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Eric Holder

Two possible straws in the wind

Ken Paxton seems a little nervous.

Best mugshot ever

Less than 36 hours before Election Day, the race for attorney general is showing signs of competition that have been absent in just about every other statewide contest.

Republican incumbent Ken Paxton, who was indicted more than three years ago on felony securities fraud charges, has been running a relatively quiet campaign with the comfortable advantage of a GOP incumbent in a state that has not elected a Democrat statewide in more than two decades.

But now he is firing back at his Democratic challenger, Justin Nelson, with a new attack ad — the first one from Paxton that addresses the indictment — and getting a fresh influx of high-dollar campaign donations, signals that Republicans are not taking anything for granted in the race for Texas’ top lawyer.

Nelson, a prominent Austin attorney, has made Paxton’s legal troubles the basis of his campaign and the main focus of much of his advertising — posting billboards around the state featuring Paxton’s mugshot, commissioning a rolling billboard he calls the “Mugshot Mobile” and even sending campaign staffers dressed as Paxton in prisoner garb to frolic on the Capitol grounds in a Halloween stunt. Yet most consequentially, Nelson has spent significantly to air TV ads informing voters all over the state that their attorney general is under indictment.

The anti-Nelson push from Paxton’s campaign suggests that the Democrat’s jabs have been successful in getting something most other Democratic statewide candidates have been aching for: the GOP’s attention. Except for the blockbuster U.S. Senate battle between incumbent Ted Cruz and Democratic challenger Beto O’Rourke, Republican statewide officials have largely ignored their Democratic challengers, let alone gone negative on TV against them.

“Nelson has successfully raised the profile of the race to a level where Republicans began to be nervous that people who vote straight-ticket Republican may cross over in this race as they learn more about Ken Paxton,” said Mark Jones, a political science professor at Rice University. “While they’re still counting on it, they don’t have 100 percent confidence.”

Paxton also got a cash injection from Greg Abbott. As I said before, this may just be an abundance of caution on Paxton’s part. The official reason, asserted by the political scientists, is that Paxton doesn’t want to win by a wimpy single-digit score. And maybe that is all it is. But I feel pretty confident saying he wouldn’t be asking for handouts from Greg Abbott if he didn’t think he needed the help.

Meanwhile, there’s Democratic money coming in, too.

A Democratic super PAC focused on state legislative races has injected $2.2 million into a slew of Texas House contests in their closing days.

The group, Forward Majority, is using the money to help 32 Democratic candidates, many of them challengers in GOP-held districts who have not been able to match the financial backing of the incumbents. A large majority of the funds are going toward digital ads targeting the Republicans as beholden to big donors and corporate interests, with a couple of spots tailored to specific lawmakers.

“We are staging this late intervention because we believe there is a unique window of opportunity for first time candidates to take down several entrenched Republican incumbents on Tuesday,” said Ben Wexler-Waite, a spokesman for Forward Majority.

[…]

Forward Majority was launched last year by alumni of Barack Obama’s campaigns with the goal of retaking state legislatures across the country before the next round of redistricting in 2021. Texas is one of six states the group is targeting this cycle as part of a nearly $9 million push.

In Texas, Forward Majority began seriously spending in its targeted races just a couple weeks ago. Its latest filing with the Texas Ethics Commission, which covered Sept. 28 through Oct. 27, shows the group spent $1.1 million. The rest of the $2.2 million has come since then, Wexler-Waite said.

Forward Majority is not the only seven-figure force for Democrats in Texas House races this cycle. The House Democratic Campaign Committee has raised $1.1 million this cycle, fueled by six-figure donations from the National Democratic Redistricting Committee, the group led by former U.S. Attorney General Eric Holder. The HDCC is currently waging an $800,000 digital ad campaign in the most competitive seats.

The list of races in which this PAC is spending money follows. It ranges from the ones that have been the focus of attention all along, to those that should have had more attention all along, to the stretch goals and the more speculative investments. I couldn’t tell you the last time we did something like this – pretty sure it wasn’t this redistricting cycle – so I’m just happy to see it happen. We’ll see how sound an investment this turns out to be.

A little effort for redistricting reform

It’s a start.

The National Democratic Redistricting Committee, the group led by former U.S. Attorney General Eric Holder, is making a quarter-million-dollar investment in Texas to help Democrats here flip a number of state House seats in November.

The money represents one of the largest single contributions that the House Democratic Campaign Committee has ever received, according to its chair, El Paso state Rep. César Blanco, who said the investment “puts us in a stronger position to pick up more seats in the House.”

House Democrats, who currently control 55 out of the 150 seats in the lower chamber, are heading toward November targeting the 11 GOP-held districts — most of them traditionally Republican — that Hillary Clinton carried in 2016, with an emphasis on the Dallas area. They are also looking at several Republican-controlled districts across the state where Clinton came close to winning.

Blanco said the value of growing the Democratic caucus by even just five members could increase its influence in the race to replace outgoing House Speaker Joe Straus, R-San Antonio. A larger caucus could also have implications for inter-chamber relations next year.

Here’s what the NRDC has to say about Texas. $250K is not nothing, and it’s always nice to see national Democratic money flow into Texas instead of the other way around, but it’s not that much in the context of a dozen or so races. Honestly, it might be put to better use on the lower-profile and second-tier races, or in districts where there’s also a competitive Senate or Congressional race going on that’s already doing GOTV. Like I said, it’s a start and I’ll gladly take what they have to give, but let’s maintain some perspective. It’s still a drop in the bucket compared to what the Republicans’ moneybag overlords can and will spend.

The National Democratic Redistricting Committee in Texas

Let’s say I’m hope but verify on this one.

Former President Barack Obama and members of his administration are ready to take another shot at chipping away at Republican domination in Texas.

A new group headed by former Attorney General Eric Holder and with the public backing of Obama is targeting Texas among 11 states in which they are determined to change the redistricting process to assure more competitive state House and Senate races in the future.

“In 2011, Republicans created gerrymandered districts that locked themselves into power and shut out voters from the electoral process,” Holder said in announcing the National Democratic Redistricting Committee’s electoral targets earlier this week.

“By focusing on these state and local races, we can ensure Democrats who will fight for fairness have a seat at the table when new maps are drawn in 2021,” he added.

And Harris County will be a big part of the plan. State Democrats have already highlighted more than 20 seats in the Texas House that Hillary Clinton either won over Donald Trump in 2016 or lost narrowly — a list the new NDRC group is well versed in, said Kelly Ward, executive director of the group.

Ward said her group hasn’t made specific targets yet, but said after the primaries in March they will begin to hone in on more specific targets.

[…]

[Manny Garcia, the Texas Democratic Party’s Deputy Executive Director] said state Democrats welcome the attention from national groups. He said the recognition from group’s like Holder’s only offers further vindication of the progress Texas Democrats are making.

In 2011, the Texas House had 101 Republicans and 49 Democrats. Since then, Democrats have gained 6 seats and have hopes for more in 2018. In the Senate, though Republicans have a 9 seat edge, Garcia said picking up just two seats would have a big impact on how the Senate operates.

Currently Democrats have few procedural tools to slow down the Republican agenda in Austin. But with two additional seats, Democrats would have enough votes to force Republicans to have to listen to them.

It all sounds good, but this isn’t the first time we’ve heard from a big-name group of former Obama staffers with big ideas and the promise of major resources, so I trust you’ll forgive me if I refrain from swooning just yet. They’re saying the right things, and the fact that Senate races are in the discussion is a positive, but we’ll know it when we see it if this is a real and serious thing.

On a broader note, I think a promise of a better and less-partisan redistricting process would have some appeal to less-partisan voters. Since the ouster of Sen. Jeff Wentworth, it’s Democrats who have taken up the thankless task of filing a bill for a non-partisan redistricting committee. Such a bill is highly unlikely to go anywhere without a Democratic majority, and of course once there is a Democratic majority the urge to use the process for our own benefit will be strong. Maybe things would be different this time, and who knows, if you get enough people to campaign and win on a fair-and-less-partisan redistricting process they may actually act on it once elected. It’s worth a shot.

Almost nobody is following Rick Perry’s lead in defying the Prison Rape Elimination Act

Emily dePrang has the story.

Back in March, Gov. Rick Perry sent a letter to U.S. Attorney General Eric Holder declaring his intent to defy a federal law designed to reduce sexual assault in prison. It was a very Perry letter, slinging around terms like “ridiculous” and “unacceptable” and “costly regulatory mess.” But perhaps the most Perry part was his vow to “encourage my fellow governors to follow suit.”

Now, saying a law is wrong for Texas is one thing. Saying governors of other states—you know, just anywhere—should defy the Prison Rape Elimination Act suggests Perry believes the law is wrong in general principle, not specific application. Or else he’s just grandstanding. (A Google search for “Rick Perry” and “grandstanding” returns 173,000 results.) Either way, Perry appears to have had limited success. May 15 was the deadline for governors either to certify their state prisons were compliant or promise to become so, and the Associated Press reported last week that just four other states joined Perry in saying they planned not to try: Idaho, Indiana, Utah and Arizona.

“Perry is sort of out on his own on this one, which is fantastic news,” says Jesse Lerner-Kinglake, who works for an advocacy group that fights prison sexual assault, Just Detention International.

Lerner-Kinglake is one of many observers who can’t work out why Perry picked this particular battle in the first place. The problems with the law that Perry lists are relatively minor, though he describes them as insurmountable—and some don’t actually exist. Lerner-Kinglake says Perry’s letter contains “so many basic errors. It’s really kind of simple stuff that anyone who took a minute to look at the standards would know.”

For example, Perry writes that governors must certify their state’s compliance “under threat of criminal penalties,” but that’s not true. The only enforcement mechanism is that a state can lose 5 percent of its federal corrections grant money. Perry also says the act’s compliance dates are “impossible to meet,” but governors can—and at least 10 did—give assurance letters by the May 15 deadline promising that they were actively working toward compliance.

Perry also seems to think the new requirements apply to “local jails” and would be too expensive for small counties to implement, but they wouldn’t have to, since the act covers only facilities under Perry’s operational control.

The further you get into the letter’s nitty-gritty, the stranger Perry’s defiance seems.

[…]

Perhaps the most understandable of Perry’s objections is that while the Prison Rape Elimination Act requires the state to keep prisoners under 18 separate from adults, Texas considers 17-year-olds to be adults, so the two standards conflict. But none of the other nine states that incarcerate 17-year-olds as adults appear to have defied the law, and the separation requirement doesn’t kick in for three years. Just in March, the House Criminal Jurisprudence Committee held a hearing on raising Texas’ adult prosecution age from 17 to 18. Yet this issue and the alleged gender discrimination problem were the sticking points Perry reiterated in a May 16 letter that was much milder in tone.

Present in the first letter but missing from the second was Perry’s claim that Texas already effectively prevented sexual assault in its prisons. Actually, Texas reports almost four times as many prisoner sexual assaults as the national average, according to a federally-funded study from the JFA Institute. Elizabeth Henneke, an attorney with the Texas Criminal Justice Coalition, warned at a House hearing that noncompliance could leave the state open to litigation and pointed out that one ex-inmate, who says he was raped at the Travis County Jail, is already suing for $2 million, alleging officials “displayed deliberate indifference to his safety by failing to comply with PREA.”

See here and here for the background. I’m as shocked as you are that Rick Perry could be ill-informed and off base on a political issue. What is annoying about this is that Perry himself is completely shielded from any accountability for his unilateral action. Texas stands to lose some grant money as a result of this, but Perry will be out of office by the time that happens, and I think it’s fair to say that few if any GOP Presidential primary voters will be swayed against him by this. Our next Governor can undo Perry’s action, but it still seems to me that there ought to be a way to make him feel some responsibility for defying a federal law. For once, Rick Perry should not be able to get away with doing whatever the hell he feels like doing regardless of the consequences for others.

Utah will not recognize same sex marriages

Not until they are forced to.

RedEquality

Utah Gov. Gary Herbertannounced Wednesday that the state will not recognize the 1,000-plus same-sex marriages performed in the state since Dec. 20, when a U.S. district judge ruled that the state’s ban on gay marriage violated gay and lesbian couples’ constitutional rights.

“The original laws governing marriage in Utah return to effect pending final resolution by the courts,” the governor’s office said in a memo issued to his Cabinet.

“We’re not going to do anything to undo marriages,” said Missy Larsen, spokeswoman for Utah Attorney General Sean Reyes. “If they have a driver’s license with their marital name on it, it stands. But wherever they were in the process, it’s frozen.”

That means that same-sex couples who have gotten married since the Dec. 20 ruling and who are in the process of applying for benefits for spouses or adopting children will have those actions put on hold.

Same-sex couples who have gotten marriage licenses but have not yet had weddings are not legally married, Larsen said. “The ceremony had to have taken place. It had to have been solemnized.”

Gov. Herbert’s chief of staff, Derek Miller, sent a memo saying state law not only prohibits same-sex marriages but also prohibits the state recognizing them.

Utah is not commenting on the legal status of the same-sex marriages already performed, the memo said.

They will at least allow county clerks to continue processing paperwork from couples that did get married before SCOTUS stepped in, for which I don’t feel like scrounging up a snarky comment. Just because Utah doesn’t want to recognize these marriages doesn’t mean anyone else has to follow their lead, and indeed on Friday the Obama administration announced that they would recognize all of Utah’s marriages.

“I am confirming today that, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages,” Attorney General Eric Holder said in a video message which was shared with TPM. “These families should not be asked to endure uncertainty regarding their status as the litigation unfolds.”

Good for them. The Human Rights Commission had asked for this a day earlier, and I’m glad to see it happen without any dithering. In the meantime, while we wait for the Tenth Circuit to hear the appeal, the ACLU is planning to file a lawsuit against Utah to force it to uncover its eyes and recognize these marriages as legal pending the outcome of the original litigation. We’ll see what gets an enforceable ruling first.

DOJ files suit against Texas’ voter ID law and redistricting maps

Excellent.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

The U.S. Department of Justice announced on Thursday that it will again seek to dismantle Texas’ voter ID law, this time with a lawsuit alleging the measure violates Section 2 of the Voting Rights Act. The department also said on Thursday that it will seek to have Texas’ redistricting maps declared unconstitutional.

Section 2 of the 1965 act prohibits voting laws that discriminate based on race, color or membership in a minority group. Thursday’s decision by the U.S. Department of Justice comes after a U.S. Supreme Court ruling in June that allowed implementation of the state law that requires voters to furnish a valid photo ID before casting a ballot. Prior to that ruling, the department and, separately, a three-judge panel of federal judges in Washington, had struck down the 2011 state law after denying Texas’ request for preclearance. The high court’s ruling eliminated the preclearance requirement.

“Today’s action marks another step forward in the Justice Department’s continuing effort to protect the voting rights of all eligible Americans,” U.S. Attorney General Eric Holder said in a statement about the voter ID provision. “We will not allow the Supreme Court’s recent decision to be interpreted as open season for states to pursue measures that suppress voting rights.”

The DOJ also said that it will seek “declaration that Texas’s 2011 redistricting plans for the U.S. Congress and the Texas State House of Representatives were adopted with the purpose of denying or abridging the right to vote on account of race, color, or membership in a language minority group.” That, too, is in violation of Section 2 and the 14th and 15th Amendments to the U.S. Constitution, the department alleges.

[…]

The DOJ said it would file suit against the state of Texas, the Texas secretary of state and the Texas Department of Public Safety. The Texas DPS is the agency charged with issuing state-issued IDs or driver’s licenses.

The secretary of state’s office has not received a copy of the lawsuit and will review it when it is received, said Alicia Pierce, the agency’s spokeswoman.

[…]

In its statement, the DOJ added that it would ask the court to subject the state to new preclearance requirements under Section 3 of the act.

A copy of the statement is here, a copy of the lawsuit is here, and a roundup of reactions, which go about as you’d expect them to, is here and here. The NAACP is also seeking to join in the DOJ suit over voter ID. Given the recent brouhaha in Edinburg, where city council elections are about to be held, it would be nice if the DOJ could secure an injunction against the voter ID law, to keep things as they were before. We’ll see about that. In the meantime, buckle your seatbelts, it’s going to get bumpy from here. SCOTUSBlog, which has a typically detailed description of the two lawsuits, Daily Kos, Texas Politics, Ari Berman, Molly Redden, Rick Hasen, who wonders about preliminary injunctive relief, BOR, and Trail Blazers have more, while TPM wonders if North Carolina will be next.

UPDATE: Some background information on the case from Texas Redistricting, which summarizes what the DOJ is pursuing. The original lawsuit against the voter ID law has now been amended with extra complaints.

Obama pledges to keep fighting for the Voting Rights Act

Let’s hold him to that.

President Barack Obama assured civil rights leaders Monday that he will aggressively protect minority voters in Texas and other states, a month after the Supreme Court ended decades of federal election scrutiny.

“The Supreme Court struck down one provision, not the entire act,” said Wade Henderson, president of The Leadership Conference on Civil and Human Rights, after a meeting with Obama and Attorney General Eric Holder. He said they reaffirmed “the federal government’s overriding responsibility to protect democracy and the right to vote for all Americans.”

State Rep. Trey Martinez Fischer, D-San Antonio, joined him and two dozen other activists for the private White House meeting.

He also came away optimistic, even if Congress — as most analysts expect — doesn’t restore federal oversight.

“If you look at an issue as contentious as the Voting Rights Act, you want an all-of-the-above strategy,” said Martinez Fischer, chairman of the Mexican American Legislative Caucus. The group has challenged the state of Texas over redistricting and a 2011 law to require voters to show photo IDs. “You want to have a congressional plan. You want to have an outreach plan. You want to have a litigation plan.”

[…]

On Thursday, Holder announced that the Justice Department would invoke an obscure provision of the law, Section 3, to ask a court to restore special oversight for Texas for a decade.

Gov. Rick Perry, state Attorney General Greg Abbott and other GOP leaders in Texas denounced the move as an effort to circumvent the Supreme Court.

Texas has a long history of voting rights violations. But state GOP leaders say its relatively high turnout among minority voters shows that ongoing scrutiny is unfair.

To borrow from our Vice President, that allegations that pursuing Section 3 claims is somehow “circumventing” the Supreme Court is pure malarkey. SCOTUS did not throw out Section 5, the preclearance section of the VRA, it threw out Section 4, which was the historic formula for determining who was subject to preclearance. Section 3 has been there all along, it was just not needed in Texas before now. All that’s happened is that the plaintiffs and now the Justice Department have filed motions with the federal courts that argue Texas should continue to be subject to preclearance under Section 3 of the VRA. Whatever the ruling, you can be sure that the matter will find its way back before the Supreme Court again. How that can possibly be considered “circumventing” is beyond me. And if the state of Texas really wants to end being subjected to this kind of scrutiny, perhaps it could put more effort into not passing discriminatory laws related to voting.

Texas Redistricting deals with this question as well.

In the eyes of the Supreme Court, the failure of Congress to update that formula when it renewed section 5 in 2006 created fatal constitutional problems for the formula because it treated states differently without – in the view of the Supreme Court – an any-longer valid reason for doing so.

But section 3 is different.

For starters, section 3 looks not at 1972 but at recent intentionally discriminatory behavior to decide if a state should be put under preclearance review. And it makes that determination on a case by case basis – letting courts tailor the remedy to the situation.

But, as importantly, it applies throughout the nation.

If Vermont engages in intentionally discriminatory behavior, it too could be placed under section 3 review. That makes section 3 very different from section 5, where the list of covered jurisdictions was effectively set in stone by a rigid, time-based coverage formula.

When elected officials complain – as a number have – that section 3 treats states differently, that’s tantamount to complaining that drunk-driving laws treat people who drink-and-drive differently from those who don’t. They do – but for good reason.

It’s worth your time as always to read in full. The comparisons to Texas as a drunk driver and a shoplifter are dead on.

In the meantime, I’m going to take freakouts like this as evidence that Perry, Abbott, et al are genuinely worried about the outcome.

Greg Abbott, the Texas attorney general and candidate for governor, today ramped up his attack on the president, accusing him of wielding the Justice Department for political purposes.

“Mr. Obama’s attorneys conceal this partisan agenda with lofty rhetoric about minority voting rights,” Abbott writes today in an anti-Obama screed in the conservative Washington Times.

Abbott’s commentary, published a day after the president assured civil rights leaders that he’ll press Texas and other states aggressively on minority voter rights, gets featured display in the Times.

[…]

Abbott argues that Democrats have used Voting Rights Act litigation to stymie GOP inroads with Hispanics. He blames redistricting litigation for forcing from office several Hispanic Republicans – state Reps. Jose Aliseda, Raul Torres, Aaron Pena and John Garza, and U.S. Rep. Quico Canseco.

Hilarious. The Republicans’ own efforts to woo Hispanic voters are stymieing enough; they don’t need any extra help in that department. As for that fabulous five of Republican Latinos, four were elected in the 2010 landslide, the other switched parties in a district that voted 70%+ Democratic. Even the Republicans’ heroic efforts to draw him a district he could win weren’t enough to keep Aaron Pena from chickening out before trying to run under his new colors. Quico Canseco was such an inept candidate that despite the various illegal methods employed to help him, he still wound up as the only GOP incumbent to lose in a district carried by Mitt Romney. They needed to cheat for him to win, and they couldn’t quite cheat enough, poor babies. Daily Kos has more.

Justice Department to push for Section 3 in Texas

Bring it.

Attorney General Eric H. Holder Jr. announced on Thursday that the Justice Department would ask a court to require Texas to get permission from the federal government before making voting changes in that state for the next decade. The move opens a new chapter in the political struggle over election rules after the Supreme Court struck down a portion of the Voting Rights Act last month.

In a speech before the National Urban League in Philadelphia, Mr. Holder also indicated that the court motion — expected to be filed later on Thursday — is most likely just an opening salvo in a new Obama administration strategy to try to reimpose “preclearance” requirements in parts of the country that have a history of discriminating against minority voters.

His statements come as states across the South, from Texas to North Carolina, have been rushing to enforce or enact new restrictions on voting eligibility after the Supreme Court’s ruling in the Shelby County v. Holder case, which removed that safeguard.

“This is the department’s first action to protect voting rights following the Shelby County decision, but it will not be our last,” Mr. Holder said. “Even as Congress considers updates to the Voting Rights Act in light of the court’s ruling, we plan, in the meantime, to fully utilize the law’s remaining sections to subject states to preclearance as necessary. My colleagues and I are determined to use every tool at our disposal to stand against such discrimination wherever it is found.”

[…]

In his speech, Mr. Holder said that evidence submitted to a court last year that the Texas Legislature had intentionally discriminated against Hispanics when redrawing district lines was sufficient to reimpose on that state the “preclearance” safeguard for a decade, noting that the court — in blocking the map — had said the parties “provided more evidence of discriminatory intent than we have space, or need, to address here.”

Mr. Holder said: “Based on the evidence of intentional racial discrimination that was presented last year in the redistricting case, Texas v. Holder — as well as the history of pervasive voting-related discrimination against racial minorities that the Supreme Court itself has recognized — we believe that the State of Texas should be required to go through a preclearance process whenever it changes its voting laws and practices.”

The department may also soon bring similar legal action against Texas over its voter identification law, which was also blocked by a federal court last year. Hours after the Supreme Court’s ruling in the Shelby County case, the state said it would begin enforcing the law.

Richard L. Hasen, a University of California at Irvine professor who specializes in election law, said that the move was a “huge deal showing that the department is going to be aggressive in seeking to resurrect what it can of the old preclearance regime,” but he also said the so-called “bail-in” process of Section 3 alone could not restore the previous sweep of the preclearance regime because the Justice Department “can only go after those jurisdictions found to be recently discriminating intentionally in voting on the basis of race.”

Still, he said, “getting the State of Texas covered again would be important not just symbolically but practically, as it would put its tough new voter ID law back on hold.”

That would indeed be a big deal. I presume the filing in question has to do with the ongoing redistricting litigation in San Antonio, and indeed it is.

In the filing, the Justice Department argues that “Section 3(c) relief is warranted in this case because existing evidence establishes intentional voting discrimination and other proceedings provide overwhelming evidence of constitutional violations in and by the State.”

The pleading asks the San Antonio court to “impose Section 3(c) coverage on the State of Texas as to all voting changes for a ten-year period following entry of a coverage order” with the option to extend coverage beyond ten years “in the event of further discriminatory acts.” If granted as requested by DOJ, the order would cover “any voting qualification or voting-related standard, practice, or procedure that the State enacts or seeks to administer that differs ‘from that in force or effect’” on May 9, 2011 (including Texas’ voter ID law).

Read the whole thing. The plaintiffs there had already filed Section 3 motions, and it was not clear at the time if the Justice Department would be joining them. Now we know, and it’s good to see that they are backing them up. Texas Redistricting outlines the plaintiffs’ briefs and legal theories, and previews the state’s likely response. Note that the voter ID litigation would also be affected by the Justice motion; according to TPM, it appears they will file another motion for that case as well. Whatever the San Antonio court rules, I am certain that this will be back before SCOTUS before you know it. Texas Redistricting has statements from Sen. Rodney Ellis, Greg Abbott, Rick Perry, Rep. Trey Martinez-Fischer, and various others, as well as Holder’s full remarks. The Trib, SCOTUSBlog, and BOR have more.

DOJ refuses to preclear South Carolina voter ID law

Good.

The U.S. Department of Justice on Friday rejected as discriminatory a South Carolina law requiring voters to show photo identification at the polls. The action by the department’s civil rights division, coupled with Attorney General Eric Holder’s call 10 days earlier in Austin for more aggressive federal review of such laws, appears to increase the likelihood that the Texas version could meet a similar fate.

Texas Republicans criticized the decision, calling it improper and vowing to defend Texas’ voter ID law.

The Justice Department said the South Carolina law makes it harder for members of minority groups to cast ballots, to the point that tens of thousands of them might be turned away at the polls because they lack the required photo ID. The law requires a state-issued driver’s license or ID card, a U.S. military ID or a U.S. passport.

The Texas law, which was signed by Gov. Rick Perry in May, requires voters to show a valid government-issued photo ID, such as a Texas driver’s license, Department of Public Safety identification card, state concealed handgun license, U.S. military ID or U.S. passport.

Like the South Carolina law, the Texas law needs approval from the Justice Department under the 1965 federal Voting Rights Act. Such “pre-clearance” to ensure that minority political power is not harmed is required in states that failed to protect minority voting rights in the past.

See here for more on Holder’s speech. As Michael Li noted on Twitter, AG Greg Abbott expects Texas’ law to be similarly slam dunked. Part of the reason for that is that in South Carolina, “the state’s own statistics demonstrated that the photo identification requirement would have a much greater impact on non-white residents”. In Texas, the state has been unable to provide sufficient information to the DOJ about the effect its voter ID law would have on minorities. It’s not hard to get the impression that neither of these states, or any of the others that are going down this road, really care about it.

And that’s the point, of course, but for reasons I don’t understand, the issue continues to be portrayed by lazy media outlets as follows:

Supporters of voter ID laws say they are needed to combat voter fraud. Critics say they discriminate against minority and low-income voters, including many such voters who tend to vote Democratic.

Yes, it’s always he-said, she-said. But let’s take a look once again at that “supporters” – that is, Republicans – “say they are needed to combat voter fraud”. Like many other of those “critics”, I have repeatedly pointed out that “supporters” are unable to point to even one case of the kind of fraud that voter ID laws might be able to mitigate against actually taking place. The reason for this is that a moment’s thought clearly demonstrates how ridiculously implausible and impractical a fraud-by-impersonation scheme would be.

Suppose you’re a candidate in a race you believe will be close, and you want to pad your totals a bit to help improve your odds of victory. Let’s use the recent Thibaut-Burks runoff, a race decided by some 250 votes, as an example of the kind of race where you might want to consider cheating in this fashion. From the perspective of either candidate, if you believe the race will be sufficiently close to make cheating attractive, you first have to consider how many extra votes you need. You don’t want to make it too close, since that attracts scrutiny and you might either be off by a little and just miss or barely squeak by and risk losing after provisional votes are counted. For either candidate, I’d say a thousand votes would be the minimum amount to make the effort worthwhile. That’s about two percent of the vote total, so enough to be reasonably sure it will make a difference but not so much as to make anything stand out.

So instead of identifying a thousand legal voters who might vote for you if they dragged themselves to the polls and work on getting them to vote for you, you decide to find a thousand people who can’t vote and give them the forged credentials of a thousand people who can vote but won’t and herd them to the polls to vote for you. These are the people that voter ID laws are supposed to stop, because now in addition to their forged voter registration cards they’d also need to produce a forged driver’s license to commit their crime, and that apparently is a bridge too far for cheating candidates. You also have to choose very carefully the voters that your illegal horde will be impersonating, because if even one of them decides to vote, the existence of their duplicated ballot will be strong evidence that something untoward is going on, and would risk your entire scheme.

Now that you have a plan, you need to execute it. That first means creating all those forged voter registration cards and distributing them to your impersonators. Well, I guess technically you have to locate the impersonators and get them to agree to participate. I don’t think there’s a listing for that in the phone book or on the Internet, but let’s just wave our hands at that and assume that being the resourceful cheating candidate that you are, you can find an army of impostors. The next obstacle you face will be cost. I figure it’ll run you some ten grand to design and produce a thousand fake voter registration cards. Your fake voters need to be paid something, too. Even if they’re too unsophisticated to realize that you are asking them to commit a felony, they need to be compensated for their time. If they agree to work for ten bucks apiece, that’s another ten grand. And of course, you need someone to coordinate all of this – finding the voters, identifying the non-voters they’ll be portraying, producing and distributing the documents, and ensuring that they actually go and vote. I don’t even know how to estimate the cost of all that, but again since the person or persons involved will be risking jail time, you have to figure it starts in five digits. You’re talking a minimum of thirty grand, which would be more than enough to cover the cost of a couple of mail pieces to the voter universe for a city runoff, all without the worry that you’ll someday be carted off in handcuffs. Tell me again why this was a good idea?

Oh, and remember that this all has to be done off the books, or at least in a way that the expenditures look innocent on a campaign finance report. Either way, you’re potentially adding other fraud charges to the list of things you could be arrested for. Now stop and think about all the people who know at least a little something about your illegal activities. Again, even if you assume that none of the thousand illegal voters has any idea they’re doing anything wrong, at the very least you have your illegal vote coordinator and your campaign manager, who presumably has signed off on this even if he or she refrains from doing any of the overt activity, as well as you yourself and perhaps your spouse or significant other. How likely is it that no one involved ever talks about this? Not just to the authorities, but to bloggers and other political lowlifes who traffic in gossip and innuendo and whatnot. There’s an entire right-wing media machine out there that would desperately love (and handsomely compensate) anyone who came forward with even the flimsiest evidence of such a conspiracy to steal an election, and they would trumpet that story 24/7 until everyone involved were arrested, waterboarded, and sent to Gitmo. Yet somehow a single name has never been associated with such a scheme.

This is what those “supporters” of these laws want you to believe is happening and has happened many times in our elections, enough to justify laws that will make it not just harder but downright impossible for legal, habitual voters to do what they’ve always legally done. And the media, which can’t be bothered to think this through, is content to tell you that there are also “critics” who say that voting rights could be compromised. Hey, what’s a little dispute among partisans, right?

Now, I’m not saying there’s no such thing as vote fraud. There certainly is, and there almost certainly is a fair amount of undetected vote fraud. What I am saying is that this particular type of vote fraud, the only type of vote fraud that voter ID legislation could possibly be an effective solution for, is so ludicrously unfeasible on its face as to completely invalidate the argument for it. The proper response to this is to laugh scornfully and ask why, if the Republicans who keep pushing voter ID as a cure for election integrity care so much about safeguarding the process, there is no expressed concern about fraud by absentee ballot, or fraud by compromising electronic voting machines, which after all this time are still basically black boxes. I mean, if I wanted to steal an election, that’s the way I’d go. Figure out a way to alter the bits on the memory sticks, or attack the program that tallies the vote directly. More bang for the buck, far less exposure, and complete control over the outcome. What more could you want? When Republicans turn the conversation to protecting the integrity of our elections on these fronts, then we can talk. Until then, I will continue to call bullshit on voter ID.

On voting rights

Attorney General Eric Holder was in Austin last week to give a speech on voting rights and the things the Justice Department is doing to protect them. No, the location was not an accident.

Giving his most expansive speech on civil rights since taking office, the nation’s chief law enforcement officer declared that “we need election systems that are free from fraud, discrimination and partisan influence — and that are more, not less, accessible to the citizens of this country.”

He urged the country to “call on our political parties to resist the temptation to suppress certain votes in the hope of attaining electoral success.”

“Instead, encourage and work with the parties to achieve this success by appealing to more voters,” Holder said during an appearance in Austin, Texas.

Currently, the Justice Department is reviewing new requirements in Texas and South Carolina requiring voters to produce a photo ID before casting ballots. The department also is examining changes that Florida has made to its electoral process — imposing financial penalties on third-party voter registration organizations like the League of Women Voters when they miss deadlines and shortening the number of days in the early voting period before elections.

The Justice Department has its work cut out for it. Holder’s remarks as prepared are here. One thing to highlight:

One final area for reform that merits our strongest support is the growing effort – which is already underway in several states – to modernize voter registration. Today, the single biggest barrier to voting in this country is our antiquated registration system. According to the Census Bureau, of the 75 million adult citizens who failed to vote in the last presidential election, 60 million of them were not registered and, therefore, not eligible to cast a ballot.

All eligible citizens can and should be automatically registered to vote. The ability to vote is a right – it is not a privilege. Under our current system, many voters must follow cumbersome and needlessly complex voter registration rules. And every election season, state and local officials have to manually process a crush of new applications – most of them handwritten – leaving the system riddled with errors, and, too often, creating chaos at the polls.

Fortunately, modern technology provides a straightforward fix for these problems – if we have the political will to bring our election systems into the 21st century. It should be the government’s responsibility to automatically register citizens to vote, by compiling – from databases that already exist – a list of all eligible residents in each jurisdiction. Of course, these lists would be used solely to administer elections – and would protect essential privacy rights.

We must also address the fact that although one in nine Americans move every year, their voter registration often does not move with them. Many would-be voters don’t realize this until they’ve missed the deadline for registering, which can fall a full month before Election Day. Election officials should work together to establish a program of permanent, portable registration – so that voters who move can vote at their new polling place on Election Day. Until that happens, we should implement fail-safe procedures to correct voter-roll errors and omissions, by allowing every voter to cast a regular, non-provisional ballot on Election Day. Several states have already taken this step, and it’s been shown to increase turnout by at least three to five percentage points.

These modernization efforts would not only improve the integrity of our elections, they would also save precious taxpayer dollars.

I’m not really sure that the ability to vote is considered a right in this country, because if it were it wouldn’t be so easy to deny people the ability to vote. Voter ID legislation, which is designed to make it harder to vote, is working as intended. Voter registration has declined in Harris County over the past decade even as the population has boomed thanks in large part to the tireless effort of the Tax Assessor to purge the rolls. Basically, you can’t vote unless you prove you’re eligible and you haven’t been knocked out by some bureaucratic paperwork requirement. In a country that viewed the ability to vote as a right and not a privilege, you’d think it would be the other way around. Innocent until proven guilty, as it were.

Note, by the way, that the technological solution Holder outlines is in its own way a form of voter ID. The difference is that it’s the responsibility of the government to ensure every voter is accounted for and has the required identification to be able to cast a vote. It’s putting the burden on the voter that makes these laws so incompatible with the notion that we have the right to be able to vote. If something can be taken away by the whim of a bureaucrat, it’s not a right.

Ryan issues opinions about poll watching

Harris County Attorney Vince Ryan has issued a couple of opinions relating to poll watching that may help clear things up a bit. The first opinion has to do with where poll watchers may and may not go:

Poll watchers are entitled to observe all election activity from the time the electionworkers arrive at the polling place to set up in the morning until the equipment is packed up andlocked up at night. See TEX. ELEC. CODE § 33.056 (Vernon 2010). However, poll watchers are not allowed to follow voters into the “voting station” to observe the voters unless the voter requests assistance from an election judge or election clerk. See TEX. ELEC. CODE § 33.057 (Vernon 2010).

Questions have arisen as to what area of the polling place constitutes the “voting station.” Generally, this area includes all of the area surrounding the location of the eSlate machines or the privacy booths where paper ballots may be marked.

Disputes may be minimized by marking lines on the floor indicating areas where the”voting station” is located. The Texas Secretary of State’s office has indicated that as long as the lines are placed in a reasonable location, that this procedure is acceptable and has been used successfully in the past.

The second opinion has to do with recording devices:

Poll watchers must provide an affidavit that they are not in possession of any mechanical or electronic means of recording images or sound while serving as a watcher. TEX. ELEC. CODE §33.006(b)(6). This section applies to cell phones if they have the ability to take pictures or record videos. A watcher may not be accepted for service if the watcher has in his possession such a device. The presiding judge may inquire whether a watcher is in possession of such a prohibited device before accepting the watcher for service. TEX. ELEC.CODE §33 .051 (c). This prohibition applies only to poll watchers.

No person may use a wireless communication device within 100 feet of a voting station. TEX. ELEC. CODE §61.014(a). This section applies to any cell phone or other device that sends or receives an electronic communication signal, such as a laptop computer equipped with WiFi. No person may use any mechanical or electronic means of recording images or sound within 100 feet of a voting station. TEX. ELEC. CODE §61.0 l4(b). This section applies to cell phones if they have the ability to take still pictures or videos. A presiding judge may require a person violating these provisions to turn off the prohibited device or to leave the polling place. TEX. ELEC. CODE §61.014(c). These provisions do not apply to an election officer in conducting the officer’s official duties or to the of election equipment necessary for the conduct of the election. TEX. ELEC. CODE §6l.0 14(d).

Both seem straightforward enough. We’ll see if they make a difference. Unfortunately, it’ll take a lot more than that to deal with stuff like this.

[R]esidents in local African-American neighborhoods are being told some misleading information about their vote.

The mysterious fliers were handed out in parts of Sunnyside and Third Ward Tuesday night, and it is adding confusion to an already tense early voting period.

The fliers start out by saying “Republicans are trying to trick us” and goes on to urge voters not to vote a straight Democratic ticket. It also says a single vote for Bill White is a vote for the entire Democratic ticket.

In the Sunnyside early voting location, several voters say they were handed such fliers.

“They just said, ‘Here take this,’ and I told them I didn’t need it,” said Gary Carter.

The flier says the Black Democratic Trust of Texas is responsible, but it’s a group that doesn’t seem to exist.

You can see video at that link. Too bad no one with a recording device was there to capture some images of the folks handing out these flyers. Relatedly, Rep. Sheila Jackson Lee has now joined the call for election monitors to be sent to Harris County by the Justice Department. Her press release and a copy of the letter she sent to AG Eric Holder are here. Amusingly, the King Street Patriots have made a similar request. To protect them from the voters they’re harassing, I guess. I don’t have their press release, so I don’t know what that’s about. Hair Balls has more.

TDP to get KSP’s financial records

Good.

Houston tea party spinoff King Street Patriots will grant the Texas Democratic Party access to its financial records, forestalling an injunction hearing that had been set for Monday afternoon in Austin, according to TDP.

According to a TDP news release, review of the records will occur Tuesday at noon, with a hearing scheduled for Thursday in case TDP General Counsel Chad Dunn still has questions about what KSP has or has not disclosed.

TDP’s original information request was sent last Wednesday and demanded that KSP — as a registered Texas nonprofit corporation — turn over required records last Friday or today. On Friday, TDP announced it had scheduled the injunction hearing due to a lack of response from KSP, as the Texas Independent previously reported.

The Lone Star Project has started digging in, and this is what they’ve found so far:

King Street hiding source of $80,000

Though acknowledging the receipt of over $80,000, the King Street extremists refuse to disclose who contributed the money. Incredibly, the group contends that the funds were raised by “passing the hat” at their meetings. To put this outrageous claim into perspective, it would take 1,600 people contributing $50 each to raise $80,000 while a group of 400 people would have to contribute an average of $200 each. According to activist participants, the King Street extremists’ meeting space could barely hold 200 people, yet they claim to have raised as much as $15,000 at a single meeting simply by “passing the hat.”

Given their reluctance to come clean on their contributors, depositions taken under oath will likely be necessary to expose the actual sources and amounts of funds raised and spent by the King Street extremists.

Multiple Ties to Republican Party Activists and Party Officers
As expected, the documents show that the King Street activists operate more like an arm of the Republican Party than any non-profit organization:

  • Office space provided by close supporters of Texas Republican Party Chair
  • Online and communication services provided by key Swift Boat player
  • Cash payments to a right-wing extremist website

There’s more, so check it out. I can’t wait to see what the depositions turn up. And kudos to the Independent, which has owned this story. I still haven’t seen any reporting on it in the Chron. On a related note, former City Council member Carroll Robinson has sent a letter to Attorney General Eric Holder asking for election monitors to be sent to Harris County to “ensure that the voting rights of all the residents of the county are protected”. We’ll see what happens with that.

The chiefs talk about Arizona

HPD Chief Charles McClelland was one of several police chiefs to go to Washington and talk with Attorney General Eric Holder about why Arizona’s immigration law would be harmful to them, and why the federal government needs to finish the job of comprehensive immigration reform.

“The federal government should bring clarity to this issue,” McClelland said outside the Justice Department following a one-hour meeting with Holder.

McClelland said the government needs to define the varying roles of federal, state and local police agencies in enforcing federal statutes.

Several of the police chiefs were critical of the Arizona law, which allows police officers to demand from people proof of being in the country legally.

Tucson Police Chief Roberto Villaseñor said officers are bound to enforce the law, but warned that it would have consequences.

Those consequences, the chiefs said, include the possibility that victims and witnesses with questionable immigration status might not come forward to report crimes or cooperate with investigators.

That loss of trust with segments of the community would give criminals more protection from law enforcement, they said.

As I’ve noted before, we’ve already seen what happens when local law enforcement steps in on the immigration question. In Maricopa County, Arizona, home of nativist Sheriff Joe Arpaio, crime is up and response times are down, because the Sheriff’s deputies are too busy rounding up people who may be undocumented immigrants to focus on the rest of their job. We already know what will happen, because it’s already happened. Why would we want to emulate that?

Voter ID must be reviewed

This is generally good news, but maybe not quite as good as it sounds.

Texas’ proposed Voter ID law would be subject to approval by the U.S. Department of Justice or federal court for it to become law, federal officials confirm.

In a letter to the American Civil Liberties Union of Texas, Christopher Coates, chief of the Justice Departments’ voting section, advised that “before a change such as one requiring photo identification as part of the voting process can be legally enforced in Texas elections, state officials will be required to comply” with a federal law requiring review.

[…]

Last month, state Sen. Rodney Ellis, D-Houston, and the ACLU asked the federal Attorney General whether the proposed changes in Texas law to require a photo ID at the polls would be subject to the 1965 Voting Rights Act.

A provision of that law requires jurisdictions with a history of racial discrimination in voting to get permission from the federal government before changing election laws.

Because of that, Texas would have the option of submitting Voter ID for approval by U.S. Attorney General Eric Holder or requesting a federal judge in the District of Columbia to rule “that the proposed change has neither the purpose nor will have the effect of discriminating on the basis of race, color or membership in a protected …group,” explained Coates.

“This strengthens our opposition to this politically motivated and unnecessary piece of legislation,” Terri Burke, executive director of the ACLU of Texas, said in a statement. “We feel the provisions would violate the Voting Rights Act of 1965 and place an undue burden on minority voters.”

If the review goes to the Justice Department, then I feel confident that nothing onerous will get through. If the court in question is the DC Circuit Appeals Court, with its heavy Republican tilt, I feel a lot less confident. Who gets to decide who does the review? It’s good that there will be some kind of backstop on this if all else fails, but I’m not ready to celebrate just yet.

CSI: Needs Improvement

Looks like Gil Grissom got out at just the right time.

Crime labs nationwide must be overhauled to prevent the types of mistakes that put innocent people in prison and leave criminals out on the street, researchers have concluded.

A 255-page report from the National Academy of Sciences is urging creation of national standards of training, certification and expertise for forensic criminal work, much of which is currently done on a city or state level.

The report’s authors say the lack of consistent standards raises the possibility that the quality of forensic evidence presented in court can vary unpredictably.

[…]

In particular, the report’s authors point out that, with the lone exception of DNA evidence, similar analysis of bite marks, tool marks, or hair samples, cannot provide a conclusive “match” in the common understanding of the term.

Such evidence can show similarities between a suspect and evidence left at a crime scene, but does not provide absolute certainty.

Peter Neufeld, co-founder of The Innocence Project which helps free wrongly convicted prisoners, said the findings marked nothing less than a “seismic shift” in criminal forensic science.

“It’s going to take a national undertaking, a massive national overhaul, to make our forensic science community sufficiently robust,” argued Neufeld.

Peter Marone, the director of Virginia’s forensic lab, acknowledged “there are some issues that need to be addressed” within the profession, but said by and large the report’s recommendations echo what he and other experts have been saying for years.

“We need better education, we need better standardization, and we do need accredited universities,” he said.

[…]

The NAS report recommends Congress create and fund a new, national institute of forensic science to help establish consistent standard for forensic science, certification of experts, and development of new technology. It also recommends that forensic science work be moved out of the offices of law enforcement agencies to foster more unbiased analysis.

Those recommendations were made for the HPD Crime Lab as well, and were an issue in the District Attorney’s race last year. It’s great to issue a report like this, and I agree it’s a huge shift in how we think about these things, but it’ll be little more than interesting bathroom reading unless there’s a federal funding mechanism to make this happen. It’ll also presumably require action in state legislatures as well, to create the replacement labs. So consider this to be the first step on the thousand-mile journey. Grits has more.

The next US Attorney in Houston

Now that we finally have an Attorney General, we also have a lot of people who would like to work for him.

The U.S. attorney wannabes who confirmed for the Houston Chronicle that they are interested are Harris County District Judge Marc Carter, Galveston County District Judge Susan Criss, lawyer and ex-prosecutor Philip Hilder, Assistant U.S. Attorney Cedric Joubert, Assistant U.S. Attorney Ken Magidson, lawyer and ex-prosecutor Ricky Raven, lawyer and ex-prosecutor Eric Reed, lawyer Larry Veselka and lawyer and ex-prosecutor Susan Strawn.

U.S. Rep. Lloyd Doggett, D-Austin, is collecting applications. His office confirmed that Assistant U.S. Attorney Mark White III and Cameron County District Attorney Armando Villalobos have expressed interest in the job.

Some others whose names are being discussed have pulled themselves off or seem equivocal.

Brownsville lawyer Benigno “Trey” Martinez said he is out of the race since he decided not to uproot his family. Ex-Houston Police Chief Clarence Bradford said he was encouraged to seek the position but probably won’t.

The U.S. Southern District of Texas, headquartered in Houston, covers 43 counties and runs down the coast from Galveston to Brownsville and as far west as Laredo. The Houston-based U.S. attorney is one of four top federal prosecutors in Texas.

Those four prosecutors are Tim Johnson of the Southern District, who was an interim appointment, Johnny Sutton of the West District in San Antonio, James T. Jacks of the North District in the Metroplex, and Rebecca Gregory of the East District in Beaumont. I don’t know what the normal procedure is here for US Attorneys when there’s a new President, especially one of a different party, but I would assume at least one more of these offices will open up. Not to be too crassly political about it, but given the thinness of the Democrats’ bench for statewide office, these would be plum positions for someone with higher ambitions.

Most of those seeking the job are Democrats, though Magidson just finished filling a Republican term as Harris County district attorney. White’s father was the former Democratic Texas governor. Hilder and Veselka were active in President Barack Obama’s campaign.

And Judge Marc Carter is a Republican as well. I’m happy for him that he’s interested in the job, but with all due respect, he can get in line behind the Democratic hopefuls.