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Collin County

Our all-important metro areas

Another look at the trouble Republicans face in Texas now.

The key to Texas’ political future is whether it finally follows the geographic realignment that has transformed the politics of many other states over the past quarter century.

Across the country, Republicans since the 1980s have demonstrated increasing strength among voters who live in exurbs at the edge of the nation’s metropolitan centers or beyond them entirely in small-town and rural communities. Democrats, in turn, have extended their historic dominance of the nation’s urban cores into improved performance in inner suburbs, many of them well educated and racially diverse.

Both sides of this dynamic have accelerated under Trump, whose open appeals to voters uneasy about racial, cultural and economic change have swelled GOP margins outside the metropolitan areas while alienating many traditionally center-right suburban voters.

In Texas, only half of this equation has played out. In presidential elections since 2000, Republicans have consistently won more than two-thirds of the vote for the two parties in 199 mostly white nonmetropolitan counties across the state, according to a study by [Richard] Murray and Renee Cross, senior director of the University of Houston’s Hobby School of Public Affairs. (Trump in 2016 swelled that number to three-fourths.) The GOP has attracted dominant majorities from those areas in other races, from the Senate and US House to the governorship and state legislative contests. Democrats consistently amassed big majorities in 28 mostly Latino South Texas counties, but they have composed only a very small share of the statewide vote.

The key to the GOP’s dominance of the state is that through most of this century it has also commanded majorities in the 27 counties that make up the state’s four biggest metropolitan areas: Dallas/Fort Worth, Houston, San Antonio and Austin. Demographically similar places in states along the coasts and in the upper Midwest have moved consistently toward the Democrats since Bill Clinton’s era. But in Texas, Republicans still carried 53% to 59% of the vote in those metropolitan counties in the four presidential races from 2000 through 2012, Murray and Cross found.

In the Trump era, though, that metro strength has wavered for the GOP. In 2016, Hillary Clinton narrowly beat Trump across the 27 counties in Texas’ four major metropolitan areas. Then in 2018, Democrat O’Rourke carried over 54% of the vote in them in his narrow loss to Sen. Ted Cruz, Murray and Cross found. O’Rourke won each of the largest metro areas, the first time any Democrat on the top of the ticket had carried all four since native son Lyndon B. Johnson routed Barry Goldwater in the 1964 presidential race, according to Murray and Cross.

Looking just at the state’s five largest urban counties — Harris (Houston), Travis (Austin), Bexar (San Antonio), Tarrant (Fort Worth) and Dallas — the change is even more stark. In 2012, Obama won them by a combined 131,000 votes. By 2016, Clinton expanded the Democratic margin across those five counties to 562,000 votes. In 2018, O’Rourke won those counties by a combined 790,000 votes, about six times more than Obama did in 2012. Along the way, Democrats ousted Republican US House incumbents in suburban Houston and Dallas seats and made substantial gains in municipal and state house elections across most of the major metro areas.

“We have now turned every major metropolitan area blue,” says Glenn Smith, a longtime Democratic strategist in the state.

Yet that, of course, still wasn’t enough for O’Rourke to overcome Cruz’s huge advantages in smaller nonmetro communities. That outcome underscores the equation facing Texas Democrats in 2020 and beyond: They must reduce the GOP’s towering margins outside of the major metropolitan areas and/or expand their own advantage inside the metro centers.

Few in either party give Democrats much chance to record many gains outside of metro Texas, especially given Trump’s national strength with such voters. O’Rourke campaigned heavily in Texas’ smaller counties and made very limited inroads there, even relative to Clinton’s abysmal performance in 2016. Exit polls conducted for a consortium of media organizations including CNN found that O’Rourke carried just 26% of white voters without a college education, only a minuscule improvement from the 21% Clinton won in Texas in 2016.

O’Rourke’s very limited rural gains have convinced many Texas Democrats that while they can’t entirely abandon smaller parts of the state, their new votes are most likely to come from the metropolitan centers.

“It’s a matter of emphasis,” says Smith, a senior adviser to the liberal group Progress Texas. “You’ve got to do urban/ suburban areas first. You’ve got to maximize your advantage there.”

The stakes in the struggle for Texas’ big metro areas are rising because they are growing so fast. While the four major metro areas cast about 60% of the statewide votes in the 1996 presidential election, that rose to about 69% in 2016 and 2018, Murray and Cross found. Murray expects the number to cross 70% in 2020.

And the concentration of Texas’ population into its biggest metropolitan areas shows no signs of slackening. The Texas Demographic Center, the official state demographer, projects that 70% of the state’s population growth through 2050 will settle in just 10 large metropolitan counties. Those include the big five urban centers that O’Rourke carried as well as five adjacent suburban counties; those adjacent counties still leaned toward the GOP in 2018 but by a much smaller cumulative margin than in the past. Overall, O’Rourke won the 10 counties expected to account for the preponderance of the state’s future growth by a combined nearly 700,000 votes.

We’ve been talking about this literally since the ink was still wet on the 2018 election results. I touched on it again more recently, referring to a “100 to 150-county strategy” for the eventual Democratic nominee for Senate. None of this is rocket science. Run up the score in the big urban areas – winning Harris County by at least 300K total votes should be the (very reachable) target – via emphasizing voter registration, canvassing apartments, and voters who turned out in 2008 and/or 2012 but not 2016. Keep doing what we’ve been doing in the adjacent suburbs, those that are trending blue (Fort Bend, Williamson, Hays), those that are still getting there (Collin, Denton, Brazoria), and those that need to have the curve bent (Montgomery, Comal, Guadalupe). Plan and implement a real grassroots outreach in the Latino border/Valley counties. We all know the drill, and we learned plenty from the 2018 experience, we just need to build on it.

The less-intuitive piece I’d add on is a push in the midsize cities, where there was also some evidence of Democratic growth. Waco, Lubbock, College Station, Abilene, Amarillo, Killeen, San Angelo, Midland, Odessa, etc etc etc. There are some low-key legislative pickup opportunities in some of these places to begin with. My theory is that these places feature increasingly diverse populations with a decent number of college graduates, and overall have more in common with the big urban and suburban counties than they do with the small rural ones. Some of these places will offer better opportunities than others, but they are all worth investing in. Again, this is not complicated. We’ve seen the data, we will definitely have the resources, we just need to do the thing.

Here come the Rangers

I don’t know where this is going to go, but it sure will be fun getting there.

Rep. Dennis Bonnen

The Texas House General Investigating Committee voted Monday to request that the Texas Rangers look into allegations against House Speaker Dennis Bonnen and one of his top lieutenants in the lower chamber.

The committee vote, which was unanimous, followed roughly an hour of closed-door deliberations among the five House members who serve on the panel. At issue is whether Bonnen, an Angleton Republican, and state Rep. Dustin Burrows, R-Lubbock, offered hardline conservative activist Michael Quinn Sullivan media credentials for his organization in exchange for politically targeting a list of fellow GOP members in the 2020 primaries.

[…]

State Rep. Morgan Meyer, a Dallas Republican who chairs the House committee, said Monday that the Texas Ranger’s Public Integrity Unit “will conduct an investigation into the facts and circumstances surrounding” that meeting between Sullivan, Bonnen and Burrows. Meyer also requested that the Texas Rangers provide a copy of its final investigative report to the committee at the end of its investigation.

See here for the background. What might happen next could get complicated.

Aside from the quid pro quo aspect of the scandal, exchanging money in the Capitol or directing expenditures from a Capitol office has been a Class A misdemeanor ever since the Legislature reacted to a 1989 public outcry over the late chicken producer Lonnie “Bo” Pilgrim handing out $10,000 checks to nine senators in the Senate chamber during a hearing on workers compensation reform.

Besides the issue of whether there was bribery involved, there are also potential election law crimes, including not disclosing the source of campaign contributions directed by Bonnen. The Texas Democratic Party filed a lawsuit against Sullivan on Thursday, alleging nine different potential criminal violations of the Texas Election Code, each a Class A misdemeanor. The lawsuit seeks to preserve evidence and damages of $100,000.

Given the potential for criminal wrongdoing, what happens next?

First, consider the dramatic changes that the Texas Legislature made to how public corruption cases are handled in Texas. Under a state law passed in 2015, the Travis County public integrity unit no longer has jurisdiction over elected officials at the Capitol. Potential criminal cases must be investigated first by the Texas Rangers. As of Thursday, the Rangers had not been asked to investigate the Bonnen/Sullivan controversy, nor had they initiated an investigation on their own, according to a Texas Department of Public Safety spokesperson.

If the Rangers do investigate and decide further action is warranted, the case is referred to the home county of the public official. That means any corruption charges against Bonnen would have to be brought by the Brazoria County DA. For Burrows, it would be the Lubbock County DA. Travis County would retain jurisdiction only over Sullivan. In cases of multiple jurisdiction, the Texas attorney general’s office can take charge.

Funnily enough, Attorney General Ken Paxton is under indictment on securities fraud charges in his home territory of Collin County. Paxton is accused of failing to register as a securities agent as part of his private law practice. He claims he is innocent and that the case is politically motivated. Paxton counts among his allies the funders of Empower Texans. (The plot always seems to thicken in this scandal.)

You know what this would mean: Special prosecutors would be needed. Nothing could possibly go wrong with that approach. It’s almost as if abolishing the prosecutorial power of the Public Integrity Unit was a bad idea with all kinds of potentially unwanted consequences. We are getting way ahead of ourselves here, so let’s reel it in a bit and say we can’t wait to see what happens next. Ross Ramsey has more.

Raising money to register Republicans

Just keeping an eye on things.

Still the only voter ID anyone should need

A new super PAC focused on registering new Republican voters in Texas has raised nearly $10 million from some of the state’s biggest GOP donors, according to its first report to the Federal Election Commission.

Filed early Wednesday morning, the disclosure shows that the political action committee, Engage Texas, took in $9.6 million between when it registered with the FEC in mid-April and when the reporting period ended June 30. It spent $336,000 and has $9.3 million in the bank.

“This significant investment in resources will help us reach Texans in every corner of the state to educate them about Texas’ successful, conservative principles and engage them in the political process,” Engage Texas Chairman Mano de Ayala said in a statement.

Engage Texas launched in mid-June with the promise of signing up and turning out hundreds of thousands of new GOP voters to help keep the state red in 2020. The super PAC is led by Chris Young, a former top staffer at the Republican National Committee.

[…]

It appears Engage Texas has wasted little time getting to work, reporting 17 people on payroll through June in addition to Young. One of them is Kristy Wilkinson, who was deputy campaign manager for Gov. Greg Abbott’s reelection bid last year and previously the Republican National Committee’s Texas state director.

The group says it has already opened offices in Austin, Houston and the Dallas-Fort Worth area. It also has dispatched organizers to begin work in Bell, Blanco, Collin, Dallas, Denton, Fort Bend, Harris, Hays, Lampasas, Tarrant, Travis and Williamson counties.

See here for the background. This to me falls somewhere in between “legitimate threat to Democratic efforts in 2020” and “awesome get-rich-quick scheme for Republican consultants”, I just don’t know exactly where yet. I don’t think a lack of registered voters has been the issue for Republicans in the last couple of elections, but if this is more of a turnout effort then I think they could have a real effect. It would have been a much bigger disaster for them in 2018 if they hadn’t had near-Presidential levels of turnout on their side. Like I said, worth keeping an eye on but to be determined how big a deal this is.

Paxton wants to move his case back to Collin County

Of course they do.

Best mugshot ever

Paxton’s defense team has asked that the case be moved back to his hometown of Collin County, years after it was moved from there to Harris County. The case was moved hundreds of miles southeast after the prosecutors claimed that Paxton, a Republican who is well connected in that region and once represented it in the Texas Legislature, would not get a fair trial there.

But Paxton’s defense team argued this week that the judge who moved the case to Harris County two years ago didn’t have the authority to do so, as his term overseeing the case had elapsed.

[…]

That leaves [Judge Robert] Johnson, a Democratic judge overseeing the case, with several issues to mull before Paxton faces a jury. Johnson has not yet responded to either side’s motion.

On Monday, Paxton’s defense attorneys argued that if there is a hearing on the prosecutors’ fees, they should also be present — and asked that the judge rule on changing the venue before the pay issue.

The Team Paxton motions were in response to the prosecutors’ motion to confer with Judge Johnson – just them, Team Paxton is not invited – regarding their pay. I can understand that motion, but as the Observer notes, the argument to move the case back to Collin County is a rehash of the same arguments they made when the case was originally moved. That was seen at the time as a win for Paxton, since his team had moved to boot the original judge from the case. It seems unlikely to me that Judge Johnson will agree to just hand the case back to Collin County, but it’s a lead pipe cinch that Team Paxton will appeal that ruling and thus accomplish their main goal, which is delaying this trial from now until the heat death of the universe. Either way, they get something they want. The DMN has more.

We return once again to the Paxton prosecutor pay fight

This is an interesting argument.

Best mugshot ever

The prosecutors appointed years ago to take Texas Attorney General Ken Paxton to trial will continue to fight over their pay rate, lengthening a dispute that has already delayed the case for well over a year.

[…]

Prosecutors Brian Wice and Kent Schaffer had signaled they might withdraw from the case if they could not be paid. Instead, they are now asking a Harris County judge for a private, “ex parte” hearing over their fees — a meeting that would not include Paxton’s defense team. In a filing this week, they asked Judge Robert Johnson to “issue a new order for payment of fees.”

“The Attorneys Pro Tem’s payment is now an administrative matter for the trial court to decide,” an attorney for Wice and Schaffer wrote. “The Court of Criminal Appeals’ decision provides the court with the parameters necessary for the court to use its discretion in discharging its administrative duties.”

They added that “there is no authority suggesting that an adversarial hearing regarding the payment of fees … should be held” — arguing that Paxton’s defense lawyers should not be present for the hearing.

The judge has not yet responded to the request. A spokesman for Paxton did not return a request for comment.

See here for the last update. I’m glad they waited till after the legislative session to advance this argument, as I can easily imagine a hastily-written bill to cut this off at the knees getting rammed through. I’ve no idea if this brief, let alone the assertion that there doesn’t need to be a response from Team Paxton, has any merit or has ever been tried before. But it sure isn’t boring, and I can’t wait to see how Judge Johnson rules. The DMN has more.

Will Ken Paxton ever be prosecuted?

At this point, I’d have to say it’s very unlikely.

Best mugshot ever

After mulling the question for nearly six months, the nine Republican judges on Texas’ highest criminal court will not reconsider their 2018 ruling that threatens to imperil the criminal case against Texas Attorney General Ken Paxton.

In November, a fractured Texas Court of Criminal Appeals ruled that a six-figure payment to the special prosecutors appointed to take Paxton to trial for felony securities fraud fell outside legal limits for what such attorneys may be paid. A month later, the attorneys asked the high court to reconsider that decision in a spirited legal filing that went unanswered until this week.

The court did not provide any reason for rejecting the motion, nor did any judges write dissenting opinions. Few expected that the high court would reconsider its own ruling.

Payments for special prosecutors are based on strict fee schedules, but judges are permitted to approve payments outside those strictures in unusual circumstances, as a North Texas GOP judge did for the prosecutors in the Paxton case. But after Jeff Blackard, a Paxton donor, sued in December 2015, claiming that the fees were exorbitant, the Dallas Court of Appeals voided the prosecutors’ invoice and the payment has been in question. Meanwhile, the trial itself has been derailed again and again.

Wednesday’s ruling threatens the long-delayed prosecution of Texas’ top lawyer, as the prosecutors —unpaid in years — have signaled they may withdraw from the case if they cannot be paid. The prosecutors have also argued that the pay ruling, in limiting how much attorneys may be paid even in cases of extraordinary circumstances, threatens the state’s ability to adequately compensate lawyers representing indigent defendants.

See here, here, and here for the latest updates, and here for even more, if you want to do a deeper dive. We should all have friends as steadfast as Ken Paxton has in Collin County, both on their Commissioners Court and in the person of Jeff Blackard. Friends help you move, real friends help you game the criminal justice system to effectively quash felony indictments.

At this point, either the existing prosecutors decide to stick it out and maybe extract a bit of revenge via jury verdict, or they throw in the towel and the whole thing starts over with new prosecutors. Which in turn would open a whole ‘nother can of worms, thanks to the Lege.

Under Senate Bill 341, which moved quietly and without controversy through the Texas Legislature, only county attorneys, district attorneys and assistant attorneys general would be qualified to serve in the high-stakes, often high-profile affairs that require specially appointed prosecutors. Currently, judges may appoint “any competent attorney,” which some have argued is an insufficient standard.

The author of that bill, Houston Republican Sen. Joan Huffman, has presented it as a cost-saving effort for counties — special prosecutors will now be government attorneys who would not require additional funds — and also as a way to raise the bar of qualifications for special prosecutors.

That would limit the selection pool from the more than 100,000 practicing attorneys in Texas to a much smaller group of several hundred elected prosecutors or attorneys employed by the agency Paxton runs. The replacement for Wice and Schaffer would have to be either a Democratic district attorney, who might be seen as overly aggressive in her prosecution of a Republican statewide official; a Republican district attorney, who could be seen as overly sympathetic to a leader of his own party; or an assistant attorney general, who would be an employee of the defendant.

That law goes into effect September 1. This law does make some sense, and if the Paxton prosecution had been handed off to a DA or County Attorney there would not have been an issue with payment. I for one would argue that this case should absolutely be turned over to a big urban county DA’s office – Harris, Dallas, Bexar, or (oh, the delicious irony) Travis – since an aggressive prosecution is exactly what is needed, and the DAs in those counties will have less to fear from the voters than, say, the Denton or Tarrant or Montgomery County DAs would. I will be very interested to see what the presiding judge decides to do, if it comes to that. In the meantime, we need the voters of Collin County to start voting out members of their Commissioners Court, and the voters of Texas to start electing better jurists to the CCA. You want a lower-level cause to get behind in 2020, there’s two of them for you.

Another reason David Whitley has to go

County elections officials feel like they can’t trust him or his office right now. That’s a big deal.

Still the only voter ID anyone should need

As the Texas secretary of state’s office rolled out its botched effort to review the citizenship of nearly 100,000 voters, Betsy Schonhoff was local election officials’ main point of contact.

Seven years into her post as the state’s voter registration manager, she was largely responsible for the training provided to county officials ahead of the review. Schonhoff and her team fielded calls from election officials across the state as they began to sift through their lists. And she was the person who reached out to many of them when her agency discovered that thousands of voters’ names had been mistakenly flagged.

But a week and half into the convoluted review efforts, Schonhoff — voter registrars’ main contact within the agency — disappeared.

County election officials who called the secretary of state’s office asking for her were informed she was not available. A county worker who traveled to Austin last week to meet with Schonhoff was told she was out that day.

By then, Schonhoff had been gone from the secretary of state’s office for several days. She abruptly resigned on Feb. 6. But the county workers who relied on her experience overseeing the state’s voter rolls were kept in the dark.

A spokesman for the secretary of state denied that county officials were misled, saying those who called in were “directed to appropriate staff.” But during a call to Schonhoff’s office a week after she tendered her resignation and completed an exit interview, The Texas Tribune was told “Betsy’s not in.”

“It’s extremely odd, ” said John Oldham, Fort Bend County’s elections administrator, complaining at the time that “we don’t know what’s going on.”

The secretary of state’s office has since acknowledged that Schonhoff left. But the maelstrom surrounding her exit highlights the breakdown in communication and frustrations that have emerged between the state’s top election officials and county election offices since the citizenship review effort launched four weeks ago.

I believe the term of art for this is that the SOS office is “in disarray”. Let us continue:

Sharing responsibilities for maintaining the state’s voter rolls, the secretary of state’s office and county election officials regularly review the list of 15.8 million people and counting who are registered to vote in Texas. List maintenance is largely a routine process and typically occurs without incident.

But the state’s latest stab at reviewing the rolls has felt anything but ordinary, according to county officials across the state.

It started with Whitley’s announcement of the new list maintenance process on Jan. 25. For the better part of last year, the secretary of state’s office had been quietly working with the Texas Department of Public Safety to match the state’s voter rolls with data kept on Texans who indicated they were not citizens when they obtained their driver’s licenses or ID cards.

His office had offered trainings for local county officials ahead of sharing the data, and the secretary of state’s advised them earlier in the day that the data would soon be released. But they had no warning about the press release Whitley sent out announcing the review, nor were they aware that Whitley had provided data of the approximately 95,000 voters who were initially flagged to the state’s top prosecutors even before county officials would have access to it.

Oldham said he was tipped off about the announcement by a former local candidate who had seen a draft of the press release the attorney general’s office would send soon after Whitley’s announcement landed.

But others were caught flat-footed.

“Most of the time, it’s just very routine. [The state and counties] work together very well and then every once in a while something like this comes out,” said Douglas Ray, a special assistant county attorney in Harris County. “They characterized it as list maintenance, but it didn’t look or feel anything like ordinary list maintenance.”

And from there it got worse. The data was quickly shown to be disastrously inaccurate, with the SOS office at first quietly admitting as much to county officials. The lawsuits started coming, with county officials themselves being named in some of them for taking action upon receipt of the SOS advisory. And then the crown jewel, in which Keith Ingram threw county officials under the bus in a mealy-mouthed defense of his office’s incompetence. I’m sure this marriage of state and local elections officials can still be saved, but it’s time to get some counseling.

In the meantime, we’re still waiting for Betsy Schonhoff to tell her story in court, and for the reality to sink in on the Republican side that David Whitley’s days in office are numbered. And all of this began because of a zealous and fanatical pursuit of “illegal voters”, a problem that is very small and usually the result of misunderstanding than any bad intent, where all of the proposed “solutions” cause far more damage than they can ever hope to mitigate. All happening against the backdrop of the biggest election scandal I can recall, in which a Republican candidate for Congress and a shady campaign consultant used absentee ballots to actually steal an election, just last year, which now has to be done over. Just curious here, I don’t follow Ken Paxton on Twitter, but has he had anything to say about that? There are indeed lessons to be learned about election fraud. Our state leadership refuses to try.

A trio of updates about that bogus SOS letter

Most counties reacted skeptically, as well they should.

Still the only voter ID anyone should need

The Texas Tribune reached out to 13 of the 15 counties with the most registered voters on Monday; Galveston was the only one that indicated it would immediately send out letters, even as more than a dozen civil rights groups warned the state and local election officials that they risked violating federal law by scrutinizing the voters flagged by the state.

[…]

Bruce Elfant, Travis County’s tax assessor-collector and voter registrar, indicated he was concerned about the accuracy of the data because the county has previously received data from DPS that was “less than pristine.” County officials vowed to review the list of 4,547 registered voters they received but were still trying to convert the data into a usable format.

He said he also wanted more information about the methodology the Texas Secretary of State’s office used to compile the list, pointing out that naturalized citizens may have obtained their driver licenses before becoming citizens.

“The state is responsible for vetting for citizenship” during the voter registration process, Elfant said. “I would be surprised if that many people got through it.”

Other county officials echoed Elfant’s point about naturalized citizens. Collin County’s election administrator, Bruce Sherbert, said they had received a list of approximately 4,700 names and would consider them on a case-by-case basis, checking for cases in which a voter might have already provided some form of proof they are citizens.

“It can be a process that takes several months to go through,” Sherbert said. “We’re just at the front side of it.”

Facing a list of 2,033 individuals, Williamson County officials said they were considering ways in which they could determine citizenship without sending notices to voters. Chris Davis, the county’s election administrator, said some naturalized citizens could have registered to vote at naturalization ceremonies in other counties, so their files might indicate their registration applications were mailed in from there.

“We want to try to avoid sending notices to folks if we can find proof of their citizenship, thereby they don’t have to come in and prove it themselves or mail it,” Davis said.

Election officials in Fort Bend County said they had received a list of about 8,400 voters, though they noted some may be duplicates. El Paso County officials said their list included 4,152 voters.

Harris County officials did not provide a count of voters the state flagged on its rolls, but Douglas Ray, a special assistant county attorney, said they were treading carefully because of previous missteps by the state.

“To be quite frank, several years ago the secretary of state did something very similar claiming there were people who were deceased,” Ray said. “They sent us a list and the voter registrar sent confirmation notices and it turned out a lot of people identified on the list were misidentified. A lot of the people who received notices were very much alive.”

See here and here for the background. I’m certainly glad we have county officials now in Harris County that care about protecting the right to vote, but the reaction from places like Collin and Williamson was a pleasant surprise. As for Galveston, well. There’s one in every crowd.

If common sense and a principled commitment to the right to vote wasn’t enough to treat the SOS advisory with skepticism, there’s also this.

After flagging tens of thousands of registered voters for citizenship reviews, the Texas secretary of state’s office is now telling counties that some of those voters don’t belong on the lists it sent out.

Officials in five large counties — Harris, Travis, Fort Bend, Collin and Williamson — told The Texas Tribune they had received calls Tuesday from the secretary of state’s office indicating that some of the voters whose citizenship status the state said counties should consider checking should not actually be on those lists.

The secretary of state’s office incorrectly included some voters who had submitted their voting registration applications at Texas Department of Public Safety offices, according to county officials. Now, the secretary of state is instructing counties to remove them from the list of flagged voters.

[…]

It’s unclear at this point how many counties have received these calls. County officials said Tuesday they had not received anything in writing about the mistake. It’s also unclear how many people will be removed from the original list of approximately 95,000 individuals flagged by the state. The secretary of state’s office did not respond to questions Tuesday about how much this would reduce the initial count.

In a statement Tuesday, Sam Taylor, a spokesman for the secretary of state, said the state was providing counties with information as “part of the process of ensuring no eligible voters were impacted by any list maintenance activity.”

“This is to ensure that any registered voters who provided proof of citizenship at the time they registered to vote will not be required to provide proof of citizenship as part of the counties’ examination,” Taylor said.

I dunno, maybe next time check for that sort of thing before rushing to publish? Just a thought. I’m sure Ken Paxton et al will duly correct any now-inaccurate assertions they may have made about the initial advisory.

And then, the least surprising update to all this.

In a lawsuit filed in federal court in San Antonio, lawyers for the League of United Latin American Citizens’ national and Texas arms alleged that Texas Secretary of State David Whitley and Attorney General Ken Paxton violated a portion of the federal Voting Rights Act that prohibits the intimidation of voters.

They point to an advisory issued Friday in which Whitley’s office said it was flagging individuals who had provided the Texas Department of Public Safety with some form of documentation — including a work visa or a green card — that showed they were not citizens when they were obtaining driver’s licenses or ID cards. The state put the number of registered voters who fell into that category at approximately 95,000 — 58,000 of whom had voted in one or more elections from 1996 to 2018.

In its announcement, the secretary of state’s office said it had immediately turned over the data to Paxton’s office. On the same day, Paxton posted the news on Twitter prefaced with “VOTER FRAUD ALERT,” the lawyers noted in the lawsuit.

“These two Texas officials have carefully crafted and orchestrated a program that combines an election advisory ostensibly directed at ensuring that all those registered to vote in the May election are citizens eligible to vote with the use of data that is suspect on its face and a blackout on public access to the data,” LULAC’s lawyers wrote in the complaint.

I mean, someone was going to have to sue eventually. Why wait? Texas Monthly and the Observer have more.

Before you go, here’s a little story from my archives that might be of interest to you. It involves an actual, by-God case of a non-citizen voting, right here in Harris County, in a high profile and hotly contested election. You might be surprised how it turns out. Enjoy!

UPDATE: How bad was that original list of alleged non-citizens? This bad:

State officials on Tuesday acknowledged widespread errors in their list of 95,000 Texas voters flagged as potential non-citizens, reinforcing the concerns of advocates who say the state’s effort amounts to illegal voter suppression.

In Harris County alone, officials said, more than 60 percent of nearly 30,000 names on a list the state supplied last week are being removed after new guidance from state officials. Voter registrars in several other counties reported getting similar calls Tuesday from the Texas Secretary of State’s office, which last week said its review showed that 95,000 registered voters did not appear to be U.S. citizens.

[…]

On Tuesday, officials in Harris County and several other counties were told to remove from their lists names of people who registered to vote at Texas Department of Public Safety offices. Harris County officials also were advised to remove those who registered to vote at a naturalization ceremony, said Douglas Ray, a special assistant county attorney who specializes in election issues.

With the new criteria, Harris County was able to remove more than 60 percent of the names off the nearly 30,000-voter list it was sent. Only about 11,000 names remain.

“Our experience with these mass lists from the secretary of state’s office is that they’re very questionable, so we have to treat them very carefully,” Ray said.

And that’s before any of the counties do their own checking. We can’t sue these clowns hard enough.

Meet KP George

He’s the new Fort Bend County Judge.

KP George

In December, that strange suspended-in-motion month between his election and taking office, K.P. George was checking out the quaint old domed Fort Bend County Courthouse, soon to be his domain. In November, to the surprise of almost everyone outside his campaign, George had been elected Fort Bend’s county judge — which is to say, the top boss of one of the United States’ fastest-growing counties, with 765,000 residents, nearly 3,000 employees, and an annual budget over $370 million.

When George takes office on Jan. 1, he’ll become arguably the most powerful Indian-American in U.S. government — as well as a potent symbol of the new Fort Bend, and of Asian-Americans’ growing power in Texas and American politics.

[…]

And still, to most political insiders, George’s election came as a surprise. “He was not someone on our radar,” said Gautam Raghavan, executive director of the Indian-American Impact Fund. “It wasn’t a race we engaged in. In hindsight, that’s a lesson for us: In some of these places with fast-shifting demographics, like the Texas suburbs, there are huge opportunities for us.”

“For Republicans in Fort Bend County, Donald Trump is a real liability,” [Rice poli-sci professor Mark] Jones said. “Socially and fiscally conservative Asian-Americans used to vote for more Republicans. But Trump’s rhetoric and policies are seen as anti-immigrant — anti-Latino, but also anti-Asian.”

“Many Trump administration policies, such as targeting Muslims as terrorists, don’t play well with Asian-Americans…. Indian-Americans may not love Pakistanis, but the same racial discrimination that targets Pakistanis targets them.

“In Fort Bend, there was a double whammy for Republicans. A much larger proportion of Asian-Americans voted for Democrats, and Asian-Americans also turned out at a much higher rate than they had previously.”

Observers have long predicted that Texas’ changing demographics will eventually turn the most Republican of states into one that’s more bipartisan or even reliably Democratic. That’s already true of Texas’ cities. Now the battles have shifted to the suburbs.

Notably, George is a Democrat. “It’s a historic election for Texas,” said Jones — Fort Bend is the first exurb to elect a Democrat to the top of its county government. “It could portend the future for diverse counties such as Denton and Collin.”

I’m honestly surprised that this race wasn’t on the radar of any national organizations like the Indian-American Impact Fund. George was not a novice politician – he’d been twice elected to the Fort Bend ISD board of trustees. Fort Bend had been trending Dem for some time, and fit in every way the profile of the suburban, diverse, won-by-Hillary-in-2016 Congressional districts that were so hotly contested. Outgoing Judge Bob Hebert had served for a long time, but didn’t have the bipartisan cred that Ed Emmitt had, which might have helped him ride out the wave. This race should have been seen as a prime opportunity, and if it wasn’t that was a failure of imagination.

And yes, I believe this is a leading indicator for other suburban counties. Williamson County didn’t elect anyone countywide despite being carried by Beto O’Rourke, MJ Hegar, and Justin Nelson, but it did elect two Democratic State Reps and two JPs, while a Dem County Commissioner candidate fell just short. Dems didn’t carry any race in Denton or Collin, but elected a State Rep in Denton while just missing on two in Collin, and a JP in Denton County. It was a big step forward. There are no guarantees for 2020, of course, but the obstacle of credibility – the belief that it’s really possible a Dem could win – has been cleared. That can only help.

Paxton prosecutors take their shot at a do-over

Good luck.

Best mugshot ever

In a fiery filing that amounts to a legal Hail Mary, the attorneys appointed to prosecute Texas Attorney General Ken Paxton implored the state’s highest criminal court to take the unusual step of considering their case again because last month’s opinion yielded “a patently absurd result.”

The Texas Court of Criminal Appeals ruled in November that a six-figure payment originally approved for the special prosecutors was outside legal limits — a move that boosted Paxton and threatened to derail the case against him, as the prosecutors had indicated they might withdraw if they could not be paid. A month later, the prosecutors have asked the court to reconsider their decision in a crucial case “where the ‘x’ axis of justice and the ‘y’ axis of politics intersect.”

Rehearing, they argued in a filing last week, is critical for ensuring that the high court’s proceedings “appear fair to all who observe them.” [Read the filing here]

[…]

In the Dec. 21 filing, prosecutor Brian Wice wrote that the prosecutors “would never have accepted the formidable task of prosecuting the Texas Attorney General over the last three-plus years had they been able to look into the future and discern that their pay would come within a coat of paint of minimum wage.”

From the opening sentence, the 18-page filing doesn’t mince words.

“If you’re fortunate enough to be Texas Attorney General Ken Paxton, you can lawfully create and endow a defense fund to pay for an armada of top-flight legal talent that most defendants can only dream of to defend yourself against three felony offenses,” Wice wrote.

In the motion for rehearing, which includes references to Atticus Finch, Shakespeare, Gilbert & Sullivan and the impending “Sword of Damocles,” the prosecutors implore the state’s highest criminal court to take the unusual step of considering their case again because last month’s opinion yields “a patently absurd result” that would pay the special prosecutors “unconscionable” rates.

Letting the ruling stand, Wice argued, would allow any local government in Texas “to derail what it sees as an unjust prosecution by de-funding it.” And that type of funding dispute can be influenced by major political players, he suggested.

“Make no mistake,” he wrote. “While it was the Commissioners who prevailed in this Court, Paxton first recognized that the best, indeed, the only way to derail his prosecution was to de-fund it by challenging [prosecutors’] fees three years ago.”

See here and here for the background. I mean, the prosecutors are 100% right on the merits, and they lay it out with utter clarity. I maintain that the Legislature can and should fix this by making the state pick up the tab for prosecutions like this, but that won’t help here, even if we could be sure that a bill to address this would pass. We need the Court to do the right thing, which they failed to do the first time around. It’s either that or they show that they don’t care about the law when one of their own is on the sharp end of it.

Paxton prosecutors want another shot

Good luck.

Best mugshot ever

The attorneys appointed to prosecute Texas Attorney General Ken Paxton indicated in a court filing this week that they aren’t giving up a long-running fight to take the state’s top lawyer to court — at least not yet.

The filing follows a Nov. 21 ruling from the Texas Court of Criminal Appeals that six-figure payments to the special prosecutors were outside legal limits. The prosecutors, who have not been paid since 2016, had in the past suggested that if they did not get paid, they might leave the case, which has dragged on for more than three years.

Brian Wice, one of those prosecutors, on Monday filed a document with the Texas Court of Criminal Appeals seeking more time to ask the court to rehear the case. If the court grants his request, prosecutors would have until Dec. 21 to try and convince the high court to reconsider their case. Wice declined to comment on Tuesday.

On the Wednesday before Thanksgiving, the fractured court handed down a total of six opinions, including three dissents. The all-Republican court will welcome one new member, Michelle Slaughter, in the new year.

See here for the background. I know asking for a re-hearing is a normal thing, though I have no idea how often it works. Maybe with a new judge coming on board there’s a chance of a different outcome, I don’t know. Maybe because the opinions were all over the place the justices themselves might be open to reconsidering. It can’t hurt. I just don’t expect much to change. The DMN has more.

CCA may have killed the Paxton prosecution

Ugh. Just, ugh.

Best mugshot ever

The Texas Court of Criminal Appeals on Wednesday potentially imperiled the long-delayed criminal prosecution of Texas Attorney General Ken Paxton, ruling that payments to special prosecutors were outside legal limits.

If they cannot get paid, the prosecutors have suggested they could withdraw from the case against Paxton, a three-year-long legal saga that has dragged on in fits and starts amid side fights like the dispute over legal fees.

In its opinion Wednesday, the state’s highest criminal court said a lower trial court was wrong last year to approve a six-figure payment to the three special prosecutors handling the Paxton case. The prosecutors’ invoice was rejected by commissioners in Collin County — Paxton’s home county — touching off the legal fight that made its way to the Court of Criminal Appeals.

“Here, the trial court exceeded its authority by issuing an order for payment of frees that is not in accordance with an approved fee schedule containing reasonable fixed rates or minimum and maximum rates,” the opinion said.

The Court of Criminal Appeals invalidated the payment and ordered the lower court to re-issue it in accordance with the fee schedule.

“While we are disappointed with the majority’s ruling and are exploring all legal options available to us, it does not alter the fact that Ken Paxton remains charged with three serious felony offenses,” the prosecutors said in a statement responding to the ruling.

See here, here, and here for the background. I have no idea what happens next. A copy of the opinion is here, and the Observer has some thoughts. Maybe the prosecutors stick it out – maybe now Collin County will agree to pay them something reasonable, now that they can dictate the terms more. Maybe they step down and some other prosecutors step in. Maybe it all goes up in flames. The fact that we’re having this conversation at all is a scandal that needs to be addressed by the Lege. The possibility that Paxton may end up skating because the system as designed was not capable of finding a prosecutor for the charges against him is too gruesome to contemplate, so I’m not going to think about it any more today. Have some turkey or turkey-alternative, watch some football, and quit griping about how it’s Christmas season already. Happy Thanksgiving to you and yours.

An update on the close races

Good news from Harris County.

Gina Calanni

Fresh tallies of absentee and provisional ballots narrowed state Rep. Dwayne Bohac’s margin over Democrat Adam Milasincic to 47 votes, while incumbent Republican Mike Schofield of Katy trailed Democratic challenger Gina Calanni by 113 votes.

Harris County Commissioners Court will make the results official Friday, according to the county clerk’s office. Candidates may request a recount if they trail by less than 10 percent of the total number of votes received by the leading candidate, meaning both races are well within the requisite margin.

As it stood Thursday, Bohac’s lead amounted to less than one tenth of a percent, out of 48,417 votes. Calanni led by a more comfortable .17 percent, among 66,675 votes. Election night returns had showed Bohac leading by 72 votes and Calanni up by 97 votes.

Either way, the results mark a dramatic shift from 2014, when Schofield and Bohac, R-Houston, last faced Democratic foes. That year, the two Republicans won by more than 30 percentage points, each roughly doubling their opponents’ vote totals.

[…]

In the 108th House District, Democrat Joanna Cattanach requested a recount Wednesday, the Dallas Morning News reported. She trailed incumbent state Rep. Morgan Meyer, R-Dallas, by 221 votes, according to Dallas County elections results updated Wednesday.

In Collin County, state Rep. Matt Shaheen, R-Plano, led Democrat Sharon Hirsch by 391 votes in the 66th House District, according to the county’s elections site. Hirsch had not conceded as of Thursday morning.

Cattanach is the first candidate to request a recount, but she won’t be the last. Expect her to have some company after the results around the state are certified Tuesday.

Meanwhile, in CD23:

The political roller coaster in Congressional District 23 continued Thursday when Gina Ortiz Jones’ campaign turned its attention to election officials in Medina County.

Commissioners in Medina declined to certify the county’s results, temporarily raising the possibility of a recount in the Republican stronghold. The commissioners were given two different figures for the number of absentee voters — 1,034 and 1,010.

Jones trails incumbent Republican Will Hurd by around 1,000 votes in the race, which remains too close to call.

There’s no other choice but for this department to have a recount,” Republican Commissioner Tim Neuman said after finding the variation.

But a couple hours later, Medina Elections Administrator Lupe Torres said they were able to identify the discrepancy and would reschedule the canvassing for Monday, a plan Neuman said he agreed with.

[…]

On Thursday, the [Jones] campaign accused Medina County of breaching protocol after counting 981 mail ballots on election night. Early voting ballot boards are the small, bipartisan groups charged with reviewing and qualifying those ballots, along with provisional votes.

At the end of the night, the ballot board usually turns off the machine it used to count the ballots, as is protocol, according to affidavits from the two Democratic-appointed board members, which the campaign provided.

Instead, Torres told them to leave the machine running. Torres told them he needed to run 29 “limited” ballots through the machine, bringing the number to 1,010.

Limited ballots are cast by people who have recently moved from another county but have not switched their registration.

Torres initially denied those claims, but he later said he would “correct himself” and admitted it happened. When asked why about the denials, he said: “That’s what I thought had happened.

I don’t even know what to make of that. Just add it to the weirdness pile for this election. We’ll know more soon.

Projecting Tuesday turnout

Here’s the statewide view.

By the time the polls closed Thursday, 33.7 percent of registered voters in Bexar County had voted, well past the 17.3 percent turnout at the same point in 2014, the last midterm, and close to the presidential-year turnout recorded at the same point in 2012 and 2016.

And Bexar County’s election officials are not alone in having a lot to high-five each other about. Turnout during early voting in the state’s 30 largest counties easily surpassed the entire turnout – during the early voting period and on Election Day – of the 2014 midterm and continues to race toward the turnout seen in presidential election years.

In Harris County, the state’s largest county, 32.3 percent of registered voters had voted by the end of Thursday, compared to 15.5 percent at the same point in 2014. In Dallas County, the number was 35.1 percent, compared to 15.2 percent at the same point in 2014. Early voting turnout in Travis County had already surpassed total early voter turnout in both the 2014 midterm and the 2012 presidential election by the end of Thursday.

“We’ve got a lot of unhappy and activist voters out there who have been wanting to vote for a long time,” said Dana DeBeauvoir, the Travis County clerk. She attributed the bump in the number of voters to President Donald Trump.

She said voter turnout dipped slightly earlier in the week, as is often the case, but that the numbers quickly rebounded toward the end of the week, which she said will help alleviate some traffic on Election Day.

[…]

Brandon Rottinghaus, a political science professor at the University of Houston, said that the “blockbuster” turnout seen during early voting this year sets a new bar for future elections.

“It’s clear that much of the future of Texas will be fought in suburban Texas,” Rottinghaus said.

He said counties like Collin, Denton, Montgomery and Williamson saw a greater number of Democrats turning up to vote than in previous elections. That doesn’t mean that Democrats are going to win those counties, he said, but it does mean that they have become much more competitive.

“On one hand, suburban Texas is now younger and more ethnically diverse, replacing the first generation which is middle age and white” Rottinghaus said. “And Donald Trump and some of the inflammatory rhetoric have really caused a lack of interest among Republican women and college-educated voters in the suburbs.”

Rottinghaus said statewide Hispanic turnout is up slightly from 2014, which he said is “good but not great for Democrats.” While it looked like Democrats were doing better than Republicans in border counties early on in early voting, he said that it now looks like Republican voters are turning up in larger numbers.

“It’s not the groundswell that Democrats had hoped for,” Rottinghaus said.

The same story applies to young voters, Rottinghaus said. Although more young voters turned out in 2018 than in 2014, he said the 2016 presidential year still has both of the midterm years beat.

“This seems to show that younger voters, although inspired by an electric O’Rourke campaign, still need that push of a president at the top of the ticket to turn out,” Rottinghaus said.

I think what we’re going to get is going to be somewhere between 2008/2012 turnout, and 2016 turnout, which is the current high-water mark. The main question here is how many people who are going to vote have already voted. In previous off-year elections, a bit more than half of the vote – around 55% – is cast early. In Presidential years, the share of the early vote is higher, with that number spiking up in 2016. I’ll show the details later, but for now I’ll say this feels more like a Presidential year, but not exactly like one. As such, I think we’ll still see a decent number of voters on Tuesday, but for sure the bulk of the vote has already been cast.

Here are the Friday/final totals, and here are the daily totals from 2010, from 2014, and from 2016, as well as a spreadsheet with totals from 2004, 2008, 2012, and 2016. The running tallies:


Year    Mail    Early    Total
==============================
2010  52,112  392,536  462,527
2014  67,967  307,280  375,247
2018  89,098  766,613  855,711

2008  52,502  678,312  754,499
2012  66,310  700,216  766,526
2016  94,699  882,580  977,279

About where I thought we’d end up, though the potential was there for a bit more. I think the bad weather on Wednesday prevented some people from voting, with some of them shifting to Thursday or Friday and some of them still needing to vote. Here are a range of outcomes for final turnout based on what we’ve seen so far:

855,711 at 65% = 1,316,478
855,711 at 67% = 1,277,180
855,711 at 70% = 1,222,444
855,711 at 73% = 1,172,206
855,711 at 75% = 1,140,980

2008 EV = 63.5%
2012 EV = 63.7%
2016 EV = 73.0%

In other words, in 2008 and 2012 a bit more than 63% of the vote was cast early, while in 2016 that amount was 73 percent. My best guess, based entirely on gut feel, is that we’ll fall in the middle of that this year, which will put us in the 1.2 million range, or about the total for 2008 and 2012. It could still go higher or lower from there, and in the end the range of possibility is about 200K votes. The weather should be good on Tuesday, so at least there won’t be any nature-induced barriers.

One last thing to think about. In 2016, the top Republican votegetter was Tracy Christopher, who was running for the 14th Court of Appeals, with 621,960 votes, followed by Debra Ibarra Mayfield, running for the 165th District Court, with 621,060. The smallest number of votes any Democrat received who was on the ballot for everyone in the county was 610,648 by Grady Yarbrough, running for Railroad Commissioner. Most Republican judicial candidates, including all of the statewide judicials other than Eva Guzman and all of the courts of appeals candidates other than Christopher and Sherry Radack, failed to top Yarbrough’s total. If turnout really is 1.2 million or above, you tell me where the Republicans are going to get the votes to win Harris County.

The meta-campaign for Senate

Let’s talk about what we talk about when we talk about the Senate campaign.

Rep. Beto O’Rourke

It’s the most backhanded of compliments.

U.S. Rep. Beto O’Rourke’s campaign for U.S. Senate has caught so much fire throughout the state that the new favorite betting game in Texas politics is “How close can he get to Ted Cruz in November?”

The implication in the question’s phrasing is that O’Rourke’s loss remains a given.

Despite the high enthusiasm the El Paso congressman’s campaign has drawn among Democrats, Texas has not elected a Democrat statewide in over 20 years. An informal round of interviews with well over a dozen political players involved in Texas and national politics suggests that Cruz is expected to extend that streak with a re-election victory in the high single digits.

While such a margin would amount to significant progress for Democrats from past statewide performances, a loss is a loss, and Cruz’s win would likely ensure GOP control of the U.S. Senate for another two years.

Even so, O’Rourke’s 18-month statewide tour could still help significantly rebuild a flagging state party apparatus. The term being thrown around quietly among Democrats is “losing forward.”

In that sense, the stakes are much higher for both parties than a single race.

How this very strange match up of Cruz, a former GOP presidential runner-up, against O’Rourke, a rank-and-file congressman turned political sensation, shakes out could set the trajectory of the next decade in Texas politics.

[…]

More than one operative from both parties brushed off the O’Rourke excitement with a pervasive phrase — “This is still Texas” — a nod to the state’s recent history as the most populous conservative powerhouse in the union.

The enthusiasm for O’Rourke — his bonanza event attendance and record-breaking fundraising, in particular — is something the state has not seen in modern memory. But there remain open questions over whether the three-term congressman can take a punch when the widely expected fall advertising blitz against him begins, whether he can activate the Hispanic vote and whether he can effectively build his name identification in a such a sprawling and populated state.

“We’ve never been in a situation where November matters at a statewide level,” said Jason Stanford, a former Democratic consultant, about the uncertainty of the fall.

So what would a moral victory be, if O’Rourke is unable to close the deal outright? Operatives from both parties suggest a 5- to 6-point spread — or smaller — could send a shockwave through Texas politics.

Such a margin could compel national Democrats to start making serious investments in the state and force local Republicans to re-examine how their own party practices politics going forward.

But that kind of O’Rourke performance could also bear more immediate consequences, potentially scrambling the outcomes of races for other offices this fall.

Only a handful of statewide surveys on the race are floating around the Texas political ether. But one increasing point of alarm for Republicans is what campaign strategists are seeing when they test down-ballot races.

Often campaigns for the U.S. House or the Texas Legislature will include statewide matchups in polling they conduct within a district. Sources from both parties say some of those polls show Cruz underperforming in some state legislative and congressional races — particularly in urban areas.

In effect, O’Rourke could come up short but turn out enough voters in the right communities to push Democrats over the line in races for the Legislature and U.S. House.

I know I discussed this before back in 2014 when we were all high on Battleground Texas, but let’s do this again. What are the consolation prize goals for Texas Democrats in 2018?

– To discuss the consolation prizes, we have to first agree on what the main goals are. Clearly, electing Beto O’Rourke is one of the brass rings, but what about the other statewide campaigns? My guess is that based primarily on visibility and the implications for control of the Senate, the O’Rourke-Cruz race is in a class by itself, so everything after that falls in the “consolation prize” bucket. Thus, I’d posit that winning one or more downballot statewide race would be in the first level of lower-tier goals, with Lt. Governor, Attorney General, Ag Commissioner, and any Supreme Court/CCA bench being the ones that are most in focus.

– Very close behind would be the Congressional races, for which three (CDs 07, 23, and 32) are rated as tossups, a couple more (CDs 21 and 31) are on the radar, and more than we can count are on the fringes. You have to feel like CD23 is winnable in any decent year, so for this to count as a prize we’d need at least one more seat in addition to flip. Very good would be all three tossups, and great would be another seat in addition.

– In the Lege, picking up even one Senate seat would be nice, but picking up two or three means Dems have enough members to block things via the three-fifths (formerly two-thirds) rule. I don’t know how many House seats I’d consider prize-level-worthy, but knocking off a couple of the worst offenders that are in winnable seats, like Matt Rinaldi in HD115, Gary Elkins in HD135, and Tony Dale in HD136, would be sweet.

– Sweeping Harris County, breaking through in Fort Bend County, picking up any kind of victory in places like Collin, Denton, Williamson, Brazoria, you get the idea. And don’t forget the appellate courts, which will require doing well in non-urban counties.

It’s easy enough to say what counts as lower-level goals, it’s harder to put numbers on it. It’s not my place to say what we “should” win in order to feel good about it. Frankly, given recent off-year elections, it’s a bit presumptuous to say that any number of victories in places we haven’t won this decade might be somehow inadequate. I think everyone will have their own perception of how it went once the election is over, and unless there’s a clear rout one way or the other there will be some level of disagreement over how successful Democrats were.

Don’t expect a Ken Paxton trial to happen this year

Delays, delays, nothing but delays.

Best mugshot ever

Texas Attorney General Ken Paxton was indicted for fraud nearly three years ago but is unlikely to go on trial before Election Day.

Paxton’s trials are on hold while the Texas Court of Criminal Appeals decides whether the prosecutors on the case are being overpaid. The court went on summer recess Wednesday, and won’t hear any cases or issue any major opinions before the fall.

This means they won’t announce a decision in the pay case until September, at the earliest, which experts said will delay Paxton’s trial dates until after the Nov. 6 election — and probably into next year.

“I just don’t see there’s any way it gets tried before the election,” said Rusty Hardin, a Houston attorney who has represented everyone from Enron employees to athletes and TV stars. “I would have doubted that the trial would have happened before the election even if the Court of Criminal Appeals would have decided today.”

There’s more, so read the rest. Just for a sense of the timeline here, the 5th Court of Appeals in Dallas halted the special prosecutors’ pay last February, then ruled they had to give a bunch of it back to Collin County in August. The CCA then stayed that ruling pending any action it would take in September, and after giving everyone 30 days to respond to the prosecutors’ appeal of the 5th Court’s ruling, they agreed in December to formally review that ruling. At that time, it delayed the actual Paxton trial, which was originally set to start on December 11, to this year. More than six months later, the CCA has not scheduled oral arguments for that appeal, and so here we are. There are other factors at play here – the damage done to the Harris County courthouse by Harvey greatly complicates things, for example – but either until this lawsuit gets resolved, nothing else will happen. And just any ruling won’t get us back on track, because if the CCA lets the 5th Court’s ruling stand, the special prosecutors will resign, and we’ll have to start more or less from scratch. Ken Paxton could well be collecting his state pension by the time this sucker gets to a courthouse.

You’ve heard the expression that “justice delayed is justice denied”. Usually, that applies to the defendant, who is entitled by the Constitution to a fair and prompt trial. In this case, as Democratic nominee for AG Justin Nelson says in a statement, Ken Paxton is benefiting from the unending delays, with the assistance of his legislative cronies. You’d think a guy who loudly proclaims his innocence would want to get this over with, but not Ken Paxton. It would seem he’s just fine with putting this off, at least until after the election. Feel free to speculate as to why that might be.

Self-driving car service coming to North Texas

Coming to the city of Frisco in July, a public-private venture pairing up with a California-based outfit called Drive.ai, for something that’s a little like shuttle service and a little like mass transit on a small scale.

The initial service will be available to transport the 10,000 employees working at offices at Hall Park to retail and dining options nearby at The Star in Frisco, where the Dallas Cowboys are headquartered. For many, the distance (just shy of a mile) is too far to walk but too short to warrant a trip by car.

People will be able to request a ride through a smartphone app. The service will be free during a six-month test run. Negotiations are already under way to bring a more permanent service to Frisco after that.

[…]

Safety is a priority, Andrew Ng of Drive.ai said at the Frisco event. And that’s why working with local authorities is so important. The company will be able to coordinate with first responders, help with public awareness campaigns and offer routes that add value. Local officials will also coordinate with the company when there are special events or road closures that affect traffic flow.

“Together we can make this thing as safe as possible,” Ng said.

Artificial intelligence is great at maneuvering fixed routes but has difficulty recognizing hand signals from a construction worker directing traffic, Ng explained. That’s where local leaders can step in and help.

He asks people to be aware of the bright orange self-driving vehicles, be lawful and be considerate around them — just like drivers are when they see school buses on the road. The vehicles also have four external screens to communicate with pedestrians and other drivers on the road.

Initial trips will have a human available in the driver’s seat of the orange vehicles to take over at a moment’s notice. The next stage puts the person in the passenger seat as a chaperone to answer passenger questions. The final stage lets the self-driving cars go solo with a remote operator available if needed.

Drive.ai is shouldering all of the costs involved in the pilot project. A dollar amount is not being disclosed.

“We’re invested in the region,” said Conway Chen, vice president of business strategy for Drive.ai. “We see this as a great test ground for other cities.”

James Cline, president of the Denton County Transportation Authority, said he believes self-driving vehicles have a place in public transportation and mobility. Whether that role is transporting people on that last mile from a bus stop to their house or replacing buses entirely remains to be seen.

“The challenge is going to be getting people to accept it,” he said.

This Fortune story has a bit more about Drive.ai, which I’d never heard of before now, as well as a map of the rute this car will follow. It’s not to scale, but given the description in the story my guess is that if it were more pedestrian-friendly, maybe more people would walk instead of needing a ride. Or maybe I’m just projecting. If the idea here is to make transit more feasible in these non-pedestrian-friendly places by solving the last-mile problem, that seems like a good thing. If not, we’ll just have to see. For this arrangement, Drive.ai – more likely, the venture capitalists funding Drive.ai – are paying for everything. How this might work in the real world is another question I’d like to examine. We’ll check back later in the year. The Trib and Texas Monthly have more.

No Paxton trial till prosecutor pay case resolved

It’s not on the court calendar at this time.

Best mugshot ever

Attorney General Ken Paxton’s fraud trials have been put on hold as the lawyers pursuing the criminal charges against him fight for years of back pay.

Judge Robert Johnson has taken Paxton’s three criminal cases off his docket for now, the court confirmed to The Dallas Morning News on Friday. While court staff did not have a reason for the removal, the three attorneys prosecuting Paxton have repeatedly asked for the cases to be halted while they fight to have their pay resumed.

The delay will almost certainly push Paxton’s trials into general election season, when he will be seeking another term as the state’s top lawyer. In July, Paxton’s indictments will turn three years old.

[…]

“The (Paxton) case is kind of waiting to go to trial based on [the CCA’s] decision,” said Larry Meyers, a Democrat who lost his seat on the criminal court last year. “About six weeks would probably be a fairly responsible time for them to get an opinion out.”

The Court of Criminal Appeals won’t take up the prosecutors’ case until January 10, so a decision could be issued just before voters go to the polls in the March 6 primary elections. If the court sides with the prosecutors, jury selection in Houston will likely proceed without much further delay. If it doesn’t, the prosecutors have threatened to step down, a move which will temporarily derail the case against Paxton as the county looks for replacement lawyers.

See here for the background. If the CCA rules for the prosecutors, figure on the trial beginning in late spring or early summer. If not, figure on something like the third of never. Let’s hope for the best.

CCA to review Paxton prosecutors pay case

Good.

Best mugshot ever

The state’s highest criminal court agreed Wednesday to take a closer look at prosecutors’ long-running fight to get paid for their handling of the securities fraud case against Texas Attorney General Ken Paxton.

The move by the state’s Court of Criminal Appeals could have a major impact on the separate case against Paxton. The prosecutors have suggested they will bail if they cannot get paid, likely imperiling the more than two-year case against the state’s top lawyer.

“We are gratified but not surprised by the Court of Criminal Appeals’ decision to formally hear this landmark proceeding, one that impacts trial judges, prosecutors, and defense attorneys across Texas,” the prosecutors said in a statement Wednesday.

Prosecutors asked the Court of Criminal Appeals in September to reverse a ruling from a lower court that voided a six-figure invoice for work that goes back to January 2016. The prosecutors said the decision by the Dallas-based 5th Court of Appeals — spurred by a legal challenge to the invoice by Collin County commissioners — was a “clear abuse of discretion.”

Days after the prosecutors appealed to the Court of Criminal Appeals in September, it put the lower-court ruling on hold. But the court waited until Wednesday — nearly two months later — to announce its decision to review the ruling.

See here and here for the background. All of this jousting over paying for the prosecutors has pushed the trial back into 2018, with the next court date awaiting the disposal of this case. You know how I feel about this, so let’s hope for once that the CCA’s infamous pro-prosecutor tendencies will be a force for good for once. The Chron has more.

TCDLA pulls Paxton prosecutors brief

Get your act together, y’all.

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A leading organization of criminal defense lawyers on Tuesday withdrew its legal brief in support of prosecutors who are fighting to get paid for work on the criminal case against Texas Attorney General Ken Paxton.

The friend-of-the-court brief, which argued that the payment fight could endanger the system for ensuring that indigent defendants are properly represented at trial, was withdrawn because it did not follow proper procedures by the Texas Criminal Defense Lawyers Association, the organization said.

David Moore, president of the association, said the brief to the Court of Criminal Appeals was pulled because it had not been approved by the group’s executive committee, which unanimously voted Monday to withdraw the document.

That committee will now examine the issue to determine if the brief should be approved or if the matter should be decided by the full board of directors, said Moore, a lawyer in Longview.

“I fear,” said Brian Wice, one of the prosecutors, “there may be other issues in play driving its decision to withdraw its brief other than a purported ‘failure to follow proper procedures and policies.’”

“The larger question is why Mr. Paxton’s defense team does not want the Court of Criminal Appeals to consider” the brief, Wice said, adding that it raised compelling points about the payment fight’s impact on public policy and proper legal representation for indigent defendants.

Dan Cogdell, one of Paxton’s defense lawyers, said he expected further action to be taken against “the parties responsible for its filing.”

“I will not have any further comment on the matter now except to express my grave disappointment in the impropriety of the filing of such a pleading in a case of this magnitude and am gratified that the proper steps to correct the situation have begun,” Cogdell said.

Austin lawyer David Schulman, one of the brief’s authors, said he and others involved believed they had followed the organization’s bylaws, but he declined to discuss specifics.

“This wasn’t any kind of guerrilla action. We thought we were authorized, but we were wrong,” he said.

See here for the background. It’s clear that the arguments made in the TCDLA brief would be good for the defense bar as a whole, but not good for Team Paxton, as they would greatly benefit from having the courts screw the special prosecutors in their case. As Mr. Spock famously said, the needs of the few outweigh the needs of the many. I hope there are enough people with a larger view of things at the TCDLA who can override these objections.

In support of the Paxton prosecutors

Good to see.

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In an unusual step, six prosecutors and Texas’ criminal defense attorneys association have joined a continuing legal storm over how much the special prosecutors overseeing the criminal case against Attorney General Ken Paxton should get paid.

Preventing the three special prosecutors in Paxton’s case from getting paid would thwart justice, according to Bexar County District Attorney Nicholas “Nico” LaHood, Travis County District Attorney Margaret Moore, Fort Bend County District Attorney John Healey Jr., Travis County Attorney David Escamilla, former State Prosecuting Attorney Lisa McMinn and Enrico Valdez, a Bexar County assistant district attorney. The group intervened late Friday with the state Court of Criminal Appeals.

[…]

In a separate filing with the appeals court, the Texas Criminal Defense Lawyers Association argues much the same thing, saying that courts have previously ruled that proper compensation for appointed prosecutors is necessary and that the Collin County Commissioner’s Court should honor the payments to the three special prosecutors in the Paxton case.

“We’re gratified that prosecutors and defense attorneys with almost 200 years of collective experience agree how very important this case is, and that we’re entitled to the relief we seek in the Court of Criminal Appeals,” Houston attorney Brian Wice, one of the special prosecutors in the case, said in a statement Sunday.

See here and here for the background. A copy of the prosecutors’ brief is here, and the TCDLA brief is here. Friday was the deadline for all to submit documents in support of or opposition to the Fifth Court’s ruling. The Statesman adds details.

The Texas Criminal Defense Lawyers Association, in a brief filed recently with the Court of Criminal Appeals, argued that unless the ruling is reversed, it will place strict limits on legal fees, “effectively preventing the judiciary from being able to appoint qualified lawyers in difficult cases.”

“All of the gains made and all of the advances and improvements accomplished in indigent defense in Texas over the last 20 years will fall to the wayside,” the association argued. “Texas will return to the days of sleeping lawyers and otherwise unemployed insurance lawyers taking court appointments in criminal cases.”

A second brief by six current or former prosecutors — including Travis County District Attorney Margaret Moore and County Attorney David Escamilla — also urged the appeals court ruling to be overturned, arguing that it undermines the pursuit of justice in cases, like Paxton’s, where outside prosecutors are appointed after a local district attorney steps aside for a conflict of interest or similar reason.

Judges must have the discretion to set higher fees for unusual or difficult cases, they told the court.

“After all, it is often the unusual cases that require the most skilled and qualified attorneys, and these are the very attorneys who are most likely to decline the representation without adequate compensation,” said the prosecutors, who included former State Prosecuting Attorney Lisa McMinn and Fort Bend County District Attorney John Healey Jr., a Republican.

[…]

“Without the ability to pay a reasonable market rate in these rare circumstances, courts are effectively without power to fulfill their constitutional obligation,” the defense lawyers group told the Court of Criminal Appeals.

According to the brief from the Travis County prosecutors and others, the lower-court ruling also undermines the ability of court-appointed prosecutors to do a complicated and taxing job that often includes seeking warrants, handling grand juries, responding to defense motions, interviewing witnesses, reviewing evidence and preparing for trial.

In addition to discouraging qualified lawyers from serving as prosecutors, the prosecutors’ brief complained that the ruling allows politics to invade criminal justice decisions — such as in Collin County, where commissioners have voiced support for Paxton while seeking to limit payments to those prosecuting him.

“It creates a situation where the local county commissioners can effectively stop a criminal prosecution,” the brief said.

I’ve been saying a lot of these things myself, so I’m glad someone with actual legal credentials is making those arguments formally. Galveston Count and the County Judges and Commissioners Association of Texas filed briefs in support of Collin County, since all they really care about is the financial impact. I’ll say again, the state could solve this very easily by picking up the tab in these cases. It’s a small amount of money in that context, and it would avoid all these problems. Someone needs to file a bill to this effect in 2019.

More on the Paxton bribery investigation

It’s good to have rich friends.

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Attorney General Ken Paxton says the man who shelled out the most money to help him combat securities fraud charges is a “family friend,” but a review of campaign finance records show his main financier is also a major Republican donor for candidates up and down the ticket.

In a little more than a decade, Preferred Imaging CEO James Webb has given nearly $1 million to Republican candidates, including a $100,000 gift to Paxton to help fund his legal defense fund. The year after he gave his gift, the attorney general’s office agreed to a $3.5 million settlement after investigating his company for Medicare fraud.

Now Webb and his gift are at the center of the latest investigation into Paxton’s personal dealings, sparking a probe by the Kaufman County district attorney, confirmed an investigator at the agency.

Mike Holley, who is handling the case, said the DA will announce in the coming weeks whether the office will bring charges that Paxton violated the state’s bribery and corrupt influence laws by taking money from someone whose company was under investigation.

[…]

Webb, of Frisco, is a former law client of Paxton’s, according to Welch. Paxton participated at Webb’s wedding, he added, but declined to provide further details or pictures.

Webb has been a regular campaign contributor of Paxton’s for years. He gave him his first political donation in 2013 when the Republican from McKinney was running for attorney general, according to campaign finance records. He has contributed heavily to other Republican candidates’ political campaigns since then.

In total, he has given $896,800 to Republican candidates’ political coffers since 2006, according to a review of campaign finance records. Webb ponied up the most – $496,000 – for the 2014 election when voters swept Republican Gov. Greg Abbott, Lt. Gov. Dan Patrick and Paxton into office.

The wealthy CEO has helped fuel all their campaigns, but gave the most to Paxton. Webb contributed $300,000 when Paxton was running for attorney general although he also give tens of thousands of dollars to Dallas area state representatives and hopefuls that election cycle.

[…]

The investigation is focused on whether Paxton violated the state’s bribery and corrupt influence penal code, said Holley, an investigator in the Kaufman County district attorney’s office handling the case. However, the investigation could turn up wrongdoing by other actors, he said.

Kaufman County District Attorney Erleigh Norville Wiley is expected to announce this fall whether the investigation has warranted new charges, she said.

See here for the background. Again, I don’t really expect anything to come out of the Kaufman County investigation, but if something does, that would be amazing. For one thing, it might be difficult to fit this story into the “Paxton haters are out to get me!” narrative he’s been spinning, but I’m sure his attorneys are up to the task. Of course, those attorneys will still have to be paid, and he’ll have one fewer sugar daddies to tap for that. Life is hard, you know? But we’re getting ahead of ourselves. Keep some popcorn handy as we wait to see how this plays out.

Paxton trial delayed again

This will happen some day. I hope.

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Attorney General Ken Paxton’s trial has been put off for a third time.

The judge in the securities fraud case against Paxton sided Wednesday with prosecutors who had been pushing for another trial delay because of a long-running dispute over their fees. The decision by Harris County District Court Judge Robert Johnson scrapped Paxton’s current Dec. 11 trial date and left the new one to be determined, possibly at a Nov. 2 conference.

Paxton had been set to go to trial on Dec. 11 on the least serious of three charges he faces. The date for that trial had already been pushed back twice because of pretrial disputes, first over the venue and then the judge.

[…]

In a feisty hourlong hearing Wednesday, the prosecutors and Paxton’s lawyers sparred over a familiar subject: whether they should hold off on a trial until the prosecutors could collect a paycheck — an issue currently tied up in a separate legal battle. Earlier this year, when the case was before a different judge, he denied the prosecutors’ first request to delay the trial until they could get paid.

Johnson had a different take Wednesday, granting the prosecutors’ latest motion for continuance. He asked both sides to come up with a new trial date, preferably in late February or early March. After some back and forth — a Paxton lawyer proposed a new trial date on March 6 — they all agreed to continue the discussion at the Nov. 2 pretrial conference.

The prosecutors had been seeking to put off the trial until the state’s highest criminal court, the Texas Court of Criminal Appeals, could sort out the payment issue. Last week, the Court of Criminal Appeals stepped into the dispute over the prosecutors’ pay, issuing a stay of a lower-court ruling last month that invalidated a six-figure paycheck for them. In its decision, the Court of Criminal Appeals gave all sides 30 days to respond to the prosecutors’ contention that the lower court, the Dallas-based 5th Court of Appeals, overstepped its authority when it voided the payment.

If the Court of Criminal Appeals ultimately rules against the prosecutors — effectively leaving them without pay for the foreseeable future — they will move to withdraw from the case, Wice said.

Paxton’s team had none of it. His lawyers contended the prosecutors were seeking to undermine Paxton’s right to a speedy trial and repeatedly pointed to the prosecutors’ previous failures to get the trial delayed due to the payment issue.

“It’s time,” Paxton lawyer Dan Cogdell said. “It’s time to try the case.”

See here for some background. The first I’d heard of this motion was Tuesday when the Trib and the Chron reported on it. You know where I stand on this, and while I agree with Team Paxton that I’d like to get on with this already, I would note that it is well within their power to ask Paxton’s buddies Jeff Blackard and the Collin County Commissioners Court to drop their vendetta against the prosecutors, since that is the main stumbling block at this time. I really don’t see how anyone can object to them wanting to get paid what they were told they would be paid, nor can I see how anyone would expect them to work for free. The solution is simple if they want it to happen. Until then, we await the November 2 hearing at which everyone argues over a new court date.

CCA stays Paxton prosecutor pay ruling

A bit of sanity at last, though we’re not out of the woods yet.

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Texas’ highest criminal court has stepped into the long-running dispute over the prosecutors’ pay in the securities fraud case against Attorney General Ken Paxton, putting on hold a lower-court ruling that voided a six-figure invoice.

In a decision Monday, the Court of Criminal Appeals issued a stay of an Aug. 21 ruling by the Dallas-based 5th Court of Appeals that had invalidated the $205,000 payment, which covered work going back to January 2016. Last week, the prosecutors asked the Court of Criminal Appeals to reverse that ruling, calling it a “clear abuse of discretion.”

In its order Monday, the Court of Criminal Appeals gave all sides 30 days to respond to the prosecutors’ arguments.

[…]

“We’re extremely gratified that, after a thoughtful and careful review of our writ, at least five judges on the Court of Criminal Appeals recognized that we were entitled to a stay of the Fifth Court of Appeals’ order,” prosecutor Brian Wice said in a statement. “We’re cautiously optimistic that the Court will ultimately conclude that the Fifth Court’s unwarranted decision to scuttle the fee schedules of over two-thirds of all Texas counties was a clear abuse of discretion.”

See here, here, and here for the background. This isn’t a ruling in the case, just basically a stay on the 5th Court order pending oral arguments. The CCA could still uphold the lower court’s ruling, which would be bad. But at least there’s now a chance we could affirm the principle that private citizens should not be able to derail prosecutions. The Chron and the DMN have more.

Paxton prosecutors officially petition the CCA over their pay

Last chance.

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The special prosecutors in the securities fraud case against Attorney General Ken Paxton are asking the state’s highest criminal court to help them get paid.

On Tuesday, the prosecutors asked the Court of Criminal Appeals to reverse a ruling from a lower court last month that voided a six-figure invoice for work that goes back to January 2016. The prosecutors said the decision by the Dallas-based 5th Court of Appeals was a “clear abuse of discretion.”

The ruling “will have a chilling effect on the ability of trial judges to appoint qualified lawyers — defense attorneys and special prosecutors alike — willing to take on the most complicated and serious cases,” the prosecutors wrote.

The Court of Criminal Appeals must now decide whether it will hear the prosecutors’ case. Prosecutor Brian Wice asked for oral arguments.

It is a high-stakes moment for the trio of Paxton prosecutors, made up of Houston attorneys Nicole DeBorde, Kent Schaffer and Wice. If the Court of Criminal Appeals turns them down, they will likely have to make a decision about whether to continue working for free.

See here, here, and here for the background. You know where I stand on this. It’s a travesty this has even gotten this far. If the CCA doesn’t put an end to this nonsense, it’s a get out of jail free card for Paxton. Winning in court is one thing, winning by forfeit is another altogether. Don’t screw this up, CCA. The DMN has more.

Collin County wants its pay back

Of course they do.

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Collin County is about to start another fight over the prosecution of indicted Texas Attorney General Ken Paxton.

Since 2015, the county has been billed more than half a million dollars to prosecute Paxton, who faces securities fraud charges. But fresh off a court win that voided half of those costs, county commissioners now want the rest of their money back.

On Monday, the commissioners voted unanimously to sue for the more than $205,000 they paid the special prosecutors in January 2016. They argue that since a Dallas court struck down the prosecutors’ hourly fees — ruling they broke local and federal rules — the county should be reimbursed for all that it’s spent on the case.

See here and here for the background. What Collin County is doing is unprecedented, but that doesn’t mean they won’t get what they want. I have hope that the CCA will reverse this ridiculous ruling, but I can’t say I have faith. What I want to know is this: What happens if at some point the prosecutors say “screw this, I’m going to back to my real job”? In particular, what happens if they say this before the Paxton trial begins? I’m hard-pressed to imagine a scenario more ridiculous than Ken Paxton winning his trial by forfeit, but it could happen. What is the fallback position here, and has anyone other than me considered it?

By the way, let me also note that this is a rather extreme example of why local elections matter. Having a Democrat on Collin County Commissioners Court would not have changed the course of their actions, but it at least would have provided a voice of opposition. I don’t know what the electoral map looks like from this perspective – I may try to check it out if I can – but getting a foothold in red counties like this has got to be a priority.

Paxton prosecutors to petition CCA

Last chance to get paid.

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The state’s highest criminal court will get a chance to decide whether the special prosecutors appointed in the criminal cases against Texas Attorney General Ken Paxton can be paid the $300-an-hour rate they were promised.

Kent A. Schaffer, one of the three special prosecutors in Texas v. Paxton, said the trio will file for a writ of mandamus with the Court of Criminal Appeals to vacate the Fifth Court of Appeals decision Monday to void the judge’s order authorizing an approximately $205,000 payment.

“It’s not over yet,” said Schaffer, a partner in Bires Schaffer & DeBorde in Houston.

[…]

Collin County paid the first order issued by Judge George Gallagher of Tarrant County to pay the special prosecutors $254,908 for pretrial work, but county commissioners balked at making the second payment ordered by Gallagher in January. Instead, the commissioners filed for a writ of mandamus to compel the trial court to vacate its order requiring payment.

According to the Fifth Court’s opinion in In Re Collin County, Texas, Commissioners, Rule 4.01B adopted by Collin County’s judges authorizes payments of pro tem attorneys to deviate from the schedule adopted by the judges. The three-judge panel of the Fifth Court, which heard the commissioners’ petition for a writ, noted in its opinion that Rule 4.01B appears to thwart the objective of Texas Code of Criminal Procedure Article 26.05, which requires district judges to adopt a schedule of reasonable fees for appointed attorneys.

See here for the background. After all this time, I confess I’m a little unclear on what happens if the special prosecutors lose. Does this mean they will then have been paid all they’re ever going to be paid, or does it mean their pay will be recalculated and readministered based on a much lower hourly rate? In either case, this is ridiculous and will indeed make it impossible to find qualified special prosecutors in future situations. You know my answer to this – the state should pick up the tab when a state official is involved. That ain’t happening any time soon, so let’s hope the CCA makes it all go away, at least for now.

5th Court of Appeals screws Paxton prosecutors

Ugh.

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The prosecutors pursuing charges against Attorney General Ken Paxton haven’t been paid in more than a year and a half — and they will continue to wait on a payday.

On Monday, the 5th Court of Appeals in Dallas voided a $205,000 invoice dating back to January 2016, saying state laws and local rules did not allow the three special prosecutors to be paid the $300-an-hour rate they were promised.

[…]

[David Feldman, attorney for the special prosecutors,] argued state law and local rules gave Collin County district judges, who decide how much to pay special prosecutors, discretion to stray from fee rules in unusual circumstances. He called it “honorable” that his clients continued to prosecute the case when they hadn’t been paid in 19 months.

But the Dallas court on Monday sided with the commissioners, saying Texas law requires counties to “set both minimum and maximum hourly rates” in these cases. By adopting local rules that allowed them to exceed their own maximum fees, the court said “the judges exceeded their authority.

“The statute does not prevent the judges from taking into consideration the possibility of ‘unusual circumstances’ in setting the range of reasonable fees allowed,” Justice Molly Francis wrote for the court. “But the legislature intended each county to have an agreed framework that sets out the specific range of reasonable fees that could be paid.”

See here and here for some background. I will say again, this basically amounts to a get-out-of-jail-free card for state officials who are accused of crimes in their home counties. The state should be responsible for the cost of such prosecutions, wherever they occur, and they should cover the going pay rate for attorneys who are qualified to handle a high-profile case. It’s the only way to avoid these shenanigans.

The rural/suburban tradeoff

Martin Longman returns to a point he has been making about the way the vote shifted in the 2016 election.

Let’s try to be clear about what we mean. Hillary Clinton won a lot of votes in the suburbs from people who had voted for John McCain and Mitt Romney. She lost even more votes from folks in small towns and rural areas who had voted for Barack Obama.

So, if I understand what Jeet Heer and David Atkins are saying, it’s basically that the Democrats can’t make much more progress in the suburbs than they’ve already made and that the easier task is to win back Democrats that they’ve recently lost. Either that, or they’re just wrong about how likely Romney Republicans are/were to defect.

I don’t have a strong opinion on which would be the easier task. But I do know that so far this trade has not favored the Democrats. The left’s votes are already too concentrated and I can make this point clear fairly easily.

When suburban Chester County was voting 50-50 in the presidential elections of 2008 and 2012, it was possible for the Democrats to also win down ballot seats. And the Democrats have succeeded in electing representatives from Chester County to the state legislature. Gaining 25,000 votes at the top of the ticket helps, but the area is still competitive. But in many other counties in Pennsylvania, the Democrats went from winning 50 percent or 40 percent to winning only 30 percent or 20 percent. The result is that many more legislative seats became so lopsidedly red that downticket Democrats no longer have a fighting chance.

In this sense, not all votes are equal. It’s more valuable for the Democrats to add a voter in a rural area than one in a competitive suburb, and rural votes are definitely of more use than added votes in seats where Democrats are already winning by comfortable margins.

Longman confines his analysis to Pennsylvania, which is obviously a critical state in Presidential elections as well as one that has been greatly affected by strongly partisan gerrymanders. Be that as it may, I wanted to look at how this perspective applies to Texas. It’s been my perception that Texas’ rural legislative districts, which had already been strongly Republican at the federal level but which still elected Democrats to the State House, had become more and more hostile to Democrats since the 2010 election, when nearly all of those Democratic legislators from rural districts were wiped out. If that’s the case, then the increased redness of these districts, while problematic as a whole for statewide purposes, doesn’t change anything in terms of legislative opportunities. On the other hand, if the suburbs are becoming less red, that would open up new possibilities, both now and in the future as this is where much of the population growth is.

That’s my hypothesis, anyway. To check it, I took the electoral breakdown of the State House districts for the 2012 and 2016 elections from the Legislative Council, and put the results from the Presidential election into a new sheet. I also added the results from the Keasler/Burns (2016) and Keller/Hampton (2012) Court of Criminal Appeals races in there, to act as a more neutral comparison. I then sorted the spreadsheet by the Romney percentage for each district, in descending order, and grouped them by ranges. I calculated the change in R and D vote from 2012 to 2016 for each district in both the Presidential and CCA races, then summed them up for each of the ranges I defined. That’s a lot of words, so let’s see what this looks like, and I’ll explain it again from there:


Romney 70%+ (42 districts)

Trump     + 143,209    CCA R   + 267,069
Clinton   +  36,695    CCA D   -   8,330


Romney 60-70% (31 districts)

Trump     +  15,054    CCA R   + 135,280
Clinton   + 164,820    CCA D   + 116,534


Romney 50-60% (23 districts)

Trump     -  32,999    CCA R   +  69,230
Clinton   + 148,633    CCA D   + 101,215


Romney 40-50% (9 districts)

Trump     +   3,081    CCA R   +  16,418
Clinton   +  45,233    CCA D   +  39,721


Romney 30-40% (20 districts)

Trump     -   9,360    CCA R   +  17,429
Clinton   +  84,385    CCA D   +  69,785


Romney < 30% (25 districts)

Trump     -   3,485    CCA R   +  23,031
Clinton   +  90,251    CCA D   +  76,447

Let’s start at the top. There were 42 district in which Mitt Romney collected at least 70% of the vote in 2012. In those 42 districts, Donald Trump got 143,209 more votes than Romney did, while Hillary Clinton gained 36,695 more votes than Barack Obama. In the CCA races, Republicans gained 267,069 votes while Democrats lost 8,330 votes. Which tells us two things: The pro-Republican shift in these already very strong R districts was pronounced, but even here there were some people that refused to vote for Trump.

Now that doesn’t address the urban/suburban/rural divide. You get into some rhetorical issues here, because West Texas includes some decent-sized metro areas (Lubbock, Midland, Abilene, etc), but is still more rural in character than anything else, and some primarily suburban counties like Montgomery and Williamson include sizable tracts of farmland. Keeping that in mind, of the 42 counties in this group, I’d classify nine as urban/suburban, and the other 33 as rural. To be specific:


Dist  County      Romney   Trump   Obama  Clinton     Diff
==========================================================
015   Montgomery  57,601  56,038  16,348   24,253 D +9,468
016   Montgomery  45,347  52,784  10,229   12,666 R +5,000
020   Williamson  49,271  56,644  17,913   20,808 R +4,478
024   Galveston   49,564  51,967  16,936   20,895 D +1,556
033   Collin      51,437  56,093  18,860   27,128 D +3,612
063   Denton      50,485  53,127  18,471   24,600 D +3,487
098   Tarrant     58,406  57,917  18,355   25,246 D +7,390
128   Harris      40,567  40,656  14,907   17,165 D +2,347
130   Harris      53,020  55,187  15,928   22,668 D +4,583

These are urban/suburban districts among those were 70% or more for Mitt Romney. Hillary Clinton gained votes everywhere except in the two, with the two exceptions being the most rural among them; HD16 is the northernmost part of Montgomery County, including Conroe, while HD20 has most of its population in Georgetown and includes Burnet and Milam Counties as well. In the other 33 districts, all of which I’d classify as rural, Clinton did worse than Obama in all but three of them, CDs 82 (Midland County, Tom Craddick’s district, where she had a net gain of 16 – yes, 16 – votes), 81 (Ector County, which is Odessa and Brooks Landgraf’s district, net gain of 590 votes), and 06 (Smith County, home of Tyler and Matt Schaefer, net gain of 871).

I’ve thrown a lot of numbers at you here, so let me sum up: Hillary Clinton absolutely got blitzed in rural Texas, with the gap between her and Donald Trump increasing by well over 100,000 votes compared to the Obama/Romney difference. However, all of this was concentrated in legislative districts that were far and away he least competitive for Democrats to begin with. The net loss of potentially competitive legislative races in these parts of the state is exactly zero.

Everywhere else, Clinton gained on Obama. More to the point, everywhere else except the 60-70% Romney districts, downballot Democrats gained. Even in that group, there were big steps forward, with HDs 66 and 67 (both in Collin County, both held by Freedom Caucus types) going from over 60% for Romney to under 50% for Trump, while HD26 in Fort Bend went from nearly 63% for Romney to barely 50% for Trump. They’re still a challenge at lower levels, but they’re under 60% red and they’re the swing districts of the immediate future.

Now I want to be clear that losing the rural areas like this does have a cost for Democrats. The reason Dems came as close as they did to a majority in 2008 is because they held about a dozen seats in rural areas, all holdovers from the old days when nearly everyone was a Democrat. Those seats went away in 2010, and with the exception of the one that was centered on Waco, none of them are remotely competitive going forward. The end result of this is that the most optimistic scenario I can paint barely puts the Dems above 70 members, not enough for a majority. To have a real shot at getting a majority sometime in the next decade or two, Dems are going to have to figure out how to compete in smaller metro areas – Lubbock, Abilene, Tyler, Odessa, Midland, San Angelo, Amarillo, Wichita Falls, etc etc etc – all of which are a little bit urban and a little bit more rural. Some of these places have growing Latino populations, some of them are experiencing the same kinds of problems that the larger urban areas are facing. Becoming competitive in the suburbs is great, but there’s still a lot more to this very large state of ours.

Anyway. I can’t speak for places like Pennsylvania and Ohio, but in Texas I’d call the rural/suburban tradeoff we saw in 2016 to be a positive step. There are plenty more steps to take, but this was a good one to begin with.

Paxton’s trial date set

Mark your calendars.

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Texas Attorney General Ken Paxton will face trial in December for the first of three criminal charges, a Houston judge ruled Thursday.

Jury selection will begin Dec. 1 and testimony will start on Dec. 11 for the single count of failing to register as an investment adviser with the state.

Paxton, who was indicted in 2015, also faces two first-degree felony charges of securities fraud.

The hearing Thursday was the second in the case for state District Judge Robert Johnson of the 177th Criminal Court, a freshman jurist assigned to oversee Paxton’s case after it was moved from the attorney general’s home of Collin County.

Paxton’s trial was originally scheduled for May, then moved to September. Both those dates were scrapped amid upheaval over where the trial should be held and whether the visiting judge would remain at the bench.

See here and here for the background. The start date for the trial also happens to be the filing deadline for 2018, so Republicans could be a bit out of luck if Paxton has no primary opponent. The issue of who is paying for the special prosecutors remains unresolved, though there may be a further hearing from Judge Johnson on the matter. For now at least, we have a trial date. The DMN and the Trib have more.

First Paxton trial hearing in Harris County

Not much happened, but there are some big questions to address.

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The securities fraud case against Texas Attorney General Ken Paxton kicked off Thursday in Harris County with no new trial date being set.

Instead, the new judge in the case, Robert Johnson, asked both sides to come back July 27 to continue discussing a potential schedule. Prosecutors pushed to hold off setting a trial date until they can get paid – an issue currently tied up in a Dallas appeals court.

Paxton has had two previous trial dates scrapped due to legal disputes – first over the venue, then over the judge. The hearing Thursday was the first time Paxton appeared before Johnson, the new judge, in the relocated venue of Harris County.

[…]

The issue of the prosecutors’ pay has long consumed the case. Collin County commissioners voted last month not to approve payments to the prosecutors and to instead take the dispute to the Dallas-based 5th Court of Appeals, where it has not yet been resolved.

“As long as they continue to sue us, our hands our tied,” said one of the prosecutors, Brian Wice. “This is an unprecedented attempt to defund and ultimately derail the prosecution.”

Paxton’s lawyers countered that the payment case could take much longer than the prosecutors were letting on.

“Whether they get their money is not our problem,” Paxton lawyer Dan Cogdell said, adding that the citizens of Texas also deserve a speedy trial. “He is the sitting attorney general.”

See here and here for some background. As the DMN notes, the 5th Court of Appeals says it will issue a ruling in the Paxton prosecutors pay lawsuit sometime after July 19. How much after, we don’t know. Maybe the issue will be moot by the time July 27 rolls around. Modulo further appeals, of course. Judge Johnson has asked both parties to submit procedural timelines of the case by July 7, for that July 27 hearing. Maybe we’ll get some of these questions answered then. The Chron has more.

Another look at redistricting in Texas

We’re in the spotlight right now.

The odd shapes tell the story.

A huge Republican majority in the Houston-area 2nd congressional district represented by Ted Poe curls around the region from Lake Houston, northeast of the city, makes a meandering, snakelike loop out to the western suburbs, and ends south of downtown near Loop 610.

Nearby, the 29th congressional district has a big Democratic majority and is represented by Gene Green. It resembles a partially-eaten doughnut, forming an undulating shape from north to east to south.

Like virtually all 36 congressional districts in Texas – Republican Will Hurd’s West Texas district being the only exception – neither Poe’s nor Green’s district is particularly competitive in general elections.

The political art of drawing boundaries to protect incumbents is called gerrymandering – a word derived from salamanders, lizard-like creatures known for their slender bodies and short limbs. The whole idea behind the practice is to carve up the political map for partisan advantage.

It happens everywhere, and has been the subject of legal challenges for years.

And now the U.S. Supreme Court has signaled it may take a fresh look in a Wisconsin redistricting case that has the potential to fundamentally alter the political landscape from Texas to Washington, D.C.

[…]

“Clearly the Texas congressional map, and the state House map and state Senate map, are partisanly gerrymandered, and they are way out of balance with the political performance of the state,” said Matt Angle, head of the Lone Star Project, which seeks to make Democratic gains in Texas.

Some Republicans downplay the significance of the Wisconsin case, saying that they believe Texas’ political boundaries are already fair and, most importantly, legal.

“Unless the court does some serious overreach, we shouldn’t be facing needing to redraw those lines at all,” said James Dickey, the newly-elected chairman of the Texas Republican Party.

The problem for Texas Republicans is that the state’s congressional district boundaries already are under legal challenge over alleged racial discrimination for the way minorities were packed into a limited number of urban districts.

Some of the boundaries drawn in 2011 already have been ruled intentionally discriminatory, and a federal court is set to hear a challenge next month on a new map drawn in 2013.

Unlike the Texas challenge, which focuses in the racial makeup of political districts, the legal fight in Wisconsin is over the partisan makeup of the state’s boundaries, which also favor Republicans.

But the two criteria are closely related. “If you correct for the racial discrimination in Texas, you go a long way toward balancing the partisan makeup of these districts,” Angle said.

[…]

In Texas, Angle argues, “There’s no question what’s happened is you’ve got safe districts created, Democrats packed into as few districts as possible, and the rest of them cracked into as many safe Republican districts as possible, and what that’s done is it’s made the primaries matter the most, and primaries are driven by the most ideological people within their party.”

In the Wisconsin case, Gill v. Whitford, the court will be asked to look at the allegedly skewed results of the state’s recent elections. In 2012, Republicans won 60 of 99 legislative seats despite winning only 48.6 percent of the state’s two-party statewide vote. In 2014, Republicans won 63 seats with only 52 percent of the statewide vote.

Texas Democrats say they could make the same case. While Democratic presidential candidates won more than 40 percent of the statewide vote in the past three elections, Democratic voters were distributed in such a way that their party controls only about a third of the state’s legislative and congressional seats.

Critics call that an “efficiency gap,” which can only be explained by partisan gerrymandering. Now before the high court, they hope to find a way to close the gap.

“This is a historic opportunity to address one of the biggest problems in our electoral system,” said Wendy Weiser of the Brennan Center for Justice, a left-leaning law and public policy institute at the New York University School of Law. “Gerrymandering has become so aggressive, extreme and effective that there is an urgent need for the Supreme Court to step in and set boundaries.”

Conservative groups argue that there is no way to estimate what each party “should” win in a fair election. The redistricting tests that have been proposed to close the “efficiency gap” in Wisconsin, they say, are arbitrary.

See here for more on the Wisconsin case, which will not affect the ongoing Texas litigation at this time. Poe’s district is certainly a Republican one, and for most of this decade it was deep red, but after a significant Democratic shift in 2016, it’s still very favorable to Republicans but not overwhelmingly so. Given the overall trends in Harris County, I suspect that the fate of CD02 in the 2021 redistricting cycle will be to take on a piece of Montgomery County in order to keep it sufficiently Republican, much as Pete Sessions’ CD32 needed to incorporate some of Collin County in 2011 to stay red.

It’s really hard to say what will happen going forward. Between the Texas case and the Wisconsin and North Carolina cases, the range of outcomes stretches from “no real difference” to multiple seats flipping this year with fewer ways for the Republicans to put their thumb on the scale in 2021. As I’ve noted before, Texas isn’t all that out of whack in terms of how many seats each party wins, but Republicans have gained a huge advantage in multiple swing states thanks to having gained control of those states’ legislatures in 2010. SCOTUS could put a stop to that going forward, or they could just apply a remedy to Texas for its own brand of egregious gerrymandering, or they could shrug their shoulders and decline to get involved. We’ll just have to wait and see.

Collin County would like us to pick up the Paxton prosecutor tab

I’ll bet they would.

Best mugshot ever

As Attorney General Ken Paxton’s legal troubles head into their third year, there’s another question aside from whether he’ll beat the rap — who will pay for it all?

Taxpayers in Collin County, where Paxton was indicted on three felony charges, have had to pick up the tab. This hasn’t gone over well in McKinney, a conservative stronghold where the Republican attorney general is not only a well-known resident but also the first statewide official elected from the area in almost 150 years.

After months of pressure and multiple lawsuits from Paxton loyalists to halt funding to the case, local officials recently voted to stop paying the prosecutors at all.

Then, late last week, after months of mulling the idea, county leaders finally took their grievances to court. One is even hoping the county can rid itself of the case and its price tag altogether by getting taxpayers in Houston, where Paxton will stand trial, to pick up the rest of the tab.

It’s been 18 months since the prosecutors were paid. With a brand-new judge presiding over the case and multiple related lawsuits pending, when, how much and who will pay them is more a mystery than ever before.

[…]

In a brief filed with the 5th Court of Appeals in Dallas, the county commissioners argued the prosecutors’ pay was “outrageously high” and illegal. Their fees violate a state law, they said, that requires counties to adopt “reasonable fixed rates or minimum and maximum hourly rates” for compensating special prosecutors.

They want the court to throw out the prosecutors’ last paycheck — which topped $205,000 — and have voted to reject paying the bill until in the meantime. This last invoice, filed in January, covers all of 2016.

David Feldman, the prosecutors’ lawyer, said his clients’ decision to continue while not being paid “shows a commitment to serving the public good.” The three prosecutors — Nicole DeBorde, Kent Schaffer and Brian Wice — are criminal defense attorneys who charge many times this rate in their private practices.

“It’s honorable that they’re continuing to invest time in the prosecution because this is not something they went out and asked for.

[…]

Harris County Criminal District Court Judge Robert Johnson, a Democrat elected last year, was chosen this week to replace Gallagher. Johnson could choose to hike or slash the prosecutors’ paychecks as he sees fit.

On Wednesday, he declined to comment on the fight over the case’s cost. But depending on Collin County’s future decisions, he may be forced to weigh in.

County Judge Keith Self, one of the five Collin County commissioners, wants to discuss whether there’s a way to push the case’s costs onto Harris County. The commissioners haven’t discussed this proposal, he said, but he’s “hopeful” they’ll be open to the possibility.

Commissioner Duncan Webb said they should wait until the Dallas court makes a decision.

“I want to get the issue resolved, the quicker the better, and do what we’re legally supposed to do and pay what we’re legally supposed to pay,” Webb said. “I don’t know whether Harris County’s going to get involved with this or not. That’s way out there at this moment.

See here, here, and here for the background. I’m sure our Commissioners Court will be delighted to hear about this. Remember how I’ve said that it would probably make more sense for the state to pay for special prosecutors in cases like this, if only to avoid these shenanigans? I still think that’s the right idea. In the meantime, it may be awhile before the 5th Court gets involved again.

A Texas appellate court [last] Friday said without a live controversy, it doesn’t have jurisdiction in a fight to block payment for the special prosecutors appointed to handle the felony securities fraud case against Texas Attorney General Ken Paxton.

The Fifth Court of Appeals in Dallas dismissed real estate developer Jeff Blackard’s bid to enjoin the Collin County Commissioners Court from paying a trio of special prosecutors under a $300 hourly rate agreement, citing the county’s recent vote against paying an invoice from the prosecutors. Blackard had argued the county’s local court rules require appointed prosecutors to be paid under a limited flat fee schedule, and his quest to block hefty payments to the prosecutors raised what the appeals court referred to as unusual and challenging procedural issues.

Blackard had requested the appellate court abate his suit indefinitely, based on the possibility the county might in the future approve payment of a fee invoice at a time and in an amount that he contends is illegal, according to the opinion. But the court doesn’t have jurisdiction over contingent future events that may not occur, and the matter is not ripe for resolution, a panel of the court said.

“Because the Commissioners Court has rejected the invoice and has authorized counsel to challenge the district court’s order, no pending ‘illegal’ expenditure of public funds currently exists for Blackard to seek to enjoin,” the court said.

I don’t really know what any of this means. I’m just trying to keep track of it all.

We have the Paxton case

By “we”, I mean Harris County.

Best mugshot ever

Attorney General Ken Paxton’s criminal case is officially moving to Harris County.

In an order signed Friday morning, Judge George Gallagher vacated several previous orders scheduling hearings in the case and directed the Collin County District Clerk’s Office to transfer the proceedings to the Harris County District Clerk.

Gallagher’s order effectively triggers the search for a new judge in the case, following up on a Texas Court of Criminal Appeals ruling this week that removed him as the judge who would presided over the embattled attorney general’s securities fraud and registration case. Special prosecutors asked the court to keep Gallagher.

The ruling marked a win for the first-term Republican attorney general who has been fighting to remove the judge from his case since Gallagher opted to move the trial out of Paxton’s home of Collin County in April.

See here, here, and here for the background. I always want to put the “win” here in quotes, since I believe it’s a victory in name only, with no practical effect. But I suppose it makes Paxton feel better, so we mustn’t discount that.

The DMN adds some technical details.

A new judge will be assigned by random. Harris County assigns judges for criminal cases using the “Automated Random Assignment System,” a kind of massive bingo cage containing 220 balls that spits out assignments.

On Thursday, Harris County District Courts Administrator Clay Bowman told The Dallas Morning News that Administrative Judge Robert Schaffer would be shepherding the assignment.

“Our local administrative judge is the person who will be handling, sort of shepherding, the assignment of the case,” said Bowman, who added Olen Underwood, the regional presiding judge for Harris and 34 other counties in southeast Texas, would likely also be involved.

There are nearly two dozen criminal district judges in Harris County who could be assigned the case. Nearly half are Democrats. These judges, who are locally elected, have received thousands of dollars in donations from all three prosecutors and two of Paxton’s top attorneys in the past.

This story also calls the ouster of Judge Gallagher as a “win” – specifically, a “major victory” – for Paxton. I wonder if that narrative will change if he draws a Democratic judge. Not that it should matter, of course – it shouldn’t matter in any event who the judge is, since they’re supposed to be all impartial and judicial and all. But whatever. The updated Chron story, which refers to Paxton being handed a “major win”, says that the judicial bingo process should occur “sometime very early [this] week”, so we’ll keep an eye on that. Mazel tov to whoever gets this one dropped in their lap.