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August 1st, 2014:

Friday random ten: You don’t mess around with Jim

For a letter worth 8 points in Scrabble because it doesn’t appear very frequently in English language words, there sure are a lot of names that beging with J.

1. Last One – James “Blood” Ulmer
2. I’ll Go Crazy – James Brown
3. Bayou Tortous – James McMurtry
4. Carolina In My Mind – James Taylor
5. Lose This Skin – Jim Allen
6. Look Here – Jim Duffy
7. Spiders And Snakes – Jim Stafford
8. Foxy Lady – Jimi Hendrix
9. Texas Flood – Jimmie Vaughan
10. The Harder They Come – Jimmy Cliff

I could have done the same thing with Johns or Joes, too. If you’re wondering, James McMurtry is the son of Larry. He’s been a working musician in Texas for 20 years or so.

I’m not the only one who thought Abbott’s same sex marriage appellate brief was ridiculous

Of course, his arguments were ridiculous, so I shouldn’t be the only one who thinks so.


Attorney General Greg Abbott is defending the state’s same-sex marriage ban using a widely rejected “responsible procreation” argument, bolstering gay rights advocates’ hopes and raising questions about his chances of success.

“None of the arguments (against gay marriage) have prevailed, but I think that one especially is not compelling and has not persuaded the judges,” said University of Richmond School of Law Professor Carl Tobias.

Tobias added, “The courts so far that have discussed that argument have pretty much rejected it out of hand.”

Evan Wolfson, founder and president of Freedom to Marry, a national nonprofit aimed at overturning same-sex marriage bans across the country, went further: “It’s the last desperate argument of those who don’t have an argument.”


LGBT (lesbian, gay, bisexual and transgender) and pro-gay marriage activists were surprised Abbott led with the “responsible procreation” argument since it has been rejected in the 10th and 4th Circuit Courts.

“It hasn’t succeeded very often because it doesn’t make a whole lot of sense and it doesn’t really comport with what most of us think about marriage,” said Rebecca Robertson, legal and policy director for the American Civil Liberties Union of Texas. “(State law) doesn’t have to be perfect. It just has to be reasonable.”

Any outcome in the 5th Circuit would be a win for the gay marriage movement, said Steve Rudner of Equality Texas.

If the court upholds Judge Garcia’s ruling overturning the ban, it will bolster LGBT activists’ case. If it becomes the first appeals court to toss out such a ruling, creating a circuit court split, it could put the Texas case on a fast-track to the U.S. Supreme Court.

“I think Greg Abbott, in a strange way, if he succeeds in the 5th Circuit, will be doing people a favor,” said Rudner.

The New Orleans court is widely considered one of the nation’s most conservative, making it a likely source of such a split, experts agreed.

“If you’re going to get a circuit court split, it would probably be here,” said Kyle Duncan, a former Louisiana solicitor general most recently with the Beckett Fund for Religious Liberty in Washington, D.C. In February, Louisiana Attorney General Buddy Caldwell hired Duncan on contract to handle that state’s gay marriage case.

Yes, we all agree that the Fifth Circuit sucks. It’s just a question of whether they suck enough to buy this load of hooey or not.

One more thing, from the Statesman story:

In their effort to preserve Texas’ ban on same-sex marriage, state lawyers have repeatedly argued that the restriction doesn’t single out homosexuals for different treatment.

Like every other Texan, the argument goes, gays and lesbians are free to marry — as long as their betrothed is a member of the opposite sex — and therefore the ban on same-sex marriage doesn’t violate the U.S. Constitution’s guarantee of equal protection under the law.

I hadn’t really thought about it this way till I saw this summary of the brief, but when I read it I was reminded of Michael Li’s analysis of Abbott’s brief from the redistricting lawsuit, filed last August. You may recall that the state’s argument for that case is that the Republican Legislature did not discriminate against minority voters, they were just acting in partisan self-interest, which just happened to have an unfortunate but completely unavoidable and not at all illegal effect on minority voters. As Li put it, this is basically saying that Republicans would be fine with non-Anglo people voting, as long as they voted Republican. There’s a Grand Unification Theory of Greg Abbott’s legal philosophy in there somewhere, if you’ve got the time to pursue it. Forrest Wilder, who read through the entire brief so we don’t have to, and the AusChron have more.

County Attorney asks judge to overturn Wilson verdict

I’m not sure what the point of this is.

Dave Wilson

Dave Wilson

Although a jury decided Dave Wilson lived where he claimed when he ran for the Houston Community College seat he holds, the drama surrounding the perennial candidate continues.

Harris County attorneys filed a motion Wednesday asking Judge Mike Engelhart, who oversaw Wilson’s three-day residency trial earlier this month, to overturn the jury’s unanimous finding and rule in the county’s favor. The county argues Wilson does not live in a warehouse on W. 34th Street that he claimed as his residence when running for the HCC seat in November.


“We are asking the judge to rule that as a matter of law Mr. Wilson should not be entitled to enjoy the benefits of having two different domiciles such that he derives benefits from both,” Assistant County Attorney Robert Soard said in an email. “We believe that claiming one domicile for one purpose (tax exemption) precludes, as a matter of law, simultaneously claiming a second domicile for a different purpose (qualification for public office). We are asking the judge to rule on this issue.”

Wilson won his case two weeks ago. I’m not a lawyer, so I’m not sure on what grounds the County Attorney is asking Judge Engelhart to throw out the jury verdict. Isn’t this what appeals courts are for? This story at least answers that question.

The county is using a legal tactic wherein a party can argue that the facts in a case are indisputable and a judge can determine a jury’s verdict was wrong. It’s called non obstante veredicto, Latin for notwithstanding the verdict, and is essentially the after-trial version of a summary judgment. While it’s not unusual, it’s not typically successful, legal experts said.

“You take your shot at it and see if it works – and usually it doesn’t. Ninety-nine times out of 100 it doesn’t,” said David Crump, a professor at the University of Houston Law Center who teaches civil procedure courses, among others.


Jury verdicts tend to be regarded as final, said Frank Carroll, who runs, an appellate law blog for non-appellate lawyers, and coaches moot court and mock trial at the University of Houston Law Center.

“There’s almost a dogma that when a jury makes a verdict, we don’t like to upset those verdicts,” Carroll said. “As far as the odds go, it’s kind of a long shot. It’s not the longest shot, but certainly the odds are against you.”

However Judge Mike Engelhart rules after an Aug. 18 hearing, the dispute is likely far from over.

“No matter which way he rules, it’s going to go to the appellate court for a better answer,” Ray said.

Well, now I understand what the County Attorney has in mind. They say that if Wilson didn’t violate residency requirements, then those requirements have no meaning. I agree, but as much as I don’t like the jury’s verdict, I don’t see how you can say that it’s objectively wrong. The issue all along has been the vagueness of the legal requirements for residency, which is why I’ve suggested an easily verifiable standard that the Legislature could implement. But that has no bearing on this case. Here, the county claimed Wilson didn’t really live at that warehouse, Wilson claimed he did, and the jury believed him, or at least they didn’t believe the county enough. Not the result I wanted, but I can respect it. What am I missing here?

Oakland Raiders to San Antonio?

There’s more than one Oakland-based sports team that’s been scoping out San Antonio as a possible place to relocate.

Oakland Raiders owner Mark Davis and two top lieutenants met recently with several San Antonio officials to discuss the potential of moving his NFL team from the Bay Area to the Alamo City, local leaders involved in the talks confirmed Tuesday.

On the weekend of July 18, Davis met with the officials, including Henry Cisneros, then-Mayor Julián Castro, City Manager Sheryl Sculley, Mario Hernandez of the San Antonio Economic Development Foundation, and both Richard Perez and David McGee, the president and chairman of the San Antonio Chamber of Commerce, respectively.

Late Tuesday, after the Express-News published a version of this story on its websites, Sculley issued a memo to the City Council.

“I was asked to meet two weeks ago with the owner of the Oakland Raiders, Mark Davis, and members of his staff. Mr. Davis has expressed interest in a possible relocation of his NFL team to San Antonio and we are engaged in preliminary due diligence,” she wrote. “The agenda for this visit included a tour of the Alamodome and meetings with local business leaders.”

Sculley wrote that those discussions were preliminary and confidential and that she would update the council as things progressed.

San Antonio has often been used as a bargaining chip for pro sports franchises trying to negotiate better deals in their own respective cities, but sources have characterized Davis’ interest in San Antonio to be at least somewhat more serious. He is clearly perturbed with his current situation in Oakland, where the team’s lease expires after the 2014-15 season.

Cisneros, who led the charge to build the Alamodome when he was mayor, has been described by sources as the architect of the meeting. His son-in-law, Brad Badger, is in corporate sponsorship sales for the Raiders.


With some upgrades, the Alamodome could be ready for a 2015-16 NFL season, though it would be a temporary home at best. NFL teams likely would need 100 suites, and the Alamodome currently has 52. It physically could facilitate the addition of 48 more, but funding has yet to be earmarked by the city for such upgrades.

If the Raiders moved here, though, Davis is expected to seek a new stadium within a few years, after the team had proved itself in the Alamo City.

Color me shocked by that. As we know, the Oakland A’s have sniffed around San Antonio lately. They share the same stadium as the Raiders and have had similar concerns about its condition and their lease, but they just re-upped for ten years (with an escape clause after two), so that would seem to be off the table for now. While I’ve argued that San Antonio isn’t really suitable for a Major League Baseball team, I don’t think they’d have any trouble selling out ten NFL games (counting two preseason ones). San Antonio hosted the New Orleans Saints in 2005 after Hurricane Katrina and there was some talk about the Saints staying there, but obviously that never happened. The main issue from the NFL’s perspective would be that San Antonio is a much smaller media market. Media market size is one reason why the NFL continues to be obsessed with putting a team back in Los Angeles, even by convoluted means. San Antonio makes for a nice bargaining chip, but for now at least it’s hard to see it as anything else.

There’s one more factor to consider:

NFL owners — including the Dallas Cowboys and the Houston Texans — would have to vote on the deal.

Cowboys owner Jerry Jones has responded to an Express-News report that the Raiders are interested in relocating to San Antonio.

“San Antonio is very important to the Dallas Cowboys. We have the exact same percentage of fans in San Antonio as we do in Plano, Texas, about 98%. I don’t make a lot of this. At all.”

Jerry Jones is already saying that he would be an obstacle to any such relocation. The Raiders would need to get the support of 24 out of the 32 franchises to make the move, meaning that Jones would only need to convince eight of his buddies to vote No. (Texans owner Bob McNair seems to be more willing to accommodate the idea if it comes down to that.) So file this under “interesting stuff that will probably never amount to anything more” and let’s move on for now. Randy Harvey and the unequivocally negative Robert Rivard have more.

One more thing, from Trail Blazers:

Here’s a question: Gov. Rick Perry has spent millions luring businesses to Texas from his business-subsidy fund. If this is a real effort by Oakland to consider Texas as home for its NFL team, might the future governor — either Greg Abbott or Wendy Davis — be amenable to sweetening a deal if necessary to bring the Raiders to the Alamo City?

My personal answer is no, they shouldn’t. The NFL, its owners and franchises, they all have plenty of money. Especially given the likelihood of money being thrown at the Raiders for a new stadium, whether here or in Oakland or elsewhere, there’s no need to pour even more sugar on top of that.

First phase of redistricting trial ends

Not much of interest must have happened, because news reports have been sparse, to say the least.

The first phase of the federal trial examining claims that state lawmakers discriminated against African-American and Hispanic voters when redrawing Texas House districts in 2011 came to an end Tuesday, as both sides made closing arguments to a three-judge panel hearing the case.

The closing statements reiterated points both sides made during the trial, which ended July 19.

U.S. Justice Department attorneys and minority groups reiterated claims that the majority white, GOP-dominated Texas Legislature aimed to dilute minority voting strength when redrawing Texas House districts.

Attorneys for the state said there isn’t sufficient evidence to show the Legislature intentionally discriminated against minorities. Instead, they argued the process was intensely partisan and driven by an effort to create as many Republican seats as possible and protect incumbent lawmakers.

Assistant Texas Attorney General Patrick Sweeten told the court the plaintiffs were relying on “red herrings” to prove their claims of intentional discrimination.

Justice Department attorney Bryan Sells argued the state’s argument was flawed.

“Partisanship is not a defense to intentional vote dilution,” Sells said.

See here and here for the background. For a trial that spawned multiple articles about its deeper meaning and the possibility of reviving preclearance requirements for Texas, this time under Section 3 of the Voting Rights Act, not a whole lot of attention was paid to the nuts and bolts of it. This report from Lubbock about testimony concerning claims that there should be two Latino opportunity districts in West Texas, is the only hard reporting I saw after the initial Chron story.

Anyway. Part Two of this trial, to cover the 2011 Congressional maps, will begin August 11. Perhaps that will be better covered by the press. The trials for the 2013 maps will be later, date TBD. In the meantime, the Texas Election Law Blog has an overview of who’s who in the litigation – Part One, Part Two – with more to come. There’s still a lot of this story to be written, even if this part of it wasn’t written about much.