

The conservative crusade against portions of the act, known as Obamacare, has spanned a decade. But Texas’ latest lawsuit, filed in February 2018, became an existential threat to the law after U.S. District Judge Reed O’Connor ruled in December that it is unconstitutional in its entirety. At stake: the subsidized health coverage of roughly 1 million Texans, sweeping protections for patients with preexisting conditions, young adults staying on their parents’ insurance plans until age 26 and a host of low-cost benefits available to all people with health insurance, including those covered through their employers.

Texas already has the highest uninsured rate in the nation.

In a highly unusual — if not entirely surprising — move, the U.S. Department of Justice has declined to defend the federal law, leaving a California-led coalition of blue states to protect it. As the case proceeds, Obamacare has remained in place, and likely will until the litigation is finally resolved.

Attorneys for the state of Texas argue the health law cannot stand since the Republican-led Congress in 2017 zeroed out Obamacare’s individual mandate — a penalty imposed on people who chose to remain uninsured. Democrats had favored the penalty as a way to induce more people to purchase health insurance, with the goal of reaching near-universal coverage. Without it, Texas argues, the whole law must fall.

But the state’s Republican leaders have offered few ideas about what should replace Obamacare, a law that touches practically every aspect of health care regulations and includes several popular protections for patients. Gov. Greg Abbott — a vocal critic of the law — pledged in December that if the law remained struck down on appeal, “Texas will be ready with replacement health care insurance that includes coverage for pre-existing conditions.”

Since then, he’s been quiet on the issue, including during this year’s 140-day Texas legislative session. Abbott did not respond to questions for this story.

See here for the background. And of course Greg Abbott doesn’t have a single thing to say about reducing the extremely high uninsured rate in Texas. That’s because Abbott’s plan to reduce the uninsured in Texas, supported by Dan Patrick and Ken Paxton and the rest of the Republicans, is for more of them to die. Just as a reminder, Republicans have been in complete control of Texas government since 2003. Not once during that time have they taken any steps to improve access to health care in the state. Indeed, on multiple occasions, beginning in 2003 with the savage cuts to CHIP and continuing through their assault on women’s health via attacks on Planned Parenthood, they have time and time again make accessing health care harder. That’s what is at stake here. The only fix, regardless of the ruling in this case, is to vote them out. The WaPo, the Chron, and Think Progress have more.

Yeah, we spoke too soon about the Census citizenship question

It’s maximum chaos time.

The Justice Department affirmed Friday that it still is pursuing a path for adding a citizenship question to the 2020 Census, according to a filing in federal court in Maryland.

The filing followed statements earlier in the day from President Trump in which he said he is “thinking of” issuing an executive order to add the controversial question.

Government lawyers said in their filing Friday that the Justice and Commerce Departments had been “instructed to examine whether there is a path forward” for the question and that if one was found they would file a motion in the U.S. Supreme Court to try to get the question on the survey to be sent to every U.S. household.

Attorneys for the government and challengers to the addition of the question faced a 2 p.m. deadline set by U.S. District Judge George J. Hazel to lay out their plans.

Hazel said earlier this week that if the government stuck with a plan to try to add the question, he would move ahead on a case before him probing whether the government has discriminatory intent in wanting to ask about citizenship.

The Justice Department lawyers argued in Friday’s filing that there was no need to start producing information in that case since for now courts have barred the government from adding the question. But the government also agreed to follow a schedule to move ahead if that was laid out.

The government has begun printing the census forms without the question, and that process will continue, administration officials said.

[…]

Census officials and lawyers at the Justice and Commerce departments scrapped holiday plans and spent Independence Day seeking new legal rationales for a citizenship question that critics say could lead to a steep undercount of immigrants, which could limit federal funding to some communities and skew congressional redistricting to favor Republicans.

“It’s kind of shocking that they still don’t know what they’re doing,” Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund said. MALDEF is representing some of the plaintiffs in the case in Maryland. “We’re in this posture because they don’t know what the real plan is.”

See here for the background. This all began with some Trump tweets, because that’s the hellscape we now inhabit. Literally no one knows what will happen next – the judge even remarked that the Justice Department lead attorney “didn’t speak for his client” – so try some cleansing breaths and do a little binge-watching, to stay calm. TPM, Daily Kos, Think Progress, Mother Jones, and Slate have more.

UPDATE: And then there’s this.

The American Civil Liberties Union and partners today asked a federal court in New York to block the Trump administration from taking any action that would delay the printing of 2020 census forms or change the forms to include the citizenship question.

They have an oral argument date of July 23. Note that this is in the New York court. The hearing yesterday was in the Maryland court. Multiple lawsuits, remember? So there are multiple fronts on which to fight.

UPDATE: And discovery will begin in the Maryland case.

No Census citizenship question

Hallelujah.

The Trump administration is dropping plans to add a citizenship question to the 2020 Census, the Justice Department confirmed Tuesday just days after the Supreme Court described the rationale for the question as “contrived.”

The decision to back away from the controversial question was a victory for civil rights advocates concerned that the query would lead to an inaccurate count of immigrant communities that could skew political representation and federal funding.

“In light of the Supreme Court’s ruling, the government had no choice but to proceed with printing the 2020 census forms without a citizenship question. Everyone in America counts in the census, and today’s decision means we all will,” attorney Dale Ho of the American Civil Liberties Union said in a statement.

The fate of the question has been the subject of legal and political wrangling since March 2018, when Commerce Secretary Wilbur Ross announced he planned to add it to the decennial survey, sparking a half-dozen lawsuits from states, cities, civil rights groups and others.

Just last week, President Trump responded to the Supreme Court’s ruling by saying he would seek to delay the census to give administration officials time to come up with a better explanation for why it should include a citizenship question.

Instead, government lawyers notified those challenging the question of the decision to proceed without it.

See here and here for the background. It sure is nice to see lying not get rewarded for once, isn’t it? Despite this early cave, it was a closer call than you might think, because if the government had been able to get any slightly-less-bullshit pretext back before SCOTUS in time, you know John Roberts would have waved it on through. Now we can at least get this done in something approaching a normal manner, and add “pass a law outlawing citizenship questions on the Census” to the ever-longer to do list for the next Democratic government. Note that this should not affect the examination of the newly uncovered Hofeller evidence, but it does close this chapter of the story. Big sigh of relief. Think Progress, TPM, Mother Jones, Slate, and Daily Kos have more.

Next up for the Census lawsuit

Before the Trump administration can take a second shot at SCOTUS with the Census citizenship question, the federal court in Maryland will be revisiting their case with some new data.

[The SCOTUS] decision came two days after a federal appeals court ruled that Maryland-based federal Judge George Hazel — who is considering another legal challenge that was not before the high court — could consider new evidence that recently emerged in the litigation related to the federal government’s motivation for adding the question.

That challenge in Maryland was filed on behalf of more than two dozen plaintiffs, including the Texas House’s Mexican American Legislative Caucus, the Texas Senate Hispanic Caucus and several Texas-based nonprofits that advocate for Latino residents. They argued that including the question would lead to a disproportionate undercount of immigrants and people of color.

Hazel had already agreed with those plaintiffs’ allegations that the inclusion of the citizenship question violated the U.S. Constitution’s enumeration clause and a federal law that governs federal agencies and their decision-making process.

But they failed to convince Hazel that the question unconstitutionally violated equal-protection guarantees and that Trump administration officials had conspired to add the question to the 2020 questionnaire based on animus against Hispanics and immigrants, particularly when it comes to counting noncitizens for the apportionment of political districts.

(Those issues were not before the Supreme Court in the case it ruled on this week.)

On Monday, Hazel said he would reconsider the plaintiffs’ arguments after evidence emerged suggesting the question may have been tacked on to advance Republican gerrymandering and undermine Hispanics’ political clout.

[…]

“The citizenship question is blocked for now but the Supreme Court’s decision leaves open the possibility for it to come back. That’s why our lawsuit is so important,” said Juanita Valdez-Cox, the executive director of La Unión del Pueblo Entero. “In fact, the court in Maryland is weighing new evidence that shows that the real intention is to injure communities of color for partisan gain.”

Lawyers with the Mexican American Legal Defense and Educational Fund, which is representing some of the Texas plaintiffs, said Thursday they would immediately pursue their claims before Hazel. They had already asked him to enter an injunction while the court was still considering the case so they could prevent the administration from adding the citizenship question to the 2020 census forms it had planned to print this summer.

This of course is all in reference to the Hofeller evidence, which came out after the original ruling in that case. This is the case with the closest relationship to Texas – the Hofeller data was based on Texas’ state legislative districts – so it would be extra sweet if it helps keep the citizenship question off the Census regardless. I’ll be keeping a close eye on it.

Census citizenship question stopped for now

“For now” being the key point.

The Supreme Court on Thursday put on hold the Trump administration’s plan to add a citizenship question to the 2020 census form sent to every household, saying it had provided a “contrived” reason for wanting the information.

Chief Justice John Roberts wrote the splintered opinion. In a section agreed with by the court’s liberals, he said the Commerce Department must provide a clearer explanation.

Agencies must offer “genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public,” Roberts wrote. “Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”

Roberts said a district judge was right to send the issue back to the Commerce Department for a better explanation.

A string of lower-court judges found that Commerce Secretary Wilbur Ross violated federal law and regulations in attempting to include the question on the census. They starkly rebutted his claim that the information was first requested by the Justice Department to enforce the Voting Rights Act, and they noted his consultations with hard-line immigration advocates in the White House beforehand.

What happens next was not immediately clear; the department had said it must know by the summer whether the question can be added.

See here for some background. Trump has already tweeted that they will try again, so it’s mostly a question of timing. Rick Hasen thinks they may be able to get back before SCOTUS in time for the fall term, which would allow for the question to be re-decided in time. Ari Berman, talking to ACLU attorneys who were among the counsel for the plaintiffs, think it’s unlikely. Everyone agrees that SCOTUS ruled that the Commerce Department could add a citizenship question if it had followed the Administrative Procedures Act, so if they can get back to SCOTUS they will almost certainly prevail. The new questions raised by the Hofeller files may be an extra obstacle for the Commerce Department, but not necessarily. Hold onto your butts. Daily Kos and Texas Monthly have more.

You are free to redistrict to your partisan heart’s content

Your Supreme Court, ladies and gentlemen.

In an effort to appear as though it hovers permanently above the partisan fray, the Supreme Court on Thursday delivered perhaps the most staggering win to the Republican Party since Bush v. Gore. In a pair of cases out of North Carolina and Maryland raising the question of whether extreme partisan political gerrymanders can ever violate the Constitution, the five-justice conservative majority finally answered a decades-old question: The federal courts will have no role to play in overseeing whether political lines were drawn for the gain of the majority in violation of the Constitution. As Chief Justice John Roberts put it in his majority opinion:

We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions. “[J]udicial action must be governed by standard, by rule,” and must be “principled, rational, and based upon reasoned distinctions” found in the Constitution or laws [as a plurality of the court found in the 2004 case Vieth v. Jubelirer]. Judicial review of partisan gerrymandering does not meet those basic requirements.

With this opinion, the chief justice puts on a masterclass in legal analysis by way of hypothetical question. How much of a partisan gerrymander is too much? How can we know? Which tool could we use? Who knows what lurks in the heart of voters? It reads as a protracted still life in learned helplessness. If, as it turns out, a court genuinely doesn’t want to adjudicate a problem, they can always say it’s too hard.

[…]

To be sure, the chief justice knows how this all feels, to the millions of voters whose votes are and will be diluted and discounted by the majorities who draw lines: “Excessive partisanship in districting leads to results that reasonably seem unjust,” he concedes. “But the fact that such gerrymandering is ‘incompatible with democratic principles,’ does not mean that the solution lies with the federal judiciary.” The solution, he would suggest, lies in state courts, constitutional amendments, state redistricting commissions (which he has deemed unconstitutional in the past), Congress, and state legislatures, which is a tiny bit like putting the looters in charge of the looting problem.

He ends with the noble caution that “No one can accuse this Court of having a crabbed view of the reach of its competence.” And, indeed, nobody does. We have in recent terms witnessed the court’s view of its competence to dismantle the administrative state, to curb union power, to overturn prior precedent, to gut the Voting Rights Act, and to use the First Amendment as an all-purpose civil rights stun-gun. But its competence to do sweeping and consequential change stops, today, at the door of the political gerrymander. In the chief justice’s telling, this is neutral minimalism.

In her dissent, Justice Elena Kagan calls out this learned helplessness in her very first line: “[F]or the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.” She adds that the doctrine here clouds the issue that:

The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.

Before laying out the specific grotesquerie of the Maryland and North Carolina gerrymanders at issue, Kagan asks her reader to consider: “As I relate what happened in those two States, ask yourself: Is this how American democracy is supposed to work?”

In John Roberts’ America, it is. Mark Joseph Stern, who notes that Roberts likes to call himself “the most aggressive defender of the First Amendment on the court now”, reviews a couple of his recent decisions and concludes that Roberts thinks billionaires deserve more First Amendment protections than regular voters do. And if you really want to go down a nighmarish path, consider this:

After today’s disastrous decision, here are some things that line-drawers could do in the future:

  • Instruct a computer algorithm to generate huge numbers of maps that comply with all nonpartisan criteria and produce as large and durable an advantage as possible for the line-drawing party. Then pick an actual plan from this array of potential gerrymanders. This plan will be close to impregnable if it’s challenged on nonpartisan grounds. But it will still massively benefit the line-drawing party, probably more than any human-drawn map could.
  • Revise districts after each election to optimize their performance in the next election. Any districts slipping away from the line-drawing party could have some copartisans added to them. Any districts becoming overly safe could have some copartisans subtracted. Decennial redistricting, in other words, could become a thing of the past. Redistricting every two years is so much more effective.
  • Design noncontiguous districts in order to avoid the constraints of political geography. A state with many Democrats concentrated in cities (like my Illinois) could join clusters of urban Democrats with slightly smaller clusters of rural Republicans hundreds of miles away. These clusters wouldn’t have to be connected since no federal law, and no other law in many states, mandates contiguity. A state could even adopt entirely nongeographic districts, e.g., by assigning a representative (and sufficiently numerous) sample of the state’s population to each district.

We’ve already established that mid-decade redistricting is a thing that happens. Who’s to say any of this is out of bounds? Not John Roberts, that’s for sure. ThinkProgress, Sam Wang, and the WaPo have more.

Appeals court upholds dismissal of term limits lawsuit

Score one more for the city.

A Texas appeals court on Tuesday upheld a lower court ruling that struck down a lawsuit seeking to invalidate a 2015 voter-approved referendum extending term limits for city officials.

At issue in the suit was Proposition 2, a ballot measure that changed Houston’s charter to limit elected officials to two four-year terms instead of the previous cap of three two-year terms.

Community activists Phillip Paul Bryant and James Scarborough alleged in their lawsuit that former mayor Annise Parker and the city of Houston used “deceptive ballot language” to “selfishly expand term limits.”

Parker was term-limited out of office and did not receive a longer term due to the ballot referendum, which easily passed.

Eric Dick, an attorney for Scarborough, said he would appeal the case.

“I said from the beginning it’s going to be decided in the Supreme Court of Texas,” Dick said.

See here for the background, and here for a press release from the city. The court’s ruling is here, and the TL;dr version of it is “the district judge got it right when he ruled that the ballot language was sufficiently fine”. They rejected the plaintiffs’s argument that the ballot language was misleading. Obviously, the Supreme Court is gonna do what the Supreme Court is gonna do, but for now at least it’s all systems normal for this year’s election.

Lawsuit planned over cable franchise fee bill

I sure hope Houston gets involved in this.

Fort Worth and cities across Texas stand to lose millions of dollars due to a new law that slashes fees telecom providers pay to them. But before the savings go into effect next year, it’s likely cities will challenge the legislation in the courts.

The bill, signed by Gov. Greg Abbott earlier this month, would slash right-of-way fees telecom providers pay cities to supply cable and phone service. For years, companies paid cities two separate fees to run phone and cable TV lines in right-of-ways — even when delivered over the same line. The bill changes that practice, and allows providers to only pay the higher of the two fees.

Supporters of the bill, like Walt Baum, the president of the Texas Cable Association, said it’s necessary to end an “outdated double tax” on companies. But Bennett Sandlin, executive director of the Texas Municipal League, said he thinks the legislation violates sections of the Texas Constitution.

“The use of public land is a privilege, not a right,” Sandlin said. “They could certainly decide to run those wires through people’s backyards, but they would pay a lot more. They have to pay for that rental of public space.“

Fort Worth estimates a little over $4 million will be lost in revenue due to the law, according to a presentation given to the Fort Worth City Council outlining the legislative session’s impact. And in some cities, those losses are more than six times that, with Houston pinning its potential losses at up to $27 million.

Sen. Kelly Hancock, R-North Richland Hills, authored Senate Bill 1152 and chairs the Senate Business and Commerce committee. Since 2006, telecom providers — some who stand to potentially cut costs due to Hancock’s bill — have contributed over $150,000 to Hancock’s campaign, according to the National Institute on Money in Politics.

“I don’t know who saves millions more than the constituents that I work for,” Hancock said about providers paying less.

This wouldn’t be the first time one of Hancock’s bills spurred a lawsuit.

In 2017, a group of over 30 cities filed a lawsuit against the state alleging that a bill authored by Hancock violated articles of the Texas Constitution that prohibit the legislature from directing local municipalities to make gifts or grants to a corporation. The lawsuit, filed in Travis County District Court, is ongoing, and Kevin Pagan, McAllen’s city attorney, said he believes the newly signed legislation violates the same tenets.

Pagan said the new bill wrongly requires cities to make a gift to private companies by allowing providers to use the right-of-way at a lesser charge.

The telecom providers are, “already in the right-of-way. You’re already using our facilities. You’ve already agreed to pay us a franchise fee. And now under this law, you’re just going to stop paying,” Pagan said. “It’s a gift from the state legislature back to those companies.”

See here for the background. I have no idea what the odds of success are for this lawsuit, but as I said up front I sure hope the city of Houston signs on as a co-plaintiff, because we’re definitely taking it in the shorts from this bill. As for the claims from the cable lobbyist that this bill will lead to lower costs for cable subscribers, well, if you think that will happen I’ve got a nice beach house in Abilene to sell you.

Appeals court rejects firefighters pension reform lawsuit

This is not related to Prop B. I know, it’s hard to keep all of this straight.

Mayor Sylvester Turner

Texas’ 14th Court of Appeals on Thursday sided with the city of Houston in a lawsuit over Mayor Sylvester Turner’s pension reform plan, which the Houston Firefighters’ Relief and Retirement Fund alleged violates the state constitution.

The firefighters’ pension fund sued Turner and other city officials in May 2017, shortly after the Legislature passed — and Gov. Greg Abbott signed — Senate Bill 2190, the legislation overhauling Houston’s pension systems. Firefighters opposed the measure, while Turner and other officials said it resolved a fiscal crisis that could threaten the city’s fiscal solvency.

In the lawsuit, the Houston Firefighters’ Relief and Retirement Fund argued the pension reform law strips its right under the Texas Constitution to “select legal counsel and an actuary and adopt sound actuarial assumptions.”

The pension fund contended the reform plan’s 7 percent assumed rate of return on investment, now codified in state law, gives the city and its actuaries a role in determining the fund’s cost projections, which the fund’s board of trustees said it alone should control.

See here and here for the background. The suit was dismissed by a district court judge, and the appeals court was basically ruling on whether that judge was correct to dismiss or not. You can read the opinion here, but it’s pretty dense and technical, and my eyes glazed over almost immediately. In short, the appellate court said the trial court judge’s decision was fine. The firefighters’ pension fund, who filed the suit and the appeal, will appeal again, to the Supreme Court. So we’re not quite finished with this yet.

Buzbee billboard lawsuit dismissed

I did say it was a dumb lawsuit.

“Objection Overruled”, by Charles Bragg

A state district judge has dismissed challenger Tony Buzbee’s lawsuit against Mayor Sylvester Turner and advertising company Clear Channel Outdoor over a series of billboards for the city’s AlertHouston campaign.

In the suit, Buzbee claimed Clear Channel and Turner had conspired to support the mayor’s re-election bid by “promoting him as a civic-minded safety conscious leader” on the ad campaign for a system that sends alerts to Houston residents during emergency situations.

The advertisements, which were taken down earlier this month, featured a photo of Turner next to the words “Be Prepared. Be Safe. Be Alert Houston.”

Buzbee, a trial lawyer, said in a statement Tuesday that he plans to appeal the ruling, which was issued last Friday by 281st District Judge Christine Weems.

[…]

Weems did not explain the dismissal in her ruling, writing only that Turner and Clear Channel had 21 days to set a hearing or file a motion to determine how much they would be reimbursed for attorney fees and other costs.

See here for the background. The billboards were taken down, which is what Buzbee wanted, though the Turner campaign says they were going to be coming down around this time anyway. The motion to dismiss was filed by the defendants, so in that sense Buzbee lost, and unless the suit is reinstated he’ll be on the hook for court costs and attorney fees. This has been your irregularly scheduled Dumb Lawsuits Update.

Back to mediation

Give it another sixty days. Maybe it’ll be different this time.

A Texas appeals court Thursday ordered the Houston firefighters union and Mayor Sylvester Turner’s administration back to mediation in the hope the two sides will agree to a new pay contract and sidestep the contentious fight over Proposition B.

The order by the 14th Court of Appeals, which requires the parties to hold talks within 60 days, comes a month after a state district judge declared Prop B unconstitutional, marking the latest twist in a years-long battle between the city and firefighters over pay.

The latest order cranks up pressure on Turner and the firefighters to work together to resolve the issues, said Josh Blackman, an associate professor at the South Texas College of Law Houston.

“Maybe they were hoping the court would bail them out, but the courts aren’t going to assist in this negotiation,” he said. “Why would the court want to get involved in this? It’s such a disaster.”

[…]

State District Judge Tanya Garrison’s ruling that Prop B was unconstitutional changes the dynamics of the negotiations, said Wanda McKee Fowler, a former appellate judge who spent more than 13 years on the 14th Court of Appeals.

“Sometimes it takes more than one mediation for a case to settle,” she said. “There’s benefit in having parties that are going to have a continuing relationship resolve it themselves, rather than have the law to resolve it.”

See here for the background, and here for the court’s order. What this means is that the appeal of the question about whether Prop B is unconstitutional is on hold for the next sixty days. If everyone involved can come to some kind of agreement – remember, the Houston Police Officers Union filed the lawsuit alleging Prop B was illegal, so they are a party to all this as well – then the appeal will be dropped and everyone will go on with their lives. If mediation fails again, then the court gets to decide whether the original ruling that Prop B is illegal was correct. You have to read the order to figure that out (or at least, I had to read it to figure that out), but that’s what this all means.

For that reason, I disagree with Josh Blackmon. This fight isn’t about being bailed out, it’s about who’s right and who’s wrong. Remember, it was the HPOU who filed the lawsuit, in the belief that Prop B would harm them. In a sense, Judge Garrison’s ruling did bail everyone out, in that the city’s financial position improved, no firefighters got laid off, and nothing prevented them from going back to the collective bargaining process. The question at issue here is “Is Prop B legal?” The court’s order is a fancy way of saying “Are you sure you want to ask me that question, or would you rather go off on your own and solve your own problems and leave me out of it?” Frankly, it’s not the court bailing anyone out. From the court’s perspective, they want the litigants to bail them out from having to get involved. KUHF has more.

Paxton still holding on to bogus voter purge data

It’s all about secrecy. He doesn’t want you to know what he’s up to.

Best mugshot ever

More than a month after a legal settlement was reached to scrap the review, Paxton’s office has indicated it is keeping open the criminal investigation file it initiated based on the secretary of state’s referral. That’s even after the list was discredited when state officials realized they had mistakenly included 25,000 people who were naturalized citizens and admitted that many more could have been caught up in the review.

Paxton’s office made that indication in a letter this week denying The Texas Tribune’s request for a copy of the list of flagged voters.

The Tribune originally requested the list soon after Whitley announced the review. But the attorney general — whose office also serves as the arbiter of disputes over public records — decided that the list could remain secret under an exemption to Texas public information law that allows a state agency to withhold records if releasing them “would interfere with the detection, investigation, or prosecution of crime.” The office separately confirmed that it had opened a “law enforcement investigation file.”

Following the settlement in late April — and after the secretary of state’s office rescinded the advisory that launched the review — the Tribune re-upped its request with both the secretary of state and the attorney general’s office. But the secretary of state’s office in late May and the attorney general’s office this week asserted they would still withhold the list based on the law enforcement exemption.

“As the law, facts, and circumstances on which that ruling was based have not changed, we will continue to rely on that ruling and withhold the information at issue,” Lauren Downey, an assistant attorney general, told the Tribune in an email.

[…]

“It’s very troubling that the attorney general would base an investigation on a debunked list that we know contains tens of thousands of naturalized citizens,” said Nina Perales, vice president of litigation of the Mexican American Legal Defense Fund, which sued the state on behalf of several naturalized citizens. “If the only basis of the investigation is that voters are naturalized U.S. citizens, then that’s discriminatory and unconstitutional.”

See here for the background. Lord only knows what there might be to investigate, since the list in question was based on useless data, but that sort of trivia doesn’t stop Ken Paxton. Is there some kind of legal action people could take to force Paxton to fish or cut bait? If there is, I hope they pursue it. If not, I guess we just have to wait.

Paxton sues San Antonio over Chick-fil-A records

We really do live in strange times.

Best mugshot ever

It’s a red-meat issue, but it feeds on chicken.

San Antonio’s decision to exclude Chick-fil-A from its airport continues to resound in political circles. Legislators passed a religious freedom bill that gained steam after it was rebranded as the ‘Save Chick-fil-A bill.’ Gov. Greg Abbott beamed over its success on Twitter.

And Attorney General Ken Paxton, declining to wait for his own department to rule on a public records request, on Monday filed suit against the city to force it to hand over records he wants for his office’s investigation.

[…]

According to the suit filed in Travis County district court on Monday, Paxton’s office requested records on April 11 — including calendars, communications and records of meetings among City Council members, city employees and third parties — related to the city’s decision to remove the restaurant from its airport concessions contract. Paxton’s suit seeks to compel the city to release the records.

“The City of San Antonio claims that it can hide documents because it anticipates being sued,” Paxton said in a statement. “But we’ve simply opened an investigation using the Public Information Act. If a mere investigation is enough to excuse the City of San Antonio from its obligation to be transparent with the people of Texas, then the Public Information Act is a dead letter.”

Nirenberg said in a statement Monday that the city had asked Paxton for clarification on the request but never received a response.

“The fact that he went straight to filing a lawsuit instead of simply answering our questions proves this is all staged political theater,” Nirenberg said.

The deputy city attorney, Edward Guzman, responded to Paxton’s request April 24 saying the city was seeking to withhold some records based on 63 exceptions to the state’s public information act, according to the suit. In a May 2 letter, the city also argued the information is exempt because of litigation that was likely to come from Paxton.

State law exempts the release of information related to “pending or reasonably anticipated” litigation.

San Antonio City Attorney Andy Segovia said in a statement Monday that the city provided nearly 250 pages of documents for review by the Attorney General’s Open Records Division and is still waiting for a decision.

Segovia said the city will comply with any Open Records Division ruling. He also shed doubt on the motivation behind Paxton’s investigation.

“The State Attorney General’s office has not specified the legislative authority they are relying on to investigate the airport contract,” Segovia said. “Furthermore, it is clear from the strident comments in his press release that any ‘investigation’ would be a pretense to justify his own conclusions.”

See here, here, and here for some background. Any resemblance of the arguments in this case to those in the dispute between Paxton’s office and the House Oversight Committee are, I’m sure, totally coincidental. Whatever else happens in this ridiculous case, the Chick-fil-A follies have provided the wingnuts with the grievance they needed to get their “religious liberties” bill through the Lege, so in that sense Paxton et al have already won. The Rivard Report has more.

How to rig the Census

This is how you would do it.

The Trump administration’s controversial effort to add a citizenship question to the 2020 census was drawn up by the Republican Party’s gerrymandering mastermind, who wrote that it “would clearly be a disadvantage to the Democrats” and “advantageous to Republicans and Non-Hispanic Whites.” This bombshell news, revealed in newly released legal documents, suggests that the Trump administration added the question not to better enforce the Voting Rights Act, as it claimed, but to benefit Republicans politically when it came to drawing new political districts.

A case challenging the citizenship question is currently before the Supreme Court, and the new evidence significantly undercuts the Trump administration’s position in the case.

Tom Hofeller, who passed away last year, was the longtime redistricting expert for the Republican National Committee. He helped Republicans draw heavily gerrymandered maps in nearly every key swing state after the 2010 election. In some of those places, like North Carolina, the new lines were struck down for discriminating against African Americans.

In 2015, Hofeller was hired by the Washington Free Beacon, a conservative news outlet, to study the impact of drawing state legislative districts based on citizenship rather than total population, which has been the standard for decades. Hofeller’s analysis of Texas state legislative districts found that drawing districts based on citizenship—a move he conceded would be a “radical departure from the federal ‘one person, one vote’ rule presently used in the United States”—would reduce representation for Hispanics, who tended to vote Democratic, and increase representation for white Republicans. But Hofeller said that a question about citizenship would need to be added to the census, which forms the basis for redistricting, for states like Texas to pursue this new strategy.

Hofeller then urged President Donald Trump’s transition team to add the question about citizenship to the 2020 census. He urged the team to claim that a citizenship question was needed to enforce the Voting Rights Act, even though Hofeller had already concluded that it would harm the racial minority groups that the act was designed to protect. That argument was then used by the Justice Department in a December 2017 letter requesting that the Commerce Department, which oversees the census, include a citizenship question.

Hofeller’s documents were discovered on hard drives found by his estranged daughter and introduced into evidence in a separate trial challenging gerrymandered North Carolina state legislative districts drawn by Hofeller. On Thursday, lawyers challenging the citizenship question cited them in federal court. They suggest that members of Trump’s team may not have been fully forthcoming in their testimony under oath. Neither Trump transition team member Mark Neuman nor John Gore, the former assistant attorney general for civil rights who wrote the Justice Department letter, mentioned Hofeller’s involvement in the letter when they were deposed under oath as part of a lawsuit by New York and 17 other states challenging the citizenship question.

Yeah. And of course, Texas was a key to all this.

The filing includes a 2015 analysis by Hofeller that had been commissioned to demonstrate the effect that using the population of citizens who are of voting age, as opposed to total population, would have on drawing up legislative districts.

Hofeller detailed how the change would clearly be “advantageous to Republicans and Non-Hispanic Whites” by using the Texas House as his case study. He detailed how the Hispanic population would drop in traditionally Democratic districts, which would then have to grow geographically to meet constitutional population requirements in redistricting.

The loss of Democratic-leaning districts would be most severe in areas with mostly Hispanic populations, such as South Texas, El Paso and the Rio Grande Valley, which would lose 2.6 state House districts, according to Hofeller’s analysis. The change would also cost Dallas County 1.7 districts and another 1.7 districts in Harris County and its suburbs.

If the Supreme Court had required such a change at the time of the study, it would have mandated a “radical redrawing of the state House districts,” Hofeller wrote. He noted that the traditionally Democratic districts in need of more population could pick up pockets of Democratic areas in adjacent Republican-held districts and ultimately shore up the GOP’s control across the state.

But that approach was unrealistic at that point, Hofeller wrote in his study, because the government did not compile the necessary citizenship information. And he admitted it was unlikely that the Supreme Court could be convinced to alter the population standard used to draw legislative districts.

“Without a question on citizenship being included on the 2020 Decennial Census questionnaire, the use of citizen voting age population is functionally unworkable,” Hofeller said.

This is a reference to the Evenwel lawsuit, which established that states had discretion in how they drew legislative districts, but did not opine on whether drawing them based on citizen population rather than plain old population was legal. And so here we are.

The Census lawsuits have been argued before the Supreme Court, where the five Republican Justices seem inclined to let the Trump administration break the law as they see fit. Rick Hasen thinks this should-be-a-blockbuster revelation will just make the SCOTUS Five that much more likely to go with Team Trump. Hey, remember how Jill Stein supporters – and Ralph Nader supporters before her – poo-poohed concerns about the makeup of the Supreme Court if another Republican President got to pick more Justices? Good times, good times. ThinkProgress and Daily Kos have more.

Orlando Sanchez’s water-pourer lawsuit dismissed

Hey, remember when former Treasurer Orlando Sanchez filed a million dollar lawsuit against the doofus who poured a glass of water over his head at the press conference where Sanchez was begging the state to take over HISD? Well, the guy’s lawyer contacted me recently to let me know that the lawsuit had been dismissed, with Sanchez ordered to pay court costs. You can see a couple of the defendant’s motions here and here. The long and short of it is that the civil standard for assault is the same the criminal standard, and since Sanchez suffered no injury there was no assault as defined by the law. In addition, the defendant had a legitimate claim that his water-pouring constituted an expression of free speech, presumably in the Nigel Farage getting milkshaked mode. Add it up and it’s one ex-lawsuit. Looks like Orlando Sanchez is going to have to find another way to get fame and fortune.

Appeals court affirms pension bond lawsuit

Hope this is now over.

Mayor Sylvester Turner

The Texas 1st Court of Appeals has struck down an appeal from a Houston businessman who contested the city’s 2017 pension bond referendum, appearing to end the legal challenge that began almost a year and a half ago.

Mayor Sylvester Turner’s office had denied former housing director James Noteware’s allegation that the mayor misled voters into approving the $1 billion bond sale with a “materially misleading ballot description.”

Noteware claimed that the election authorized the city to pay off the bonds by levying a tax that exceeds its voter-imposed revenue cap.

A state district judge last year dismissed Noteware’s claim without ruling on his motion for summary judgment in the case.

In the ruling, the judge agreed with the city’s argument that the court lacked jurisdiction because Texas Attorney General Ken Paxton had issued an opinion approving and validating the bonds, while Noteware’s claim “depends on contingent or hypothetical facts.”

See here, here, and here for the background, and here for the ruling. Noteware’s claims are summarized in the Chron story, while the city countered that 1) the Attorney General certified the bonds as being in compliance with the revenue cap; 2) the election was held, the bonds were sold, and the taxes to pay for them were levied, so there’s no action for the court to take; and 3) any claim that payment of the bond may violate the revenue cap in the future cannot be litigated now. The court accepted the city’s arguments and the appeals court upheld the ruling. Based on this ruling, it’s theoretically possible there could be future litigation over that last point, but if so it will most likely be someone else’s problem.

Anti-Israel boycott law amended

For whatever this is worth.

Gov. Greg Abbott this week signed a bill into law that limits the scope of a controversial anti-Israel boycott law, just weeks after a federal judge temporarily blocked its enforcement in an ongoing First Amendment lawsuit.

The 2017 law — which seeks to combat the Boycotts, Divestments and Sanctions movement, an international protest over Israel’s treatment of Palestinians — prohibits state agencies from investing in and contracting with companies that boycott Israel. It also requires anyone contracting with the state to pledge in writing that it will not boycott Israel.

The changes Abbott signed into law Tuesday make it only applicable to contracts of at least $100,000 with companies with 10 or more full-time employees. Legislators who support the law have said they never intended for it to impact individuals or small businesses.

Texas Attorney General Ken Paxton, who had appealed the preliminary injunction to the U.S. Court of Appeals for the Fifth Circuit, did not waste time in filing a motion to dismiss the federal lawsuit brought by several Texas contractors who claimed it violated their right to free speech.

In the motion filed Wednesday, Paxton argued that “this legislative enactment is exactly the kind of development that the Fifth Circuit has recognized will render a case moot.”

ACLU of Texas spokeswoman Imelda Mejia said the agency, which is representing some of the plaintiffs in the suit, said the agency is “analyzing the new law and its possible implications on our case.”

[…]

Federal judges have struck down laws in Arizona and Kansas and upheld one in Arkansas; all are on appeal but the Kansas law.

There, after the Kansas Legislature made nearly identical changes to those signed by Abbott on Tuesday, the American Civil Liberties Union, lacking an affected plaintiff, agreed to dismiss its lawsuit.

See here for the background. Given that the lawsuit in question involved an individual who would no longer be affected by the law, it probably is the case that a motion to dismiss would succeed. That said – and here I put on my I Am Not A Lawyer hat – I don’t think the change to the law fixes the underlying constitutional problem. We’ll see if the court agrees.

Paxton again refuses to comply with House Oversight Committee

It’s like he has no interest in oversight, or something.

Best mugshot ever

Texas Attorney General Ken Paxton’s office this week again denied a request for a records by a U.S. House panel seeking to investigate the state’s botched voter purge program.

[…]

While the Attorney General’s office has refused to release documents, Secretary of State David Whitley’s office said Tuesday it has released more than 1,000 pages of documents in response to the request and plans to produce more by the end of the week now that the federal lawsuit has been settled.

Whitley’s office continues to withhold other documents it says are exempt from disclosure because of attorney-client privilege.

First Assistant Attorney General Jeff Mateer in a letter Monday reiterated his claim that the House committee lacks the authority to force the secretary of state to produce documents.

Rep. Jamie Raskin, D-Md., chairman of the Oversight Subcommittee on Civil Rights and Civil Liberties, has rejected that claim but last month stopped short of threatening a subpoena if the Texas officials don’t hand over the documents requested — including emails with Gov. Greg Abbott and Trump administration officials about the attempted voter purge.

In the letter Monday, Mateer said the ability of Congress to pass laws to protect voter rights does not “override the inherent and reserved power” of the state to maintain its own voter rolls.

“Granting Congress the power to exercise ‘oversight’ over the constitutional officers of a state engaged in the lawful exercise of that state’s core authority would undermine the fabric of our system of dual sovereignty,” Mateer wrote. “In this case, that risk would be made particularly acute by the committee’s attempt to force the constitutionally-designated attorney for the State of Texas to divulge privileged and confidential communications with a client concerning the client’s enforcement of Texas law.”

Mateer added that the committee lacked a “valid legislative purpose” for the investigation, which the committee has disputed.

See here and here for the background. Note the similarity in the responses by Jeff Mateer and Donald Trump’s attorneys. It’s not an accident or a coincidence. I say it’s time to break out the subpoenas, and to go to court as needed to enforce them. If this is how they want to play this, then let’s quit fooling around and cut to the chase.

Prop B ruled unconstitutional

Oh, my.

A state district judge on Wednesday ruled Proposition B, the voter-approved measure that grants Houston firefighters the same pay as police of corresponding rank and seniority, unconstitutional and void.

The ruling came in a lawsuit brought in November by the Houston Police Officers’ Union, which contended that the city charter amendment conflicts with the Texas Constitution.

In her ruling, state District Judge Tanya Garrison found that Chapter 174 of the local government code preempts Prop B. The city, which was named in the police union’s suit, has alleged that the parity measure section conflicts with a provision of Chapter 174 tying compensation for firefighters and police officers to that of comparable private sector employees.

Mayor Sylvester Turner briefly stopped the weekly city council meeting to announce the ruling. The fire union quickly announced it would appeal.

After the council meeting, Turner said the 60-day layoff notices he proposed and council approved sending in recent weeks to 220 firefighters and more than 110 fire cadets and municipal workers to help close a budget deficit exacerbated by Prop. B would be rescinded, along with hundreds of proposed demotions within HFD.

Turner cast the ruling as a “tremendous positive” for the city as a whole, saying he hoped it could spur a “reset” to reduce widespread acrimony over the issue. He also stressed that firefighters deserve a pay raise and looked forward to negotiating one with union leaders.

“They’re deserving of a pay raise that the city can afford and I do look forward to sitting down and talking with them about what would be an acceptable pay raise within the confines of the city’s financial capability,” Turner said. “We’ll do everything we can to move it forward.”

A release with the Mayor’s comments following the ruling, which came down while Council was in session, is here. Judge Garrison had sent the parties to mediation originally, saying she didn’t want to get involved if they could work it out among themselves. They did not, and so here we are. You can see a copy of her ruling here, which is an order granting summary judgment to the plaintiffs, the HPOU. The city is listed as the defendant and their motion was also granted, while the HPFFA’s motion was denied; someone who understands the law way better than I do will hopefully step in to explain how all that worked. Be that as it may, the firefighters will appeal, but that almost certainly means the city is off the hook for this fiscal year, possibly for the foreseeable future.

Federal lawsuit filed over homeless feeding ordinance

I’m kind of surprised that this hadn’t been filed before now.

On a recent evening in April, a few dozen people experiencing homelessness lined up outside Central Library in downtown Houston for a free — and illegal — meal of vegetarian chili, macaroni, rice and fruit salad. Volunteers with Food Not Bombs, an international organization with hundreds of local chapters, often serve free dinner here, violating a local ordinance against publicly feeding groups of people without city permission.

Houston’s so-called charitable-feeding ordinance was enacted in 2012 and allows groups and individuals to feed up to five homeless people, no strings attached. To feed more, though, you must register with the city — or face fines up to $2,000 and a misdemeanor charge for violating the Houston Code of Ordinances. Additionally, would-be do-gooders have to take a food handling training class; provide the proposed schedule, time and location of the ad-hoc soup kitchen; detail the food being served; and fill out an online form to receive permission from the city to give food in public.

On Monday, activists filed a federal lawsuit seeking to overturn the ordinance on First Amendment grounds. Food Not Bombs and three of its members are plaintiffs in the suit, filed against the City of Houston in the U.S. Southern District of Texas. The lawsuit accuses the city of infringing on freedom of speech and religious liberties of the anti-war, food-sharing activists. It asks Houston to overthrow the ban and seeks unspecified monetary damages.

The ordinance infringes on “freedom of association” and “political organizing” and is “unconstitutionally vague,” the lawsuit argues. It cites at least 19 pro-food-sharing verses from the Bible. Randall Kallinen, who has filed numerous civil rights lawsuits in Houston, is representing the activists. In interviews with the Observer, he described the ordinance as “totally ridiculous” and part of an effort to “get the homeless out of town.”

While the lawsuit adds to pressure against Houston, the effort to overturn the city’s ban is not new. A parallel lawsuit also involving Kallinen has been floundering in state district court since 2017, and over 75,000 people have signed an online petition calling for an end to the “cruel” ordinance.

See here for some more on the state court lawsuit. A copy of this lawsuit is embedded in the story, and it’s something else. I like to make I Am Not A Lawyer jokes, but I can read legal briefs and motions and generally understand what they’re getting at. This one is in a way a lot easier to read because there’s almost no legal language in it. I mean, there’s a page quoting from the Food Not Bombs website. There’s more than two pages quoting bible verses, and three pages listing organizations that they say oppose the law. The legal arguments section does cite a couple of court cases, but it never quotes anything from the cited decisions, which leaves one to wonder just how those decisions apply to the case at hand.

Most of the arguments they make themselves have to do with the vagueness of the term “those in need” from the ordinance’s definition of “charitable food service”, which is “providing food without charge, payment or other compensation to benefit those in need at an outdoor location not owned, leased or controlled by the individual or organization providing the food.” I mean, I was a math major and I Am Not A Lawyer, but that seems pretty straightforward to me. Their point seems to be that an organization that was handing out food (at an outdoor location not owned, leased or controlled by the individual or organization providing the food) to random passersby would not be in violation of the law. Maybe that could work as a theoretical construct, but I have a hard time imagining it happening in real life.

The writer of this story is clearly sympathetic to the plaintiffs. I get that, but even the lightest critical analysis of the lawsuit shows the problems with it. I’m not sure how the reader is served by that omission. We’ll see what the court makes of this, but color me skeptical.

Buzbee files another lawsuit

Tony Buzbee does what Tony Buzbee does.

Houston mayoral candidate and attorney Tony Buzbee has filed a lawsuit on behalf of two companies that allege they were fraudulently listed as subcontractors by two companies that later secured millions of dollars for Hurricane Harvey relief work from the city of Houston.

Filed Tuesday in Harris County, the action alleges that Blessed Enterprises and A-Status Construction LLC were unaware that they were listed as minority-owned subcontractors by Burghli Investments and Tegrity Houston LLC, which each received $66 million from the city to help rebuild or rehabilitate homes affected by the storm.

They allege that the companies committed “fraud, misappropriation and implied breach of contract” in order to meet diversity goals and obtain contracts that were approved by City Council. The owners of the companies represented by Buzbee said they learned they were listed on the bids through a website run by the Office of Business of Opportunity, which monitors the program.

[…]

At a Tuesday press conference, Buzbee said he filed the lawsuit out of concern for minority-owned businesses that “routinely are shut out” of the bid process and “never get a piece of the pie.”

The companies he represents are both certified for business with the city, but say they have never received a contract. They say the city’s bid process is unfair, and that the allegedly fraudulent use of their names could damage their reputations and, thus, their ability to get future contracts.

“I worked hard to get where I am,” A-Status Construction owner Raquel Boujourne said “I find it extremely unfair to see these same companies be awarded contract after contract while I am over here working my butt off… Businesses like ours, the little guys, are taken advantage of and the city does not lift a finger to do anything about it. It is a huge problem.”

Buzbee also claimed that Burghli Investments received business with the city because it gave campaign contributions to Turner, despite having been sued multiple times for tax delinquency.

The city’s bidding process, Buzbee said, is “not about who you are, it’s about who you know.”

Turner called the allegations “ludicrous” and “vague.”

“Mayor Turner has received no donation from the owner of Tegrity,” a spokesperson for his re-election campaign said in a statement. “He received one donation from Deanna Burghli of $2,000 in December 2015 before he was elected mayor. In that same month, Mr. Buzbee and his wife both maxed out donations to Mr. Turner of $5,000 each, along with donations from his law firm staff. This again shows Mr. Buzbee will say, do and spend anything to be elected mayor.”

Like I said, this is what he does. I’m starting to think that filing all the lawsuits and conducting crappy robo-polls are the entirity of Buzbee’s campaign strategy. Though honestly, I shouldn’t underestimate his ability to dream up stupid stunts. It’s his money, but boy I wish he’d have picked a less public midlife crisis to pursue.

The SOS voter purge may be over, but Ken Paxton is unaccounted for

Keep an eye on this.

Best mugshot ever

After the judge approved the settlement, the original list of voters was scrapped. Under the agreement, Texas officials now will only flag names of people who have said they’re not citizens after they have registered to vote.

[Joaquin Gonzalez, a voting rights attorney with the Texas Civil Rights Project,] said the settlement requires that he and the other plaintiffs be able to oversee how the state carries out this more limited voter investigation.

“We get numbers of people that have been matched, so that we can tell if there is something that appears to be going wrong in the process,” he said.

[…]

But there’s one issue that wasn’t dealt with: Attorney General Ken Paxton’s plans.

When the original voter removal effort was announced, Paxton – the state’s top prosecutor – said he would “spare no effort in assisting” with those cases.

Because of that, plaintiffs named him in their lawsuits. A federal judge removed him, however, because he doesn’t have the power to actually cancel voter registrations.

Perales said it’s unclear what Paxton will do following the settlement.

“Ken Paxton has said contradictory things about this voter purge that came out of the Texas Secretary of State’s office,” she said.

For example, when lawmakers raised questions about the state’s effort earlier this year, Paxton said he didn’t have the time or resources to go through the list and investigate people.

“At the same time, Ken Paxton’s office has claimed that they are still investigating – or doing some kind of investigation – of registered voters who may be non-U.S. citizens,” Perales said.

Paxton’s Office also has been shielding documents related to the voter-removal effort from public view.

In a letter to media organizations and others, the open records division of his office has said, “the information at issue relates to an open criminal investigation conducted by the [Office of the Attorney General’s] Election Fraud Section of the Criminal Prosecutions Division. Further, the OAG states release of the information at issue would interfere with the pending investigation.”

See here for the background. I was wondering about this myself when the settlement terms were announced. It goes without saying that Ken Paxton cannot be trusted. If he has the opportunity to press forward with any of these cases, on whatever grounds, he will. I strongly suspect that all of the attorneys for the plaintiffs will need to keep their evidence files close at hand, ready to whip out for a new motion when and if Paxton strikes. Do not let him try to make wine from the fruit of the poisoned tree.

On a side note, this story also addresses the question of why the state settled instead of appealing, as they usually do:

Gonzalez said he thinks state officials did that partly because the legal challenge was looming over Whitley’s confirmation as secretary of state. He had only recently been appointed when he announced the voter list. Gonzalez said state officials backed off when Senate Democrats vowed to block his confirmation.

“Their opposition to the nomination, we believe, is [part of what] provided the leverage for the state to be willing to settle this in the first case, because the state doesn’t settle voting rights cases like this,” he said.

Maybe. Doesn’t seem to have helped, but I can see the logic. I still feel like there was more to it than this, but I can believe this was a factor.

Mediation fails to achieve Prop B agreement

I have three things to say about this.

Houston Mayor Sylvester Turner on Friday said a court-appointed mediator has declared negotiations between the city and firefighters union over the implementation of Proposition B at impasse, potentially leaving the future of the measure in the hands of a state district judge.

The announcement ends what had appeared to be some progress toward resolving the months-long dispute over how to phase in raises to firefighters required by the pay parity measure voters approved last November. The charter amendment requires the city to pay firefighters the same as police of corresponding rank and experience.

[…]

State district Judge Tanya Garrison had ordered the city, firefighters and the Houston Police Officers Union into non-binding mediation three weeks ago. Garrison’s order came as part of a legal battle between the three sides over the constitutionality of Prop B; she declined to rule on that issue until the three parties reached a settlement on implementation or an impasse was declared by the third-party mediator.

The three groups had met at least three times since.

At issue is how to implement the raises. The fire union has said it would ask its members to consider a three-and-a-half-year phase-in as long as no firefighters are demoted or laid off. Turner had said the city cannot avoid layoffs unless Prop B raises are phased in over five years.

At a Friday morning press conference, however, Turner said the city had agreed to the fire union’s previous offer to phase in the raises over three and a half years, with no firefighters demoted or laid off.

Turner said the union then refused to accept that agreement, as well as another offer that would have given it hundreds of millions of dollars in a block grant-like arrangement that the union could use at its discretion.

He accused the union of repeatedly “moving the goal posts,” and said that agreeing to its full demands would devastate Houston’s finances and credit rating.

“The city cannot go beyond what we have proposed without bankrupting the city,” he said. “As long as I am mayor, we are not going to bankrupt this city. Everyone in the city would pay the price.”

Mediator David Matthiesen did not respond to a request for comment Friday.

In a statement, the fire union said it had agreed to take a four-year phase-in to its members if pay parity was implemented “effective immediately,” the city agreed to no layoffs and if the city disclosed “what each firefighter will earn in salary and incentive pay.”

HPFFA President Marty Lancton also said the city demanded in negotiations that Prop B be rescinded and declared unconstitutional, a request he adamantly opposed.

“Citizens’ rights to petition the local government must be protected,” he said.

1. You really have to admire Marty Lancton’s ability to keep the focus of this debate on one point, which is the pay raise that the voters agreed to give the firefighters. The fight here is not over whether or not to implement Prop B, it’s over how to do it. That’s what the mediation was about, that’s what the layoffs are about. The firefighters don’t like the way the city is implementing Prop B and have been complaining nonstop – and very successfully, at least from a short term political perspective – about it. Their grievance is that some firefighters will be laid off, and some others demoted, in order for the city to pay for Prop B. If the city had decided instead to lay off police officers, solid waste workers, and more municipal employees instead, there’s nothing in the firefighters’ rhetoric to suggest they’d have had a problem with that. Beyond the fact that it was clear from the beginning that the city could not afford Prop B, this right here is why I don’t have much sympathy for the firefighters.

2. That said, part of the litigation that was brought by the police officers’ union was a claim that Prop B is illegal and should be invalidated by the court. The argument here is that the pay parity law conflicts with state law about collective bargaining. I Am Not A Lawyer, and I have no insight into that question. I had thought originally that the litigation over Prop B would follow the template of previous lawsuits over city referenda and be about ballot language. I was wrong about that, which is why I like to emphasize my not-a-lawyer status in these matters. Be that as it may, it seems like a big stretch to get an election overturned. I will be surprised if Judge Garrison (who, full disclosure, is a friend of mine) rules for the plaintiffs. But again, I Am Not A Lawyer, so place your bets at your own risk.

3. The last couple of paragraphs in this story are about how the people other than Sylvester Turner who are running for Mayor are also critical of his handling of Prop B implementation, without a single word being quoted about what these alternative Mayors think should be done instead. They don’t like what the Mayor is doing, they oppose what the Mayor is doing, but what would they be doing if they were Mayor? You cannot tell from reading this story. Perhaps the reporter chose not to include what they said about that, perhaps the story editor excised it for space, or perhaps none of them had anything useful to say on the topic. You can probably guess which one I think it is.