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Endorsement watch: Incumbency is no advantage, part 2

The Chron lays down a marker on the county criminal courts.

Each election cycle we determine our judicial endorsements by interviewing the candidates, researching their backgrounds, consulting with experts and coming to a conclusion about who best would be able to run a courtroom and see that justice is done. This year, however, one piece of evidence outweighed every other consideration for the Harris County criminal courts at law: Chief U.S. District Judge Lee Rosenthal’s 193-page memorandum declaring the bail system in our misdemeanor courts in violation of the Constitution’s guarantee of due process and equal protection.

[…]

While some of Judge Rosenthal’s remedies have been altered by the Fifth U.S. Circuit Court of Appeals, the underlying facts remain undisturbed. Those facts are shocking to the conscience, and should be enough to convince our misdemeanor court judges to work with the plaintiffs suing the county over its unconstitutional practices and reach a settlement. That hasn’t happened. Instead, all the judges except two — one Democrat and one Republican — have spent millions in taxpayer funds fighting the case in court.

In meeting with these judges we heard plenty of reasons why they’re continuing to fight. Some said they believe the plaintiffs’ demands go too far. Others said they want to make sure judges don’t lose discretion in individual cases. A few were worried about the effect on public safety of letting people accused of misdemeanors out of jail without a cash bond. Overall they pointed to the courts’ slow but steady progress and work with the Arnold Foundation in crafting a risk-assessment tool to improve the bail system.

These excuses are not enough to justify the perpetuation of a criminal justice system that Rosenthal says has resulted in “thousands of constitutional violations” of both equal protection and due process.

That is why we recommend that every incumbent judge continuing to fight the bail lawsuit be removed from his or her seat.

We do not make this recommendation lightly. There will be unfortunate consequences that weaken our misdemeanor courts in the short term. Harris County will lose experienced judges. Diversion courts will need new leadership if they are to continue. It’s possible that over the next four years we’ll face different sorts of challenges and scandals in pursuit of a new kind of judiciary. Our star ratings may seem off as we endorse challengers against incumbents with higher scores. But this is about something bigger than individual judges. This is about a criminal justice system in dire need of reform.

The public needs to send a message that we will not tolerate the status quo, one that the judges have been content to live with for too long. The only way to chart a path forward is to remove the current judges — root, branch and all.

A-frickin’-men. There was literally no other moral way for the Chron to handle this, and they did not get it wrong. Good for them. Note that this line in the sand still allowed for them to endorse a decent number of Republicans, as there were multiple incumbent judges who did not run for re-election. Of the 15 misdemeanor races, the Chron picked seven Dems and six Republicans, with one dual endorsement and one non-endorsement. (Yes, even though “the Houston Chronicle editorial board’s policy is to avoid co-endorsements or non-endorsements”. I’ll let it slide this time, but I won’t let it go unmentioned.) You should click over and read the recommendations, but the main thing to know is, don’t vote for anyone who supports the unconstitutional bail system. We have the power to fix this. Let’s not screw that up.

World’s worst pastors file suit against Austin’s equal rights ordinance

Exactly what you’d expect from these jerks.

A Houston-based religious nonprofit behind the so-called bathroom bill is suing the City of Austin over its anti-discrimination hiring ordinance. The U.S. Pastor Council filed suit in a federal district court late last week, alleging the city rule’s lack of exemptions for churches or other religiously affiliated groups violates state and federal law.

The suit asks the court to block the enforcement of the ordinance on behalf of its 25 member churches in the Austin area “because these member churches rely on the Bible rather than modern-day cultural fads for religious and moral guidance, they will not hire practicing homosexuals or transgendered people as clergy.”

In a June letter to the Austin City Council, Executive Director David Welch reasoned that the ordinance didn’t provide wide enough berth for religious exemption – and that Catholic churches refusing to hire women as priests or “homosexuals as clergy” would be violating the city law.

“These are the stingiest religious exemptions we have ever seen in an anti-discrimination law,” Welch wrote. “It is inexcusable that you would purport to subject a church’s hiring decisions to your city’s antidiscrimination ordinance.”

In a written statement today, the city defended its anti-discrimination ordinance.

“The ordinance reflects our values and culture respecting the dignity and rights of every individual,” said city spokesperson David Green. “We are prepared to vigorously defend the City against this challenge to the City’s civil rights protections.”

There’s a copy of the lawsuit embedded in the story. This is all transparent bullshit, but that’s par for the course with these clowns. The good news is that the good guys aren’t worried about this, or the accompanying state lawsuit that was also filed.

Texas Values, another conservative Christian organization, filed a separate, broader lawsuit in state district court, also on Saturday, seeking to invalidate the ordinance as it applies to both employment and housing decisions.

[…]

Texas Values’ lawsuit also invokes the Texas Religious Freedom Restoration Act, which says that, in general, governments cannot “substantially burden a person’s free exercise of religion.”

“The city of Austin’s so-called anti-discrimination laws violate the Texas Religious Freedom Restoration Act by punishing individuals, private businesses and religious nonprofits, including churches, for their religious beliefs on sexuality and marriage,” Jonathan Saenz, the president of Texas Values, said in a statement to The Texas Tribune.

[…]

“These lawsuits certainly highlight a coordinated effort among people who want to target LGBTQ people in court,” said Paul Castillo, a senior attorney at Lambda Legal, an advocacy firm for LGBTQ rights.

Castillo said he has not examined Texas Values’ suit but that the city of Austin “is on solid legal ground” in the U.S. Pastor Council lawsuit.

“In order to walk into court, you have to demonstrate some sort of injury,” Castillo said. “It doesn’t appear that the city of Austin is enforcing or has enforced its anti-discrimination laws in a way that would infringe upon these religions.”

He added that the timing of the lawsuits is “certainly suspect” as groups attempt to politicize LGBTQ issues ahead of the upcoming legislative session.

Jason Smith, a Fort Worth employment lawyer, said he expects both lawsuits to “go nowhere.” He points to former Supreme Court Justice Anthony Kennedy’s opinion in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which Smith said made it clear that religious beliefs do not justify discrimination.

Still, he said people should be “worried by the repeated attempts to limit the Supreme Court’s announcement that the Constitution protects gays and lesbians.”

There is currently no statewide law that protects LGBTQ employees from discrimination, but San Antonio, Dallas and Fort Worth have nondiscrimination ordinances similar to Austin’s. Smith said the other cities will be watching how the lawsuits in Austin unfold and that some cities may even file briefs to make the court aware of their positions.

Good to know, but as always it all comes down to what the judges make of it. I guess I have more faith in the federal courts at this point than our state courts, at least at the higher levels, but we’ll see. ThinkProgress has more.

The AG race and the lawsuit to kill Obamacare

I feel like this is a better issue for Justin Nelson than it is for Ken Paxton. Of course, on the down side, for it to really be salient millions of people will have lost health insurance. Not that Ken Paxton cares, of course.

Justin Nelson

Can a Texas-led lawsuit to kill Obamacare boost Democrats even in deep-red Texas?

Justin Nelson sure hopes so. The well-credentialed Austin lawyer is challenging the architect of that case, incumbent Republican Texas Attorney General Ken Paxton, in this fall’s general election, betting that the controversial case can help him overcome the partisan disadvantage that’s proved insurmountable for statewide Democratic candidates for the past two decades.

In February, Paxton — who was indicted in 2015 for securities fraud and has not yet gone to trial — launched a 20-state challenge to the landmark health care law, arguing that after Congress gutted the individual mandate, the rest of the law is unconstitutional and must fall. Critics have cast doubt on the case, from its motivations — many argue it’s rooted partisan politics, not genuine constitutional concerns — to its legal arguments.

As the lawsuit comes into play in races across the country, Nelson’s campaign has seized on it as perhaps its best bet at victory. Focusing on protections for pre-existing conditions — one of the most popular provisions of Obama’s landmark health law — Nelson has framed the lawsuit as his opponent’s attempt to wrench health care away from Texas’ most vulnerable residents. The Democrat brings the issue up almost as often as he cites the criminal charges against his opponent.

Republicans have been running against Obamacare practically since before it passed. But now, as they butt up against a midterm election season widely considered friendly to the Democrats, the issue may be becoming an advantage on the other side. Polling from the Kaiser Family Foundation shows that 75 percent of Americans consider protections for pre-existing conditions “very important.”

[…]

Brendan Steinhauser, a Republican strategist, said the Texas-led lawsuit is “creating a microscope” on a statewide race that tends to fly under the radar.

“To some extent, sure, yes, it keeps the name in the news in a positive way among [Paxton’s] base,” Steinhauser said. But it’s also “giving the Democrats something to use,” he added.

Nelson has pledged to withdraw from the lawsuit on his first day in office. Earlier this month, his camp hosted a protest in a park across the street from the Fort Worth courtroom where Paxton’s staff was asking a federal judge to block Obamacare nationwide. Dozens of protesters wielded signs with messages like “Why Oh Why Are You Killing Me?” and one protester dressed as the grim reaper.

The issue is clearly speaking to voters, Nelson said.

“People come up to me at events and hug me for what I’m doing, speaking out on protections for pre-existing conditions,” Nelson said.

His campaign claims the numbers bear that out. In internal polls, just over half of likely voters had either “serious doubts” or “very serious doubts” about Paxton’s efforts to roll back Obamacare’s protections, a spokeswoman said. Once voters are briefed on Paxton’s background, including on the indictment, she added, Nelson pulls ahead by a small margin.

A Paxton campaign spokesman said the incumbent carries a consistent 10-point lead in his campaign’s polling.

See here, here, and here for the background. I can believe that both candidates’ polling is accurate, or at least plausible. Nelson’s depends on people being aware of the Paxton-led lawsuit and its effect. An injunction from the judge would accomplish that, though I think the judge will heed the request to hold off till after the election. Wouldn’t want to get the rabble all roused up, after all. As the story notes, this lawsuit has been an issue in elections in other states. Breaking through here is harder – dozens of media markets, lots of oxygen being consumed by other races, not that much money in this race, etc – but a little media coverage can’t hurt. The more, the better.

Dallas County gets the Harris County treatment in its bail lawsuit

We have a precedent, even if everything is still a work in progress.

Taking a cue from the rulings on Harris County’s bail-setting practices, a U.S. district judge in Dallas issued a temporary order Thursday evening saying the county’s post-arrest procedures routinely violate inmates’ constitutional rights. The judge gave the county 30 days to change its ways.

U.S. District Judge David Godbey in Dallas said that the county has to stop the practice of imposing pre-set bail bond amounts, which often keep poor defendants locked up for days or weeks while letting wealthier ones go free, without individual consideration if arrestees claim they can’t afford it. He sided with the plaintiffs’ allegation that the county uses “wealth-based detention.”

“Wealthy arrestees — regardless of the crime they are accused of — who are offered secured bail can pay the requested amount and leave,” Godbey wrote. “Indigent arrestees in the same position cannot.”

[…]

Godbey relied heavily on Harris County rulings from the federal district court and the appellate court. He said the cases had the “same roots” — despite Dallas’ lawsuit also including felony defendants whereas Harris only involves those accused of misdemeanors — and concluded that doing anything other than what the appellate court ruled in Harris would “put the Court in direct conflict with binding precedent.”

“Broadly, those procedures include ‘notice, an opportunity to be heard and submit evidence within 48 hours of arrest, and a reasoned decision by an impartial decision-maker,’ he wrote, quoting the higher court’s ruling.

See here for some background, and here for an earlier story on how bail hearings have been done in Dallas. You know where I stand on this, and we both know that Dallas County has Democratic leadership, and thus I hope more than enough incentive to find a settlement. Some long overdue change is coming, and it is in everyone’s best interests to embrace it. The Chron and the Observer have more.

Dallas lawsuit over candidate eligibility officially mooted

From the inbox:

On Thursday, September 20, 2018, the Fifth Court of Appeals issued an Order in Dallas County GOP v. Dallas County Democratic Party, stating that any relief related to the November election is moot, and that the appeal, therefore, is limited to the propriety of dismissal under Rule 91a and attorney’s fees. Chad Baruch of Johnston, Tobey Baruch Law Firm, one of the attorneys for the Dallas County Democratic Party (the “Democrats”), explained: “This means, effectively, that only the attorney’s fees issue will be considered by the Appellate Court. The case is over as to the November ballot and the eligibility of the candidates.”

During the 2018 Primary, the Dallas County Republican Party (the “Republicans”) filed suit against the Democrats, asking the trial court to remove over 100 Democratic candidates from the ballot. The Republicans claimed that the candidates’ applications were not valid because they had not been personally signed by the Dallas County Democratic Party Chair. Upon review of the pleadings, and after a hearing on the merits, the trial court found that “the Texas Election Code does not impose a manual signature requirement” as alleged by the Republicans. The Court held that the Republicans claims are “moot,” that their party “lacks standing,” and that such claims should be dismissed as “lacking a basis of law.” The trial court also held that the Democrats were entitled to recover, from the Republicans, attorney’s fees in the amount of $41,275.

Carol Donovan, Chair of Dallas County Democratic Party stated, “During this election season, the Republican Party has been filing frivolous lawsuits against Democrats to try to remove candidates from the ballot. It appears that the Republicans are afraid to let the voters decide what persons they want to represent them. Thankfully, the rulings of the courts support democracy.”

See here, here, and here for the background. I didn’t find any news coverage of this, but the case is No. 05-18-00916-CV at the Fifth Court of Appeals, and a link to the court’s order is here. The relevant bits:

Appellants and appellees filed letter briefs as directed. The parties agree that any relief sought regarding the November 6, 2018 general election, including preparation of the ballot and what candidates may or may not appear on the ballot, will be mooted by the election schedule.

Appellants affirmatively state that they “do not request relief related to the general election” and “only seek to appeal relief related to the lower Court’s decision on subject matter jurisdiction; 91(a), and the mandatory attorney’s fees.” Appellants further state that their appeal seeks this Court’s ruling on five issues that are not mooted by the election schedule and relate to the propriety of the lower court’s dismissal under Rule 91a and the award of attorney’s fees.

Appellees concede that appellants may appeal the fees award and that the fees issue is not moot. Appellees did not address, however, whether they dispute appellants’ ability to appeal the propriety of dismissal under Rule 91a.

So, even though the late-in-the-day appeal still sought to argue that DCDP Chair Carol Donovan needed to sign the candidate petitions, in the end all that was argued was whether the case was properly dismissed, and how much is owed to the DCDP in attorneys’ fees. This is what you call ending with a whimper. At least it’s one less thing to worry about before voting begins.

Now how much would you pay to fix Houston’s sewer system?

We may be about to find out.

Federal and state authorities sued the city of Houston over its long-running struggle to limit sewage spills on Friday, marking the beginning of the end of a years-long negotiation that could force the city to invest billions to upgrade its sprawling treatment system.

Houston’s “failure to properly operate and maintain” its 6,700 miles of sewer pipes, nearly 400 lift stations and 40 treatment plants caused thousands of “unpermitted and illegal discharges of pollutants” due to broken or blocked pipes dating back to 2005, the suit states. The city also recorded numerous incidents when its sewer plants released water with higher than allowable concentrations of waste into area waterways, the filing states.

The lawsuit by the Department of Justice on behalf of the Environmental Protection Agency and the Texas Commission on Environmental Quality wants a judge to force Houston to comply with the Clean Water Act and Texas Water Code — typical orders include upgrading pipes, ramping up maintenance and educating the public on how to avoid clogging city pipes — and to assess civil penalties that could reach $53,000 per day, depending on when each violation occurred.

[…]

The filing was spurred by the intervention of a local nonprofit, Bayou City Waterkeeper, which announced in July that it planned to sue the city over the same violations and which filed its own lawsuit on Friday mirroring the EPA’s claims. It states that the city has reported more than 9,300 sewer spills in the last five years alone.

“The city’s unauthorized discharges have had a detrimental effect on, and pose an ongoing threat to, water quality and public health in the Houston area and have caused significant damage to the waters that Waterkeeper’s members use and enjoy,” the nonprofit’s filing states.

Waterkeeper’s July announcement was required by the Clean Water Act, which mandates that citizens or citizen groups planning to sue under the law give 60 days’ notice, in part to allow the EPA or its state counterparts to take their own actions.

See here for the background. This has been going on for a long time, and the city has been in negotiation for a resolution to this. How much it will all cost remains the big question. The one thing I can say for certain is that no one is going to like it. As a reminder, consider this:

Upon taking office in 2004, former mayor Bill White locked utility revenues into a dedicated fund, raised water rates 10 percent, tied future rates to inflation, and refinanced the debt. That was not enough to prevent the debt mountain from risking a utility credit downgrade by 2010, when former mayor Annise Parker took office, so she passed a 28 percent rate hike.

Remember how much some people bitched and moaned about that rate hike? Get ready to experience it all again.

Voter ID lawsuit officially ends

That’s all there is, at least until the next atrocity.

Still the only voter ID anyone should need

A federal judge formally dismissed the lawsuit challenging the Texas voter ID law Monday, the final step in a yearslong fight that will allow the state to enforce a weakened version of the 2011 statute.

At the urging of Texas Attorney General Ken Paxton, U.S. District Judge Nelva Gonzales Ramos of Corpus Christi issued a two-sentence order dismissing the case in light of April’s decision by the 5th U.S. Circuit Court of Appeals that upheld the law.

Lawyers for the minority voters, Democratic politicians and civil rights groups that challenged the law had argued that Paxton’s request for a dismissal was an unnecessary step because there was nothing left to decide — except for assessing legal fees and costs — after the 5th Circuit Court’s decision.

See here for the background. Like I said, we’re going to need a political solution to this problem. Maybe with a different Supreme Court we could keep pushing this via litigation, but I expect we all understand that’s not the world we currently inhabit. First we have to create that world, and that gets us back to my initial point. There is still an effort to put Texas back under preclearance, but even if that happens (spoiler alert: it almost certainly won’t) it won’t change what has already occurred. It can only affect what may be yet to come. The road forward starts with winning some elections. This November would be an excellent time for that.

Southwest Key sues city over permit for child detention warehouse

Screw them.

The Austin-based nonprofit trying to open a shelter to house migrant children east of downtown sued the city of Houston Friday, alleging a discriminatory, baseless and politically motivated campaign to prevent it from opening the facility.

Southwest Key Programs alleges in the lawsuit, filed in federal court in Houston, that the city is “manipulating” its permitting process, invalidating previously issued permits without due process and refusing to conduct inspections or issue new permits. The suit claims these actions are discriminatory based on some combination of the city’s opposition to federal immigration policies, interest in “political gain” or the race, color, national origin, ancestry, alienage or immigration status of the unaccompanied minors who would be housed there.

The lawsuit asks a court to grant Southwest Key monetary damages and declare that it can proceed with its plans to open the facility.

“The city of Houston has ignored its own regulations, and past practices, and has knowingly misrepresented the facts to the state of Texas to deny Southwest Key a license to open the facility,” Southwest Key said in a statement released Friday. “City officials bent the rules and broke the law for the sole purpose of advancing the mayor’s political agenda.”

[…]

“The city is only interested in the safety, security and well-being of children and will continue to enforce all building codes and regulations designed to accomplish that purpose,” Mayor Sylvester Turner said in a statement. “Southwest Key has repeatedly been asked to provide plans that meet existing building codes for the intended use of the facility at 419 Emancipation Street in Houston. They have failed to do so. Hopefully, they will realize that they are not exempt and must follow the rules like everyone else. We continue to wait for them to respond. In the meantime, we will review the pleading and respond accordingly.”

See here and here for the background, and here for the Mayor’s statement. I have no idea if Southwest Key’s claims have any validity, and to be honest I don’t care. Southwest Key can go fuck themselves.

Another Lopez brother gets banned from taekwondo

Steven Lopez this time.

Two-time Olympic taekwondo gold medalist Steven Lopez has been banned permanently from competition by the U.S. Center for SafeSport, based on the results of the agency’s investigation into Lopez’s sexual relationship with an underage female in 2000.

The relationship, according to a report compiled by SafeSport, involved a 14-year-old neighbor whose family was a friend of the Lopez family, and occurred at a time when the complainant was a taekwondo athlete and Lopez was establishing himself as one of the sport’s dominant figures, eventually winning five world titles along with the two Olympic gold medals.

Investigators said the relationship progressed over a four-year period, beginning when the complainant was 10, from what was described as grooming to sexual contact to oral sex, the latter occurring at a time when the complainant was 14 and Lopez 22.

The sexual relationship, SafeSport concluded, took place “in violation of the SafeSport Code, the criminal laws of the State of Texas and the standards expected of USA Taekwondo members.”

Lopez, who with his older brother and coach, Jean Lopez, has been named as a defendant in a federal court lawsuit filed in Colorado, declined to be interviewed by SafeSport regarding the allegations.

See here and here for some background on Jean Lopez. Steven Lopez had been suspended in May by SafeSport, and both he and his brother, along with SafeSport and USA Taekwondo and the US Olympic Committee, are defendants in a lawsuit over this whole sorry and deeply disturbing mess. All that matters at this point is finding some justice for the victims, and doing everything we can to make sure that this shit never, ever happens again. Deadspin has more.

You know, there is a cheaper way to do this

Why are we still outsourcing inmates?

County commissioners next week will consider a proposal to outsource inmates to the Fort Bend County Jail, which would allow Harris County Sheriff Ed Gonzalez to slow — but not stop — the flow of inmates to a private prison in Louisiana.

The deal would bring as many as several hundred inmates closer to their families and attorneys, but would cost Harris County more than twice as much as shipping prisoners to Jackson Parish, La. It would also fail to address the root causes of overcrowding at the Harris County Jail, one of the nation’s largest, and prolong an elaborate game of musical chairs as the sheriff searches for jails to take his inmates.

Harris County’s 10,162 inmates are already spread across five facilities in Texas and Louisiana. It currently outsources 724 inmates, more than twice as many as any other Texas county.

[…]

“If there’s a desire to bring inmates closer to Harris County, this is the best deal we’ve been able to find so far,” said Harris County Sheriff’s Office spokesman Jason Spencer. “It doesn’t fully address the outsourcing issue, but it chips away at it.”

Harris County pays $29.33 per inmate, per day at Jackson Parish Correctional Center, with transport included. Fort Bend’s per diem is $55.00, and Harris County would also have to pay for transport. Spencer said the additional costs would push the county’s total monthly inmate outsourcing bill to around $1 million.

The jail had stopped farming out inmates in 2017 but a backlog in the courts following Harvey led to a surplus of people in the jail, and so here we are today. The monthly cost of doing so now is more than $500K, which will go up to about $1 million with the more expensive Fort Bend option. That may not be a choice as defense attorneys in Harris County have asked the Court of Criminal Appeals to bar sending inmates out of state. I know you know but I’m going to say anyway that if we had fewer inmates in the jail – and remember, the lion’s share of these inmates have not been convicted of any crime – we wouldn’t need to spend this money. It’s a choice we’re making, one we’ve been making for way too many years. At least we get to make another choice this November.

Partisan statewide judicial elections upheld

I’d totally forgotten about this lawsuit.

A federal judge has rejected a race-based challenge to the way Texans fill seats on the state’s highest courts.

U.S. District Judge Nelva Gonzales Ramos of Corpus Christi handed the state of Texas a win Wednesday, writing that its current method for electing judges to the Texas Supreme Court and the Court of Criminal Appeals does not violate federal safeguards for voters of color.

The system does dilute the power of Hispanic voters, Ramos wrote. But it’s not clear that “race rather than partisanship” explains why Hispanic voters’ preferred candidates tend to lose at the polls.

Seven Hispanic voters and a community organization sued the state in 2016, arguing that Texas’ statewide judicial election system violates the federal Voting Rights Act because it weakens Hispanic voters’ political clout and keeps them from electing their preferred candidates. Both high courts have been entirely dominated by Republicans for more than two decades, and both courts remain overwhelmingly white.

[…]

The plaintiffs had proposed that Texas adopt a single-member district approach, carving up the state geographically to allow for Hispanic-majority voting districts. In her Wednesday ruling, Ramos conceded it would be possible to remedy the Hispanic voters’ “electoral disadvantage” by switching to single-member elections. But she declined to order that change because the voters had failed to prove that the obstacles they faced to electing their preferred candidates were “on account of race.”

See here, here, and here for the background. It was an interesting argument, though as commenter Mainstream pointed out in that middle update it would have been a challenge to draw districts to try to remedy the problem if the judge had found for the plaintiffs. At some point – maybe this year! – Democrats are going to break through at the statewide level, and that could easily scramble the arguments that would apply now. I don’t know if the plaintiffs intend to appeal, but it seems to me they’ve already faced the court most likely to be amenable to them. It’s not going to get any easier from here.

The hearing for the lawsuit to kill Obamacare

Here we go again.

It’s constitutional – deal with it

At the hearing Wednesday, Texas aimed to convince U.S. District Judge Reed O’Connor to block the law across the country as it continues to fight a months- or years-long legal case that could land before the U.S. Supreme Court.

Citing rising health care premiums, Texas says such an injunction is necessary to preserve state sovereignty and to relieve the burden on residents forced to purchase expensive insurance coverage. California counters that temporarily blocking or ending the law would cause more harm to the millions of people insured under it, particularly the 133 million people the state says enjoy the law’s protections for pre-existing conditions. The U.S. Department of Justice, which has taken up many of Texas’ positions in the case, nonetheless sided with California, arguing that an immediate injunction would throw the health care system into chaos.

[…]

Inside the courtroom, where protesters’ shouts were inaudible, Darren McCarty, an assistant attorney general for Texas, argued that “the policies, the merits of the ACA are not on trial here” — just the legality. In that legal argument, McCarty leaned heavily on a 2012 U.S. Supreme Court decision on Obamacare, which upheld the law by construing the “individual mandate,” a penalty for not purchasing insurance, as a tax that Congress has the power to levy. Texas argues that after Congress lowered that fee to $0 in a slate of December 2017 tax cuts, the fee is no longer a tax and thus no longer constitutional. With it must go the rest of the law, the state claims.

“There is no more tax to provide constitutional cover to the individual mandate,” McCarty said. “Once the individual mandate falls, the entire ACA falls.”

California countered that a tax can be a tax even if it doesn’t collect revenue at all times. And, attorneys for the state claim, even if the individual mandate is unconstitutional, the court should let lie “hundreds of perfectly lawful sections,” argued Nimrod Elias, deputy attorney general for California.

The case will likely turn on that question of “severability”— whether one slice of a law, if ruled unconstitutional, must necessarily doom the rest. O’Connor, who nodded along carefully throughout the hearing, lobbed most of his questions at the California attorneys, and many of them focused on whether the various pieces of Obamacare can be unentangled.

Elias said that in the vast majority of cases, the Supreme Court acts with “a scalpel, not a sledgehammer,” leaving in place most of a law even if one provision must be struck. The Texas coalition pointed to a more recent case in which the high court struck an entire law based on a narrow challenge.

O’Connor — a George W. Bush-appointee who has ruled against Obamacare several times, albeit on narrower grounds — also honed in on the question of legislative intent. Texas argued that the individual mandate was a critical piece of the law’s original version. But California argued that in 2017, in gutting the individual mandate without touching the rest of the law, lawmakers made it clear they wanted the law to persist without that provision.

“Would the legislature prefer what is left in statute to no statute at all?” Elias questioned. “We know what Congress intended based on what Congress actually did.”

See here and here for some background. Justin Nelson was at the hearing as well, pressing his attack on Paxton for his ideological assault on so many people’s health care. That really deserves more coverage, but the fact that most everyone outside of Paxton’s bubble thinks his legal argument is ridiculous is probably helping to keep the story on a lower priority. (Well, that and the unending Wurlitzer shitshow that is the Trump administration.) I mean, I may not be a fancypants lawyer, but it sure seems to me that eight years of Republicans vowing to repeal Obamacare plus the entire summer of 2017 trying to repeal Obamacare plus the abject failure to repeal Obamacare would suggest that the Republicans did not intend to repeal Obamacare with the bill that they finally did pass. If they could have they would have, but they couldn’t so they didn’t. I don’t know what else there is to say, but we’re going to have to wait till after the November elections – wouldn’t be prudent to do that before people voted, you know – to find out what this hand-picked judge thinks. Ken Janda, the Dallas Observer, and ThinkProgress have more.

The city has its own bail lawsuit

It’s not going well.

Houston city officials intentionally destroyed evidence, wiping crucial data from the computer drives of top police commanders that is potentially relevant to a lawsuit about the detention of suspects beyond the 48-hour deadline for a magistrate hearing, a federal judge has ruled.

U.S. District Judge Kenneth M. Hoyt’s rare ruling last week means that if the case goes to trial, jurors will receive an “adverse instruction” about the records destruction. The jury must infer as fact that authorities destroyed evidence, knowingly and routinely detained people more than 48 hours without a probable cause hearing, and acted with deliberate indifference to the fact that they were violating defendants’ constitutional rights, the judge ruled.

The judge did not accuse the city of destroying evidence specifically to help it gain an advantage in the lawsuit, but the action is a blow to any defense the city could mount.

[…]

The 2016 class-action lawsuit challenged the city’s treatment of thousands of people jailed for days after warrantless arrests between January 2014 and December 2016. The complaint accuses officials of false imprisonment and alleges that they violated defendants’ constitutional rights to equal protection and a determination of probable cause by a judge. The case was brought by Civil Rights Corps and the Texas Fair Defense Project — the groups that led the landmark suit challenging Harris County’s bail practices — and lawyers from the Houston firm Kirkland & Ellis LLP.

The suit was filed after the January 2016 arrests of Juan Hernandez, who was held 49 hours before seeing a magistrate on an assault charge, and James Dossett, who spent 59 hours in custody before facing a hearing officer via videolink on a charge of possession of a controlled substance. After a week in custody, Hernandez pleaded guilty. Authorities ultimately dropped the charges against Dossett when police failed to prove he had drugs.

The lawsuit also cites arrests in which defendants were held for more than 10 days before receiving a probable cause hearing. Overcrowding at the county jail creates a bottleneck at the city facility, the suit said.

The plaintiffs’ lawyers argued that the city had a “broad, longstanding, and consistent policy of refusing to release warrantless arrestees” even when more than 48 hours had passed since their arrests, and that the city failed to provide thousands of records relevant to this policy and practice.

See here for some background, and here for an earlier Chron story (embedded in this one and the basis of that post) on the subject. I’m appalled by what’s in this story, which I don’t think can be adequately explained by simple incompetence on the city’s part. There needs to be a serious investigation of who was responsible for what, and consequences to follow. This is unacceptable at every level. The city needs to throw itself on the mercy of the court and make an extremely generous settlement offer to the defendants.

“Fetal remains” law tossed

Very good.

U.S. District Judge David Alan Ezra struck down a Texas law on Wednesday that would have required hospitals and clinics to bury cremate fetal remains, causing another courtroom setback for state leaders and anti-abortion groups.

Under Senate Bill 8, passed in 2017, health care facilities including hospitals and abortion clinics would be required to bury or cremate any fetal remains — whether from abortion, miscarriage, stillbirth, or treatments for ectopic pregnancy regardless of patients’ personal wishes or beliefs. Legislators passed the bill following a ruling that year by U.S. District Judge Sam Sparks that struck down a similar rule implemented by the Texas Department of State Health Services. At the time Sparks said it was vague, caused undue burden on women and had high potential for irreparable harm.

Over the course of a nearly 30-minute hearing at a federal court in Austin on Wednesday, Ezra gave a synopsis of the ruling, calling the case “a very emotional topic.” The requirement would have been challenging for health providers, in part because it would be difficult to find medical waste vendors willing to participate. In addition, Ezra expressed wariness about the state having to reach out to private cemeteries to help with fetal remain disposals.

“The implementation of this law, as I have pointed out, would cause and, if allowed to go into effect, would be a violation of a woman’s right to obtain a legal abortion under the law as it stands today,” Ezra said.

[…]

Multiple doctors and health advocates who testified said women often don’t ask what happens to their fetal tissue, since they assume it’ll be treated like medical waste. Providers also said they have experienced challenges trying to find medical waste vendors willing to work with their clinics. A top reason, they said, is that vendors are unwilling to endure backlash and harassment from anti-abortion advocates.

See here, here, and here for the background. I’m terribly amused by the fact that the zealotry of the anti-abortion movement was cited as a reason that this law they supported is illegal. If there’s a Greek goddess of irony, she’s pouring herself a glass of wine right now. Of course the state will appeal, and we know that the Fifth Circuit and soon SCOTUS are places where hope goes to be strangled in a back alley. But until then we have this, so let’s celebrate while we still can. The Observer has more.

DACA lives another day

But don’t relax just yet.

A federal district judge on Friday denied the state of Texas’ request that the Deferred Action for Childhood Arrivals program be put on hold after Texas and nine other states sued to halt the Obama-era program.

DACA was launched in 2012 and grants recipients a renewable, two-year work permit and a reprieve from deportation proceedings for immigrants who were brought to the United States while they were children. U.S. District Judge Andrew Hanen said the states could likely prove that DACA causes the states irreparable harm. But Hannen wrote that the states delayed in seeking the relief for years. He added that there was an abundance of evidence to show that ending the program “was in contrary to the best interests of the pubic.”

His decision means that hundreds of thousands of the program’s recipients can continue applying to renew their status — for now.

“Here, the egg has been scrambled. To try to put it back in the shell with only a preliminary injunction record, and perhaps at great risk to many, does not make sense nor serve the best interests of this country,” Hanen wrote.

[…]

The case will now likely proceed to the 5th Circuit Court of Appeals, said Nina Perales, MALDEF’s vice-president of litigation, who argued the case earlier this month.

She said she disagreed with Hanen’s assertion that the way DACA was implemented violated the federal Administrative Procedures Act, which governs how federal regulations are made, and said Paxton’s predictions that Texas will succeed are overshadowed by Friday’s decision.

“The question that was presented to the court was decided in our favor. General Paxton can make predictions about what will happen later in this case,” she said. “But General Paxton lost today and DACA recipients won today. We have three federal court injunctions keeping DACA alive right now. Texas was hoping that Judge Hanen wold enter an injunction going in the other direction and Judge Hanen declined to do that.”

See here for the background. The state has 21 days to file an appeal to get the Fifth Circuit to grant the injunction it sought, and the court will proceed with the case after that. You know how I feel about this. I’m not going to guess what may happen from here, but at least nothing has been screwed up yet. The court’s order is here, and Daily Kos has more.

Going for Section 3

I wouldn’t get my hopes up, but Lord knows this is desperately needed.

The voters of color, civil rights groups and Democratic lawmakers who have long challenged the validity of Texas’ political maps were dealt a bruising loss earlier this year when the U.S. Supreme Court signed off on most of the state’s current political boundaries and pushed aside claims that state lawmakers had intentionally discriminated against voters of color when they drew the maps.

But a crucial question remained in the case: Would the state’s opponents ask the courts to force Texas back under federal oversight of its electoral map drawing, given previous maps that federal judges ruled discriminatory?

Their answer came Wednesday in a series of brief court filings in which some of the plaintiffs in the case indicated they wanted to press forward on those high stakes efforts.

[…]

In approving the state’s current maps, the high court in June wiped out a ruling by a three-judge federal panel in San Antonio that found the maps, which were adopted in 2013, were tainted with discrimination that was meant to thwart the voting power of Hispanic and black voters, oftentimes to keep white incumbents in office.

But seemingly left untouched were previous findings of intentional discrimination at the hands of the state lawmakers who in 2011 first embarked on redrawing the state’s maps following the 2010 census.

Though the plaintiffs lost on their challenge to the state’s current maps, groups that challenged the maps pointed to some of those 2011 violations in indicating to the San Antonio panel that the issue of a return to federal oversight was not yet settled in the case.

See here for the background. I want to be clear that I agree with everything the plaintiffs are saying. I just don’t believe that the courts will lift a finger to do anything about it. The lower court might go along with it, since they previously ruled that the Republicans had discriminated in drawing the maps, but there are no circumstances I can imagine where SCOTUS will uphold that. It’s just not going to happen. The only possible recourse would have to come from Congress. That’s what we need to push for and work for in the next two elections.

In the meantime, there is now one item on the to-do list.

Before 45 days pass in the next legislative session, Texas lawmakers must begin fixing discriminatory issues with the way in which North Texas’ House District 90 was drawn.

In a brief order, a three-judge panel based in San Antonio told lawmakers they needed to address racial gerrymandering violations in the district — the only exception the U.S. Supreme Court made when it signed off on the state’s embattled political maps earlier this year. HD-90, which is occupied by Democratic state Rep. Ramon Romero, was deemed an impermissible racial gerrymander because lawmakers illegally used race as the predominant factor in deciding its boundaries.

Opponents of the state’s maps had previously indicated to the court that they wanted to revert the district to its 2011 version, a suggestion the state said it opposed and that the panel said it disagreed with.

On Thursday, the panel ordered lawmakers to redraw the district — either in a 2018 special legislative session that would need to be called by the governor or at the start of the 2019 legislative session. If a proposal isn’t introduced within the first month and half of the session, the judges said they would undertake the “unwelcome obligation” of fixing the district.

That’s fairly small potatoes, but it needs to be done and I for one would be interested to see what happens if the court winds up having to do the deed itself. As a reminder, the voter ID litigation is over, so this is the only court action left relating to the original 2011 legislative atrocities. The DMN has more.

The Republicans really, really want to win SD19 by forfeit

Sure is what it looks like.

Pete Gallego

With early voting set to begin in less than two weeks, the Republican Party of Texas is continuing efforts to have Democrat Pete Gallego removed from the ballot, which if successful would leave only the GOP’s Pete Flores in the runoff election to fill a vacant seat in the Texas Senate.

Republicans argue that Gallego lives in Austin and not in Senate District 19, which stretches from San Antonio to the Big Bend region and the New Mexico border, in violation of a state law requiring candidates to live in the legislative district they hope to represent.

Gallego has denied the accusation, and a lawyer for the state Democratic Party believes the GOP’s legal case is weak and intended to heap negative publicity on Gallego, not produce a victory in court.

[…]

Gallego has said he lives in his mother’s home in Alpine, the small West Texas city where he was born and raised.

His campaign — which did not respond to several requests to discuss Gallego’s residency — has characterized the legal challenge as a desperate and unjustified attempt to steal a Senate seat in a reliably Democratic district.

“Pete Gallego has lived in Alpine since 1989 when he returned home to become a local felony prosecutor,” Gallego campaign manager Christian Archer said shortly after the GOP lawsuit was filed earlier this month. “Pete is registered to vote in Alpine, where he has always voted and where he pays his utilities.”

[…]

Texas law defines a candidate’s residence as “one’s home and fixed place of habitation,” which leaves some room for interpretation.

In its legal challenge filed in district court in Travis County, the state Republican Party alleges that Gallego resides in a Southwest Austin house that he purchased in 2000 with his wife, Maria Ramon, a lawyer with the Texas Office of Court Administration.

The party’s lawsuit points to a homestead exemption claimed for the Austin property — a tax break provided only for homes used as a “principal residence” — and a July column in the San Antonio Express-News that discusses photos showing Gallegos’s truck parked outside the Austin house in May and Gallego leaving the house on a Monday morning in July.

“It is now undisputed that Gallego does not actually live day-to-day in Alpine, and most likely has not done so since, at best, sometime in 2000,” the lawsuit said.

Archer told the Express-News in mid-August that the homestead exemption on the Austin house belonged to Gallego’s wife and that, in addition to paying utilities in Alpine, he also registered his car there.

Chad Dunn, a lawyer for the state Democratic Party, is not involved in the lawsuit but predicted that the GOP effort is doomed because the Texas Supreme Court long ago determined that only an opposing candidate has the legal standing to file suit in residency disputes.

“Knowing some of the lawyers who brought it, who know better, I only assume this was an effort to obtain some free campaign attention” at Gallego’s expense, Dunn said.

The Flores campaign did not join the lawsuit, though two voters from the district are part of the challenge.

See here and here for the background. For better or worse – and you have certainly seen me complain about this in the Dave Wilson case – Texas’ laws regarding residency are vague and basically not enforced. I guarantee you, if a court finds that Pete Gallego is ineligible to run in SD19, there will be a large number of existing legislators, of both parties, who will be vulnerable to the same kind of challenge. I’m sure the Republicans’ lawyers are aware of this. In the meantime, early voting begins on September 10. I fully expect both candidates will be on the ballot.

Nelson attacks Paxton over Obamacare lawsuit

Good.

Justin Nelson

The Democrat challenging Ken Paxton is denouncing the attorney general for suing to wipe out the Affordable Care Act‘s health care protections for Americans with pre-existing conditions.

Justin Nelson, a Houston attorney, plans to hold a rally outside the federal courthouse in Ft. Worth where Paxton’s team will argue its case next week. He’s also launched a webpage urging Texans to share how axing the ACA, also known as Obamacare, will affect their access to health care.

“Paxton is leading the charge to take away pre-existing condition protections not just from all Texans but from all Americans and that is so wrong,” Nelson said in a video message Monday. “We’ve started the hashtag, #MyPreExisting, and on this website you can click on the button below and record your video. Tell us how you are affected in this life and death issue.”

Nelson’s campaign website also includes a list of common pre-existing conditions, like arthritis, sleep apnea and pregnancy. Texans with these conditions and many others could see higher health care costs if the Obamacare protections are rescinded.

[…]

About 27 percent of non-elderly Texans — or around 4.5 million people — have pre-existing conditions that could result in them facing difficulty obtaining insurance if Obamacare is overturned, according to the Kaiser Family Foundation. More than 52 million Americans fall into this category, 20.7 million of whom live in the 20 states suing to end the pre-existing condition protections.

In addition to Texas, officials from Alabama, Arkansas, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Maine, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Utah, West Virginia and Wisconsin are parties to the Obamacare lawsuit.

See here and here for the background. You can feel however you want to feel about Obamacare and Ken Paxton and whatever else, but something that would affect this many people in such a direct fashion ought to be part of the discussion in an election year. Good for Justin Nelson for doing that.

Trump administration seeks to dismiss MALDEF lawsuit over Census citizenship question

It’s hard to keep all these Census lawsuits straight.

As multiple court fights over the addition of a citizenship question to the once-a-decade census heat up, the Trump administration is working to keep several Texas groups representing Latino and Asian residents on the sidelines.

In a late Friday filing, attorneys for the U.S. Department of Justice asked a Maryland-based federal judge to toss a lawsuit filed by the Mexican American Legislative Caucus and the Texas Senate Hispanic Caucus — among other Texas-based organizations — that’s meant to block the controversial question from appearing on the census questionnaire in 2020.

Those groups allege that the addition of the citizenship question is unconstitutional because it will lead to a disproportionate undercount of Latino and Asian residents, non-citizens and their family members. Justice Department lawyers responded by challenging the plaintiffs’ standing to dispute the federal government’s decision to ask about citizenship status, and they argued it was unlikely the plaintiffs would be able to prove that the question would be harmful to them.

“The relief sought in this suit — an order barring the Secretary of Commerce from collecting demographic information through the decennial census — is as extraordinary as it is unprecedented,” the Justice Department attorneys wrote in the filing.

[…]

Throughout the almost 100 pages of legal briefs filed with the court on Friday, attorneys for the Trump administration sought to undermine those undercount concerns, repeatedly describing them as “too attenuated and speculative” to provide those challenging the inclusion of the question with firm legal standing.

A drop in responses and the alleged potential fallout “would be not be fairly traceable to the Secretary’s decision but would be attributable instead to the independent decisions of individuals who disregard their legal duty to respond to the census,” they wrote.

The Trump administration hasn’t had much success in fending of legal challenges to the citizenship question. As of this week, judges have greenlighted five federal lawsuits despite the administration’s objections.

[…]

In its Friday response, the Trump administration put forth several of the same arguments it presented in the Maryland suit [U.S. District Judge George] Hazel already ruled could move forward and even offered a rebuttal to what DOJ lawyers described as the judge’s “misguided” analysis.

See here for more on this lawsuit. In addition to the one in Maryland noted in the story, the lawsuit in New York was allowed to proceed as well. Given that the plaintiffs have discretion over where they file, you’d think that would bode well for this one as well.

Dallas County “discrimination against white voters” lawsuit dismissed

It was always a silly idea.

A federal judge Thursday dismissed a landmark lawsuit that accused Dallas County commissioners of discriminating against white voters.

The lawsuit sought to dismantle the boundaries the county uses to elect commissioners, claiming that the lines dilute the voting strength of white residents.

U.S. District Judge Sidney Fitzwater said it’s possible for white voters to successfully claim voting rights discrimination, but he ruled that lawyers for the plaintiffs in Anne Harding vs. Dallas County didn’t prove their case.

He wrote that given the political makeup of Dallas residents of voting age, and the geographical distribution of Anglo Republicans, it isn’t possible to know if a GOP candidate could be elected in a second district.

“In other words, because plaintiffs have failed to produce any evidence at trial that the Commissioners Court could have created two performing districts for Anglo Republicans, the logical result is that [defendants] did not dilute the [Anglo Republican] vote,” Fitzwater wrote.

He continued: “In fact, if anything, the evidence shows that plaintiffs’ voting power has been strengthened, rather than diluted, by the concentration of Anglos in [Precinct 2] where they can reliably elect a Republican candidate. Accordingly, the court finds that plaintiffs have not proved their vote dilution claim.”

[…]

During the trial, the plaintiffs offered alternative boundaries that their experts contended would have resulted in two conservative Republicans on the Commissioners Court.

But Fitzwater was swayed by testimony from Democratic strategist Matt Angle, who drew the 2011 map. Angle said it wasn’t a given that voters in the two “Anglo” districts the plaintiffs sought would elect a Republican to the court.

Fitzwater’s opinion states that under the plaintiffs’ plan, white voters would be split between the existing Republican district and another one, opening the door for Democrats to control every seat on the Commissioners Court.

“There are not a sufficient number of Anglo Republicans to elect a Republican candidate in more then one commissioner district,” Fitzwater wrote.

See here and here for the background. A copy of the decision is embedded in the story. I’m dubious about the assertion that white voters could successfully claim voting rights discrimination – to say the least, I think the bar for that is going to be very, very high – but I’m not going to worry about that right now. The plaintiffs have a month to decide if they’re going to appeal. Good luck with that.

Appeals court allows city to post video of pay parity hearing

Probably doesn’t matter much at this point, but there it is.

Mayor Sylvester Turner

A Texas appeals court on Thursday ordered a state district judge to rescind his temporary restraining order requiring the city of Houston to remove video from its website that depicted a public city council committee hearing over a proposal to grant firefighters “pay parity” with police.

District Judge Kyle Carter should not have blocked the city from posting the video of the committee hearing because it is not clear the meeting constituted illegal electioneering, as the Houston firefighters union had alleged, the 14th Court of Appeals justices ruled.

That restraining order had expired last week anyway, said Cris Feldman, an attorney for the firefighters union, adding that the decision does not preclude a court from coming to the same conclusion that Carter did after further hearings in the case.

[…]

The section of state law banning local governments from using public funds to advocate for or against ballot measures was not intended to restrain public discussion of such issues, the justices wrote Thursday.

“It was not unreasonable or unexpected that statements tending to indicate support for, or opposition to, the charter amendment might be voiced at the meeting,” the nine-page opinion states. “Public funds were not being used for political advertising by making the meeting video publicly available, even though an incidental effect of posting the video on the city’s website may be to re-publish statements supporting or opposing the charter amendment.”

See here for the background, here for the Mayor’s statement, and here for a copy of the opinion. As noted, the TRO had expired on August 14, and the Chron posted their own copy of the video shortly after Judge Carter handed down his opinion, so this is all mostly academic. It may mean something after the election when the lawsuits over the wording of the referendum gets filed, but until then it’s mostly a warm-up exercise.

Taekwondo coach Jean Lopez un-banned

Hard to understand this.

The U.S. Center for SafeSport has lifted a permanent ban imposed earlier this year on Sugar Land taekwondo coach Jean Lopez, clearing the way for Lopez to resume coaching while he and his brother, two-time Olympic gold medalist Steven Lopez, still face a federal court lawsuit accusing them of being sexual predators.

Jean Lopez’s status is now listed by SafeSport as “interim measure — restriction,” the details of which are not spelled out on the agency’s website.

However, Lopez’s attorney, Howard Jacobs, told USA Today the restriction is that Lopez is not allowed to contact his accusers.

“The main thing is that (Lopez) had been banned from coaching, and he’s no longer banned from coaching,” Jacobs told the newspaper. “We hope this is the end of it.”

The Lopez brothers, however, still face a lawsuit filed in Colorado by four women, including former national team members Mandy Meloon, a former Sugar Land resident who now lives in Austin, and Heidi Gilbert and former collegiate competitor Gabriella Joslin of Houston.

Jon Little, the Indianapolis attorney who represents the four women, said Saturday the decision to rescind the permanent ban reflects what he described as the “toothless” nature of Safe-Sport, which was established by the U.S. Olympic Committee to sanction athletes, coaches and others accused of sexual misconduct and other violations.

“I have other avenues to deal with Jean Lopez,” Little said. “Sadly, though, the USOC is putting medals and money ahead of the safety of children for the umpteenth time. This is what I expected of them.”

See here for some background. There’s some dispute over how the SafeSport appeals process is supposed to go, and I’ll refer you to these two USA Today articles for the details. I feel like any process that allows for a lifetime ban for multiple credible allegations of abuse to be lifted that easily is a process that should be reviewed. Deadspin has more.

Texans’ cheer coach quits

Of interest.

Altovise Gary, the longtime director of the Houston Texans cheerleaders squad who was named as a defendant in one of two recent federal court lawsuits filed against the team, has resigned, a team spokeswoman said Tuesday.

Gary resigned on her own accord, citing what team spokeswoman Amy Palcic described as personal reasons. The team had no additional comment on her departure.

[…]

Gary was named as a defendant in a case filed in May by a former cheerleader who accused her of body-shaming and failing to act on complaints that cheerleaders were physically assaulted by fans. She was not named as a defendant in a second suit filed days later by five former cheerleaders against the team.

Both suits were dismissed and the former cheerleaders’ complaints submitted to arbitration, as required by their contracts with the team.

Houston attorney Bruse Loyd, who filed the first lawsuit that included Gary as a defendant, said he would have no comment on Gary’s resignation.

Houston attorney Kimberley Spurlock, who along with noted women’s rights attorney Gloria Allred filed the second lawsuit, said in a statement: “We believe that our lawsuit and the voices of our brave clients have made an important impact on the Houston Texans. As a result of their courage, there appears to be an important change taking place in the staff.

“However, until there is justice for the cheerleaders by paying them fairly and compensating them by paying them the wages that they are due, we will continue our fight to win them the respect and dignity to which they are entitled and which is long overdue.”

See here, here, and here for the background. I don’t have much to add to this, I will just reiterate my positions that 1) harassment and abuse of any kind should not be tolerated, and 2) it’s a travesty that the multi-billion dollar business that is the NFL refuses to pay its cheerleaders a wage the reflects their worth. Not sure what else there is to say.

Blake Farenthold is still a toad

In case you were wondering.

Blake Farenthold

A former Texas congressman had tried steering a federal contract to the owner of a business who gave him a $160,000-a-year job after the congressman resigned amid sexual harassment allegations, according to a newspaper investigation published Sunday.

Republican Blake Farenthold resigned in April amid bipartisan pressure over revelations that he used $84,000 in taxpayer money to settle a lawsuit brought by a former aide who accused him of sexual harassment. A month after leaving Congress, Farenthold was hired as the lobbyist for the Calhoun Port Authority on the Texas coast. His hiring was directed by port chairman Randy Boyd, who owns a dredging company called RLB Contracting and was a political donor to Farenthold.

Emails obtained by the Victoria Advocate show that Farenthold’s office arranged a meeting in May 2015 between Boyd and the Army Corps of Engineers about a government project. Federal officials took the meeting but declined working with Boyd’s company, citing ethical and environmental rules, after which Farenthold’s office followed up with the Corps by to see “if there is anything our office can do to be helpful (to the Corps) and Mr. Boyd.”

Boyd donated $5,000 to Farenthold’s campaign a day after the congressman’s office began arranging a meeting for him with the Corps, according to Federal Election Commission records.

Also, too:

Months after he resigned from Congress, former Rep. Blake Farenthold (R-TX) is still blaming the #MeToo movement for the congressional investigation into allegations that he sexually harassed women in his office.

[…]

In an August 1 deposition over the recent lawsuit, a transcript of which was obtained and first reported by HuffPost, Farenthold says he “took a bullet for the team” by resigning from Congress. He blames the #MeToo movement, members of the media whom he calls “f tards,” as well as the House Ethics Committee for not caring about facts.

“I believe the public attention to the Me Too movement created a public environment where it would be much more difficult for the members of the Ethics Committee to separate politics from the facts,” Farenthold said, after being asked about previous comments where he had similarly blamed the movement.

Elsewhere in the deposition, he says that the committee was likely looking for a “scapegoat” and believes the entire investigation was a witch hunt.

He also said “f tards” — whom he defines as “A-S-S-E-S” and people in the media — for the investigation into his harassment of women who worked in his office.

Farenthold said he hasn’t paid the government back the $84,000 he used to settle a private lawsuit because his lawyers told him not to. “I can’t legally repay the government to do that,” he said. “I have been advised by multiple attorneys I cannot do that even if I wanted to.”

When further pressed on why he hadn’t donated a similar sum to a charity that works on sexual harassment issues, as he had previously promised to do, Farenthold again said that his lawyers told him not to. He said he was worried about “legislation pending in Congress” targeting sexual offenders in Congress that could authorize the government to take the money from his retirement plan.

“So your concern was that you might have to pay back the 84,000 twice, once back to the taxpayers and also to a nonprofit?” John Griffin, attorney for the Virginia advocate, asks him.

“Yes, sir,” Farenthold responds.

As HuffPost noted, the legislation Farenthold is referring to hasn’t moved forward in Congress, and neither the bill in the Senate or the House would affect him anyway. Only the House version would allow the government to pull the funds from a lawmaker’s Social Security or retirement plan, and it does not apply to past cases.

I take it back. Calling Blake Farenthold a toad is unfair to toads, who have done nothing to deserve such an insult. The bottom line here is don’t be like Blake Farenthold.

Fifth Circuit upholds dismissal of campus carry lawsuit

Not a surprise.

The 5th U.S. Circuit Court of Appeals on Thursday upheld Texas’ campus carry law, delivering another clear victory to the state in a longshot, long-running lawsuit brought by University of Texas at Austin professors opposed to the law.

In July 2016, three professors claimed that a 2015 state law that allows licensed gun-owners to carry concealed weapons into most public university buildings would have a “chilling effect” on free speech in their classrooms. But a federal district judge threw out their case in July 2017, saying the professors didn’t present any “concrete evidence to substantiate their fears.”

Accepting that logic and advancing it yet further, a three-judge panel on the appeals court this week rebuffed the professors’ free speech claim as well as two other constitutional challenges they had made.

Like the lower court, the 5th Circuit panel found that the professors lacked standing to challenge the law because they had not sufficiently shown how it might harm them.

“[The professors] cannot manufacture standing by self-censoring her speech based on what she alleges to be a reasonable probability that concealed-carry license holders will intimidate professors and students in the classroom,” Judge Leslie Southwick wrote for the unanimous panel.

See here for the background. The plaintiffs’ lawyer is talking about appealing to the Supreme Court, which strikes me as unlikely to succeed, even in the alternate universe of a SCOTUS with Merrick Garland and not-Brent-Kavanaugh. Some problems have to be solved via the ballot box, and this sure seems like one of them.

The firefighter pay parity referendum won’t be decided by the voters

it will be decided by the courts. Here’s a story out of Austin to illustrate.

Former Travis County judge Bill Aleshire has sued the city of Austin in the Texas Supreme Court, challenging the ballot language of a proposition up for a local vote in November.

The lawsuit filed Monday challenges ballot language related to Proposition K, which calls for an outside audit of government efficiency at City HallThe Austin City Council approved the ballot wording last week.

At that council meeting, some supporters of the proposition bristled at the language, which includes a cost estimate for the audit of between $1 million and $5 million. Proposition backers complain the inclusion of the cost estimate will bias voters against the measure because the wording does not mention any possible savings that could result from an audit.

You can follow the links and read the writ, which is embedded in that Statesman. I don’t care about any of that. My point here is that while Council has voted to put the measure on the ballot, we don’t have ballot language yet. Does anyone think for even a minute that the language that Mayor Turner will provide and Council will approve will be satisfactory to all of the stakeholders in this fight? Does anyone think it is possible for this referendum to be a) simple enough for everyone to be clear on what they’re voting on, and b) thorough enough for it to adequately cover all the relevant details? These were the points of contention in the lawsuits over the term limits referendum, and the Renew Houston referendum. I’ve said this before and I’ll say it again: The losing side in this vote, whichever side it is, will file a lawsuit arguing that the ballot language was inadequate, inaccurate, unintelligible, whatever else. Given the lifespan of the Renew Houston battle – which as you know is still not over – we’ll be handing this fight off to the next Mayor, and that is very much assuming a second term for Mayor Turner. On top of all of the other reasons why this is a bad idea, this is why this is a bad idea.

Woodfill and Hotze take their next shot at same sex employee benefits

Here we go again.

Anti-LGBTQ activists are again asking a Harris County judge to halt benefits for the same-sex spouses of Houston city employees, according to a recently filed motion.

The motion for summary judgment in Pidgeon v. Turner, a five-year-old lawsuit challenging the benefits, states that the city should not subsidize same-sex marriages because gay couples cannot produce offspring, “which are needed to ensure economic growth and the survival of the human race.”

The motion also asks Republican Judge Lisa Millard, of the 310th District Family Court, to order the city to “claw back” taxpayer funds spent on the benefits since November 2013, when former Mayor Annise Parker first extended health and life insurance coverage to same-sex spouses. And the court filing suggests that to comply with both state and federal law, the city should eliminate all spousal benefits, including for opposite-sex couples.

The motion for summary judgment was filed July 2 by Jared Woodfill, an attorney for Jack Pidgeon and Larry Hicks, two Houston taxpayers who initially brought their lawsuit in December 2013. Woodfill, a former chair of the Harris County Republican Party, is president of the Conservative Republicans of Texas, which is listed by the Southern Poverty Law Center as an anti-LGBTQ hate group.

In his motion for summary judgment, Woodfill asserts that although the U.S. Supreme Court ruled in favor of marriage equality in Obergefell v. Hodges in June 2015, that decision does not require the city to treat same-sex couples equally.

“Obergefell does not require taxpayer subsidies for same-sex marriages — any more than Roe v. Wade requires taxpayers subsidies for abortions,” Woodfill’s motion states.

Alan Bernstein, a spokesman for the city, said it will respond to the motion “in a timely fashion.”

“The City hopes the Judge will be persuaded by the law,” Bernstein said in an email. “The Legal Department defers to the arguments it will make in response.”

See here for previous coverage, and here for the last update. It’s hard to know what will happen here because the basic goal of the lawsuit is so ridiculous and harmful, and the immediate reaction of any decent person who hears about it will be “but marriage is marriage and why would anyone want to do that?” The sad and scary fact is that some people are like that, and that includes some judges. Did I mention that the judge in this case, Lisa Millard, is up for re-election in August? Sonya Heath is her opponent. There’s never been a better time to elect some better judges. Think Progress has more.

Partial halt to bail lawsuit order

Here comes the Fifth Circuit again.

A majority opinion by Circuit Judge Jerry E. Smith halted part of an order by Chief U.S. District Judge Lee H. Rosenthal which compelled certain defendants to be released immediately on no-cost bail in cases where a person with the money, arrested on the same charge, would be immediately released. Defendants must have an individualized bail determination made by a judge within 48 hours, the ruling says. The newest member of the appeals court, a Trump appointee, Judge Kyle Duncan, concurred with his holding.

They said that despite Rosenthal’s “well-intentioned effort to comply,” the instruction allowing immediate release to qualified poor defendants “easily violates the mandate, which explicitly found that individualized hearings would remedy the identified procedural violations.”

In a dissenting opinion, Circuit Judge James E. Graves Jr. wrote that Rosenthal’s order corrects an inequity that is protected by the constitution.

“However thorough and fair it may be, an individualized hearing 48 hours after arrest cannot ‘fix’ the deprivation of liberty and equal protection suffered by an indigent misdemeanor arrestee who is automatically detained prior to that hearing ‘solely because [she is] too poor to pay’ a preset amount of secured money bail,” Graves wrote.

The majority wrote that Rosenthal’s orders were too expansive, straying from their earlier instructions to “narrowly tailor” her 2017 injunction to address certain deficiencies that were placing pressure on judges to move too quickly. Judges that the 14 judges who questioned this portion of Rosenthal’s ruling were likely to win on the merits, the ruling says.

See here for the background. I disagree with the Fifth Circuit’s ruling here, but again this is about the injunction, not the merits of the case. This is about how these courts will operate until a ruling on the merits is made or a settlement is reached. Or, you know, until we elect some better judges in November. Never forget that part. KUHF has more.

ReBuild re-vote approved

Add another item to the ballot.

Mayor Sylvester Turner

City Council on Wednesday unanimously agreed to put the controversial street and drainage program known as ReBuild Houston before voters again in November, but not before tweaking the ballot language in hopes of avoiding future court challenges.

The Turner administration should find out quickly if they were successful.

The lawyer who represented the conservative plaintiffs who got the Texas Supreme Court to throw out the original 2010 charter amendment already has asked a judge to force the city to include ballot language specifically stating that drainage fees will be imposed on and paid for by property owners.

[…]

Turner, however, has said approval of the charter amendment would be limited, calling it an an affirmation of “what already is,” and saying it simply would solidify a dedicated source of funding to continue the ReBuild Houston program as it is being run today. The drainage fee, which is a key part of the program, is not at risk in the November referendum because it was created via city ordinance, not by the 2010 charter amendment.

“I think we all support a dedicated source (of funding),” Turner said Wednesday. “I think we all support the emphasis being placed on drainage, flooding and streets … We’re all passionate about it, but I think there is more agreement than disagreement around this table.”

See here for the background. I confess, it’s not clear to me what the stakes are in this vote, just as it’s not clear to me what the neverending litigation is about. As the story notes, Council voted to approve an ordinance that instituted the fee. Even with the obscure stakes, I doubt there’s any ballot language short of language written by Andy Taylor himself that would satisfy Andy Taylor and his flood-loving plaintiffs. I’d put something on like “ReBuild is what we say it is, mofos”, but then that’s probably why I’m a blogger and not a public official. Be that as it may, a-voting we will go this fall. KUHF has more.

Dallas County Republicans still trying to knock all the Dems off the ballot

Here comes the appeal.

Dallas County Republicans will appeal a ruling that blocked efforts to remove scores of Democrats from the November election ballot.

A formal intent to appeal was filed Monday on behalf of Missy Shorey, the chairwoman of the Dallas County Republican Party, with the Fifth Court of Appeals in Dallas.

Shorey argues that Dallas County Democratic Party Chairwoman Carol Donovan did not properly certify candidate petitions and forward them to the Texas Secretary of State’s office. The lawsuit, originally filed in January, showed that Donovan did not sign 127 candidate petitions.

“The case was inappropriately dismissed,” local GOP lawyer Elizabeth Alvarez Bingham said in an email Tuesday night.

But Donovan said nothing had changed with the Dallas County Republican Party’s lawsuit.

“The trial court found the Republican Party’s lawsuit to be frivolous, and their appeal is frivolous as well,” Donovan said in a text message.

[…]

It’s unclear if the appeals court, which is majority Republican, will hear the case before the November general election.

“The case never had any merit,” said Buck Wood, a lawyer for about a dozen Democratic candidates that would be affected if the suit is successful. “It’s way too late to be doing anything. I don’t know why they filed an appeal.”

See here for the previous update. I can understand appealing the dismissal – as noted in the story, the judge did not elaborate on his reason for dismissing the case – but I don’t get waiting four months to file it. The lawsuit has always seemed to be tenuous at best, relying on a very strict reading of election law that nobody seems to adhere to at that level, with the penalty being quite extreme and falling on candidates who themselves did nothing wrong. I would also note that we are fast approaching a deadline for when absentee and overseas ballots have to be printed and mailed, so the court would have to act very quickly if it were going to take action (another reason why the delay in appealing puzzles me). I suspect nothing will come of this, but as always with courts you never can be sure.

SD19 runoff date set

Mark your calendars.

Pete Gallego

Texas Gov. Greg Abbott has picked Sept. 18 as the date of the special election runoff to replace convicted former state Sen. Carlos Uresti, D-San Antonio.

Early voting will run Sept. 10-14.

The runoff pits Republican Pete Flores against Democrat Pete Gallego. They were the top two finishers in the first round of the special election, which was held July 31 and included six other candidates.

The runoff date was first revealed Monday by lawyers appearing in Travis County court for a case challenging the eligibility of Gallego, the former congressman and longtime state lawmaker from West Texas. Abbott issued a proclamation officially setting the date of the runoff shortly after the hearing was over.

The hearing was in response to a Republican Party motion for a Temporary Restraining Order against the Texas Secretary of State from certifying candidates for the runoff, part of their effort to sue Gallego off the ballot for violating our non-existent residency laws. The motion was denied, so go figure. Anyway, the battle is now joined. Go throw Pete Gallego a few bucks if you want to keep Dan Patrick from increasing his grip on the Senate.

The end of the voter ID fight

I guess that’s it.

Still the only voter ID anyone should need

After seven long years of litigation, opponents of Texas’ voter ID law say the case is over.

In a court filing on Wednesday, opponents of the law requiring Texas voters to present photo identification to vote told a federal district judge that the case was settled and that they would not pursue any other remedies or changes to the law they first challenged in 2011 as discriminatory against voters of color.

Because neither party in the case asked for rehearing or attempted to kick it up to U.S. Supreme Court, “the substantive merits and remedy phases of this long-standing case are over,” they wrote.

The filing follows the state’s June request to U.S. District Judge Nelva Gonzales Ramos of Corpus Christi to reconsider previous findings that the state’s voter ID law was enacted to purposefully discriminate against Hispanic and black voters. That request came two days after the U.S. Supreme Court ruled that Texas lawmakers did not intentionally discriminate when they signed off on congressional and state House maps in 2013 — a decision that Texas argued “cast irremovable doubt” on previous decisions against the voter ID law.

[…]

In Wednesday’s filing, opponents of the law asked the court to dismiss the state’s request because there was nothing left to pursue in the case given the 5th Circuit’s ruling that the changes made to law in SB 5 were “an effective remedy” to the original 2011 law that was deemed legally defective.

They also described Texas’s arguments that “new Supreme Court precedent has somehow changed the standard for discriminatory intent that this Court applied in prior holdings” as “frivolous.” The only remaining issues in the case are fees and costs related to the litigation, according to the plaintiffs.

See here and here for the background. We may still be sparring over legal fees when the 2021 Lege convenes with the task of drawing the next decade’s districts, but that’s not going to affect what anyone has to do to vote. As we’ve seen quite a bit lately, this is going to require a political solution. At the federal level, with a new Congress and a new President, a new Voting Rights Act can be passed. At the state level, the voter ID law can be repealed, though at what point the conditions would apply that would allow for that is unclear, to say the least. But this is where we are and where we’ll need to go.

State GOP sues to toss Gallego off SD19 runoff ballot

Oh, good grief.

Pete Gallego

The Republican Party of Texas filed a lawsuit Friday aiming to kick Democrat Pete Gallego off the ballot in the special election runoff to replace convicted former state Sen. Carlos Uresti, D-San Antonio.

Gallego is heading to a runoff election against Republican Pete Flores. However, the state party claims in the lawsuit that Gallego lives in Austin, not in Senate District 19, which includes parts of San Antonio and West Texas.

“Pete Gallego has established a longtime pattern of misleading the voters of Texas regarding his place of residency. It’s common knowledge Gallego does not live in Senate District 19,” Texas GOP Chairman James Dickey said in a statement. “He has for years lived with his family in Austin, where his wife has a homestead exemption; this well-known and well-documented.”

[…]

Under state law, a candidate has to reside in the district he or she hopes to represent for a year before election day. Residency claims are notoriously hard to prove, however, because that doesn’t always mean that a candidate actually lives in the district.

Yeah, good luck with that. Let me add two words here: Brian Birdwell. I honestly can’t remember the last time one of these lawsuits succeeded, for the reason cited above. This is one part Hail Mary pass and one part (successful) gambit to get a bit of publicity for a campaign issue. I wouldn’t give it any more thought than that.

Rape kit lawsuit dismissal will be appealed

To be expected.

Two women who on Friday lost a lawsuit against the City of Houston and a variety of officials over a rape kit backlog will file an appeal, an attorney for the women announced in a news release on Tuesday.

[…]

[Attorney Randall] Kallinen has argued in court that the backlog was “a violation of the due process, equal protection and unreasonable search and seizure clauses of the Texas and United States Constitutions.”

In a news release last Friday, the City of Houston pushed back against those claims, saying that “the plaintiffs did not allege any violations of rights guaranteed by the Constitution, nor did they raise any other legal grounds to hold Houston and its current and former officials responsible.”

The city also argued that there was no longer a rape kit backlog, rendering the women’s legal claims “six years too late.” Two private laboratories eliminated that backlog in 2013 and 2014, the Chronicle previously reported.

In an interview, Kallinen pushed back against this argument, arguing that the women were not aware their rape kits had any problems until police contacted them and that “the statute of limitations should be delayed” as a result, citing what he called “the discovery rule.”

See here for the background. I have no expertise on the legal questions being raised here. My primary interest is in ensuring that we never have another rape kit backlog like this again. It’s shameful enough that it has happened before (twice, in fact). There’s no excuse for it ever happening again.