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Fifth Circuit Court of Appeals

Once more with the bail order for Harris County

Getting close to the end.

The federal judge presiding over the landmark bail lawsuit against Harris County said she planned to issue revised instructions within two weeks for how pretrial release should operate for thousands of poor people arrested on low-level offenses.

Chief U.S. District Judge Lee H. Rosenthal fielded input Thursday from attorneys on both sides of the contentious two-year dispute about which defendants should be held in custody and which ones released during the first two days following an arrest.

Rosenthal’s instructions from the 5th U.S. Circuit Court of Appeals were to figure out details, but she said she hoped the county, which has spent more than $6.1 million battling the lawsuit, was on board with the appeals court’s overall findings about the unfairness of “wealth based detention.”

[…]

The attorneys for the indigent defendants asked Rosenthal to consider ordering the immediate release of poor people arrested on certain offenses like drunk driving or writing bad checks if people with the means to pay bond were being released immediately on the same charges.

Lawyers for Harris County, and the hearing officers and county court at law judges who oppose the lawsuit, requested that Rosenthal follow the appeals court instructions to allow up to 48 hours for indigent defendants to appear before a judge who can make an appropriate determination about bail.

Judge Rosenthal had issued final instructions earlier in June, so I presume this is a modification of that. It’s my hope that the next development in this case will a ruling that satisfies the plaintiffs and that the defense accepts. We really do need to end this litigation, and there’s not much of an argument left for the county to make. Regardless, it’s still a good idea to vote out the judges that made us go through all this in November. A political resolution on top of a legal one would really make the difference.

Omnibus lawsuit against anti-abortion laws

Talk about going big.

Two years after the U.S. Supreme Court overturned major provisions of Texas’ omnibus House Bill 2, abortion rights groups want to use that decision to take down years’ worth of anti-abortion legislation, before the court makeup changes. In a 5-3 decision, the justices determined that provisions of the 2013 law didn’t provide “medical benefits sufficient to justify the burdens upon access that each imposes.” Emboldened by the ruling, abortion providers went through years of Texas regulations to determine others that could be challenged under the same health and safety standard, leading to the lawsuit filed against the attorney general, state health department, and others.

“I think of this as an omnibus repeal,” said Amy Hagstrom Miller, president of Whole Woman’s Health Alliance, the lead plaintiff in the HB 2 case and the new lawsuit. “There’s a new standard, and we can look at it to challenge a bunch of things at once.”

The lawsuit, which Hagstrom Miller calls “the big fix,” is far-reaching. Filed in federal district court in Austin, it challenges a parental notification law from 1999 and abortion reporting requirements from 2017. It takes issue with the state’s ultrasound requirement, mandatory waiting period, parental consent requirement, restrictions on medication abortion and telehealth services, provider licensing laws and more than 20 other restrictions.

[…]

Work began on the new lawsuit not long after the HB 2 decision. Last May, Hagstrom Miller hinted at litigation, saying at the reopening of her Austin clinic that “we have the opportunity to try to get some other things fixed by the Supreme Court before the makeup changes — if the makeup changes.” She had already started brainstorming this lawsuit, holding meetings with providers and scribbling regulations to tackle on whiteboards, she told the Observer on Wednesday.

The new challenge comes as conservative lawmakers around the country are aggressively pushing anti-abortion legislation. One bill proposed during the last session of the Texas Legislature would have criminalized abortion and charged women and providers with murder. The Legislature passed a measure that bans the most common form of second-trimester abortion, and another that requires the burial or cremation of fetal remains after abortions and miscarriages. Both are currently blocked, but some anti-abortion advocates hope to push the former to the Supreme Court.

The Trib lists the plaintiffs: the Whole Woman’s Health Alliance, the Afiya Center, Fund Texas Choice, the Lilith Fund, the Texas Equal Access Fund, the West Fund and Dr. Bhavik Kumar, who serves as medical director of the Whole Woman’s Health Alliance clinic. I can imagine them scoring at least a significant partial win in district court, then running into significant resistance from the Fifth Circuit – basically, exactly what happened with the lawsuit against HB2 – and after that who knows. It’s a bold strategy and has the potential for a lot of good, but as with any bold strategy there’s risk as well. Needless to say, I wish them all the best. A press release from the West Fund is here, and the Chron and Texas Monthly have more.

Final instructions in bail practices lawsuit

We may finally be nearing a conclusion in this matter.

A year after a landmark ruling that upended Harris County’s bail system, a federal appeals court Friday issued final instructions for a Houston judge to craft a revised plan for releasing poor people who qualify after arrests for low-level offenses.

Lawyers on both sides of the contentious two-year lawsuit hailed the ruling Friday as a victory, and the county said it offered a solid template for a final settlement.

Chief U.S. District Judge Lee H. Rosenthal, who issued an injunction last year halting longstanding bail practices, set a new hearing June 14 for both sides to begin hammering out a detailed plan.

A New Orleans appeals court Friday rejected the county’s requests to halt or alter portions of the historic 2017 ruling in which Rosenthal found the county’s bail process violated constitutional rights to equal protection and due process, subjecting poor people to what termed “wealth-based detention.” The 5th U.S. Circuit Court of Appeals handed the case back to Rosenthal to begin implementing adjustments to her order addressing the release of misdemeanor defendants who don’t have holds or detainers.

“Harris County has been working diligently to improve the criminal justice system,” said Robert Soard, first assistant to Harris County Attorney Vince Ryan. “The county remains committed to a settlement that maximizes the number of misdemeanor detainees who are eligible for prompt release from jail without secured bail, that provides due regard for the rights of victims and protection of the community, and preserves the independence of the judiciary.”

But the court denied several requests from the county for immediate changes to Rosenthal’s order. Neal Manne, one of the attorneys for the indigent defendants, said he was delighted the court amended its ruling the way his legal team requested.

“We went 3-for-3 today, which is usually done only by Jose Altuve,” he said.

See here for the background. All I can say is that if everyone feels like they won in this ruling, then everyone should feel like they’re in a good position to negotiate a final agreement, and that maybe there aren’t that many points of disagreement left to dicker over. Perhaps we’ll find out on June 14. It is long past time for this matter to be resolved, and for a better and more just system to be implemented.

Fifth Circuit does its thing in the motor voter case

The sky is blue, water is wet, and the Fifth Circuit does what the state of Texas asks it to do.

Still the only voter ID anyone should need

Texas will not be required to meet a 45-day deadline to implement online voter registration for drivers — for now.

The 5th U.S. Circuit Court of Appeals on Thursday temporarily blocked a lower court ruling that mandated a voter registration system that would allow drivers to register to vote when they renew their driver’s licenses online. The requirement was part of U.S. District Judge Orlando Garcia’s ruling that Texas was violating a federal voter registration law — also known as the “Motor Voter Act” — that’s meant to ease the voter registration process.

Pointing to registration deadlines for the November election, Garcia ordered the state to create the online system — the first mechanism for online voter registration in the state — in order to comply with the Motor Voter Act, which requires states to allow people to register to vote while getting their driver’s licenses.

Last week, the state appealed to the New Orleans-based 5th Circuit, which put Garcia’s ruling on hold during the appeals process. That appeal could drag out for months, leaving uncertain whether the online system will be in place ahead of this fall’s elections.

See here for the background. Seems optimistic to me to think there might be a chance of a resolution in time for this election, but I suppose anything is possible. I have to ask, when was the last time the state was denied an injunction for a ruling that went against them? I can’t off the top of my head think of a recent example of the Fifth Circuit not giving them excellent customer service. I can’t even think of a reason why this might surprise me. The Chron has more.

State asks for emergency stay of “motor voter” ruling

Also as expected.

Still the only voter ID anyone should need

Texas Attorney General Ken Paxton on Friday asked a federal appeals court to block a San Antonio judge’s order that gave state officials 45 days to correct an online voter registration system that was found to violate federal law.

U.S. District Judge Orlando Garcia on Monday ordered officials to create a process that lets Texans simultaneously register to vote when they obtain or renew a driver’s license on the Department of Public Safety website. The current system violates the National Voter Registration Act’s motor-voter provision by adding several hurdles to the registration process, the judge ruled.

Paxton quickly informed the 5th U.S. Circuit Court of Appeals that he intends to challenge Garcia’s order.

[…]

Paxton’s filing argued that Garcia added requirements that are not included in federal law, such as ordering state officials to create a public-education campaign to explain the new voter-registration process.

In addition, Paxton argued that the three voters who sued lacked standing because they were already registered to vote when their lawsuit was filed in 2016.

He also complained that Garcia gave state officials only 45 days to make the changes, saying the state’s current online vendor could not complete changes before its contract expires Sept. 1, and the new vendor would need 90 days to create a process.

See here for the background. The next scene in this movie that we’ve all seen before is the Fifth Circuit giving Paxton what he wants, and then we wait for the appeals process to play out. Lather, rinse, repeat.

State appeals “motor voter” ruling

No surprise.

Still the only voter ID anyone should need

The legal fight over whether Texas is disenfranchising thousands of voters by violating a federal voter registration law is on its way to federal appeals court.

Just after a federal judge gave Texas less than two months to implement a limited version of online voter registration, the state on Monday formally notified U.S. District Judge Orlando Garcia that it was appealing his finding that Texas was violating the law — also known as the “Motor Voter Act” — by failing to allow drivers to register to vote when they renew their driver’s licenses online.

Pointing to registration deadlines for the November election, Garcia created a 45-day deadline for the state to create the online system for drivers in order to comply with the federal law that requires states to allow people to register to vote while getting their drivers licenses.

[…]

The AG’s office tried to defend the state’s practice of directing drivers to the secretary of state’s website. But Garcia ruled that practice “is not enough” and violates the Motor Voter Act and the Constitution’s Equal Protection Clause by treating voters who deal with their driver’s licenses online differently than those who register in person.

The state had also argued that there are technological difficulties associated with online voter registration even in this narrow form, particularly because state law requires a signature when an individual registers to vote. But Garcia also dismissed that argument because the state already keeps an electronic signature on file.

The state’s “excuse for noncompliance is not supported by the facts or the law,” Garcia said in his ruling.

See here and here for the background. I figure the first order of business will be for the state to try to get the Fifth Circuit to put this on hold pending the appeal. Given that court’s track record of granting such injunctions whenever the state comes knocking, I wouldn’t hold my breath waiting for that online system to come about. The Chron has more.

Fifth Circuit upholds voter ID changes

Ugh.

Still the only voter ID anyone should need

Amid efforts to prove Texas’ embattled voter ID law is discriminatory, a federal appeals panel on Friday OK’d state lawmakers’ efforts to rewrite the law last year to address faults previously identified by the courts.

On a 2-1 vote, a three-judge panel of the U.S. 5th Circuit Court of Appeals reversed a lower court’s ruling that tossed out the state’s revisions through Senate Bill 5. The lower court had said the changes did not absolve Texas lawmakers from responsibility for discriminating against voters of color when they crafted one of the nation’s strictest voter ID laws in 2011.

But the Legislature “succeeded in its goal” of addressing flaws in the voter ID law in 2017, Judge Edith Jones wrote in the majority opinion for the divided panel, and the lower court acted prematurely when it “abused its discretion” in ruling to invalidate SB 5.

The 5th Circuit panel’s ruling is a major victory for the state after years of losses in an almost seven-year legal battle over its restrictions on what forms of identification are accepted at the polls.

[…]

Key to the state’s defense was a change in the 2017 law that allows Texans without photo ID to vote if they present alternate forms of ID and sign affidavits swearing a “reasonable impediment” kept them from obtaining the proper ID. Those voters could present documents such as utility bills, bank statements or paychecks to confirm their identification, but lawmakers also wrote into law that those found to have lied about not possessing the proper photo ID could be charged with a state jail felony.

Arguing before the 5th Circuit in December, attorneys representing the voting and civil rights groups suing the state said the “reasonable impediment” provision was a faulty remedy because of the possibility that voting “under the express threat of going to jail” would have a “chilling effect” on voters without photo ID.

They also pointed out that the list of permissible IDs remains unchanged under the state’s new ID law: a state driver’s license or ID card, a concealed handgun license, a U.S. passport, a military ID card, a U.S. citizenship certificate or an election identification certificate.

On Friday, the 5th Circuit panel sided with the state’s argument that Ramos’ decision to reject its revisions to the voter ID law was improper because a new law would require a new legal challenge, but the court did note that opponents of the law could still separately challenge SB 5 in the future.

Judge James Graves Jr. employed striking imagery to lay out his dissent to the majority opinion. “A hog in a silk waistcoat is still a hog,” he wrote before explaining that the original voter ID law was an “unconstitutional disenfranchisement of duly qualified voters.”

“SB 5 is merely its adorned alter ego,” he added.

With a loss in hand, opponents could be derailed in their efforts to persuade the courts to place Texas back under federal oversight of its election laws — a process called preclearance.

See here, here, and here for the background, and here for a copy of the opinion. The plaintiffs can and almost certainly will ask for an en banc rehearing, though the partisan makeup of the Fifth Circuit does not inspire confidence. They can also start the whole process over by filing a new lawsuit against SB5. This litigation began in 2011 after the original bill SB14 was passed, and it’s not over yet, so you can get some idea of how much longer this might get dragged out if we go down that path.

As usual, Rick Hasen has a good analysis of the ruling and its effect. The bottom line is that despite two findings by the district court of intentional discrimination, the Fifth Circuit has now said that the technical fixes of SB5, which were enacted under court pressure by the Lege, washes that sin away completely. Ross Ramsey recently wrote that no matter what ultimately happens at SCOTUS with redistricting, the Republicans have already won, because they will get four cycles out of maps that are basically what they drew and may at worst have one cycle with court-mandated “faier” maps. No matter what happens from here, we’ve been operating under the original voter ID law or something not that far from it. There’s not price to pay for passing a discriminatory law, or potentially for passing discriminatory Congressional and legislative maps. Why wouldn’t any other Republican-controlled legislature do the same, given Texas’ experience?

As such, the only reliable solution going forward is a political one. We need to elect enough people who oppose voter ID to repeal this discriminatory, anti-democratic law. This is of course a long-term solution, but then a new lawsuit against SB5 would have something like a seven or eight year timeline based on the SB14 experience, with no guarantee of success. In the interim, we need to out more effort and resources into ensuring that people have what they need in order to be able to vote. It’s a travesty, but it’s our reality. We have no other choice.

More on the status of SB4

Ed Sills sent this one-pager from MALDEF to his mailing list; there’s no link and I couldn’t find it on the MALDEF webpage, so I’m just going to copy and paste here:

What did the Fifth Circuit Court decide?

On March 13, 2018, the U.S. Court of Appeals for the Fifth Circuit issued its ruling on whether SB4 should be allowed to take effect while the lawsuit moves through court. Most of SB4 is in effect today. The Fifth Circuit decision allows most of SB4 to remain in effect, but keeps part of SB4 blocked. In addition, the Fifth Circuit stated several important limitations on SB4.

What is the status of SB4 after the Fifth Circuit decision?

  • Elected officials are allowed to criticize SB4 and speak favorably about immigration reform without the fear of being punished. The Fifth Circuit ruled that SB4’s prohibition on speech about immigration is likely to be unconstitutional.
  • Cities and counties can adopt immigration-neutral policies that preserve scarce local resources. This means that cities and counties can direct their police officers to focus on local priorities such as keeping the community safe and maintaining community trust.
  • Cities and counties cannot bar their police officers and employees from assisting or cooperating with federal agents on immigration enforcement. However, local officials can only cooperate with federal agents when federal agents ask for help. Local officials cannot act on their own. Local officials also must act under federal direction and supervision.
  • Cities and counties cannot prohibit their employees or local police officers from questioning a detained person’s immigration status. However, local officers must still comply with the Constitution. For example, a local officer cannot decide on his own to arrest an individual simply for being undocumented. Local officers cannot stop individuals because of their race or detain individuals for prolonged periods of time.
  • SB4’s mandate to comply with ICE detainers remains in effect. However, jail officers must review detainers and can refuse a detainer if they know a detainee is authorized to be present in the United States or if the detainer does not follow ICE rules.

Where are we in this case?

The Fifth Circuit’s March 13, 2018 decision on the preliminary injunction is temporary. The district court will make a decision in the case after a trial. The March 13, 2018 decision from the Fifth Circuit remains in effect until a new court ruling is issued.

What can I do to help?

Contact MALDEF Staff Attorney Fátima Menéndez at fmenendez@maldef.org with any reports of local officers making immigration arrests or a jail detaining a person after that person has posted bail.

See here for the background. This Trib story discusses the legal strategy.

Attorneys and immigrants’ rights groups who fought against SB 4 said their next move isn’t clear but that they’re considering seeking a hearing before the entire 5th Circuit.

“There are a lot of parties [involved], so we are coordinating on this,” Efrén Olivares, the racial and economic justice director for the Texas Civil Rights Project, told reporters during a conference call. “But procedurally, the next step would be to request an en banc hearing.” There is also the possibility of asking the U.S. Supreme Court, he said.

The plaintiffs’ attorneys admitted Wednesday that they were not surprised at the ruling due to the 5th Circuit’s conservative leanings, so it’s unclear how much faith they will have in pleading their case before the entire court. But, they said, there remains the option to show that in its implementation, SB 4 leads to several constitutional violations.

[…]

Olivares said that while the next step in the appeals process is being considered, the lawyers and their supporters will also prepare for the case to head back to San Antonio. Tuesday’s ruling was only on the temporary injunction of SB 4; now, the district court is set to consider the law itself.

It’s not so much that the Fifth Circuit is conservative but that the specific three-judge panel that heard this appeal was made up of some of its most conservative members. Any time you draw Edith Jones and Jerry Smith, you can probably predict the outcome, and it ain’t gonna be pretty. There’s at least a chance the en banc appeal could get a different result. Beyond that, I’d say focusing on the case on the merits is probably the best thing to do. Either way, it still sucks.

Fifth Circuit lets most of SB4 remain in place

Ugh.

A panel of three U.S. 5th Circuit Court of Appeals judges ruled Tuesday that most of the state’s immigration enforcement legislation, Senate Bill 4, can remain in effect while the case plays out, handing a victory to Gov. Greg Abbott and Republican supporters of the legislation.

As passed, Senate Bill 4 allows local law enforcement officers to question the immigration status of people they detain or arrest and punishes local government department heads and elected officials who don’t cooperate with federal immigration “detainers” — requests by agents to turn over immigrants subject to possible deportation — in the form of jail time and penalties that exceed $25,000.

The one part of SB 4 that is still on hold is a provision that punishes local officials from “adopting, enforcing or endorsing” policies that specifically prohibit or limit enforcement of immigration laws. The judges kept that injunction in place, but said it only applies to the word “endorse.” The bill, as passed and signed, would have made elected and appointed officials subject to a fine, jail time and possible removal from office for violating all or parts of the legislation.

The American Civil Liberties Union of Texas, which represents some of the plaintiffs in the SB 4 case, said it was considering how to move forward.

“The court made clear that we remain free to challenge the manner in which the law is implemented, so we will be monitoring the situation on the ground closely,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project.

See here, here, and here for the background. This one is destined for the Supreme Court, but in the meantime it can’t hurt to ask for an en banc review, as this wasn’t the friendliest three judge panel. This is still the injunction phase, not the trial on the merits, so no matter what there’s still a long road ahead. A copy of the ruling is here, and Texas Monthly has more.

ACLU goes after Judge McSpadden

As well they should.

The ACLU of Texas is asking Harris County’s longest serving felony court judge to resign after making a statement to the Houston Chronicle on his views about black men’s attitudes toward the criminal justice system.

The civil rights group also is asking that the judge be automatically recused from cases involving African-American defendants until an investigation into potential racial bias occurs, according to a news release Tuesday.

[…]

“If there remained any doubt that the deck is stacked against people of color in our criminal justice system, Michael McSpadden just dispelled it,” said Terri Burke, executive director of the ACLU of Texas. “When a sitting judge feels comfortable enough to admit openly and on the record that he uses bail orders to jail black defendants on the assumption they can’t be trusted, it’s time to take action. This kind of flagrant racism has no place in our justice system.”

She said, “The Texas Commission on Judicial Conduct needs to take the first step toward rooting it out, and Judge McSpadden should voluntarily step down.”

McSpadden could not be immediately respond to a request for comment Tuesday. His court staff said he was on the bench hearing cases.

The civil rights organization said McSpadden’s comments violate the Texas Code of Judicial Conduct and could merit removal from office.

“Judge McSpadden’s remarks are inexcusable, but not at all surprising for those of us who know the justice system well,” said former death row inmate Anthony Graves, who runs a criminal justice initiative for the ACLU of Texas.

See here for the background. Perhaps there’s some context Judge McSpadden can add to his comments, or perhaps he could just admit that was a dumb and offensive thing to say and offer an apology for it. People may or may not accept either action, but at least it would be something. In the absence of any such followup, one is left to conclude that he has nothing further to say on the matter. Whatever one may have thought of Judge McSpadden before now, that’s not a good look. And as a reminder, Judge McSpadden is up for election this fall. For all the griping some people do about partisan judicial elections, they do at least give the voters the chance to correct errors on the bench.

On a side note, two of Judge McSpadden’s colleagues on the misdemeanor courts are again urging the county to settle the bail lawsuit.

“The most conservative appellate court in this country, strict constitutional conservatives, have said that this practice that we are doing is unconstitutional,” said Judge Darrell Jordan, one of the defendants in the lawsuit.

Jordan told County Judge Ed Emmett and county commissioners that fighting the suit had already cost Harris County $6 million in legal fees. “I’m asking that you all cut this last check, fire these $6 million lawyers, let the County Attorney’s office come, and we all sit down and work out a settlement.”

Jordan’s co-defendant, Judge Mike Fields, urged Emmett and the commissioners to “use every tool in your arsenal to help us settle this lawsuit.” Fields added, “Our county needs to settle this for financial reasons, and our public needs it settled for reasons of good governance and confidence in the criminal justice system.”

Judge Emmett said he’s willing to settle on the basis of the 5th Circuit’s ruling, but said plaintiffs haven’t responded to offers to talk.

Judge Jordan, the lone Democrat on these benches, and Judge Fields have been the lone voices from those courts for sanity. Unfortunately, their colleagues remain uninterested in such matters as the cost of the litigation and the fact that they’ve lost at every step and looked bad in doing so. And they’re all up for election this November. See my comments above on that.

Fifth Circuit largely upholds bail practices ruling

Good.

The 26-page opinion by Judge Edith Brown Clement affirms the majority of Chief U.S. District Judge Lee H. Rosenthal’s landmark ruling, including her finding that the county’s bail policies violated the due process and equal protection clauses of the U.S. Constitution.

However, Clement and fellow judges Edward C. Prado and Catarina Haynes disagreed with Rosenthal’s analysis on three matters and sent the case back for her to reconsider those elements.

They concluded Rosenthal was overly broad in her analysis of the due process violation and in extending no-cash bail to all indigent defendants. They found her demand that qualified defendants be released within 24 hours was “too onerous,” opting instead for a 48-hour window.

They also ordered Rosenthal to fine tune how officials assess a defendant’s ability to pay bond.

County Commissioner Rodney Ellis, a supporter of the lawsuit who traveled to New Orleans to hear the oral arguments in the case, called it “a significant victory for justice.”

“With this decision, the conservative 5th Circuit is telling Harris County that it’s unconstitutional to have two justice systems: one for the rich and one for the poor,” Ellis said. “Yet Harris County has already spent more than $5 million defending a morally and legally indefensible bail system that violates the Constitution and punishes people simply because they are poor.”

[…]

Attorney Neal Manne, whose firm, Susman Godfrey, joined in filing the lawsuit, praised the decision.

“I am absolutely thrilled by the ruling, which is a huge and historic victory for our clients,” he said.

The appeals judges found that the county had acted mechanically in reviewing bond decisions, failing to take the time to consider economic factors. The ruling summarized Rosenthal’s equal protection findings by imagining the outcomes for two hypothetical misdemeanor defendants, identical in every way — facing the same charge, from the same criminal backgrounds, living in the same circumstances — except that one was wealthy and the other indigent.

While the wealthy arrestee was less likely to plead guilty and get a shorter sentence or be acquitted, and less likely to pay the social costs of incarceration, it found, the poor arrestee, “must bear the brunt of all of these, simply because he has less money than his wealthy counterpart,” they wrote.

See here for the previous update, and here for a copy of the ruling. This was basically how I read it based on the coverage of the arguments. I agree with attorney Manne and Commissioner Ellis that this is a great ruling, and that it’s way past time to settle this effing thing.

The Trib adds on:

But the ruling wasn’t a total win for the plaintiffs. The appellate court still said Rosenthal’s ruling was “overbroad” and asked her to narrow some of the orders against the county.

Perhaps of most significance, the appellate court pushed back on Rosenthal’s order for the sheriff to release at no cost all misdemeanor defendants who claim they can’t afford their bond within 24 hours of arrest, regardless of whether they’ve had their bail reviewed or set at a higher cost. The appellate judges appeared suspicious about Rosenthal’s time limit in their hearing and said Wednesday that it was too strict.

In sending the case back to Rosenthal for a modified ruling, the higher court suggested an injunction that demands that poor defendants who claim they can’t afford their bail be entitled to a hearing within 48 hours of arrest where they can argue for a lower or no-cost bond.

If a judicial officer declines to lower the bond at this hearing, he or she would have to put the reason for their decision in writing, and the arrestee would then get a formal bail review hearing before a judge. If, after those 48 hours, there are no records showing an individualized bail review process took place, the sheriff could release the defendant at no cost.

‘The 48-hour requirement is intended to address the endemic problem of misdemeanor arrestees being detained until case disposition and pleading guilty to secure faster release from pretrial detention,” Clement wrote.

I’m fine with that, and I expect the plaintiffs will be as well. Mark Bennett sums it up.

It’s time for the fourteen criminal court at law judges to declare victory and go home. ((Just between you and me, this opinion is a rout for the judges. The changes are small, and the current injunction remains in place until Judge Rosenthal modifies it.))

Indeed. I really hope this time they listen.

Voter ID back before the Fifth Circuit

And the worst judge on the Fifth Circuit does her thing.

Still the only voter ID anyone should need

In Texas’ bid to keep its voter identification law intact, it was its legal foes — lawyers representing voting and civil rights groups and individual voters of color — who faced a tougher line of questioning Tuesday before a federal appellate court.

In light of recent revisions to the state’s voter ID law, two judges on the three-judge panel of the U.S. 5th Circuit Court of Appeals raised questions about claims that lawmakers intentionally discriminated against voters of color when they passed rules on which photo IDs can be presented at the polls. That intentional discrimination claim, which a lower court affirmed this year, is key to the case over the state voter ID restrictions.

“If there is nothing that says we are trying to advantage white voters … isn’t that proof that there wasn’t discriminatory intent?” Judge Edith Jones, a Reagan appointee, said of the plaintiffs’ lack of a smoking gun to prove purposeful discrimination by lawmakers, despite thousands of pages of memos and transcripts of debates over the voter ID requirements.

[…]

Texas lawmakers passed Senate Bill 5, which mostly followed the lead of temporary voter ID rules Ramos put in place for the 2016 elections in an effort to ease the state’s requirements.

Key to the state’s defense: The new law allows Texans without photo ID to vote if they present alternate forms of ID and sign affidavits swearing a “reasonable impediment” kept them from obtaining the proper ID. Those voters could present documents such as utility bills, bank statements or paychecks to confirm their identification. Those found to have lied about not possessing the proper photo ID could be charged with a state jail felony, which carries a penalty of 180 days to two years in jail.

That revision “completely changes the nature of the law,” Texas Solicitor General Scott Keller told the judges on Tuesday, arguing the appellate court should dismiss Ramos’ August decision to toss that bill out, too. Ramos said SB 5 didn’t clear Texas lawmakers of discriminating against Hispanic and black voters when they passed the original law.

Attorneys representing the voting and civil rights groups suing the state asserted that the “reasonable impediment” provision was a faulty remedy to issues with the original law.

Voting “under the express threat of going to jail” would have a “chilling effect” on voters without photo ID who are more likely to be people of color, said Janai Nelson, an attorney with the NAACP Legal Defense and Educational Fund.

“What one hand gives, the other taketh away,” Nelson said of “reasonable impediment” addition.

See here for the long story. This is all about whether the law was intentionally discriminatory, in which case it would be thrown out in its entirity, or if the fix passed by the Lege remediates all that. This is going to go to SCOTUS, likely with an en banc stop along the way, so whatever happens here is not the last word. Some day this will all be over.

State has not appealed the voting rights case on language interpreters

Interesting.

Texas has spent years defending its voting laws in court, regularly appealing rulings that found state lawmakers violated the rights of their voters. So when a federal appellate court in August ruled against the state’s restrictions on language interpreters at the ballot box, it was easy to assume an appeal would follow.

But more than three months later, Texas appears to be conceding the case.

“We have not heard anything from Texas,” said Jerry Vattamala, director of the Asian American Legal Defense and Education Fund’s democracy program, who is representing the plaintiffs in the case. “It appears that they are not appealing.”

At issue in the case was an obscure provision of the Texas Election Code that required interpreters helping someone cast a ballot to also be registered to vote in the same county in which they are providing help.

In its August ruling, a three-judge panel of the U.S. 5th Circuit Court of Appeals affirmed a lower court’s finding that Texas ran afoul of the federal Voting Rights Act by restricting the interpretation assistance that English-limited voters may receive and that the law should be struck down.

The appellate court found that Texas’ “limitation” on a voter’s choice “impermissibly narrows” rights guaranteed by a lesser-known section of the Voting Rights Act under which a voter who needs assistance because of visual impairments, disabilities or literacy skills can be helped in casting a ballot by the person of their choice, as long as it’s not their employer or a union leader.

“The problem remains that the Texas provisions expressly limit the right to the act of casting a ballot,” the judges wrote in August. “It should go without saying that a state cannot restrict this federally guaranteed right by enacting a statute tracking its language, then defining terms more restrictively than as federally defined.”

The Texas attorney general’s office, which is representing the state in court, for weeks has been unable to confirm whether its lawyers are appealing the ruling or letting stand the lower court ruling.

“At this time, we cannot confirm or deny any filings sent to the Supreme Court,” Kayleigh Lovvorn, a spokeswoman for the AG’s office, said last week. Instead, she pointed the Tribune to a link to the 5th Circuit’s August ruling on a free, online courts database.

But two weeks past a deadline to appeal to the U.S. Supreme Court, the clerk’s office for the high court has not received a filing for the case. A clerk for the 5th Circuit confirmed the case is closed at the appellate court, and no recent filings appear on the case’s docket at the lower district court where the case originated.

See here for the last update. I don’t know if this means that no further appeals are possible or if it just means that it’s too late for the current SCOTUS term. I also have no idea why the AG’s office has not pursued this. Whatever the merits of an appeal by them may be, it’s not in Ken Paxton or Greg Abbott’s nature to let something go. Whatever the reason, I’m happy with the outcome.

Abortion procedure ban struck down

Good news, for now.

A federal district judge handed a victory to abortion rights groups Wednesday when he struck down part of a Texas law curbing access to the most common second-trimester abortion procedure, called dilation and evacuation.

In a decision that will be appealed before the U.S. 5th Circuit Court of Appeals, Judge Lee Yeakel said the provision imposes an “undue burden” on women seeking second-trimester abortions in the state.

It had been slated to go into effect Sept. 1 as part of Senate Bill 8, a law signed by Gov. Greg Abbott earlier this year. But the Center for Reproductive Rights and Planned Parenthood filed suit in July on behalf of several women’s health providers in the state. Yeakel issued a temporary restraining order on enforcing the measure in August, a day before the ban’s effective date.

The temporary restraining order was set to expire Wednesday evening.

[…]

“The court concludes that requiring a woman to undergo an unwanted, risky, invasive, and experimental procedure in exchange for exercising her right to choose an abortion, substantially burdens that right,” Yeakel wrote in the opinion.

He added: “The State’s valid interest in promoting respect for the life of the unborn, although legitimate, is not sufficient to justify such a substantial obstacle to the constitutionally protected right of a woman to terminate a pregnancy before fetal viability.”

Almost immediately after the ruling was issued, Attorney General Ken Paxton issued a statement saying he’d appealed.

See here for the last update, and here for a copy of the ruling. The Fifth Circuit is a crapshoot with loaded dice, but at least for now doctors and women can do health care without the state butting in. The Austin Chronicle and the Center for Reproductive Rights have more.

Second trimester abortion lawsuit hearings conclude

Now we wait.

In a five-day trial that concluded Wednesday, lawyers for the state defended part of a Texas law that bans the most common second-trimester abortion procedure unless the fetus is deceased.

Abortion rights groups sued the state in July, arguing the provision restricting the dilation and evacuation procedure imposes an undue burden on Texas women seeking second-trimester abortions. Medical professionals deem the procedure the safest way to terminate a second-trimester pregnancy.

But the state argued in court the method is inhumane and that it’s reasonable to require fetal demise before the procedure is performed.

“The state has legitimate interest … in protecting the health of a woman and life of a fetus that may become a child,” said Darren McCarty, a lawyer for the state, in closing arguments. The provision at issue, he said, “regulates the moment of death, the moment of fetal termination, and nothing more. Whether … the lethal act is going to be, for instance, grabbing the leg and pulling it off the fetus, or whether instead the lethal act is going to be a single injection or perhaps just a snip of the umbilical cord.”

The trial centered on part of Senate Bill 8, a state law passed earlier this year that bans dilation and evacuation abortions unless the fetus is deceased. The ban had an effective date of Sept. 1. But Federal District Judge Lee Yeakel blocked its implementation with a temporary restraining order in August – a month after a lawsuit was filed by the Center for Reproductive Rights and Planned Parenthood on behalf of several women’s health providers in the state. Whole Woman’s Health is the lead plaintiff.

During the dilation and evacuation procedure, doctors use surgical instruments to grasp and remove pieces of fetal tissue — a process proponents of the law have called “dismemberment abortion.” Doctors would face criminal charges for violating the ban; the only exception would be in cases of medical emergency.

Yeakel did not say when a ruling would come, but a temporary restraining order on enforcing the ban expires Nov. 22. The decision is likely to be appealed to the U.S. 5th Circuit Court of Appeals, an outcome Yeakel alluded to several times during trial.

See here for the background. We know the drill here, we’ve been down this road too many times already. All I can say is look what happened in this Tuesday’s elections, and think about what could happen here. The Center for Reproductive Rights has more.

SB4 at the Fifth Circuit

Hoping for the best as always, but the Fifth Circuit has a way of stomping on that.

Tuesday’s hearing was on whether U.S. District Judge Orlando Garcia’s August decision to block several of the law’s provisions should stand while the case meanders through the court system.

[…]

In late August, Garcia halted several parts of the law, including the provision that requires jail officials to honor all detainers. He also blocked sections that prohibit local entities from pursuing or endorsing “a pattern or practice that ‘materially limits’ the enforcement of immigration laws” and another that prohibits “assisting or cooperating” with federal immigration officers as reasonable or necessary.

But a separate panel in New Orleans ruled the detainer provision could stand until an ultimate determination is made. The panel also determined that law enforcement officers, including campus police, with “authority that may impact immigration” cannot be prevented from assisting federal immigration officers. That ruling is what’s on the books until a decision on Tuesday’s arguments is reached.

Judge Edith Jones, who was appointed to the post by President Ronald Reagan, asked Texas Solicitor General Scott Keller Tuesday about the “endorsement” provision and whether that section of the law was too far-reaching.

“An elected official, like a sheriff or a county judge, certainly have more latitude to speak [against state policies], don’t they?” she asked.

But Keller said the state has modified several times what the definition of “endorse” means and that it applies to actions officials take in a “governmental capacity” to prevent enforcement of immigration laws.

“It has to be a use of government power to sanction or ratify a policy,” he said. “Let’s say an official were to say they disagreed that with the policies underlying SB 4. That would not be sanctioning or ratifying a [government policy].”

Keller also pushed back against the claim that the language of the law was too vague and didn’t provide enough guidance to law enforcement officials. He said the plaintiffs’ own admissions that current practices would be upended should SB 4 go into effect proved they know what the law does and doesn’t do.

“Here plaintiffs have conceded that various policies that they have would in fact be prohibited by SB 4,” he said. “That concession alone means a facial vagueness claim cannot stand.”

But Lee Gelernt, an attorney with the American Civil Liberties Union representing the city of El Cenizo, a small municipality in Webb County, said the state of Texas keeps changing it’s definition of what constitutes “materially limiting” cooperation, which implies the state knows the language is flawed.

“One of the critical aspects is that Texas has never been able to settle on an interpretation of the law,” he said. “Every time Texas comes to court, they say it’s obvious what it means for a sheriff to materially limit immigration enforcement. But on the other hand, every time we get to a new court, they change their interpretation, so it’s not clear.”

The panel also raised the issue of whether SB 4 was unconstitutional because immigration enforcement is largely under the purview of the federal government. Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund, which represents several of the plaintiffs, said there is federal guidance on what local law enforcement can do but that SB 4 exceeds that.

See here for the background. The panel is all Republican appointees, with Edith Jones being the worst of the lot, so I can’t say I feel terribly optimistic. But the plaintiffs’ attorneys are as good as they come, and there are previous rulings, including from SCOTUS, to lean on. We’ll know when the Fifth Circuit is damn good and ready to tell us. The Chron has more.

Paxton wants voter ID lawsuit to be over

I can think of one way he can make that happen. That’s not what he’s asking for, alas.

Still the only voter ID anyone should need

The fight over the state’s embattled voter ID laws should be over, Texas Attorney General Ken Paxton argued in a new court document filed late Tuesday.

Paxton, as expected, filed a brief with the U.S. Court of Appeals calling for the judges to end a challenge to the state’s new voter ID law for good. In his 101-page document, the Republican argued that because the state has already added new exceptions to the law to allow people who have a reasonable-impediment to getting an ID to still vote, the case should be officially concluded.

“This case should be over,” Paxton’s brief states.

[…]

[Judge Nelva] Gonzales Ramos ruled that forcing people to sign an affidavit under penalties of perjury could have a chilling effect on a voter. The supposed fix to the voter ID law, she ruled, merely traded one obstacle for another.

While the court battle continues, the courts have already ruled that in November the state’s voter ID requirements can be in effect, but still allow people to vote who can show the reasonable impediment – essentially the same as the revamped voter ID law, which does not go into effect until 2018.

See here, here, and here for the background. Paxton’s press release, with a link to the brief, is here. This is basically the crux of the case here: sure (the state argues), the original law may have had a few teensy problems, but we totally cleaned that up this session, so there’s no need for further action. There’s especially no need to ponder if the Lege had any discriminatory intent when it passed that first bill. All I can say at this point is it won’t be quick before we get a final answer.

No expedited appeal of voter ID

There’s no speeding this up.

Still the only voter ID anyone should need

A federal appeals court Tuesday declined to have all 14 judges participate in the appeal over the Texas voter ID law — a decision that will keep the issue unresolved heading into the 2018 elections, one judge said.

Civil rights groups, Democrats and minority voters who challenged the voter ID law as discriminatory had asked for the entire court to hear the appeal as a way to speed the case toward resolution.

The 10-4 ruling by the 5th U.S. Circuit Court of Appeals, however, means the appeal will be heard by the customary three-judge panel.

Writing in dissent, Justice Jerry Smith noted that the losing side will probably ask the entire court to review the panel’s decision in what is known as “en banc” consideration — a path the 5th Circuit Court took at an earlier stage of the case that, if taken again, would make it “impossible for a decision to be issued before some, if not all, of the 2018 elections are history,” he said.

“The lopsided vote to deny en banc hearing shows that the court has little appetite for disposing of this important case in advance of the beginning of the 2018 election cycle,” Smith wrote.

“The elephant in the room is Texas’s 2018 election schedule, which includes statewide primaries on March 6 (with early voting beginning February 20), municipal elections May 5 (early voting April 22), primary runoffs May 22 (early voting May 14), and the general election November 6 (early voting October 22),” Smith wrote.

See here for the background. The idea is that if the appeal is heard by the usual three-judge panel, whoever loses is going to ask for an en banc review anyway, so why not skip ahead to that? That’s not what we’re going to get, so the best we can hope for is a sense of urgency from everyone along the way. Oral arguments are set for the first week of December, and after that we’ll have to do a lot of waiting. Rick Hasen has more.

Fifth Circuit hears bail lawsuit arguments

Big day in court.

Amid a stream of pointed questions from the bench, lawyers for Harris County Tuesday asked panel of the 5th U.S. Circuit Court of Appeals to toss a lower court ruling that the county’s criminal justice system violated the constitution by holding poor defendants on low level offenses simply because they could not afford bail.

The arguments challenge an April ruling by Chief U.S. District Judge Lee H. Rosenthal in Houston that the county’s bail system violated due process and equal protection by discriminating against poor misdemeanor defendants, when people with the money to could await trial at home.

A trio of appellate judges heard 30 minutes of oral arguments from the county, which has spent $4.2 million combating the lawsuit, and another 30 minutes from lawyers for a group of indigent defendants who languished in jail for days because they couldn’t afford to post bail.

[…]

[Judge Catharina] Haynes commanded the questioning throughout the morning, including when Chuck Cooper, a seasoned appellate lawyer who heads the Washington, D.C. law firm Cooper & Kirk, argued for the county that the bail hearings were not perfunctory.

Haynes interrupted Cooper mid-sentence, with a rhetorical question, “Now they know they’re under scrutiny so they add an extra sentence to their rubber stamp?”

To Alec Karakatsanis, director of the Civil Rights Corps in D.C, who represents the indigent defendants who sued the county, Haynes repeatedly asked about why the defendants needed to be released from jail by the 24-hour mark.

“I’m asking a very specific question you’re not answering,” she said. “Where in the U.S. Constitution does it say you’re required to release… within 24 hours.”

“It doesn’t,” Karakatsanis said.

Haynes also asked what’s the value of the affidavit inmates sign to swear they can’t afford bail.

“What if they’re lying on this affidavit–I don’t know, if they’re a millionaire or something?” she queried.

Karakatsanis said they could face further prosecution for contempt if they misrepresented their means.

See here and here for some background, and here for a Chron preview; I’ve been following this for awhile so if you’re a regular reader this should mostly be familiar. The Trib adds some details.

The judges repeatedly peppered Cooper with questions about the county’s probable cause hearings, in which judicial officials called hearing officers hear the charges against a defendant, evaluate reports from pretrial interviews and occasionally alter bail. The plaintiffs have argued that defendants are not allowed to speak at these hearings, which Haynes and Prado jumped on.

“They’re called hearing officers. Is there a hearing or do they just look at the form and make a decision?” [Judge Edward] Prado asked.

When Cooper contended that they did, Haynes cut him off: “But they can’t speak. What is a hearing if you’re not going to listen?”

[…]

In his argument, Cooper cited multiple county reform efforts that have taken place since the court order took effect in June. In July, the county began using a new risk assessment tool to better recommend to judicial officers setting bail when low-risk offenders should be released on personal bonds. He said, though no data has been recorded in the court, that release on personal bonds has increased.

Haynes questioned whether it was worth sending the case back to the lower court to find new facts since the reforms have taken place. Karakatsanis argued the new facts are unknown, and that there is nothing in the court record to corroborate Cooper’s statements.

County Judge Darrell Jordan, the only Harris County judge who rejected money bail for indigent defendants before the ruling, was at the arguments and said afterward that he wished there was an opportunity to talk about the system under the changes. Overall, he said, the process hasn’t changed.

“If it is sent back to the lower court, then the numbers will show what is going on,” he said. “People are still being placed in jail, and they can’t afford to get out.”

It is unknown when the judges will make a decision whether to uphold Rosenthal’s ruling, overturn it or send it back to the lower court. But after the ruling, Karakatsanis said he was optimistic the court will stand by Rosenthal’s injunction.

“The order that they’re appealing from is based on very solid evidence, and they’re asking for it to be overturned,” he said. “You can’t just come in front of higher courts and say, ‘Well, facts are totally different from what happened…’ without any citation.”

All three judges were Bush appointees, by the way, one by 41 (as was trial judge Rosenthal) and two by 43. My layman’s reading of this is that the judges were far more skeptical of the county than of the plaintiffs, but they clearly found the 24-hour requirement to have a hearing or release a defendant questionable. If they want to modify that it’s probably not a big deal, but beyond that I hope they uphold the ruling. They’ll issue their opinion when they’re damn good and ready.

Trump nominates two to the Fifth Circuit

This is why Republicans put aside their doubts to vote for Trump, and it’s why they stick with him. This is the prize they kept their eyes on, and it’s paying off for them bigtime.

Don Willett

President Donald Trump on Thursday said he is nominating two Texans to the 5th U.S. Circuit Court of Appeals: Texas Supreme Court Justice Don Willett and Dallas attorney James Ho.

“Both of these gentlemen, I think, will do an outstanding job,” U.S. Sen. John Cornyn, R-Texas, said during a conference call with reporters.

They would need to be confirmed by the Senate.

Willett, a well-known Twitter user, has served on the state Supreme Court since 2005. During the 2016 presidential race, Trump had named Willett as a potential choice for the U.S. Supreme Court.

Ho is the former solicitor general of Texas. He has also served as chief counsel for Cornyn.

[…]

Even after Thursday’s announcements, Trump has a host of vacancies left to fill in Texas. He has yet to fill two U.S. attorney positions, including the post in the Southern District, which is the busiest in the country. Lt. Gov. Dan Patrick’s son Ryan Patrick is rumored to be the president’s choice for that post.

Trump also has six federal district court seats to fill, several of which have been classified as judicial emergencies. One of those seats has been open since 2011.

Neil Gorsuch gets all the attention as a tainted selection that resulted from extreme partisan obstruction, but don’t overlook all those district court and appellate court positions that have been open for years, with our two Senators refusing to allow any Obama nominations to be considered, let alone voted on. Willett and Ho are the beneficiaries of this from a professional standpoint, but one young and reliably conservative guy in a robe is as good as any other. This isn’t about qualifications – Willett and Ho are perfectly credible choices – it’s about opportunity, and about partisan cohesion. Don Willett and James Ho will be affecting public policy way longer than Donald Trump will. The Chron has more.

As I said, Willett and Ho are qualified to be judges – they’re not who I’d pick, but they fall within accepted norms for the job. Some nominees do not, but it’s going to take recognition of that in the right places to keep them out.

Texas U.S. Sen. John Cornyn raised fresh doubts Thursday about the White House nomination of assistant state Attorney General Jeff Mateer to be a federal judge in Texas.

Mateer, in a pair of speeches in 2015, reportedly referred to the rights of transgender children as part of “Satan’s plan” and defended the controversial practice of “conversion therapy” for gays.

Cornyn, commenting publicly for the first time since Mateer’s speeches were unearthed this month by CNN, said the speeches apparently were not disclosed to him as they should have been under a screening process set up by him and Sen. Ted Cruz.

“We requested that sort of information about speeches and the like on his application,” said Cornyn, the No. 2 Republican in the Senate. “And to my knowledge there was no information given about those, so it’s fair to say I was surprised.”

[…]

Cornyn said Thursday that he is reevaluating Mateer’s nomination in light of the undisclosed speeches as well as other public utterances.

“I am evaluating that information, and I understand there may be even addition information other than that which has previously been disclosed,” he said in a conference call with Texas reporters.

Cornyn, formerly a Texas Supreme Court Justice, said there should be no “religious test” for judges. “But it is important,” he added, “that all of our judges be people who can administer equal justice under the law and can separate their personal views from their duties as a judge.”

He added: “Because the information had not been previously disclosed, we were not able to have that kind of conversation with Mr. Mateer, so we’ve got some work to do.”

Ted Cruz, of course, has no such qualms, because he’s Ted Cruz. Note that Cornyn has left himself a lot of wiggle room here. His primary concern here is that Mateer may have more such, let’s say “intemperate”, remarks in his past that he hasn’t told the likes of Cornyn about. Big John can handle a little gay-bashing, but he doesn’t like to be surprised. As long as Mateer makes a few perfunctory statements about how of course he believes in equal justice for all and would never ever ever treat anyone unfairly in his courtroom, and as long as no more embarrassing video turns up, Cornyn will be happy to support him. Eyes on the prize, you know.

Ken Paxton REALLY wants your “sanctuary complaints”

What could possibly go wrong?

Best mugshot ever

Texans who suspect their elected or appointed officials of enforcing policies that protect undocumented immigrants can now file an official complaint with the office of the state’s top prosecutor.

Attorney General Ken Paxton on Tuesday announced his office is accepting sworn complaints against “sanctuary” jurisdictions that prohibit local police from cooperating with federal immigration authorities. The announcement comes after Monday’s decision by a three-judge panel of the U.S. 5th Circuit Court of Appeals that parts of the state’s immigration enforcement legislation, Senate Bill 4, can go into effect while the case plays out on appeal.

As passed, the law calls for civil penalties of up to $25,000 per day on local jurisdictions that violate its provisions. The officials are also eligible for removal from office.

[…]

Paxton said complaints could also be lodged against officials who adopt policies that prevent officers from assisting, cooperating or exchanging information with federal immigration officials.

The court ruled that officers cannot be prohibited from assisting or cooperating with the federal officials but that the language in the bill that prohibits “materially limiting” cooperation was too vague. That decision also drew mixed reviews.

“Local jurisdictions cannot flatly prohibit their employees from immigration enforcement or questioning,” [Nina Perales, VP of litigation for MALDEF] said. “But local jurisdictions are still allowed to set priorities.”

Yeah, there’s no conceivable way any of this could be used as a political vendetta against someone. I’m sure Ken Paxton will investigate any complaints with wisdom and impartiality. Like I said, what could possibly go wrong?

Fifth Circuit partially unblocks SB4

Terrible.

A panel of three appellate judges ruled on Monday that parts of the state’s immigration enforcement legislation, Senate Bill 4, can go into effect while the case plays out on appeal.

Last month, U.S. District Judge Orlando Garcia halted the part of the bill that requires jail officials to honor all detainers. He also blocked other sections that prohibit local entities from pursuing “a pattern or practice that ‘materially limits’ the enforcement of immigration laws” and another that prohibits “assisting or cooperating” with federal immigration officers as reasonable or necessary.

While a hearing on the state’s appeal of that ruling is scheduled for Nov. 6, a panel of U.S. 5th Circuit Court of Appeals judges ruled Monday that the detainer provision can stand for now. The panel ruled, however, that based on its interpretation of the law, the part that requires local jails to “comply with, honor and fulfill” detainers does not require detention based on every detainer issued.

“The ‘comply with, honor, and fulfill’ requirement does not require detention pursuant to every ICE detainer request,” the panel wrote. “Rather, the ‘comply with, honor, and fulfill’ provision mandates that local agencies cooperate according to existing ICE detainer practice and law.” The court also ruled that jails do not need to comply if a person under a detainer request provides proof of lawful presence.

The appellate court also ruled that local and college police officers with “authority that may impact immigration” cannot be prevented from assisting federal immigration officers. It said the state was likely to win those arguments during a subsequent hearing and argued the issue has already been settled in an earlier U.S. Supreme Court decision, Arizona v. United States.

But the 5th Circuit also said that portions of the measure that prevent “materially limiting” cooperation with immigration officials were too vague. The court held that the word “limit” could be too broadly interpreted and left a decision on that up to the subsequent panel.

The court offered a mixed ruling on another controversial item in the bill, a section of the law that prevents local governments from “adopting, enforcing or endorsing” policies that specifically prohibit or limit enforcement of immigration laws. The judges kept that injunction in place, but said it only applies to the word “endorse.” The bill, as passed and signed, would have made elected and appointed officials subject to a fine, jail time and possible removal from office for violating all or parts of the legislation. Opponents keyed in on the “endorsement” provision as something that would open up most officials to possible fines and jail time.

See here, here, and here for the background. I hate to say this could have been worse, because I agree with State Rep. Eddie Rodriguez in his statement that “No part of SB 4 should be allowed to take effect”, but it could have been worse. Even this limited ruling cracks the door open for the whole thing to be let through. I presume the plaintiffs will ask the whole court to reconsider, and will appeal to SCOTUS if they don’t succeed; the state will of course appeal if they do. In the meantime, there’s a whole lot more fighting to come, and a much darker cloud of fear for the many people who will be directly affected by this ruling. I know I harp on this a lot, but nothing is going to change until we change who we elect. The Observer and Texas Monthly, which has a great profile of Domésticas Unidas, one of the groups leading the resistance to SB4, have more.

Fifth Circuit hears SB4 injunction arguments

Big day in court.

The immediate future of Texas’ immigration enforcement law hinges on whether a three-judge panel in New Orleans was swayed Friday by the state’s attorneys that the legislation is essential to public safety and should not have been partially blocked by a federal judge days before it was scheduled to go into effect.

Attorneys on both sides of the issue used most of their allotted 40 minutes on Friday before the U.S. 5th Circuit Court of Appeals debating two major provisions of Senate Bill 4: whether local governments can be required to honor all ICE detainers, and whether local governments can be required to assist immigration officers on other matters.

[…]

Last month, U.S. District Judge Orlando Garcia halted the part of the bill that required jail officials to honor all detainers. He also blocked other sections that prohibit local entities from pursuing “a pattern or practice that ‘materially limits’ the enforcement of immigration laws” and another that prohibits “assisting or cooperating” with federal immigration officers as reasonable or necessary.

The Texas Attorney General’s office is asking the 5th Circuit court to lift those blocks while the case winds through the appeals process.

See here and here for the background. There’s too much argument to excerpt, so go read the whole thing. The main thing to keep in mind is that this is about whether or not the “sanctuary cities” law can be enforced while the litigation is ongoing. The injunction was put in place before enforcement was set to begin, so from that perspective things are no different today than they were before SB4 was passed. In practice, of course, things are very different, with immigrant communities living in terror as the state argues that they’re the cause of all our problems. The Fifth Circuit is on its own timeline for a ruling on the injunction, while there will be a hearing in early November for more arguments on the injunction and whether the case should proceed on its merits. In the meantime, we wait. The Current has more.

Fifth Circuit stays voter ID ruling

Ugh.

Still the only voter ID anyone should need

The state of Texas can use its revised voter ID measure for the upcoming November elections, a divided federal appeals court ruled on Tuesday.

The 2-1 decision, first reported by Politico Tuesday night, came from a panel of three federal judges on the Fifth Circuit Court of Appeals in New Orleans — and it marks the latest in a series of winding legal battles on whether the state has intentionally discriminated against black and Latino voters through its original voter ID law passed in 2011

[…]

In a joint order Tuesday, Judges Jerry Smith and Jennifer Elrod wrote that Texas “has made a strong showing that it is likely to succeed on the merits,” and added that the state has also “made a strong showing that this reasonable-impediment procedure remedies plaintiffs’ alleged harm and thus forecloses plaintiffs’ injunctive relief.”

The dissenting judge on the panel, Judge James Graves Jr., said it was still uncertain whether Texas would succeed — and pointed to the court’s ruling last year that a North Carolina voter ID law had been propelled by race and was never properly fixed.

See here, here, and here for the background, and here for a copy of the order. Rick Hasen explains where we stand now:

Given how each judge voted in the en banc ruling on the last round of the voter id case, nothing here is a surprise.

This is a ruling just by a motions panel; a separate merits panel will review the case in short order (the motions panel expedited consideration of the case).

There is still a long road ahead. The last time this went through it went en banc to the full 5th Circuit and took a while—so the status quo in the interim matters perhaps for how the 2018 elections will be conducted.

Plaintiffs could try to appeal this stay order to the Supreme Court, where they would probably face a tough audience, with perhaps Justice Kennedy in play.

That’s really what it comes down to, the 2018 election and what voter ID rules are in place. Look how long it took us to get to this point. All we can do is keep moving, there’s still more to be done. ThinkProgress and the Chron have more.

UPDATE: Oral arguments are set for the first week in December.

Trump’s Justice Department goes all in on voter ID

Despicable, but what did you expect?

Still the only voter ID anyone should need

Continuing a dramatic reversal on voting rights under President Donald Trump, the U.S. Department of Justice is asking a federal appeals court to allow Texas to enforce a photo voter identification law that a lower court found discriminatory.

In a filing Thursday, the Justice Department asked the U.S. 5th Circuit Court of Appeals to block a lower court ruling that the state’s new voter identification law — Senate Bill 5, enacted in this year — failed to fix intentional discrimination against minority voters found in a previous strict ID law, enacted in 2011.

[…]

Siding with Texas, the Justice Department says in its filing that the state has a “strong likelihood” of successfully arguing that SB 5 fixes discrimination in the old law. Allowing SB 5 to take effect will “avoid confusion among voters and election officials,” Thursday’s brief states.

The brief does not mention a key piece of Ramos’ rulings throughout the case: that lawmakers intentionally discriminated against Latino and black voters in passing its 2011 ID law. Findings of intentional discrimination typically allow for more sweeping remedies in court.

See here and here for the background. As we know, the Obama Justice Department was strongly opposed to this law, but Justice did a heel turn back in July under the new management. I note that like the AG’s office they decline to address the big honking klaxon in the room, that the 2011 law was enacted with discriminatory intent, which isn’t something that can be easily fixed with minor legislative tweaks. Seems like you have to really lean into the denial to make that case. Which doesn’t mean that it won’t work, just that it shouldn’t. It’s back to the Fifth Circuit for now.

UPDATE: And now we know that a three-judge panel at the Fifth Circuit has bought the argument and stayed Judge Ramos’ ruling pending the appeal. I was already heading to bed when that news broke. I’ll have a post about this tomorrow.

More on the SB4 ruling

Circling back to one of the big court decisions from last week, Slate’s Mark Joseph Stern talks to ACLU attorney Lee Gelernt about what was blocked by federal Judge Orlando Garcia in the “sanctuary cities” lawsuit.

Mark Joseph Stern: SB 4’s overarching goal is to compel all Texas law enforcement officers to enforce federal immigration law. Why is that illegal?

Lee Gelernt: SB 4 says that local entities, which are very broadly defined, cannot engage in a practice or adopt a policy that would “materially limit” federal immigration enforcement. We sued on behalf of a mayor and sheriff who were concerned that this provision meant they’d lose local control over their police force—and turn their police into adjuncts to the Trump administration’s immigration enforcement. Complying with SB 4 would drain resources and cause the community to lose trust in the police: Every time community members reported a crime, they’d be concerned that an officer would ask them about their immigration status. We already saw anxiety about that build during the recent hurricane.

Judge Garcia blocked this requirement because Congress has already laid out the procedure through which local law enforcement can become authorized to enforce immigration law. That procedure imposes numerous requirements on local law enforcement. SB 4 circumvents those requirements, which means it’s pre-empted by federal law.

[…]

One of SB 4’s most startling provisions effectively bars public officials from opposing the measure: No officer or employee of a local government may “endorse” a policy limiting the enforcement of federal immigration law. Each violation incurs a fine of $25,500, and violators may be removed from office. The court blocked this provision on First Amendment grounds. My biggest question is what in the world was Texas thinking?

In court, Texas didn’t really make a full-throated defense of that provision. The state’s lawyers tried to argue that the provision doesn’t actually prohibit speech. But of course it does, even though the statute doesn’t define “endorse.”

The court wrote that “endorse” could mean “a recommendation, suggestion, comment, or other expression in support of” limiting local immigration enforcement.

Right. The provision seems to bar local officials and employees from criticizing SB 4 even when they’re not acting in their public capacity. Police officers and mayors aren’t even sure if they can testify against SB 4 in court. This prohibition is so cryptic—but the penalties are extreme.

The court also blocked a provision that punishes any official who “materially limit[s]” law enforcement from “assisting or cooperating” with federal immigration officers. Anyone who violates this requirement is subject to both criminal and civil penalties. Why is that illegal?

Due process requires fair notice of what a law forbids or requires, and Judge Garcia ruled that this provision is simply too vague to comport with that rule. For instance, imagine a sheriff gets a call from a federal immigration officer who says, “We need your help.” Does the sheriff have to allow his officers to go? If he doesn’t, he could face tens of thousands of dollars in fines as well as jail time and removal from office. In court, Texas argued that the attorney general would never move against a sheriff in a case like that. But a lawyer’s promises aren’t good enough for people on the ground who have to make these decisions in real time.

SB 4 compels local law enforcement to honor “ICE detainers”—federal requests to detain possibly undocumented individuals for up to 48 hours after they should be released so that Immigration and Customs Enforcement can retrieve them. ICE detainers are contentious because they seem to infringe upon the Fourth Amendment’s bar on unreasonable detention.

We believe it is unconstitutional to detain an individual without probable cause of an actual crime. Living in the United States without documentation is not a crime but a civil violation, which raises concerns about the lawfulness of ICE detainers.

But even assuming that the Fourth Amendment allows states to detain individuals based on probable cause of a civil violation, SB 4 is illegal. Local jail officials must be able to make their own assessments of detainees to determine whether there is probable cause that they’ve committed a civil immigration violation. And SB 4 allows officials almost no discretion. It forces them to honor ICE detainers and detain an individual even if they think that detention is unlawful. SB 4 puts jail officials in a bind: Either honor the ICE detainer and act unconstitutionally, or don’t honor the detainer and subject yourself to jail time and removal from office.

See here for the background. The state has already filed it appeal, so the next action will come from the Fifth Circuit. As the Trib notes, not every part of the law was blocked.

The ability for local law enforcement officers to ask about status, and then turn that information over, are parts of SB 4 that some of its opponents fear the most. Those items weren’t blocked. But Thomas Saenz, the president and general counsel of the Mexican American Legal Defense and Educational Fund (MALDEF), attorneys for the plaintiffs in the lawsuit, said those provisions would probably not alter day-to-day operations significantly if they are followed the way the law states.

“These two provisions left in place largely replicate what is existing law,” he said Thursday during a call with reporters. “We further note — and Judge Garcia made clear — that the rights and the ability of police to act on any information received extends only to turning that information over to federal immigration authorities.”

That means that an officer can’t arrest that person based solely on the information. And, Saenz said, an officer can’t demand that information during a lawful stop.

“Every person has a right to refuse any question posed by a local police officer or sheriffs deputy about immigration status, and the refusal to answer questions about immigration should have no repercussions,” he said.

No doubt this provision is a big part of the reason why many immigrant victims of Harvey have not reached out for help, despite promises from mayor Turner among others that they will be fine. Even with the win in court, this law has already done a lot of damage. Texas Monthly has more.

Voter ID law thrown out

Fantastic.

Still the only voter ID anyone should need

A federal judge has tossed out a new law softening Texas’ strict voter identification requirements.

U.S. District Judge Nelva Gonzales Ramos on Wednesday ruled that Senate Bill 5, signed by Gov. Greg Abbott in June, doesn’t absolve Texas lawmakers from responsibility for discriminating against Latino and black voters when they crafted one of the nation’s strictest voter ID laws in 2011. The judge also ruled that the state failed to prove that the new law would accommodate such voters going forward.

[…]

Minority groups suing the state had asked Ramos to scrap SB 5, saying it still dripped with discrimination — largely because lawmakers did not expand the list of acceptable IDs.

Ramos agreed in her ruling Wednesday.

“SB 5 does not meaningfully expand the types of photo IDs that can qualify, even though the Court was clearly critical of Texas having the most restrictive list in the country,” she wrote. “Not one of the discriminatory features of [the old law] is fully ameliorated by the terms of SB 5.”

SB 5’s process for voters without proper ID, Ramos wrote, “trades one obstacle to voting with another—replacing the lack of qualified photo ID with an overreaching affidavit threatening severe penalties for perjury.”

The ruling also said Texas couldn’t be trusted to educate voters about changes to its ID law, following its widely criticized efforts ahead of elections in 2016 that were marked by confusion at the polls. She noted that Texas has claimed to spend $4 million on voter education before the 2018 elections, “but this stipulation is not part of SB 5 or any other statute.”

See here for the most recent update, and here for a copy of Judge Ramos’ order. Rick Hasen explains what this means.

To simplify things just a bit, when the district court first looked at this case, it determined that Texas’s voter ID law had a racially discriminatory effect, violating Section 2 of the Voting Rights Act, as well as a racially discriminatory purpose, violating the VRA and the 14th and 15th Amendment of the Constitution. When the case reached the Fifth Circuit on appeal, a sharply divided court sitting en banc (all of the 5th Circuit judges) agreed that the law violated Section 2 given its racially discriminatory effect. But the judges also held that the trial court had to reconsider the question of racially discriminatory purpose, because the court considered some evidence it should not have in evaluating purpose. The Supreme Court did not take a further appeal, with Chief Justice Roberts issuing a separate statement saying that the case was not really final enough to merit Supreme Court review.

For two reasons, it matters whether the courts find discriminatory purpose in addition to discriminatory effect. When there is just a discriminatory effect, the remedy is much narrower. In this case, the interim remedy was to tinker with the voter id law, such as allowing voters to file an affidavit explaining why they lack the necessary ID signed under penalty of perjury. With a finding of purpose, however, the entire law could (and today was) thrown out. Second, a finding of intentional discrimination can be the basis, under section 3c of the Voting Rights Act, to put Texas back under the preclearance provisions of the Voting Rights Act for up to 10 years, at the court’s discretion. The court has scheduled further briefing on the section 3c issue for the end of the month.

Today the court reaffirmed the discriminatory purpose finding, and held that the tweaks Texas made to its voter id law in a recent session did not solve the problem of discriminatory purpose. In some ways Texas made things worse. The affidavit requirement, for example, could intimidate voters given that many sections open up voters to prosecutions for felony perjury. The Court also noted that the new law did not include any money for voter education, which the court found crucial to a fairly applied voter id law.

As Hasen notes, the state will surely appeal, and unlike the redistricting case that will go to the Fifth Circuit, probably to an en banc panel. The key question there will be whether they put Judge Ramos’ ruling on hold and allow the SB5 version of voter ID to remain in effect during the appeals process or not. Ultimately, this ruling as well as any determination that Texas needs to be put back under preclearance, will go to SCOTUS. We’re still a ways off from that, but do remember that discriminatory intent was also found in the redistricting case, so there are two possible causes for a return to preclearance. I’ll say again, the state is on quite the losing streak with voting rights litigation. Being put back under preclearance would be richly deserved. Oh, and both parties will be back in court on the 31st to set a schedule for briefings and hearings on the preclearance question. I can hardly wait. A statement from MALC is here, and the Statesman, the Associated Press, Mother Jones, the DMN, Daily Kos, the Current, ThinkProgress, Vice News, and the Lone Star Project have more.

Fifth Circuit rules against Texas’ voter interpreter law

Good.

Texas ran afoul of the Voting Rights Act by restricting the interpretation assistance English-limited voters may receive at the ballot box, a federal appeals court found.

In an opinion issued Wednesday, a three-judge panel of the U.S. 5th Circuit Court of Appeals ruled that an obscure provision of the Texas Election Code that requires interpreters helping someone cast a ballot to also be registered to vote in the same county in which they are providing help clashes with federal voting protections.

That Texas law, the court found, violates a less-known section of the Voting Rights Act under which any voter who needs assistance because of visual impairments, disabilities or literacy skills can be helped in casting a ballot by the person of their choice, as long as it’s not their employer or a union leader.

Texas had argued that its interpreter requirement was meant to be “supplemental” to the VRA, but the appellate court ruled that the state’s “limitation on voter choice” instead “impermissibly narrows” the voting rights guaranteed by federal law.

“The problem remains that the Texas provisions expressly limit the right to the act of casting a ballot,” the judges wrote. “It should go without saying that a state cannot restrict this federally guaranteed right by enacting a statute tracking its language, then defining terms more restrictively than as federally defined.”

[…]

The interpreter voting law has been on hold since last year when U.S. District Judge Robert Pitman scolded the state for “arbitrarily” restricting voters with limited English proficiency. On Thursday, the 5th Circuit judges agreed with that judge’s ruling, but they sided with the state in determining that Pitman’s injunction on the law was too broad. Pitman must now take the case back up and reconsider the language he used in blocking the interpreter law.

See here, here, and here for the background, and here for a copy of the opinion. Basically, the district court judge’s opinion was upheld, with the injunction being vacated with a remand “for the entry of a new injunction, if appropriate, consistent with this opinion”. There were bills introduced in the Lege to address the issues in the lawsuit, but as far as I know they went nowhere. Maybe next time. Until then, we’ll see what the district court does, and if the state appeals. That’s quite the losing streak in voting rights-related cases we’re on here, isn’t it?

Still no word on what Pasadena will do with the redistricting appeal

We’re waiting.

Because the ruling went against the city, Pasadena is required to pay legal costs to attorneys for that group, the Mexican American Legal Defense Education Fund. In addition, the city’s fees to its legal representatives at Bickerstaff, Heath, Delgado and Acosta now total approximately $2.8 million as it pursues the appeal.

[…]

The council voted 5-3 on Aug. 1 to pay $45,585 to the Bickerstaff firm, bringing the total paid in legal fees over the last six months to the firm to more than $320,000. The city paid more than $2.5 million before the ruling.

At the Aug. 1 meeting, Councilman Don Harrison broached the topic of a settlement regarding MALDEF’s legal expenses.

“I understand through sources there are negotiations going on with MALDEF, who has requested $1.6 million to settle the lawsuit. We’ve had an executive session to discuss this, and yet we’re still continuing with the appeal,” said Harrison, who joined Sammy Casados and Cody Ray Wheeler in voting against approving the latest payment. “It’s time to settle this matter with MALDEF and get this lawsuit over.”

“We’re working everything we can, and once we get these numbers for sure we will have a council meeting to discuss this,” [Mayor Jeff] Wagner said.

See here for some background. The calculation is that if Pasadena eventually wins the appeal, they only have to pay their own lawyers and won’t owe the plaintiffs’ attorneys a dime. But if they lose, they will not only have paid their own lawyers that much more to keep on this, they’ll also owe attorneys’ fees for the plaintiffs, which will undoubtedly be a lot higher than the $1.6 million they’re apparently offering to take now. It’s almost as if that 2013 redistricting scheme pushed through by former Mayor Johnny Isbell was a really lousy idea that has served to put the city in such a terrible position today. Hindsight, y’all.

Fifth Circuit sets bail hearing

Mark your calendars.

Harris County will have another chance to defend its embattled cash bail system this fall in a lawsuit brought by indigent defendants who languished in jail for days because they couldn’t afford money bail.

The Fifth U.S. Circuit Court of Appeals announced Tuesday it has set oral arguments for the week of Oct. 2 in New Orleans. Each side will have a half hour to argue before a panel of three judges, officials said. The panel of judges will likely then take its decision under advisement, according to lawyers familiar with typical proceedings.

[…]

The county appealed the April 28 injunction issued by Chief U.S. District Judge Lee H. Rosenthal of the Southern District of Texas, in which she found that Harris County’s cash bail system discriminated against poor misdemeanor defendants.

“Cases get overturned,” said First Assistant County Attorney Robert Soard of the oral argument. “We’ll be given another opportunity to point out to the fifth circuit where we disagree with Judge Rosenthal.”

[…]

Harris County has spent $4 million on outside counsel to defend the case, according to latest county estimates, with a high-powered D.C. lawyer firm now on retainer.

You know where I stand on this. I just wonder how much more fight the county will have if they lose at this level, or even if they just fail to get an injunction against the current order. Do they plan to take this to the Supreme Court if necessary? How much influence is the Attorney General’s office exerting on this? There are a lot of questions that need to be answered.

The broader implications of the Pasadena voting rights lawsuit

Buried in this Trib story about the ongoing saga of Pasadena’s voting rights lawsuit is this nugget about the state getting involved.

The case could reverberate beyond Pasadena’s city limits. Legal experts contend that a decision by the 5th Circuit could guide other courts around the country that are considering similar voting rights cases.

The Pasadena ruling also has the potential to help build a case against the state, which faces its own voting rights challenges in court, said Richard Murray, a political science professor at the University of Houston who has studied voting rights cases for decades.

In lifting federal electoral oversight for Texas and other jurisdictions in 2013, the U.S. Supreme Court noted that conditions for minority voters had “dramatically improved,” but the justices left open the possibility that political jurisdictions could be placed back under preclearance if they committed new discriminatory actions.

Earlier this year, Texas faced a barrage of federal court rulings that found the 2011 Legislature intentionally discriminated against voters of colors by passing a stringent voter ID law and re-drawing the state’s political maps. Those cases are still making their way through federal courts in Corpus Christi and San Antonio.

The Pasadena ruling — “particularly because it was so thoroughly stated and so strong and by a judge that has no history of favoring blacks or Latinos in redistricting cases” — could serve as “another brick in building this case that Texas has a recent history of discriminatory action,” Murray said.

In a sign that Texas leaders also see Pasadena as a potential problem for its own cases, state attorneys filed an amicus brief in support of the city’s appeal, arguing that preclearance “must be sparingly and cautiously applied” to avoid reimposing “unwarranted federal intrusion.”

Judge Rosenthal’s preclearance ruling in the Pasadena case was improper, the state contends, because it was imposed for a single incident of discrimination instead of pervasive and rampant discrimination.

Raise your hand if you’re surprised that the state got involved. I’m surprised it took them this long. It is not yet clear if the city of Pasadena will continue to pursue this appeal. New Mayor Jeff Wagner has said he will abide by the will of Pasadena City Council. He hasn’t said much about it since being elected, including when he might ask them for their opinion. The Fifth Circuit declined to overturn Judge Rosenthal’s injunction on using the 6-2 Council map, but they did not address the merits of the overall ruling, including the bail-in on Section 3 of the Voting Rights Act. I don’t know what the time frame for a hearing of that appeal at the Fifth Circuit might be, but broadly speaking it’s likely to be some time in 2018. Unless Pasadena decides to drop it and accept the lower court ruling, of course. Will the state’s intervention have an effect on that? We’ll know when Mayor Wagner asks Council to vote on the appeal.

State to help defend county bail policies

Of course it will.

Best mugshot ever

Texas Attorney General Ken Paxton and the top lawyers in five other states are backing Harris County in its protracted battle over money bail for poor low-level defendants, as the tally of those released on no-cash bail nears 1,000.

Paxton and the lead attorneys in Arizona, Hawaii, Kansas, Louisiana and Nebraska filed a joint brief late Monday supporting the county’s appeal of a federal court order that took effect three weeks ago eliminating cash bail for indigent misdemeanor defendants.

[…]

At a tense Harris County Commissioners Court meeting on Tuesday, officials provided the clearest picture yet of the people released from impact of Rosenthal’s ruling. Nearly 980 people have been released by the sheriff under Rosenthal’s ruling as from June 6 through Friday, according to county’s office of budget management.

Of those, 40 people who were released on personal bonds had been arrested again by Friday and charged with new crimes, a rate of about 3 percent.

In the group of people who were able to afford cash bond — either through a bail bondsman or by posting cash — during the same time period, only about 1 percent had been re-arrested, county officials said.

The county’s arguments were countered in a lengthy hearing before Rosenthal that led to her order.

[…]

Paul Heaton, academic director of the University of Pennsylvania Law School’s Quattrone Center for the Fair Administration of Justice and co-author of a study on Harris County’s criminal justice system, said the brief rehashes old arguments.

“The brief does demonstrate, however, that there are still important constituencies that have yet to be convinced of the need for bail reform,” he said. “Despite the significant progress in this area in states like New Jersey, Maryland, and Kentucky, and the mounting empirical evidence that cash bail systems can generate unwanted disparities and harm public safety — particularly when applied to low-level offenders — there are still many jurisdictions satisfied with the status quo that don’t want to change.”

Alec Karakatsanis, director of Civil Rights Corps, who represents ODonnell and the others who couldn’t afford bail, said Monday’s filing by the states’ attorneys echoed that stance.

“The amicus brief is a repeat of bail industry talking points that are entirely untethered to law and to fact,” he said.

I couldn’t find a copy of the Paxton brief, so you’ll have to rely on the story for what we know. Hard to know what else to make of this, or if the amicus brief will have any effect. Some days I wonder what it would be like to have an Attorney General who fights on the right side of an issue, any issue. Must be nice.

Fifth Circuit to hear AALDEF lawsuit appeal

This happens today.

Amid last-minute efforts to overhaul the state’s voter identification law in light of an ongoing legal fight, the Texas Legislature gaveled out without addressing another embattled election law that’s now moving forward in federal court.

The U.S. 5th Circuit Court of Appeals on Thursday will take up a legal challenge to an obscure provision in the Texas Election Code that requires interpreters helping someone cast a ballot to also be registered to vote in the same county in which they are providing help.

That state law has been on hold since last year after a federal district judge ruled it violated the federal Voting Rights Act under which any voter who needs assistance because of visual impairments, disabilities or literacy skills can be helped in casting a ballot by the person of their choice, as long as it’s not their employer or a union leader.

“There’s nothing that’s being imposed. The state just needs to get out of the way,” said Jerry Vattamala, director of the Asian American Legal Defense and Education Fund’s democracy program.

[…]

“I don’t see how we could in legislative action place a criteria that would limit it more than a constitutional standard,” said state Sen. Sylvia Garcia, D-Houston, who filed one of the measures during this year’s regular legislative session that would’ve only left in place the assistor provision. “I just don’t think the state is serious about the right to vote or access to the election box. We just seem to bend over backwards to place barriers instead of working to increase voter turnout.”

Her legislation to bring the state in line with federal law languished in the Senate State Affairs Committee after colleagues raised concerns that it would allow voters to obtain help at the polls from noncitizens, Garcia said. The voter registration requirement by default requires the interpreter to be a U.S. citizen and 18 years old.

But sometimes voters ask their minor children to help them cast their ballots, Democratic state Rep. Ramon Romero of Fort Worth told the House Elections Committee during an April hearing. His proposal was similar to Garcia’s and also did not advance out of committee.

Despite the intricacies between interpreters and assistors, the case could ultimately come down to a question of standing if the state has its way.

See here, here, and here for the background. There was a simple legislative fix to what really shouldn’t have been a problem in the first place – the state even admitted that the Williamson County election officials who created the fuss in the first place acted incorrectly – but nothing got done. The state is now claiming that the plaintiffs lack standing to pursue this litigation as the original voter has passed away, and I have a sinking feeling that if the Fifth Circuit doesn’t buy that argument, SCOTUS might. We’ll just have to see.

SCOTUS will not hear Harris County bail appeal

Let this please be the end of the line.

U.S. Supreme Court Justice Clarence Thomas has denied Harris County’s request to stop the release of misdemeanor inmates who can’t afford to post cash bail.

The county had appealed late Tuesday to halt Chief U.S. District Judge Lee H. Rosenthal’s directive that it begin releasing some inmates accused of misdemeanor crimes who cannot afford bail. That order had gone into effect Tuesday, and continued Wednesday, while Thomas considered the county’s application.

Thomas’s denial means some inmates will continue to be released on personal recognizance ahead of their trials if they cannot afford bail. The county still has the option to ask another justice or the full Supreme Court to reconsider Thomas’s denial. Often follow-up requests to other justices are referred to the full court, according to the public information office for the Supreme Court.

Meanwhile, an appeals court is also considering the county’s appeal of Rosenthal’s full order.

See here for the background. The full Chron story has more details.

Chief U.S. District Judge Lee Rosenthal in Houston issued a 193-page ruling in April that the county’s bail system was unconstitutional and ordered the release of indigent misdemeanor defendants using personal bonds.

The 5th U.S. Circuit Court of Appeals on Tuesday morning rejected the county’s efforts to halt Rosenthal’s injunction while they challenged the full ruling in court. The county filed the same day for emergency consideration before the U.S. Supreme Court.

The latest legal blow left county officials weighing their options and refocusing efforts on challenging the larger order from Rosenthal, said First Assistant County Attorney Robert Soard.

The county still has the option to ask another justice or the full Supreme Court to reconsider Thomas’ ruling. Follow-up requests to other justices often are referred to the full court, according to the high court’s public information office.

Harris County District Attorney Kim Ogg – whose office has already begun supporting personal bonds for misdemeanors – praised the court’s decision.

“There is no longer any legal reason why the county cannot comply with Judge Lee Rosenthal’s order,” she said, in a written statement. “Holding people in jail solely because they are poor violates due process, and the courts at every level of our federal judiciary have clearly spoken.”

[…]

Precinct 3 County Commissioner Steve Radack said the county wants a chance to complete its reforms without federal intervention.

“I want the end result to be fairness, and that’s what we have been striving for,” Radack said. “I don’t think you can always get court-ordered fairness.”

The bail bond industry has also opposed the order, which will release thousands of potential clients without requiring them to post bond.

Veteran bondsman Carlos Manzano, of Americas Bail Bonds, said he and many of his colleagues believe the overuse of personal bonds will create a dangerous situation for the community.

“It’s kind of like just like giving everybody a slap on the hand,” he said. “It’s going to blow up in the county’s face. It’s just a ticking time bomb.”

[…]

Legal experts said the county has just about used up all its options in challenging Rosenthal’s order.

“There’s no question that Justice Thomas has concluded that there isn’t clear and obvious irreparable harm to the state if the stay isn’t granted,” said Lonny Hoffman, a professor at the University of Houston Law Center who specializes in federal procedure.

Sarah R. Guidry, executive director of the Earl Carl Institute for Legal and Social Policy at the Thurgood Marshall School of Law at Texas Southern University, said Thomas’ rejection of the county’s appeal will force local changes.

“This is going to put a fire under the county to figure out how to implement this,” she said. “It’s also going to have a huge impact on the bail bonds industry. They’re going to have to figure out a different way to make a living. They’re not going the get the bulk of their income off of poor people who are charged with low-level crimes.”

You know where I stand on this, so you know what I think of those BS fearmongering arguments from Steve Radack and the bail bond people. But hey, if I’m wrong then we’ll find out, because the county now has no choice but to comply. And when we find out that they’re the ones that are wrong and that nothing too bad happens, then what exactly will be the point of continuing to appeal? Settle now and save whatever dignity and lawyers’ fees we still can. It’s the only rational option. Lisa Falkenberg has more.