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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.

The Section 3 bail-in hearing

At long last, the final question to answer about Texas and the Voting Rights Act, namely has the state done enough bad stuff to be required to be put under preclearance again?

Back in the federal courthouse where most of an eight year-long case has played out, the fight over forcing Texas back under federal oversight of its mapmaking appeared to hinge on whether the state should be held accountable for political maps that never took effect.

The arguments for a return to the days when Texas needed approval of its political districts diverged significantly during a Thursday court hearing before a panel of three federal judges. The state and the plaintiffs — voters of color, civil rights groups and Democratic lawmakers — each appeared to have a judge on their side. One judge was skeptical of any sort of supervision for state lawmakers, while another judge openly considered why Texas should be allowed to redraw its maps without any sort of guardianship given its recent discrimination against voters of color.

But the high-stakes fight — and ultimately the ruling from the three-judge panel overseeing the case — may very well rest on Chief U.S. District Judge Orlando Garcia, who made few remarks during the hearing but summed up the issue in one question.

“Is it actual injury or threatened harm that controls the issue?” Garcia asked.

[…]

“If the bail in statute means anything…it has to apply to Texas redistricting,” said Allison Riggs, a lawyer with the Southern Coalition for Social Justice who is representing some of the plaintiffs. “Texas redistricting is where the state again and again and again at every level of government has shown a resistance to recognizing the political power of minority voters.”

Thursday’s hearing marked the beginning of the final — and perhaps the most significant — stage of the long-running legal fight over the state’s political maps. The case is poised to serve as the latest test of whether the federal Voting Rights Act can still serve as a safeguard for voters of color. If the panel does not invoke bail in, the 2021 redistricting cycle would mark the first time in nearly half a century that Texas could implement new legislative and congressional districts without first proving they don’t undercut the electoral power of voters of color.

While under federal supervision, Texas proved to be a repeat offender. In their briefs to the court ahead of the hearing, the plaintiffs noted that state lawmakers passed one or more redistricting plans that were declared unconstitutional or in violation of the Voting Rights Act in every decade since 1970.

Given the rulings of intentional discrimination against the state, the plaintiffs are asking the court to put the state back under oversight of its mapmaking for up to 10 years to cover the next round of redistricting when the state will again rejigger its political boundaries to account for population growth.

But Judge Jerry Smith of the U.S. Fifth Circuit Court of Appeals appeared hostile to that proposal, repeatedly alluding to a 2018 Supreme Court ruling in which the court signed off on most of Texas’ current political boundaries and pushed aside claims that state lawmakers intentionally discriminated against voters of color when they replaced the 2011 maps in 2013.

“This has already been going on for eight years, and you want 10 more despite the Supreme Court saying it’s over,” Smith said. “I don’t understand.”

The state’s deputy solicitor general, Matthew Frederick, echoed that sentiment. He argued that Texas shouldn’t be placed back under federal oversight based on findings against maps that were never used, especially after the Supreme Court found no intentional discrimination behind the state’s 2013 effort to replace those maps with those offered up by three-judge panel in 2012 as an interim fix to allow elections to move forward that year.

Bail in “cannot be justified when a state adopts and accepts judicial remedies,” Frederick said.

“So your argument is we messed up and intentionally discriminated at first, but the court fixed it and as a result of the court fixing it we’re OK?” asked federal District Judge Xavier Rodriguez.

Frederick responded that those violations weren’t enough to invoke bail in because the state had not engaged in widespread, rampant discrimination. He pointed out that any sort of discrimination found by the court in Texas did not amount to the widespread racism that marked the 1960s, when states kept voters of color from casting votes by continuously replacing barriers —for example , requirements that black voters guess how many bubbles are in a bar of soap — with other impediments, such as literacy tests, as they were deemed unconstitutional.

But Rodriguez continued to question Frederick over whether the state was “engaging in more subtle forms of discrimination” that it then attempted to wash away by replacing discriminatory laws with court fixes and then claiming there was no harm for which it could be held accountable. He pointed to the state’s defense of its strict voter ID law that, like the state maps, was eventually replaced with a court remedy after a judge found it was enacted with discriminatory purpose.

“But for this court’s changes to those 2011 plans, the state would’ve continued to try to continue to implement them,” Rodriguez said. “That’s what the whole [bail in] paradigm is trying to prevent from happening again.”

See here and here for the background. These are the same three judges who had ruled in the earlier redistricting cases, so it is entirely possible that they may once again vote 2-1 in favor of the plaintiffs. I mean, the record speaks quite clearly for itself, and if Texas doesn’t meet the standard for bail-in, it’s hard to know how it could ever be met. Which just means that the Fifth Circuit will need to come up with a reason, which SCOTUS will then endorse, because come on, we’ve seen this movie and we know how it ends. I wish I were less cynical, but how can you not be, given what has happened so far? We’ll see how long it takes for a ruling and we’ll go from there. The DMN and Michael Li have more.

Settlement officially reached in lawsuits over bogus SOS advisory

Great news.

Still the only voter ID anyone should need

Three months after first questioning the citizenship status of almost 100,000 registered voters, the Texas secretary of state has agreed to end a review of the voter rolls for supposed noncitizens that was flawed from the start.

The deal was announced Friday as part of an agreement to settle three legal challenges brought by more than a dozen naturalized citizens and voting rights groups against the state. The groups alleged that the voter citizenship review, which was launched in late January, was unconstitutional and violated federal protections for voters of color.

Secretary of State David Whitley — who has yet to be confirmed by the Texas Senate amid the fallout over the review — agreed to scrap the lists of registered voters his office had sent to county voter registrars for examination. Whitley’s office will instruct local officials to take no further action on the names of people it had classified as “possible non-U.S citizens,” and county officials will be charged with notifying voters who received letters demanding they prove their citizenship that their registrations are safe.

The state is also on the hook for $450,000 in costs and attorney fees for the plaintiffs’ lawyers.

The agreement must still be approved by the federal judge overseeing the case, and the state will have five days after the judge dismisses the plaintiffs’ legal claims to officially rescind the list. But the settlement amounts to a profound defeat for the state leaders who had defended the review even though it had jeopardized the voting rights of tens of thousands of naturalized citizens.

“Today’s agreement accomplishes our office’s goal of maintaining an accurate list of qualified registered voters while eliminating the impact of any list maintenance activity on naturalized U.S. citizens,” Whitley said in a statement Friday. “I will continue to work with all stakeholders in the election community to ensure this process is conducted in a manner that holds my office accountable and protects the voting rights of eligible Texans.”

See here for the background. I thought at the time that this was a resounding defeat for the state of Texas, and I very much still think that. Honestly, I’m stunned that the state gave up like this instead of taking their chances with the ever-pliable Fifth Circuit. Did they think their case was such a loser that even the Fifth Circuit wouldn’t bail them out? It’s mind-boggling. Anyway, here are the statements from the various plaintiffs in the suit, courtesy of the ACLU’s press release:

“After months of litigation, the state has finally agreed to do what we’ve demanded from the start — a complete withdrawal of the flawed and discriminatory voter purge list, bringing this failed experiment in voter suppression to an end,” said Andre Segura, legal director for the ACLU of Texas. “The right to vote is sacrosanct, and no eligible voter should have to worry about losing that right. We are glad that the state has agreed to give up this misguided effort to eliminate people from the voter rolls, and we will continue to monitor any future voter purge attempt by the state to ensure that no eligible Texan loses their voice in our democracy.”

“Three months after the state released a discriminatory and flawed voter purge list, they have finally agreed to completely withdraw the advisory that risked throwing tens of thousands of potentially eligible voters off the rolls,” said Beth Stevens, voting rights legal director with the Texas Civil Rights Project. “State officials have wasted hundreds of thousands of dollars and struck fear and confusion into thousands of voters in order to pursue their voter suppression agenda. We are glad that this particular effort was stopped in its tracks and we will remain vigilant to ensure that not one single voter loses their right to vote due to the actions of state officials.”

“While we are glad to see this program scrapped, it’s important to remember that the state not only began to disenfranchise tens of thousands of eligible voters, but also threatened them with criminal prosecution,” said Brendan Downes, associate counsel with the Lawyers’ Committee for Civil Rights Under Law’s Voting Rights Project. “Naturalized citizens are, by definition, Americans. It’s time for the state to start treating them that way.”

“Secretary Whitley’s agreement to scrap what the court called a ‘ham-handed’ process and implement these common sense changes will go a long way to protecting eligible naturalized citizens from being improperly purged from the rolls,” said Sophia Lakin, staff attorney with the ACLU’s Voting Rights Project. “We will continue to monitor the secretary and counties to protect eligible Texas voters from discriminatory barriers to the ballot box.”

“This settlement acknowledges that naturalized Americans have full and equal voting rights — they cannot be singled out and purged from the rolls due to their status,” said Chiraag Bains, director of legal strategies at Demos. “The settlement is a victory for our clients and all in Texas who were wrongfully deemed ineligible to vote. The secretary’s actions were reckless and misguided, and we hope that other states will take note and avoid similar unlawful actions.”

“The League regrets that it took a lawsuit to remind our state officials that naturalized citizens have a right to vote and to fully participate in our democracy,” said Grace Chimene, president of the League of Women Voters of Texas. “We are hopeful that new procedures will prevent naturalized citizens from being treated as second class citizens. We will continue to work with the secretary of state, as the chief election officer for Texas, to protect all citizens’ right to vote.”

“When the secretary of state tried to discriminate against eligible voters in a dangerous voter purge, we stood up to challenge this egregious act of voter suppression. Today, we won,” said H. Drew Galloway, executive director of MOVE Texas Civic Fund. “Young naturalized citizens no longer have to worry about this reckless voter purge impacting their constitutional right to vote. We will continue to fight for all young voters across the state.”

The whole thing is also visible at the Texas Civil Rights Project webpage. The Secretary of State – who by the way still needs to be someone other than the deeply incompetent David Whitley – will still conduct reviews of voter rolls to look for non-citizens, it will just need to be done under this new framework. The one remaining question is what will happen with the voters whose names were referred to AG Ken Paxton for possible criminal investigation. We’ll just have to see what Paxton does – I can’t imagine him turning down an opportunity to grandstand, but he may be just smart enough to decline to pursue cases that will be tough to win given the questionableness of the evidence. With him, it could go either way. The Chron, the Dallas Observer, and Slate have more.

Injunction granted against Texas anti-Israel boycott law

From the inbox:

A federal court today ruled that a Texas law that requires government contractors to certify that they are not engaged in boycotts of Israel or companies that do business with Israel is unconstitutional. The judge ruled that the law, HB 89, which went into effect in 2017 violates the First Amendment’s protection against government intrusion into political speech and expression.

“Today’s ruling is a victory for the free speech rights of all Texans,” said Tommy Buser-Clancy, staff attorney for the ACLU of Texas, who argued the motion to block the law in court. “The right to boycott is deeply ingrained in American tradition, from our nation’s founding to today. The state cannot dictate the views of its own citizens on the Israel/Palestine conflict – or any issue – by preventing them from exercising their First Amendment right to boycott.”

“We applaud this decision, though nothing about it surprises us; in its decision the court has affirmed its understanding that this law was intended to chill the expression of personal opinion,” stated Terri Burke, executive director of the ACLU of Texas. “By any name, that’s free speech and free speech is the north star of our democracy. It’s foundational, and this decision underlines that no issue of importance can be addressed if the speech about it is stymied, or worse, silenced.”

The ACLU of Texas filed its lawsuit challenging the law on behalf of four Texans who were forced to choose between signing away their right to boycott or forgoing job opportunities and losing income. Those plaintiffs are represented by attorneys from the ACLU of Texas, the ACLU Speech Privacy & Technology Project, and Kevin Dubose of Alexander Dubose Jefferson & Townsend LLP in Houston.

“I’m very happy that the judge has decided to support our right to hold our own political beliefs and express them as we see fit,” said John Pluecker, a plaintiff in the ACLU of Texas lawsuit. “This ruling goes beyond just the plaintiffs – this law needed to be challenged for everyone. People in Texas need to know that our ability to earn our livelihoods won’t be threatened by the state because of our political positions.”

More information on the case is available here: https://www.aclutx.org/en/press-releases/aclu-texas-files-first-amendment-challenge-anti-boycott-law

A copy of today’s decision is available here: https://www.aclutx.org/sites/default/files/4-25-19_bds_order.pdf

The first paragraph in that press release is inaccurate. This was not a final ruling, it was a ruling on a motion for a temporary injunction, as well as a ruling on motions to dismiss by the defendants. The court granted the motion for the injunction and enjoined the state from enforcing HB89, while denying the motions to dismiss. I noted this lawsuit in passing in this post about the Texas-versus-AirBnB matter. This NYT profile of plaintiff Bahia Amawi has some good information if you want more. A law like this just seems unconstitutional on its face – it restricts speech in a clear and direct manner – but as we know by now, the federal courts can be a strange place. Just keep this law in mind the next time you hear Greg Abbott or someone like him prattle on about supposed efforts to curb “free speech” on college campuses. See the Chron and the Trib for more.

Mediation ordered in Prop B lawsuit

This ought to be interesting.

A state district judge on Thursday ordered the city, the Houston Professional Fire Fighters Association and the Houston Police Officers’ Union to enter into mediation as they seek to resolve lingering differences over the implementation of Proposition B, the measure granting firefighters the same pay as police of corresponding rank and seniority.

Judge Tanya Garrison of the 157th Civil District Court ordered the mediation after hearing arguments in a lawsuit seeking to invalidate the pay parity amendment. During the hearing, Garrison said she would not issue a ruling on the case “any time soon,” concluding it would only set back ongoing negotiations to phase in firefighters’ Prop B-mandated raises.

“If I make a decision on this one way or the other … it will be the equivalent of throwing a bomb in the middle of the attempts to negotiate a resolution,” Garrison said.

The judge gave the parties until noon Monday to agree on a mediator. The court would appoint a mediator if they cannot settle on one.

The mediation is mandatory but not binding.

The mediator may suggest ways to resolve the dispute but cannot impose judgment, according to a list of rules attached to Garrison’s court order. If the parties do not voluntarily agree to a settlement, the issue returns to Garrison.

See here, here, and here for the background. As long as the mediator isn’t Tony Buzbee, I’m sure it will be fine. As a reminder, City Council will vote on the layoff plan on Wednesday (the agenda item was tagged last week), so perhaps that will provide some incentive to make things happen. In other news, the city provided financial data that the firefighters’ union had been demanding, though whether that will settle that argument or be the cause of further arguments remains to be seen.

This was a busy week for dumb lawsuits

Exhibit A:

“Objection Overruled”, by Charles Bragg

Houston mayoral challenger Tony Buzbee followed through his pledge to sue Mayor Sylvester Turner Wednesday, claiming that donated billboards for the city’s AlertHouston! campaign violate campaign finance laws because they feature a photo of Turner.

The lawsuit, filed in the 281st state district court, names Turner and Clear Channel Outdoor Inc., the company that donated the 27 billboards, as defendants.

Buzbee’s petition claims Clear Channel is “blatantly supporting” Turner in the November mayoral race “by plastering his smiling face across this city while promoting him as a civic-minded, safety conscious leader.”

The billboards promote AlertHouston!, a system that sends alerts to Houston residents during emergency situations.

I’m not going to waste our time on the details here. Let’s refer to this earlier story for the reasons why this is dumb.

Buck Wood, an Austin-based campaign finance lawyer, equated Buzbee’s allegations to a hypothetical real estate agent who, after announcing a run for public office, would then have to take down any advertisements for their private business.

“I have never seen anything like that,” he said.

Proving the billboards are illegal, Wood said, would require Buzbee to show that the company and Turner struck a deal explicitly aimed at aiding the mayor’s re-election.

“You’d have to have good, strong evidence that they put up these pictures just for the purpose of helping elect him,” Wood said. “…You’d have to prove a conspiracy, and that’s basically impossible to do in this situation.”

Each year around hurricane season, former Harris County Judge Ed Emmett would appear on billboards, in some years directing people to the county’s Homeland Security and Emergency Management website. Emmett said he used campaign funds to pay for the billboards during election years.

I mean, I know Tony Buzbee is supposed to be a super duper lawyer and all, but maybe he might have asked another lawyer about this first? Just a thought.

Exhibit B:

Months after being denied media credentials for the Texas House, the conservative organization Texas Scorecard — a product of Empower Texans, a Tea Party-aligned political advocacy group with one of the state’s best-funded political action committees — has filed a First Amendment lawsuit arguing that its rejection from the lower chamber constitutes “unconstitutional viewpoint discrimination.”

Before the legislative session kicked off in January, two employees of Texas Scorecard, Brandon Waltens and Destin Sensky, applied for media credentials in both chambers of the Legislature. In the Senate, their credentials were granted; in the House, they were denied. The two chambers follow similar rules about who is allowed special journalistic access to the floor, and both prohibit lobbyists. But the chambers’ political atmospheres are different.

House Administration Chair Charlie Geren, a Fort Worth Republican who has sparred with Empower Texans and its PAC in the past, told the group in a January rejection letter that it was ineligible for media credentials because “the organization you are employed by, Texas Scorecard, has a close association with a general-purpose political committee (GPAC) and that the organization’s website prominently displays advocacy on policy matters before the legislature.” As evidence of the group’s affiliation with the PAC, Geren cited the organizations’ shared address — but by the time Geren’s letter was issued, the lawsuit claims, they no longer shared that address.

Empower Texans PAC has backed primary opponents to Geren and has given Lt. Gov. Dan Patrick, who leads the Texas Senate, more than $850,000 in the last five years.

Now, Empower Texans is very likely to get a friendly hearing from the State Supreme Court, so at least from a strategic perspective, this isn’t a dumb lawsuit. It’s very likely to be a successful lawsuit. But come on. If these Empower Texans flunkies count as “journalists”, then that word has no meaning. All of us are made a little more dumb by the existence of this lawsuit.

Chick-fil-A follies, part 2

Noted for the record.

Best mugshot ever

The city of San Antonio voted 6-4 in late March to exclude Chick-fil-A from its renovation of the airport food court offerings due to the company’s “legacy of anti-LGBTQ behavior.”

Shortly after the city’s decision, public outcry in Buffalo, N.Y., led to a concessions company nixing the brand from its plans for the nearby Buffalo Niagara International Airport.

Chick-fil-A told Buffalo news station KBKW recent coverage of the company drives an inaccurate narrative about their brand. “More than 145,000 people from different backgrounds and beliefs represent the Chick-fil-A brand. We embrace all people, regardless of religion, race, gender, ethnicity, sexual orientation or gender identity,” the statement said.

Earlier this week, the city of San Jose, Calif., voted unanimously to settle the debate in an entirely different way — by flying rainbow and pride flags in front of Chick-fil-A locations both inside and outside of the airport.

On Thursday, the San Antonio city council will reconsider its previous vote. Councilman Greg Brockhouse said the city’s decision to exclude Chick-fil-A “embarrassed” the city, KTSA reported.

“Every day the Chick-fil-A removal decision is allowed to stand hurts our reputation nationwide as a welcoming and inclusive city. It sends a message we are anti-faith and we cannot stand by without speaking the truth and standing up for our principles,” he said.

See here for the background. I don’t know what the city of San Antonio is going to do at this point. There’s certainly a practical argument to be made that they have more to lose than to gain by picking this fight. But like Pete Buttigieg, I think there’s a lot of value in highlighting the moral bankruptcy of anti-gay animus, especially from Christian conservatives. Let the Chick-fil-As and their enablers explain why they choose to discriminate. Also, Greg Brockhouse can go jump into a vat of dipping sauce. Anyway, we’ll see what happens.

Bail lawsuit settlement outline taking shape

We should have a final version in a couple of weeks.

A proposed settlement in the landmark Harris County bail lawsuit would significantly change how the county treats poor defendants in misdemeanor cases by providing free social and transportation services and relaxing penalties for missed court dates.

The draft deal includes a number of reforms aimed at ensuring poor defendants arrive for court hearings and are not unfairly pressured into guilty pleas. They would, among other changes: require Harris County to provide free child care at courthouses, develop a two-way communication system between courts and defendants, give cell phones to poor defendants and pay for public transit or ride share services for defendants without access to transportation to court.

“I’m not aware of any county, or city the size of Houston… doing those type of innovative things,” said Mary McCord, a former federal prosecutor who filed an amicus brief in the case on behalf of the poor defendants. “Ultimately, the county is going to save so much money by not keeping these people in jail.”

The proffered agreement would require the county to operate at least one night or weekend docket to provide a more convenient opportunity for defendants with family, work and education commitments. Courts would be barred from charging any fees to poor defendants, defined as those earning less than 200 percent of the federal poverty level, which is about $25,000 for someone with no dependents.

The proposal also would reduce penalties for missed court dates. A defendant could not be deemed to have failed to appear if he arrived in court on the day assigned, even if he was hours late. Defendants would be allowed to reschedule court appearances for any reason at least two times without negative consequences. Judges only could issue bench warrants 30 days after a missed a court appearance, so long as the court already has attempted to contact the defendant with a rescheduled hearing date.

In addition, judges would be required to permit defendants to skip hearings where their presence is unnecessary, such as routine meetings between prosecutors, defense attorneys and judges that do not involve testimony or fact-finding.

At the heart of the 23-page proposed settlement, a copy of which was obtained by the Houston Chronicle, is the codification of a new bail schedule unveiled by the slate of newly elected of criminal judges in January, under which about 85 percent of people arrested on misdemeanors automatically qualify for release on no-cash bonds.

“Our current goal now is to become the model misdemeanor court system in America,” said Harris County Criminal Court at Law Judge Darrell Jordan, a bail reform advocate and the only Democrat on the misdemeanor bench when the case began. “I think the proposals in the settlement, as far as the wraparound services for misdemeanor defendants, is a great step in that direction.”

[…]

Harris County Judge Lina Hidalgo issued a statement late Friday stressing that the proposal is preliminary, and could change.

“We’re working well with the plaintiffs to reach an agreement that will provide a model for bail reform around the country while also being feasible for the county to implement,” she said.

Precinct 2 Commissioner Adrian Garcia said he is eager to negotiate a settlement that balances the needs of defendants against those of victims and county taxpayers. He declined to speak to specific provisions in the proposed settlement, but said he has concerns that some may be too expensive or unrealistic.

“I’ll just say there’s a number of things that immediately hit me like, ‘I’m not sure how we’re going to do that,’” Garcia said.

Precinct 3 Commissioner Steve Radack and Precinct 4’s Jack Cagle panned the proposal, which they said is too broad. The pair of Republicans said it should instead focus on implementing bail rules that ignore a defendant’s ability to pay.

“If my learned colleagues are going to strive for free Uber rides for the accused, I’d strongly advocate we provide the same to victims,” Cagle said.

Just a reminder, for anyone who might be fixating on the Uber rides or childcare aspects of this, the goal here is to get people to show up for their court dates. I would remind you that the alternative to paying for those relatively small things is paying to house, feed, and clothe thousands of people for weeks or months at a time, and that we have been doing exactly that for decades now. And if it’s the Uber thing that’s really sticking in your craw, then I trust you support a robust expansion of our public transit and pedestrian infrastructure so that it’s practical for anyone to take a bus to the courthouse. (Though having said that, if Commissioner Cagle was being sincere and not sarcastic, providing rides to the courthouse for victims who need them seems like a good idea to me.)

Again, just to review. Locking people up who have not been convicted of a crime is (with limited exceptions) wrong. Locking people up who have been arrested on charges that would normally not carry jail time if they were convicted is wrong. Locking people up for technical violations that have nothing to do with the crimes with which they have been charged is wrong. We spend tens of millions of dollars of our tax dollars every year doing these things. This is our chance to spend a whole lot less, and to get better results for it.

Paxton gives the middle finger to House Oversight Committee

I’m sure you’re as shocked as I am.

Best mugshot ever

Facing an investigation over the state’s botched efforts to screen its voter rolls for noncitizens, the Texas Attorney General’s Office is declining congressional leaders’ request for information about the review.

In a Thursday letter to top officials with the House’s main investigative committee, Jeffrey Mateer, the state’s first assistant attorney general, indicated the state was brushing off a request for documents and communications from the Texas secretary of state and attorney general because the committee lacks “oversight jurisdiction.”

Instead, Mateer wrote, the state will treat the congressional inquiry as a public information request under state law, which grants the Texas attorney general’s office broad control over what information can be withheld from the public.

“We do not interpret your letter to be a subpoena issued under applicable House Rules. Nor do we consider it a request for information under any applicable federal law,” Mateer said. “For the foregoing reasons, and because the House Committee on Oversight and Reform and its subcomittees lack oversight jurisdiction over constitutional officers of the State of Texas, we must interpret your request under Texas state law.”

[…]

A spokesperson for the committee did not immediately respond to a request for comment regarding the AG’s letter. But in announcing the Texas investigation — part of a broader probe of voting irregularities in multiple states — Cummings and Raskin cited their authority to investigate “any matter” at “any time” under the rules of the U.S. House of Representatives. The committee has the authority to issue subpoenas. Raskin chairs a subcommittee on civil rights and civil liberties.

See here and here for the background. I wish I could say I was surprised by this, but it’s about as surprising as a humid morning in July. What happens next is probably a subpoena, but after that it’s anyone’s guess.

The committee said in response to Paxton’s letter that it still expects to receive the documents.

“The right to vote is guaranteed by the U.S. Constitution, and Congress is charged with protecting and defending the Constitution,” the committee said in a statement.

“Congress has an independent responsibility to investigate violations even when there may be separate litigation involving the same or similar matters. We expect full compliance with the Committee’s request.”

A committee spokesperson would not address a question about the use of a subpoena to obtain the emails and other documents.

[…]

Joe Larsen, a Houston lawyer and board member of the Freedom of Information Foundation of Texas, said even if the House does file a subpoena, the Attorney General could decline to cooperate.

The larger legal question of whether the committee has jurisdiction in a state matter may ultimately have to be solved by a court, Larsen said.

Normally, congressional oversight is for the executive branch, which does not include states, he said.

“It’s the idea that the federal government cannot be micromanaging what’s going on in the states unless that power is directly given to them by the Congress,” Larsen said.

But the committee could make the argument that it has the right under the “necessary and proper clause” of the Constitution to ensure that federal laws such as the Voting Rights Act aren’t being violated.

“That’s going to be a fight,” Larsen said. “It’s a fair argument on both sides.”

Better hope the courts are sympathetic to that line of reasoning. Our next chance to hold these amoral assholes accountable isn’t until 2022, and we can’t afford to wait that long.

Using floodplain rules to force environmental safety compliance

A county’s gotta do what a county’s gotta do.

Harris County officials are using flood control regulations passed after Hurricane Harvey to delay the reopening of two chemical companies where fires erupted in recent weeks, killing one worker and sending large plumes of black smoke into the Houston area.

The Harris County Attorney’s office cited the post-Harvey rules on floodplain construction and stormwater drainage in its civil lawsuits against KMCO and Intercontinental Terminals Co., where cleanup is still ongoing after the fires.

“We don’t shy away from going after the biggest, baddest companies out there,” said Harris County Attorney Vince Ryan. “It sends a message to everyone.”

The county is digging through maps and available data to determine if both companies are in a floodplain. The new regulations put chemical facilities that are in a 500-year floodplain under tighter scrutiny.

The drainage rules restrict discharges of hazardous materials into the county’s stormwater system. If a company is found to have discharged hazardous materials, it can be cited by the county. Larger releases could lead to additional legal action.

The floodplain rules apply to more than facilities with fires and toxic releases and can force companies to meet new requirements when seeking to expand or change an existing facility, said Rock Owens, managing attorney for the Harris County Attorney’s environmental section.

The story doesn’t go into detail about what compliance issues there are and how long they may take to resolve. You may be thinking “why doesn’t the county file a lawsuit against these companies to force them to fix their problems?” The answer is that this used to be how things went, but your Texas legislature has taken steps to shackle counties and their enforcement efforts.

But in 2015, the state Legislature started taking away authority from the local governments. Lawmakers approved a bill capping the amount of money a local government could receive from civil penalties sought in environmental cases.

In 2017, another bill passed forcing local authorities to ask permission from the Texas attorney general before seeking penalties. If the attorney general’s office does not file its own suit in 90 days, the local government can go forward with a civil suit.

Lawmakers are currently considering two bills that would restrict local governments even more.

House Bill 3981, filed by state Rep. Jeff Leach, R-Plano, would give the attorney general the authority to settle lawsuits started by the county, without the approval of the county.

House bill 2826, filed by state Rep. Greg Bonnen, R-Friendswood and three others, would let the attorney general prohibit the county from hiring outside attorneys on cases.

“The concern isn’t that the local governments are intentionally causing any problems with these suits, just that a more efficient state-led effort may at times be more desirable,” said Justin Till, Bonnen’s chief of staff.

More desirable for the polluters, that’s for sure. Let’s be very clear, the main reason why bills like these get passed are specifically to muzzle Harris County’s enforcement efforts. (The city of Houston’s efforts were killed by the Supreme Court.) It’s a pollution-friendly Republican Legislature taking care of bad actors, aided and abetted by the business lobby. You know what I’m going to say next: Nothing will change until we change who we elect.

The Orbit lawsuit

Now here‘s an interesting case.

A Montgomery County woman has filed suit against the Astros, alleging she suffered a broken finger when her left hand was struck by a T-shirt fired from an air-powered cannon wielded by Orbit, the ballclub’s costumed mascot, at an Astros game last July.

Plaintiff Jennifer Harughty seeks damages in excess of $1 million from the Astros in the suit, which was assigned to 157th state District Court Judge Tanya Garrison.

The lawsuit, filed by Houston attorneys Jason Gibson and Casey Gibson, says Harughty has required two operations to repair damage to her left index finger, which was shattered when her hand was struck by a T-shirt fired from the Orbit character’s “bazooka-style” air cannon during the seventh inning of an Astros game July 8, 2018, at Minute Maid Park.

Harughty, 35, of Montgomery, who works as a real estate broker, said her finger remains locked in an extended position with little to no range of motion and that she continues to suffer discomfort from the injury, the lawsuit said.

Jason Gibson said the lawsuit was filed only after the Astros refused to pay Harughty’s medical bills associated with the injury.

“Nothing was going to be done,” the attorney said. “We were directed to the general counsel, and he basically said ‘file your lawsuit.’ He asked for it, and he got it. We were hoping to get this resolved, but that didn’t happen.”

The suit said Harughty was struck on the palm side of her left hand and required treatment at an emergency room after the game. She required surgery four days later to insert two screws into the injured finger and a second operation in October to remove the screws and attempt to restore range of motion to the finger.

Major League Baseball tickets include what has become known as the “baseball rule,” which states that a ticket holder “assumes all risk and danger incidental to the baseball game, and all other activities, promotions or events at the Ballpark before, during and after the baseball game, including, but not limited to, the danger of being injured by baseballs, equipment, objects or persons entering spectator areas.”

That stipulation, which is included on the Astros’ website under season ticket policies, says that by attending a game, the ticket holder releases the Astros and Major League Baseball from liability for “injuries or loss of personal property resulting from all risk and danger incidental to the baseball game and the risks or any incidents associated with crowds of people.”

Gibson said he is acquainted with Astros owner Jim Crane and with members of the Astros’ ownership group and that “everyone loves the Astros.” However, he said he did not believe that the liability waiver covers cases such as Harughty’s.

“That’s not the type of risk you assume going to a baseball game, although they may take that position,” Gibson said. “Ours will be that you don’t assume the risk of having someone fire a cannon at you that creates that much force at that proximity that can cause that kind of damage.”

A copy of the lawsuit is embedded in the story. Let me remind everyone that I Am Not A Lawyer, so what I say is simply the speculation of a layman. I find myself rather sympathetic to the plaintiff’s arguments. T-shirt cannons, as fun as they are, are totally the team’s decision to use, and not an inherent risk of attending the game as they are a recent innovation. I mean, no one was hurling things into the crowd when I was attending Yankees games back in the 70s and 80s. (Things may have occasionally been hurled out from the crowd, but that’s another story.) People understand that a batted ball may be coming their way and they need to pay attention when the game is in progress. But mascots like Orbit do their thing in between innings, when you’d think it’s safe to check your phone. And by the way, teams have been putting up more netting around the lower decks of the stadiums, to better protect people from those increasingly hard-hit balls. If teams are willing to mitigate those risks, it’s not unreasonable to think they might mitigate a non-game risk like a projectile fired at high velocity from a T-shirt cannon. My advice, for all that it’s worth, is to offer to settle the suit for the woman’s medical costs and a bit more, and to take a closer look at how those T-shirt cannons are being operated. Why make a bigger deal out of this than necessary?

Third Census lawsuit ruling against Trump administration

Once, twice, three times an injunction.

A federal judge in Maryland ruled Friday against the government’s addition of a citizenship question to the 2020 Census, The Washington Post reported Friday.

Judge George J. Hazel found that in deciding last year to add the question, the government violated administrative law, according to The Post. The ruling will probably be appealed to the U.S. Supreme Court, as is expected with two similar cases.

The case has Texas connections. Lawyers representing the Mexican American Legislative Caucus, the Senate Hispanic Caucus, and several Texas-based nonprofits that advocate for Latino and Asian residents have appeared before Hazel to make arguments in the case.

The plaintiffs have challenged the inclusion of the citizenship question on several fronts, alleging that it violates the U.S. Constitution’s Equal Protection Clause, the Enumeration Clause and a federal law that governs federal agencies and their decision-making processes.

The Post reported that in his ruling, Hazel wrote, “The unreasonableness of Defendants’ addition of a citizenship question to the Census is underscored by the lack of any genuine need for the citizenship question, the woefully deficient process that led to it, the mysterious and potentially improper political considerations that motivated the decision and the clear pretext offered to the public.”

See here and here for the previous rulings, and here for more on this case. All three rulings focused on statutory issues, with constitutional issues either not being part of the case (as with the first lawsuit) or not getting the same favorable treatment. That may bode well for the forthcoming appeal to SCOTUS, as the questions are much more narrowly defined. Here’s hoping. Daily Kos has more.

Chick-fil-A follies

I have three things to say about this.

Best mugshot ever

Texas Attorney General Ken Paxton is investigating the city of San Antonio for potential First Amendment violations after the City Council voted to prevent Chick-fil-A — a franchise known for opposing same-sex marriage — from opening a location in the city’s airport.

“The Constitution’s protection of religious liberty is somehow even better than Chick-fil-A’s chicken,” Paxton, a Republican, wrote in a Thursday letter to San Antonio Mayor Ron Nirenberg and the rest of the council. “Unfortunately, I have serious concerns that both are under assault at the San Antonio airport.”

In a 6-4 vote, the council voted last week to keep the franchise from opening at the San Antonio International Airport. The decision quickly drew national headlines and condemnations from conservatives across the country.

Chick-Fil-A, a national franchise with locations throughout Texas, is known for its leaders’ staunch Christian views and close ties to groups that worked to prevent the legalization of same-sex marriage. Its corporate purpose is “to glorify God by being a faithful steward of all that is entrusted to us and to have a positive influence on all who come into contact with Chick-fil-A.” It is, famously, “closed on Sundays.”

Paxton, a Christian conservative who has long billed himself as a crusader for religious liberty, has also asked U.S. Department of Transportation Secretary Elaine Chao to open an investigation into the city’s actions. Paxton said in a news release Thursday that federal regulations governing grant money that flows to the San Antonio airport prohibit discrimination.

1. If we must accept that corporations can have “religious beliefs” – I don’t, but SCOTUS has imposed it on us, so here we are – then we ought to be able to criticize those beliefs. Governments make policy decisions all the time based on who they do and don’t want to do business with (see, for example, the state of Texas picking a side in the Israel/West Bank conflict), for reasons one may or may not approve of. Often, these decisions are made in response to feedback from constituents. It’s a tool that activists have in their toolbox for holding corporations accountable for their actions. It’s messy and often contradictory, but it’s long been a part of the democratic process. I don’t think letting corporate “religious beliefs” serve as a get-out-of-consequences-free card is a good idea.

2. All that aside, isn’t the fact that Chick-fil-A closes on Sunday a factor here? Surely the city of San Antonio would like to have a full range of dining options for those who pass through its airport, as they can’t just go somewhere else if their needs aren’t being met. If the choice is between a restaurant that’s open seven days a week, and a restaurant that’s open six days a week, you’d think the former would be preferred.

3. San Antonio isn’t the only city cordially dis-inviting Chick-fil-A from its airport. However you feel about this issue, it’s not going away.

LULAC settles its SOS lawsuit

Good news.

Still the only voter ID anyone should need

The state of Texas is ending a program to purge voters it claimed were noncitizens in order to settle lawsuits brought by civil rights groups over the plan.

The deal was reached following a meeting Monday in San Antonio between acting Secretary of State David Whitley and the League of United Latin American Citizens, the American Civil Liberties Union, the Mexican American Legal Defense and Educational Fund and other plaintiffs.

The groups brought three separate lawsuits — filed in San Antonio, Corpus Christi and Galveston — alleging the program illegally targeted immigrant voters and resulted in voter intimidation. The suits were consolidated into one in San Antonio with the lead case, which was filed by LULAC and Washington, D.C.-based Campaign Legal Center.

As part of the deal, Whitley and his staff will tell county voter registrars and local election administrators to take no further action on any data files the state had sent them in late January, but may start a new program that won’t demand voters prove their U.S. citizenship.

[…]

As part of the settlement, the state will scrap the data it used for the first program and begin a new one that, “to the best of its ability, assures that all United States citizens not be affected with the undue burden of having to prove their citizenship,” according to LULAC.

The state will also work with LULAC and the other plaintiffs groups on the plan by sharing the methodology and data used.

The process will enable the state to remove voters who shouldn’t be on the rolls, while being the least disruptive to those who are U.S. citizens, LULAC said.

“It’s not going to be perfect, but it’s nowhere near the disaster of the first one,” said Luis Vera, LULAC’s national legal counsel. “It allows us to have some input in the process.”

See here, here, here, and here for the background. As noted, both of the other two lawsuits were joined with this one, so what happens here is going to be the final word. I Am Not A Lawyer, and I was not able to find a copy of the settlement, but this sure looks like a big win for the plaintiffs. Honestly, just the fact that the state is settling and not taking its chances with the Fifth Circuit tells you something. Kudos to the plaintiffs for forcing some accountability into this mess.

UPDATE: It’s not fully done, but it’s close.

A deal was about “99 percent” done Monday, after Secretary of State David Whitley met in San Antonio with members of the League of United Latin American Citizens, the American Civil Liberties Union, the Mexican American Legal Defense and Educational Fund and other plaintiffs, said Luis Vera, LULAC’s national legal counsel.

As part of the tentative agreement discussed Monday, the state would scrap the data it used for the first voter purge program and begin a new one that, “to the best of its ability, assures that all United States citizens not be affected with the undue burden of having to prove their citizenship,” according to LULAC.

“It’s not going to be perfect, but it’s nowhere near the disaster of the first one,” Vera said. “It allows us to have some input in the process.”

The parties were to return to the table Tuesday to hammer out additional terms before taking the final deal to a judge for review.

Sam Taylor, communications director for the secretary of state, said that while there is no official settlement yet, progress was made Monday.

“We are encouraged by the positive and constructive progress we have made with the plaintiffs, and we remain committed to our goal of maintaining accurate voter rolls while eliminating the impact of any list maintenance activity on eligible Texas voters,” Taylor said.

Stay tuned.

Judge tosses Dave Wilson’s lawsuit against HCC

Sorry, Dave.

Dave Wilson

A judge has dismissed a lawsuit against Houston Community College that had been filed by one of the Board of Trustee’s controversial members.

Dave Wilson claimed in a lawsuit that the college violated his First and 14th Amendment rights. But in a ruling issued Friday, U.S. District Court Judge Kenneth Hoyt said Wilson “failed to demonstrate any injury-in-fact.”

Wilson claimed in the lawsuit that the college’s board violated his free speech and due process rights when they voted to publicly censure him in January 2018. The board’s censure said Wilson’s conduct was “detrimental to Houston Community College Systems and its mission.” The board members also said Wilson violated the college’s bylaws, failed to engage and respect the board’s decision-making process and their differing opinions, and that he did not interact with trustees in a “mutually respectful manner.”

[…]

Wilson, a District II trustee, called Hoyt’s decision a “bad ruling” and said that he was disappointed that the judge didn’t address the fact that he could be censured again.

He and his lawyer are considering an appeal, he said. “We’re still thinking about it, but I wouldn’t be surprised at all if I didn’t appeal it,” he said.

When he was censured last year, the trustees also decided that Wilson was not eligible for travel-related expense reimbursements and would need board approval when requesting funding for community affairs programs for the 2017-2018 college year. They also determined he could not be elected for a board officer position in 2018, all of which Wilson said violated his rights, according to court documents.

But Hoyt concluded that the board’s resolution did not infringe upon Wilson’s First or 14th Amendment rights because Wilson could freely speak in public and could attend and express his views at board meetings, according to a court document.

See here and here for the background. The facts alleged in the suit seemed awfully thin and un-actionable, but Dave Wilson does what he does, and that’s all there is to it. Which means he’s considering an appeal, because what else does he have to do with his time? Well, there is one thing:

Despite Wilson’s volatile relationship with the HCC board, he has no intention of giving up his position as a board member and said he plans to run for re-election in November. He was elected to the board in 2013.

“I love Houston Community College and what they can do for this community, but I hate the way special interest groups are eating away at it and the students aren’t the main focus,” Wilson said.

“Trump wanted to drain the swamp. I’m going to drain the cesspool at Houston Community College,” Wilson said. “I got on the board to clean this place up, and I’m going to continue to work.”

Yes, he’s running for re-election. At least this time, we can see him coming. And we damn well better send him packing.

Trump goes all in against health care

Game on.

It’s constitutional – deal with it

The Trump administration wants the federal courts to overturn the Affordable Care Act in its entirety, an escalation of its legal assault against the health care law.

The Justice Department said in a brief filed on Monday that the administration supports a recent district court decision that invalidated all of Obamacare. So it is now the official position of President Trump’s administration that all of the ACA — the private insurance markets that cover 15 million Americans, the Medicaid expansion that covers another 15 million, and the protections for people with preexisting conditions and other regulations — should be nullified.

When combined with Trump’s endorsement of the various Republican legislative plans to repeal and replace Obamacare and other regulatory actions pursued by his subordinates, the Trump administration’s clear, consistent, and unequivocal position is that millions of people should lose their health insurance and that people should not be protected from discrimination based on their medical history.

The Justice Department had previously said that only the ACA’s prohibition on health insurers denying people coverage or charging people higher premiums based on their medical history should fall in the lawsuit being brought by 20 Republican-led states. But their latest brief removed that subtlety, saying that the entire law should go.

Legal experts dismiss the states’ argument as “absurd,” yet they have worried it could find a receptive audience among conservative jurists, given the prior success of anti-Obamacare lawsuits thought to be spurious that still found their way to the Supreme Court.

The argument has already won in the US district court in northern Texas, after all, though that decision is on hold pending appeal.

See here and here for some background. Did we mention this ridiculous lawsuit got its start in Texas? Bad lawsuits seem to be our main export these days. There’s not much we can do about what the Fifth Circuit and SCOTUS will do, but in the meantime, health care is once again a huge issue for the next election. We won once on that, we need to do it again.

World’s worst pastors drop Austin equal rights lawsuit

Good.

A conservative Christian organization has dropped a federal lawsuitthat sought to overturn an Austin anti-discrimination ordinance that offers employment protection based on sexual orientation and gender identity.

Dave Welch, head of the Houston-based U.S. Pastor Council, said the decision was based on the advice of the group’s lawyer but might not be the last word on the matter.

“Our position has not changed. We’re just going to revisit how we approach the suit, and we’re hoping there’s still a possibility at some point of refiling it,” Welch said.

The council’s lawsuit, filed in October, argued that Austin’s ordinance is unconstitutional and invalid because it does not include a religious exemption for 25 member churches in Austin that refuse to hire gay or transgender people as employees or clergy.

Austin asked U.S. District Judge Robert Pitman of Austin to dismiss the lawsuit last month, arguing that the city ordinance does not apply to a church’s hiring of clergy and that no church expressed a problem with the city’s employment protections.

In addition, the city argued, the lawsuit failed to list the 25 member churches or show how any of them had been harmed by the anti-discrimination protections.

“There is no allegation the ordinance has been enforced, or is about to be enforced, against any of the unnamed Austin churches, and no allegation that any of them have in fact been restricted in their hiring decisions,” the motion to dismiss stated.

See here for the background. Makes you wonder why their lawyers didn’t give them this advice before they wasted their time and money on the lawsuit, but whatever. Rational explanations don’t mean much to these guys. Dropping this lawsuit doesn’t mean these idiots are giving up, of course. As the story notes, there are various anti-equality bills in the Lege that would accomplish their goals. One is HB1035, which would provide a “freedom of conscious” exemption for religious organizations so they could discriminate in hiring or whatever else as they saw fit. That bill’s author is Rep. Bill Zedler, who by the way is also one of the leading anti-vaxxers in the Lege. Beating him in 2020 – he had a close win in 2018 – would go a long way towards making the Lege a better place.

An overview on bail reform

From Mother Jones, a look at how bail reform is progressing in Harris County. I’m going to focus on the part about the second bail-related lawsuit, which covers felony arrests.

A federal judge in Harris County is currently considering a case that would transform the way bail is set for people charged with felonies, a population that comprises the vast majority of people in jail awaiting trial.

The lawsuit, filed in January by civil rights groups against the county and its sheriff, argues that detaining felony defendants simply because they can’t afford bail discriminates against the poor and often forces them to take guilty pleas just to get out faster. The suit asks the court to stop the practice of jailing people who aren’t a threat to public safety prior to trial only because they can’t pay. According to the suit, in 2017, up to 85 percent of those arrested for felonies were booked into jail because they couldn’t make bail.

[…]

The settlement [in the misdemeanor case lawsuit] was a watershed moment. “I don’t think we can understate the cultural significance,” says Alec Karakatsanis, who was a lawyer with Equal Justice Under Law when the case was settled and is now an attorney with Civil Rights Corps. Although other counties and states have similarly reformed their bail systems—California abolished cash bail last year, and Washington, DC, largely did away with the practice decades ago—Harris County’s size makes the victory particularly significant.

And while the settlement details were being ironed out, the same lawyers from the misdemeanor case filed the felony suit.

“Once we were having very constructive, productive discussions with the new misdemeanor judges about a final settlement, we realized it was time now to move on to the next piece of the problem,” said Neal Manne, an attorney representing the plaintiffs in both lawsuits.

The felony case, a class action, was filed on behalf of three men who had been charged with nonviolent felony offenses, including driving under the influence and drug possession. The men were assigned bail amounts between $15,000 and $30,000. None of them could pay, and two of them remain detained since being brought into custody in mid-January. (The other made bail after about two weeks in jail.) Like the misdemeanor case, lawyers for the plaintiffs are arguing that such a bail system discriminates against poor inmates who are otherwise low risk.

But if the misdemeanor case was a big deal, the case currently in front of the court will be a game-changer. As of March 2016, misdemeanor defendants comprise only about 8 percent of the county jail’s pretrial population—felony defendants, meanwhile, account for the rest. In fact, 77 percent of the entire county jail population, or approximately 6,000 people, at any given time are felony defendants awaiting trial, most of them for nonviolent offenses. And like people charged with misdemeanors, most of the defendants in jail for felony charges are stuck there because they can’t afford a bond. Although there are no national figures available on how many people are in jail because they can’t pay, data from the Prison Policy Initiative says that every day, 465,000 people are held in jail pretrial, and the organization estimates that hundreds of thousands of these people are there because they can’t afford bail.

If the district court sides with Karakatsanis and his clients, Harris County would be one of the largest in the country to severely limit the use of cash bail. The parties will be negotiating a settlement over the next several weeks, and Manne said he’s optimistic those talks will result in a similar outcome as the misdemeanor suit.

See here and here for some background. The story does not note that there are bills filed in the Legislature that would implement much of the reforms from the Harris County lawsuit statewide. Harris County was a watershed here not just because it’s the biggest county, with the biggest jail population, but also because for the most part, the other big counties have not taken similar action yet. The precedent this lawsuit set will certainly affect any future and current lawsuits in other counties, whether or not the proposed bills pass. There of course remains some resistance to the whole thing, but that is by this point a diminishing position. I look forward to seeing how the negotiations over the felony bail lawsuit turn out.

Fifth Circuit wants to see how much it can gut abortion rights before it acts

That’s the takeaway you should have from this.

A Texas law banning a common second-trimester abortion procedure will remain blocked after federal judges Wednesday postponed a decision until the Supreme Court takes action on a similar case.

A federal district court in 2017 struck down the ban, which was passed as part of state Senate Bill 8. Attorney General Ken Paxton and other officials then appealed the decision to the Fifth Circuit Court of Appeals.

[…]

But the Supreme Court has yet to decide whether it will take up that case, which was launched by abortion provider June Medical Services. The case challenges a Louisiana law that required doctors who perform abortions to have hospital admitting privileges.

See here for some background. Rewire brings the details.

In November 2017, a federal district court declared the provision of SB 8 that bans D and E abortions unconstitutional and permanently blocked the measure from taking effect. The decision, authored by Judge Lee Yeakel, was a rock-solid win for abortion rights. Yeakel determined that Texas had failed to offer any evidence to support its claims that banning D and E abortions promoted its interest in fetal life without unduly burdening a patient’s right to choose. According to Yeakel’s findings, the evidence failed to show that the other methods advanced by the state for terminating an abortion were available and safe. Therefore, Yeakel ruled, the D and E ban had the effect of banning most second-trimester abortions and was an undue burden on abortion rights.

Naturally, the state of Texas appealed Yeakel’s decision. During oral arguments in November, it was clear the conservative members of the Fifth Circuit were looking for a way to reverse Yeakel’s decision and allow the D and E ban to take effect. But then came the Roberts Court’s order in [June Medical Services v.] Gee in February: a reprimand, of sorts, to the Fifth Circuit for trying to unilaterally overturn a district’s court factual findings in order to allow a patently unconstitutional abortion restriction to take effect. The judges on the Fifth Circuit are conservative and bold, but they are not stupid. They are not going to risk setting themselves up for another opportunity for the Roberts Court to reel them in, just a month later.

At issue in Gee—the case the Fifth Circuit is waiting on the Roberts Court to resolve—is Act 620, a Louisiana law that would require any physician providing abortion services in Louisiana to have admitting privileges at a hospital within 30 miles of the procedure. Act 620 was specifically modeled after one of the provisions in Texas’ HB 2 that was eventually declared unconstitutional in 2016 in Whole Woman’s Health v. Hellerstedt.

A federal district court blocked Act 620 from taking effect following a six-day trial, issuing detailed findings of fact as to the undue burden Act 620 would place on abortion rights. But the Fifth Circuit disagreed and reversed the district court, ruling the law should take effect.

[…]

When the Supreme Court decided in February to stay the Fifth Circuit’s decision in Gee, it likely did so not because it disagreed with the court on the merits of its decision, but to send a message. The Fifth Circuit had so wildly and intentionally flouted abortion rights jurisprudence in its application of Whole Woman’s Health to uphold Act 620 that Chief Justice John Roberts joined with his liberal colleagues to temporarily block their ruling. Roberts’ voting record makes it clear he is no fan of abortion rights. So it’s reasonable to interpret his decision as a message to appellate courts like the Fifth Circuit that if anyone is going to be rewriting abortion rights jurisprudence, it will be the conservative justices on the Supreme Court under his guidance.

All this could explain Wednesday’s short order in Whole Woman’s Health v. Paxton delaying any decision in that case pending an outcome at the Supreme Court in Gee.Gee is allowed to take effect. Presumably, the Fifth Circuit would rule in short order to allow Texas’ D and E ban to take effect as well.

Should the Roberts Court take Gee, then the outcome of the Whole Woman’s Health v. Paxton remains in limbo until Gee is resolved.

I noted this in passing when I wrote about how whatever else happens, some new bit of anti-abortion legislation will pass this session. It’s just a matter of whether things get worse from there, and if so by how much.

Harris County settles ADA voting rights lawsuit

Chalk up another accomplishment for our new county overlords.

The U.S. Department of Justice will monitor Harris County elections, at county expense, for up to four years under the settlement of a federal lawsuit over inadequate access to polling places for voters with disabilities.

Commissioners Court approved the 15-page settlement during at its regularly scheduled meeting Tuesday. The item originally was designated for a closed-door executive session, but court members simply agreed to First Assistant County Attorney Robert Soard’s recommendation they sign off on the deal.

Under the agreement, Harris County will have to make minor accessibility improvements to as many as 300 of its 750 regular voting sites, hire two outside election experts to supervise balloting and designate an in-house Americans with Disabilities Act compliance officer. The county does not have to concede it has violated the ADA in past elections.

“It’s a fair settlement,” Soard said. “It’s a reasonable way to conclude this litigation.”

Toby Cole, a quadriplegic attorney who almost exclusively represents wheelchair users, said the settlement and extended federal supervision are essential because disabled voters often are reluctant to complain about problems they encounter.

“They don’t want to make a huge fuss,” Cole said. “So, you don’t vote the first time, then the second time. We cut things out of our lives already, and voting is one more thing to say is too difficult.”

County Judge Lina Hidalgo said after the meeting she is confident the county will be able to show the federal government much sooner than four years it is capable of running an election in which each polling place meets ADA guidelines.

“We’ve got a court, and a county clerk, and a county attorney that are committed to equitable access to elections,” Hidalgo said. “We’re all working to make sure we adhere to that settlement.”

[…]

Monica Flores-Richart, whom County Clerk Diane Trautman hired in January as the county’s ADA compliance officer, said the office will re-examine each polling place. In most cases, she said problems can be identified and addressed quickly.

“We’re not talking about permanent improvements,” Flores-Richart said. “If there’s a gap of a certain size in the sidewalk, you need to put a mat down. Those are the kind of things we’re talking about.”

The settlement requires the county to submit a new ADA compliance plan to the Justice Department within 120 days. The county also must hire at least 20 contractors, or use county employees, to monitor each countywide election.

See here, here, and here for the background. I’ve expressed a modicum of sympathy for the County Clerk in the past regarding this litigation, which was filed in August of 2016 following a letter of finding in 2014, but if this is all it took to settle the case, I have to wonder why it took so long. Well, okay, I know the answer to that, and it has to do with whose picture you see when you load up the harrisvotes.com website. But seriously, this should have been wrapped up long before now. Be that as it may, kudos to all for getting it done. I share Judge Hidalgo’s confidence that Harris County can complete the terms of the settlement in less than the time allotted. The Trib has more.

A second win for plaintiffs in Census citizenship question lawsuit

It’s all up to SCOTUS now.

Commerce Secretary Wilbur Ross acted in “bad faith,” broke several laws and violated the constitutional underpinning of representative democracy when he added a citizenship question to the 2020 Census, a federal judge ruled Wednesday.

In finding a breach of the Constitution’s enumeration clause, which requires a census every 10 years to determine each state’s representation in Congress, the 126-page ruling by U.S. District Judge Richard Seeborg in San Francisco went further than a similar decision on Jan. 15 by Judge Jesse Furman in New York.

The Supreme Court has already agreed to review Furman’s narrower decision, with arguments set for April 23, but may now need to expand its inquiry to constitutional dimensions.

[…]

Unable to find any expert in the Census Bureau who approved of his plan to add the citizenship question, Seeborg wrote, Ross engaged in a “cynical search to find some reason, any reason” to justify the decision.

He was fully aware that the question would produce a census undercount, particularly among Latinos, the judge said.

That would have probably reduced the representation in Congress — and thus in the electoral college that decides the presidency — of states with significant immigrant populations, notably California.

Because census data is used to apportion distribution of federal funds, an undercount would also have cheated these same jurisdictions, the judge said.

Seeborg, like Furman, found after a trial that Ross misrepresented both to the public and Congress his reasons for adding the citizenship question last March. Ross claimed he was acting at the request of the Justice Department in the interest of enforcing the Voting Rights Act.

In reality, the “evidence establishes” that the voting rights explanation was just “a pretext” and that Ross “acted in bad faith” when he claimed otherwise.

See here for the background. A copy of the ruling is embedded in this Mother Jones story. I don’t have much to add to this other than it’s a big honking deal and would have a negative effect on Texas just as it would on states like New York and California that filed the lawsuits against it. You wouldn’t know that from the words and actions of our state leaders, though. USA Today and NPR have more.