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May 8th, 2017:

Bathroom bills and business interests

Texas Monthly’s Dave Mann reviews the Republican schism over the bathroom bill and comes to the same conclusion as I have.

At the moment, the Legislature—and the Republican party, for that matter—has settled into an uneasy stalemate between Patrick’s right-leaning Senate and Straus’s more moderate coalition in the House. But, as they say, stalemates are made to be broken, and right now, Patrick’s faction seems likely to prevail eventually. It has the support of the most-devoted Republican primary voters, many of whom view moderation or compromise as surrender.

So business leaders and their Republican allies are in a precarious position. They still have a power base in the House, because Straus and his leadership team have fended off several challenges from the right, but he won’t be speaker forever. This session is his fifth leading the House, tying the record for longest-serving speaker with Pete Laney and Gib Lewis. Whenever he departs, Straus could well be replaced by a more conservative figure. So the talk among business Republicans in Austin’s bars and restaurants these days is about how they can reverse their losses and reclaim their party.

Well, good luck with that. The Republican grass roots aren’t going to moderate themselves, and it seems likely that business-friendly Republicans will continue to lose primaries, especially in statewide races. As long as that dynamic remains, the Republican party won’t be tilting back toward the middle anytime soon.

But there is another political party. Remember that one? It’s been stripped down and left to rust for the past two decades. But the Texas Democratic party is still there, waiting for someone to gas it up and take it for a spin.

That’s just what big-business interests should do. The TAB and any number of influential corporations could easily take over the party by recruiting and funding candidates to run as Democrats. It would be a homecoming of sorts; after all, years ago, before the state flipped to the GOP, business-friendly Republicans were conservative Democrats.

The problem with this idea is that Democrats can’t win in Texas at the moment. Sure, big business could take over the Democratic party, but what good would it do? Except the goal here isn’t to suddenly flip the state back to the Democrats. No, the goal would simply be to make Democrats somewhat more competitive, especially in statewide races. They don’t necessarily have to win, just get close enough to scare Republicans and perhaps nudge the GOP back toward moderation.

Republican primaries might turn out differently if there was the threat of a tight race in the general election—and that threat could be more credible in 2018 than it has been in years, with many pundits expecting the national mood to favor Democrats by then. Would Abbott strike a more moderate tone if he knew a well-funded pro-business Democrat was waiting for him in the 2018 general? Part of the business lobby’s problem with Patrick is that it has no way to threaten him. He’s untouchable in a Republican primary, and his general election campaigns have been cakewalks. But if, say, a conservative Democrat, backed by big-business money, opposed him in 2018, that might lead Patrick to moderate just a bit. Similarly, if the GOP once again nominated social conservatives with questionable credentials—like Attorney General Ken Paxton, currently under indictment, or Sid Miller, the agriculture commissioner famous for traveling out of state for his “Jesus shot”—for statewide offices, they’d at least have a challenging race in the fall. And just maybe the specter of a formidable Democratic opponent would lead to a more robust debate within the Republican party, rather than simply a mass rush to the right.

While I agree with Mann in the aggregate, there are several places where I disagree. For one thing, I don’t know what he means by a “conservative” Democrat, but I do know that Democratic primary voters aren’t going to be interested in that. Discussions like this often get bogged down in semantics and everyone’s personal definitions of words like “liberal” and “conservative”, but I think we can all agree that a Democratic candidate who is “conservative” (or just relatively “conservative” for a Democrat) in the social issues sense is going to be extremely controversial. It’s not like Democrats haven’t tried the approach of soft-pedaling such items in recent elections – see, for example, Wendy Davis’ muteness on abortion and her flipflop on open carry in 2014 – it’s just that there’s little to no evidence that it has helped them any. Maybe nothing could have helped them in those elections, but in the Trump era where everyone is fired up with the spirit of resistance, it’s really hard to see how this approach would do anything but piss people off.

I also dispute the assertion that the threat of a close race will make Republicans more likely to choose the less-extreme, more “electable” candidate in their primaries. For Exhibit A, see Kay Bailey Hutchison in the 2010 gubernatorial primary. Surely Bill White was a credible threat to them that year, but Rick Perry’s successful strategy was the exact opposite of striking a more “moderate” tone. The only thing that might convince Republican primary voters to try something different will be sustained electoral failure. To say the least, we are not there yet.

What I would recommend for Democrats like Mike Collier and Beto O’Rourke and whoever might emerge to challenge Greg Abbott and Ken Paxton is to approach the business community by reminding them that we already broadly agree on a number of core matters – quality public and higher education, better infrastructure, sanity on immigration, non-discrimination – and where we may disagree on things like taxes and regulations, the Lege will still be Republican. What you get with, say, a Democratic Lt. Governor is a hedge against self-inflicted stupidity of the SB6 and “sanctuary cities” variety. You will get someone who will listen to reason and who will be persuaded by evidence. From the business community’s perspective, this is a better deal than what they have now, and a better deal than any they’re likely to get in the near future. For there to be a chance for that to happen, it will take Democratic candidates that a fired-up base can and will support, plus the willingness of the business community to recognize the hand they’ve been dealt. The ball is in their court.

“What are we fighting for?”

That’s the key question for the county in the bail lawsuit.

As legal costs mount, surpassing $200,000 per month, pressure is building for Harris County officials to settle a lawsuit over the county’s cash bail system that a federal judge has ruled unconstitutional.

Newly available documents reveal that teams of defense lawyers are racking up massive ongoing expenses, including one lawyer on retainer since June at $610 per hour and a Washington, D.C. appellate lawyer on board since mid-April at $550 per hour.

Among the two dozen county officials named as defendants in the civil suit, one is fed up.

“It’s time to settle,” said Criminal Court at Law Judge Darrell Jordan. “What are we fighting for?”

A settlement offer remains on the table from lawyers representing poor people stuck in jail for misdemeanor offenses because they could not afford cash bail. But none of the other defendants in the suit has budged, according to attorney Neal Manne, whose firm donated its services in filing the suit with two civil rights organizations.

First Assistant County Attorney Robert Soard said Friday he anticipates his office will have a recommendation for the Commissioners Court meeting Tuesday morning. Discussion of the case is included on the Commissioners Court agenda, with possible action to follow.

As of Friday, however, the county has been billed about $2.85 million by outside counsel – a cost the county attorney’s office says is not out of line given the number of defendants and a local criminal justice system that is one of the largest in the nation.

[…]

On Friday, Criminal Court at Law Judge Jordan hand-delivered a letter to County Judge Ed Emmett asking that he be allowed to settle the case immediately.

Emmett spokesman Joe Stinebaker explained the office’s response to Jordan’s letter.

“Judge Emmett has no authority whatsoever to allow or prevent any of the defendants in this suit from taking any action they deem appropriate,” he said.

The formalities were of little importance to Jordan, who said it seems obvious the county should settle, given Rosenthal’s comments that the indigent defendants are likely to prevail at trial.

It’s true that Judge Emmett doesn’t have the authority to make a settlement happen. So let’s be clear about who can make it happen: The County Court judges who are the defendants in the case and who (other than Judge Darrell Jordan, the lone Democrat among them) have insisted on continuing to fight, and County Commissioners Jack Morman, Steve Radack, and Jack Cagle, who have the authority to tell the judges that they will not pay for any further litigation. They have the opportunity to express that opinion on Tuesday. If they do not – if they vote to continue paying millions of dollars to outside counsel in pursuit of a losing and unjust cause – then we know whose responsibility this is.

When will the lawsuits against the “sanctuary cities” bill begin to be filed?

Soon.

The question isn’t whether or not the Texas attorney general’s office will be hauled to court over a Texas Senate bill to ban “sanctuary” policies in Texas — but, more likely, when they’ll be asked to defend Senate bill 4 in a federal court.

“There are ways to challenge the bill before September to prevent its implementation and we’ll be looking to challenge this as soon as possible,” said Marisa Bono, a staff attorney with the Mexican American Legal Defense and Educational Fund.

Bono was referring to the Sept 1 date the bill is slated to take effect. Senators approved the controversial measure late Thursday after it cleared the Texas House last week.

[…]

Bono, whose firm represented some of the plaintiffs who successfully sued the state over its 2011 voter ID law and that year’s redistricting maps, said that litigation could focus on several issues, including what power states have to craft their own immigration-enforcement laws. A separate issue is whether the requests from federal authorities, known as detainers, are mandatory or voluntary.

“There are a number of provisions throughout the bill, including the detainer provision and several other sections, that raise concerns about preemption and vagueness” in the bill, she said.

The bill was passed after a San Antonio-based three-judge panel ruled that lawmakers either violated the U.S. Constitution or the Voting Rights Act in 2011 by intentionally watering down the strength of minority voters in Texas. That was just weeks after a federal judge ruled that Texas lawmakers intentionally discriminated against Hispanic and black Texans after the Legislature passed a strict voter ID law in 2011.

Bono said although those rulings prove state Republicans have had minorities in their crosshairs for years, she was confident plaintiffs would prevail in a lawsuit against SB4 because of the bill itself.

“We consider the wind at our backs because of the way the bill is worded,” she said. “But certainly the state’s history of intentional discrimination — and specifically recent targeting against the immigrant community — will be helpful in the narrative.”

See here for the background. It would be more than a little ironic if Texas’ discriminatory history, which has been reiterated multiple times in the courts lately, comes back to bite the state in the lawsuits that get filed over SB4. For sure, the state deserves zero benefit of the doubt, especially given all the testimony against SB4.

The Chron adds some details.

“People need to understand there’s a symbiotic relationship police have with the communities they serve. … If there’s a law that’s passed and officers start asking people’s status, that’s going to send a chill through the community,” said Chuck Wexler, executive director of the Police Executive Research Forum, a Washington D.C.-based nonprofit. “While this bill doesn’t require them to ask, there will be people who will interpret this bill as a green light to do immigration work, which is not the work of state and local police, that’s a federal responsibility.”

Citing already heightened tensions in Houston’s Latino community over anti-immigrant rhetoric, Harris County Sheriff Ed Gonzalez said Thursday he had already heard examples of residents who regretted reporting domestic violence crimes and then seeing their partners deported.

The new legislation could raise the stakes even further, he said.

“There’s this fear that any potential traffic stop, any call for service calling for police – they can be questioned, and why would they even call to begin with?” he said.

Troy Nehls, the Republican sheriff of Fort Bend County, warned the legislation goes too far by needlessly encroaching on local authority.

“I don’t support sanctuary cities, I’ve made that very clear,” Nehls said. “But some of language in this bill, I don’t agree with. … Adding the criminal penalty to sheriffs and others, it’s an overreach by state officials and state government.”

He said he would not fight the Legislature’s mandate but would use discretion as he went about his job.

“I’m not going to violate law, but if Sheriff Nehls makes a traffic stop, I’m not asking for your immigration status,” he said.

[…]

Peter Spiro, a law professor at Temple University in Philadelphia who specializes in immigration and constitutional law, said they can ask about immigration status but they cannot detain immigrants without charges while waiting for federal agents to pick them up.

“It was a little bit meaningless in the sense of what Arizona could do with it,” Spiro said. “(Police) can’t hold someone on a suspected immigration violation in and of itself.”

Terri Burke, the executive director of the ACLU of Texas, said the organization found “clear and potential constitutional problems” in more than 75 percent of traffic stops in Arizona, and have asked the Department of Homeland Security to investigate.

“The stops now occurring in Arizona can take from 15 minutes to three hours,” she said. “It is believed that is a constitutional violation.”

She said the high court also said that the state’s policy opens up the potential of racial profiling, but the issue so far hasn’t been addressed by the courts.

“This is an invitation for racial profiling,” Burke said. “You have people in an area who are brown-skinned and look foreign, they’re going to be asked for their papers.”

Law enforcement is strongly against this law, for lots of good reasons. I don’t know what effect that will have on the litigation, but we may as well keep it in mind.

And whatever is to come with this, it has begun.

Gov. Greg Abbott signed a ban on “sanctuary cities” into law on Sunday, putting the final touch on legislation that would also allow police to inquire about the immigration status of people they lawfully detain.

“Texas has now banned sanctuary cities in the Lone Star State,” Abbott said in a brief video address on Facebook. Abbott signed the bill without advance notice in a five-minute live broadcast on the social media site, avoiding protests a customary public signing might have drawn.

“We’re going to where most people are getting their news nowadays and talking directly to them instead of speaking through a filter,” said John Wittman, a spokesman for Abbott.

And also at a time and in a fashion that made it easy to exclude other politicians and hide from protesters. Greg Abbott’s gonna do Greg Abbott things. It’s our move now.

Bill to eliminate straight-ticket voting passes the House

Here we go again.

Rep. Ron Simmons

The Texas House late Friday night gave preliminary approval to a bill that would eliminate “one-punch” voting, forcing voters to make an individual decision on every ballot item, starting with the 2020 election.

House Bill 25, approved 85-59, could drastically change Texas politics considering straight-ticket ballots accounted for almost 64 percent of total votes cast in the state’s 10 largest counties in 2016. Forty-one states don’t allow straight-ticket voting, according to the National Conference of State Legislatures.

State Rep. Ron Simmons, R-Carrollton, one of the authors of HB 25, said he filed the measure to foster more educated voters since they’d have to go down the ballot and make a decision on every race.

“I think it’ll give us better candidates and better elected officials. It won’t have people getting voted out just because of their party identity,” Simmons told The Texas Tribune on the House floor prior to Friday’s vote.

Opponents of the measure said they’re worried Simmons’ bill will lead to lower voter turnout. On the House floor, several Democrats, including state Rep. Chris Turner, D-Grand Prairie, expressed concerns that getting rid of one-punch voting would inconvenience voters and discourage them from participating in future election.

“There are a lot of races on the ballot in these general elections, and voting individually takes extra time,” Turner said. “Instead of one-punch, you’re asking people to individually vote in dozens of races, perhaps even 100 of them. This can be a real impediment.”

[…]

Simmons, however, said that equating a high number of straight-ticket voters to civic engagement is “kind of like comparing apples or oranges.” He pushed back on Democrats who insisted that taking away one-punch voting infringed on the rights of Texans.

“People will still come out to vote, they’ll just take a few more seconds to get down the ballot. And it’ll make sure people know who they’re voting for,” he said.

It will definitely take more than a few extra seconds to vote a full ballot, especially in a big county like Harris. Making such a disingenuous argument against the concerns being raised about this bill does not do anything to relieve suspicions that it’s just a response to Democratic dominance of the big urban counties. I wrote a long piece about this when Rep. Simmons filed the same bill in 2015. My feelings haven’t changed – indeed, they haven’t changed much since 2009 when the elimination of straight ticket voting first gained prominence as a Republican priority – so go read that so I don’t have to repeat myself again.

I don’t think there’s any question that if this bill passes, it will take longer to vote, and given that only one Democrat voted for HB25 while only five or six Republicans voted against it, both parties have a pretty good guess about who will be more affected by that. Those concerns, along with talk of future lawsuits, were mentioned in the Chron story about this bill. It would be quite simple for Rep. Simmons to address those concerns if he wanted to. Extend and expand early voting, with more locations and longer hours and more days (*), mandate more voting machines at every polling place, and expand eligibility to vote by mail. Do that, and put up the money to help counties cover the extra costs, and I’ll drop all my objections. Until then, I question the motive behind this. Matt Angle of the Lone Star Project, writing in Medium, has more.

(*) Republicans have also tried to limit early voting in the past, again after an election where Democrats did well. Limits on early voting were a part of the vote-suppression tactics in places like North Carolina as well. If Republicans don’t want bills like HB25 to be seen as an attack on the ability to vote, it’s on them to understand and address the concerns that these bills raise.