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Fifth Circuit wants to see how much it can gut abortion rights before it acts

That’s the takeaway you should have from this.

A Texas law banning a common second-trimester abortion procedure will remain blocked after federal judges Wednesday postponed a decision until the Supreme Court takes action on a similar case.

A federal district court in 2017 struck down the ban, which was passed as part of state Senate Bill 8. Attorney General Ken Paxton and other officials then appealed the decision to the Fifth Circuit Court of Appeals.

[…]

But the Supreme Court has yet to decide whether it will take up that case, which was launched by abortion provider June Medical Services. The case challenges a Louisiana law that required doctors who perform abortions to have hospital admitting privileges.

See here for some background. Rewire brings the details.

In November 2017, a federal district court declared the provision of SB 8 that bans D and E abortions unconstitutional and permanently blocked the measure from taking effect. The decision, authored by Judge Lee Yeakel, was a rock-solid win for abortion rights. Yeakel determined that Texas had failed to offer any evidence to support its claims that banning D and E abortions promoted its interest in fetal life without unduly burdening a patient’s right to choose. According to Yeakel’s findings, the evidence failed to show that the other methods advanced by the state for terminating an abortion were available and safe. Therefore, Yeakel ruled, the D and E ban had the effect of banning most second-trimester abortions and was an undue burden on abortion rights.

Naturally, the state of Texas appealed Yeakel’s decision. During oral arguments in November, it was clear the conservative members of the Fifth Circuit were looking for a way to reverse Yeakel’s decision and allow the D and E ban to take effect. But then came the Roberts Court’s order in [June Medical Services v.] Gee in February: a reprimand, of sorts, to the Fifth Circuit for trying to unilaterally overturn a district’s court factual findings in order to allow a patently unconstitutional abortion restriction to take effect. The judges on the Fifth Circuit are conservative and bold, but they are not stupid. They are not going to risk setting themselves up for another opportunity for the Roberts Court to reel them in, just a month later.

At issue in Gee—the case the Fifth Circuit is waiting on the Roberts Court to resolve—is Act 620, a Louisiana law that would require any physician providing abortion services in Louisiana to have admitting privileges at a hospital within 30 miles of the procedure. Act 620 was specifically modeled after one of the provisions in Texas’ HB 2 that was eventually declared unconstitutional in 2016 in Whole Woman’s Health v. Hellerstedt.

A federal district court blocked Act 620 from taking effect following a six-day trial, issuing detailed findings of fact as to the undue burden Act 620 would place on abortion rights. But the Fifth Circuit disagreed and reversed the district court, ruling the law should take effect.

[…]

When the Supreme Court decided in February to stay the Fifth Circuit’s decision in Gee, it likely did so not because it disagreed with the court on the merits of its decision, but to send a message. The Fifth Circuit had so wildly and intentionally flouted abortion rights jurisprudence in its application of Whole Woman’s Health to uphold Act 620 that Chief Justice John Roberts joined with his liberal colleagues to temporarily block their ruling. Roberts’ voting record makes it clear he is no fan of abortion rights. So it’s reasonable to interpret his decision as a message to appellate courts like the Fifth Circuit that if anyone is going to be rewriting abortion rights jurisprudence, it will be the conservative justices on the Supreme Court under his guidance.

All this could explain Wednesday’s short order in Whole Woman’s Health v. Paxton delaying any decision in that case pending an outcome at the Supreme Court in Gee.Gee is allowed to take effect. Presumably, the Fifth Circuit would rule in short order to allow Texas’ D and E ban to take effect as well.

Should the Roberts Court take Gee, then the outcome of the Whole Woman’s Health v. Paxton remains in limbo until Gee is resolved.

I noted this in passing when I wrote about how whatever else happens, some new bit of anti-abortion legislation will pass this session. It’s just a matter of whether things get worse from there, and if so by how much.

Texas versus AirBnB

This is one to watch.

Texas is adding short-term-rental site Airbnb to a list of companies that cannot receive state investments because it disallows Israeli-owned rentals in the disputed West Bank.

Airbnb is the only American-based company on Texas’ anti-Israel boycott list, which includes a Norwegian financial services group, a British wholesale co-op and a Norwegian insurance company.

Texas is making it “very clear that our state stands with Israel and its people against those wishing to undermine Israel’s economy and the wellbeing of its people,” said a statement from state Comptroller Glenn Hegar’s office.

In November, Airbnb said it would remove about 200 listings in Israeli settlements in the West Bank. It cited a variety of factors for its decision, including whether listings inside an occupied territory had a direct connection to a larger regional dispute.

“We unequivocally reject and oppose the BDS movement and are disappointed by the decision,” Airbnb said in a statement. “There are over 20,000 Airbnb hosts in Israel who open their doors and showcase the best of Israeli hospitality to guests from around the world.”

In addition to the West Bank, Airbnb also said it has removed listings in the disputed territories of South Ossetia and Abkhazia.

Airbnb has about 20,000 Israeli hosts who’ve welcomed more than 1 million visitors, including 4,700 Texans in 2018, the company said.

Texas’ move was praised by Christians United For Israel, the public policy arm of the nation’s largest pro-Israel organization. It likened the so-called Boycott, Divestment and Sanctions movement, which seeks to “end international support for Israel’s suppression of Palestinians,” to “terrorists” and “hostile nations.”

[…]

Democratic critics of laws cracking down on the Boycott, Divestment and Sanctions movement are increasingly skeptical of Israel’s policies and see such laws as an infringement on free speech. In January, Florida added Airbnb to a list of companies that it defines as boycotting Israel. The same month, a bill to crack down on the BDS movement was blocked by Democrats in the Senate.

The backlash against Airbnb comes as the company is reportedly preparing for an IPO sometime in 2019.

I don’t want to get too deep into the weeds here, so let me sum up: The Lege passed a law in 2017 that created this policy and led to AirBnB’s blacklisting. The push for this has largely come from the Christian far-right fringe, with radical clerics like John Hagee in San Antonio as the main cheerleaders. The author of that bill, Rep. Phil King, has filed another bill that intends to clarify that the law applies to companies and not individuals. One possible reason for that is that there has already been a lawsuit filed, by a speech pathologist in Pflugerville who lost her job with Pflugerville ISD over her support for BDS. The current law is broad enough that it may well be vulnerable to litigation on free speech grounds. AirBnB has 90 days to respond to the Comptroller’s actions, so if a lawsuit is to come of this, it’ll happen after that. Got it? Good.

Harris County settles ADA voting rights lawsuit

Chalk up another accomplishment for our new county overlords.

The U.S. Department of Justice will monitor Harris County elections, at county expense, for up to four years under the settlement of a federal lawsuit over inadequate access to polling places for voters with disabilities.

Commissioners Court approved the 15-page settlement during at its regularly scheduled meeting Tuesday. The item originally was designated for a closed-door executive session, but court members simply agreed to First Assistant County Attorney Robert Soard’s recommendation they sign off on the deal.

Under the agreement, Harris County will have to make minor accessibility improvements to as many as 300 of its 750 regular voting sites, hire two outside election experts to supervise balloting and designate an in-house Americans with Disabilities Act compliance officer. The county does not have to concede it has violated the ADA in past elections.

“It’s a fair settlement,” Soard said. “It’s a reasonable way to conclude this litigation.”

Toby Cole, a quadriplegic attorney who almost exclusively represents wheelchair users, said the settlement and extended federal supervision are essential because disabled voters often are reluctant to complain about problems they encounter.

“They don’t want to make a huge fuss,” Cole said. “So, you don’t vote the first time, then the second time. We cut things out of our lives already, and voting is one more thing to say is too difficult.”

County Judge Lina Hidalgo said after the meeting she is confident the county will be able to show the federal government much sooner than four years it is capable of running an election in which each polling place meets ADA guidelines.

“We’ve got a court, and a county clerk, and a county attorney that are committed to equitable access to elections,” Hidalgo said. “We’re all working to make sure we adhere to that settlement.”

[…]

Monica Flores-Richart, whom County Clerk Diane Trautman hired in January as the county’s ADA compliance officer, said the office will re-examine each polling place. In most cases, she said problems can be identified and addressed quickly.

“We’re not talking about permanent improvements,” Flores-Richart said. “If there’s a gap of a certain size in the sidewalk, you need to put a mat down. Those are the kind of things we’re talking about.”

The settlement requires the county to submit a new ADA compliance plan to the Justice Department within 120 days. The county also must hire at least 20 contractors, or use county employees, to monitor each countywide election.

See here, here, and here for the background. I’ve expressed a modicum of sympathy for the County Clerk in the past regarding this litigation, which was filed in August of 2016 following a letter of finding in 2014, but if this is all it took to settle the case, I have to wonder why it took so long. Well, okay, I know the answer to that, and it has to do with whose picture you see when you load up the harrisvotes.com website. But seriously, this should have been wrapped up long before now. Be that as it may, kudos to all for getting it done. I share Judge Hidalgo’s confidence that Harris County can complete the terms of the settlement in less than the time allotted. The Trib has more.

Is the anti-sick leave bill also anti-equality?

Could be. Whose word do you take for it?

Sen. Brandon Creighton

What started as seemingly simple state legislation hailed as good for Texas businesses is drawing skepticism from legal experts and outrage from advocates worried it would strike employment protections and benefits for LGBTQ workers.

As originally filed, Senate Bill 15 by state Sen. Brandon Creighton, R-Conroe, would have prohibited cities from requiring that private companies offer paid sick leave and other benefits to their employees. It also created a statewide mandate preventing individual cities and counties from adopting local ordinances related to employment leave and paid days off for holidays. But it made clear that the bill wouldn’t override local regulations that prohibit employers from discriminating against their workers.

Yet, when Creighton presented SB 15 to the Senate State Affairs Committee, he introduced a reworked version — a last-minute move, some lawmakers said, that shocked many in the Capitol.

Among its changes: A provision was added to clarify that while local governments couldn’t force companies to offer certain benefits, business could do so voluntarily. But most notably, gone was the language that explicitly said the potential state law wouldn’t supersede local non-discrimination ordinances.

There’s widespread debate about what the revised language for the bill means. And the new version has left some legal experts and LGBTQ advocates concerned. Axing that language, they say, could undermine the enforceability of local anti-discrimination laws and allow businesses to selectively pick and choose which of its employees are eligible to receive benefits that go beyond monetary compensation.

“You could see an instance where an employer wanted to discriminate against employees who are in same-sex marriages and say, ‘Well, I will offer extra vacation time or sick leave to opposite sex couples, but I won’t offer those benefits if it’s for a same sex couple,” said Anthony Kreis, a visiting assistant professor at Chicago-Kent College of Law.

A spokesperson for Creighton said SB 15 was filed strictly as a response to local governments — like Austin and San Antonio — imposing “burdensome, costly regulations on Texas private businesses.”

“The bill is limited to sick leave, predictive scheduling and benefit policies,” Erin Daly Wilson, a spokesperson for the senator, said in a statement to The Texas Tribune. “The pro-business climate in Texas is something we have worked hard to promote, and need to protect.”

The anti-sick leave stuff is a bunch of BS to begin with, but it doesn’t address the core question. Does the wording of this bill undermine protection for LGBTQ employees that have been granted via local ordinances? Equality advocates think it may be interpreted that way.

“Millions of people are covered by nondiscrimination protections at the local level (and) stand to have those protections dramatically cut back,” said Cathryn Oakley, the state legislative director and senior counsel at the Human Rights Campaign.

[…]

When touting the legislation at business events, Abbott has focused on the paid sick leave aspect, saying such policies should be discretionary and not mandated by local government.

David Welch, a Houston resident and leader of the Texas Pastor Council, says the bill would create a uniform standard for businesses across the state.

“SB 15 is one step in reversing the continued march toward unequal rights with a hodgepodge of laws throughout hundreds of cities and counties having different laws, language and enforcement,” Welch said in a statement.

The council — which was a backer of the so-called bathroom bill last session — sued the city of Austin over its anti-discrimination ordinance in 2018.

Jessica Shortall, with the business coalition Texas Competes, said the group is still trying to understand the revised bill’s potential effect on cities’ anti-discrimination ordinances. Early analysis of the changes, Shortall said, suggest the “best case scenario is confusion, and worst case is opening a door” to eroding the local ordinances.

Equality Texas has highlighted SB15 as a threat. Who are you going to believe, the people on the sharp end of bills like this, or the people who have made it their life’s work to discriminate against LGBTQ people but are now trying to pretend that this bill they support has nothing to do with their ongoing crusade? If SB15 passes, how long do you think it will take the likes of Welch to file lawsuits to overturn other cities’ non-discrimination ordinances on the grounds that they are in conflict with it? Just look at the never-ending Pidgeon lawsuit for an example. These guys will never quit, and they will take every opening given to them. SB15 sure looks like an opening to me.

One more thing:

Creighton doesn’t intend to add the disclaimer back in at this time. But Rep. Craig Goldman, the Fort Worth Republican who is carrying the House’s companion bill, said he has no intention of stripping the clause reassuring cities their LGBT protections won’t be axed.

Fine by me if this is a point of dispute. Erica Greider has more.

We’re about to find out how much we’ll pay to fix Houston’s sewer system

Be prepared.

Houston would ramp up spending on its sewer system by $2 billion over 15 years under a proposed deal with state and federal regulators that is expected to produce higher water bills as soon as next year.

The Environmental Protection Agency has long been concerned that Houston’s cracked, clogged or flooded sewer pipes spill waste into yards and streets hundreds of times each year, contaminating local streams in violation of the Clean Water Act. Eighty percent of area waterways fall short of water quality standards for fecal bacteria.

Rather than sue the city over these long-running problems, the EPA initiated negotiations six years ago, hoping to produce a “consent decree” specifying projects and procedures Houston would use to reduce spills by upgrading pipes, improving maintenance and educating the public on how to avoid clogging the city’s more than 6,000 miles of sewers.

Mayor Sylvester Turner’s staff now are briefing City Council members on the terms of the proposal, which could reach a council vote in April. The mayor said in a brief interview Friday he wanted to speak with all council members before discussing details of the deal publicly, but four people who received the briefings confirmed the deal’s length and projected cost. EPA officials declined to comment.

How much residents’ water bills would rise remains hazy. The city will soon begin a rate study, as it does every five years, that will incorporate the consent decree and other factors and suggest new rates to take effect in July 2020. Turner said rates would stay well within EPA guidelines designed to avoid burdening poor residents, though a 2016 Houston Chronicle analysis showed significant rate hikes would still comply with that framework.

Councilman Greg Travis said he was told the decree would add 4 percent to rates each year of the agreement, resulting in a more than 70 percent increase by the end of the 15-year term. It’s unclear whether that figure included assumptions about inflation and population growth, which drive automatic rate increases each spring. Some other cities under comparable decrees, including San Antonio, will double their rates during their agreements.

Still, the mayor stressed that the projected overall cost of the deal is “substantially less” than the $5 billion to $7 billion the EPA was demanding in the Obama administration’s final year. City officials made an anti-regulation argument to the Trump administration — “You cannot run our city from D.C., and you can’t impose on us costs that the people themselves have to bear” — and it succeeded, Turner told the West Houston Association at a luncheon last week.

“We’ll finally move forward with something that’s in the best interest of the city of Houston, something that will not cost us nearly as much, and something I believe will be the best deal that any city has received anywhere in the country,” Turner told the crowd.

See here and here for the background. This is what happens when maintenance is deferred for too long, though as noted in my earlier link, both Mayors White and Parker took steps to address the problem. Just please keep in mind that this is a problem of very long standing, and it’s one that affects us all, though it most definitely affects some more than others. And if you hear anyone complain about the forthcoming hike in water rates, please feel free to ask them what level of fecal bacteria in their water is acceptable to them, and how much they would pay to mitigate that.

SOS screws up again

Are you kidding me?

Still the only voter ID anyone should need

The list of missteps in the Texas secretary of state’s review of the voter rolls for supposed noncitizens grew again Monday, when the office inadvertently added additional people to its already flawed list of voters flagged for citizenship checks.

Blaming a vendor for the mix-up, a spokesman for the secretary of state’s office confirmed new names were sent to certain counties for possible investigation because of a technical error. The mistake occurred while state election officials were analyzing new data from the Texas Department of Public Safety.

As with the state’s initial review of previous years’ data, the secretary of state obtained a list of individuals who had visited DPS offices during January and February and indicated they were not U.S. citizens. The goal was to match those names with individuals on the state’s voter rolls and eventually send that list of names to counties for possible investigations.

But the secretary of state’s office was not ready to send out those lists when some counties received them Monday.

“Just like we told the counties and the court last week, this list maintenance process is still on pause,” said the office’s spokesman, Sam Taylor. “The test data that some counties had mistakenly received earlier today was the result of an issue with our vendor, which we immediately addressed with our vendor and the counties.”

[…]

Two counties confirmed to The Texas Tribune they had received the test dataset, which appeared to be riddled with the same errors in the state’s original list. Travis County received 146 names on Monday, but a “substantial number” had proved their citizenship when they registered to vote at DPS, said Bruce Elfant, who oversees the voter rolls in Travis County.

Travis County officials did not finish reviewing the Monday list because they got a call from the secretary of state’s office indicating it was sent by mistake.

“They said they sent the list in error and that we should disregard it,” Elfant said.

Williamson County also received a list Monday, only to be later told that “it was a mistake that shouldn’t have gone out,” said Chris Davis, the county’s election administrator.

Late on Monday, Keith Ingram — the chief of the secretary of state’s elections division — emailed county election officials asking them to “completely disregard the file” they received Monday.

The secretary of state’s mistake comes the same day lawyers with the attorney general’s office indicated in federal court that the secretary of state’s office was still working on the process for sending out the monthly lists.

See here for the whole saga. At least there’s a new villain for David Whitley’s apologists to blame. I don’t even know what else there is to say about this, but I will presume that Whitley’s charm offensive on Senate Democrats is going swell.

A second win for plaintiffs in Census citizenship question lawsuit

It’s all up to SCOTUS now.

Commerce Secretary Wilbur Ross acted in “bad faith,” broke several laws and violated the constitutional underpinning of representative democracy when he added a citizenship question to the 2020 Census, a federal judge ruled Wednesday.

In finding a breach of the Constitution’s enumeration clause, which requires a census every 10 years to determine each state’s representation in Congress, the 126-page ruling by U.S. District Judge Richard Seeborg in San Francisco went further than a similar decision on Jan. 15 by Judge Jesse Furman in New York.

The Supreme Court has already agreed to review Furman’s narrower decision, with arguments set for April 23, but may now need to expand its inquiry to constitutional dimensions.

[…]

Unable to find any expert in the Census Bureau who approved of his plan to add the citizenship question, Seeborg wrote, Ross engaged in a “cynical search to find some reason, any reason” to justify the decision.

He was fully aware that the question would produce a census undercount, particularly among Latinos, the judge said.

That would have probably reduced the representation in Congress — and thus in the electoral college that decides the presidency — of states with significant immigrant populations, notably California.

Because census data is used to apportion distribution of federal funds, an undercount would also have cheated these same jurisdictions, the judge said.

Seeborg, like Furman, found after a trial that Ross misrepresented both to the public and Congress his reasons for adding the citizenship question last March. Ross claimed he was acting at the request of the Justice Department in the interest of enforcing the Voting Rights Act.

In reality, the “evidence establishes” that the voting rights explanation was just “a pretext” and that Ross “acted in bad faith” when he claimed otherwise.

See here for the background. A copy of the ruling is embedded in this Mother Jones story. I don’t have much to add to this other than it’s a big honking deal and would have a negative effect on Texas just as it would on states like New York and California that filed the lawsuits against it. You wouldn’t know that from the words and actions of our state leaders, though. USA Today and NPR have more.

Bills to restore Open Meetings Act filed

This is good to see.

Sen. Kirk Watson

Two state legislators are aiming to restore a provision of the Texas Open Meetings Act that was struck down last week by the state’s highest criminal court.

Sen. Kirk Watson, D-Austin, and Rep. Dade Phelan, R-Beaumont, filed identical bills to reverse the court ruling that the “walking quorum” provision of the act is “unconstitutionally vague.” The provision made it a crime for government officials to secretly discuss the public’s business in small groups. Senate Bill 1640 and House Bill 3402 will reword the passage to make it more precise and remove confusion, Watson and Phelan say.

“We simply couldn’t let this ruling go unanswered,” Watson said Wednesday. “Without some kind of walking quorum prohibition, there’s nothing to stop government actors from meeting in smaller groups to avoid the spirit and intent of the Open Meetings Act.”

[…]

The bills already appear to have strong support, as Phelan is the chairman of the House of Representatives State Affairs Committee, which is likely the first stop for the bills before a hearing on the House floor.

Rep. Dade Phelan

“Texans want their elected officials to be transparent and allow honest participation in the process,” Phelan said in the press release. “If we do not act this session to address this ruling, we deny them the open government they deserve.”

Watson and Phelan’s legislation come two days before the bill filing period ends for the session, leaving Freedom of Information Foundation of Texas President Kelley Shannon thankful that the court’s ruling left enough time for legislators to address the issue.

“We’re really glad that several lawmakers are interested in fixing this situation, and we’re fortunate that we still have the bill filing period so they can address it this session,” Shannon said. “It just goes to show how important the Texas Open Meetings Act is for this state and how widely recognized that is.”

The court’s ruling stems from the indictment of Montgomery County Judge Craig Doyal, who met privately with a county commissioner and a political consultant about a road bond when he was a member of the county commissioners court in 2015. A misdemeanor criminal charge against Doyal was thrown out by the ruling.

Doyal argued the law is too vague and violates his free speech rights.

Impacts of the court’s ruling are already being seen in the Houston area, where prosecutors asked a judge to dismiss all charges against six current and former members of the Pasadena Second Century Corp., who were indicted last year for violating the Open Meetings Act. Board members Ernesto Paredes and Emilio Carmona, former board President Roy Mease and ex-board members Brad Hance, Jackie Welch and Jim Harris allegedly met twice on Nov. 28, 2016, with engineering firm Civil Concepts to discuss potential designs for a new civic center.

See here for the background. SB1640 is here, and HB3402 is here. I was skeptical that anything would get done by the Lege about this, at least in this session, but there does seem to be a chance. We’ll keep an eye on this.

Blaming DPS

Meet your new scapegoat for the SOS non-citizen voter advisory fiasco.

Still the only voter ID anyone should need

Amid the fallout surrounding his administration’s botched review of the voter rolls, Gov. Greg Abbott has picked a side.

Who’s to blame for the state’s mistaken challenge to the voting rights of thousands of Texans? The longtime head of the Department of Public Safety, Steve McCraw.

During a radio interview last week, Abbott slammed McCraw’s department for not “adequately” communicating to the secretary of state that the data at heart of the controversial voter review was “admittedly flawed.” And he specifically passed the blame onto McCraw for “faulty information” that “hamstrung” the state’s review efforts.

Then on Monday, Abbott referred to McCraw’s alleged mistakes as “unacceptable,” describing the review as a mishandled “law enforcement issue.”

It was a striking, two-punch rebuke of a high-ranking state official who has long backed Abbott’s priorities, particularly on security concerns at the Texas-Mexico border. But recent court testimony and documents obtained by The Texas Tribune paint a more complicated picture. In reality, the voter citizenship review was flawed in two major ways.

For one, officials from the Texas secretary of state’s office based their review on data DPS had warned would not be up-to-date. In addition, miscommunication between different state offices led state election officials to misinterpret the citizenship status of 25,000 Texans who had already proved to the state that they were citizens.

But Abbott has downplayed Secretary of State David Whitley’s role in the foul-up as Whitley, a longtime Abbott aide, faces a tough confirmation fight in the Senate that could result in him losing his job. That has left opponents of Whitley’s nomination questioning Abbott’s motivations.

“I think the governor is either misinformed or he’s trying to save his nominee despite what the facts are,” said Chad Dunn, one of the civil rights lawyers suing the state over the constitutionality of the review effort. “I don’t think there’s any evidence to support the governor’s comments.”

You should read on for the details, but this is a pretty good summary. Steve McCraw is a longtime hack and hatchet man, and I’m sure not going to hold anyone back from using him as a punching bag. This is still a remarkable evasion of the facts and defense of a guy who is both clearly beloved by Greg Abbott (warning: you may feel the need to brush your teeth after reading that sticky-sweet profile of Whitley) and in way over his head. At some level, I don’t care whose fault this idiocy was. It’s very clear that the intent was to bulldoze people off of the voter rolls without any concern about accuracy, and it’s equally clear that a similar effort done with more care and deliberation would have been much less controversial. It also would have ended up with a scope of maybe a couple hundred voters, which isn’t going to look nearly as sexy in a Ken Paxton press release. Them’s the breaks.

One more thing:

Texas Secretary of State David Whitley will tell Texas counties they may continue to look into the citizenship statuses of voters on his list of suspected noncitizens, according to an advisory approved by a federal judge Monday.

The advisory, which will be sent to all 254 counties in the state, notifies election offices that they must abide by the Feb. 27 court order that bars them from alerting people on the list that they’re under examination or removing anyone from the rolls without approval from the court and “conclusive” evidence that they’re ineligible.

It also clarifies that the counties may still vet voters on the list as long as they do not directly contact them. If, however, a voter reaches out to a county elections administrator first, the advisory says, then the office may communicate with them.

See here for the background. The effect of this is likely to be a continuing stream of voters being removed from the list of alleged non-citizens. As long as that is all that it is, it’s fine by me.

What can you legally wear when you go to vote?

That’s the subject of a lawsuit involving voters from Houston and Dallas.

A Houston woman who was forced to turn a firefighters T-shirt inside out at the polls and a Dallas-area man who tried to vote in his Trump MAGA cap are suing a long list of public officials in federal court here for violating their free speech rights.

The lawsuit comes in the wake of a U.S. Supreme Court ruling in June invalidating a Minnesota law that banned voters from displaying “issue oriented” apparel at the polls. The case filed in Houston federal court Thursday on behalf of two Texas voters was brought by the Pacific Legal Foundation, a California-based nonprofit advocacy group that won the free speech victory in the Minnesota case.

The conservative foundation wants a Houston judge to overturn the Texas law that restricts what people can wear when they vote. Texas is one of several states that still have clothing restrictions on the books. The concern is not just that voters won’t feel free to express themselves, but also that enforcement by poll workers will be “arbitrary and erratic.”

Douglas Ray, an special assistant overseeing election issues at the Harris County Attorney’s Office. said the county will defend itself but Texas Attorney General Ken Paxton — who was also sued — will likely take the lead. County officials last dealt with this issue in 2010, when voters showed up at the polls with Obama-related gear, Ray said. President Barack Obama was not on the ballot, but several measures that reflected his policies were, he said.

“What we tell the election judge is they have the power to adjudicate when they think electioneering is going on and when it’s not,” said Ray. “We tell them to make that determination based on a totality of the circumstances and if it’s consistent with advocacy for somebody or some party that’s on the ballot.”

In the case of the firefighters shirts, Ray acknowledged the county was aware the shirts caused friction at the polls. “We had a lot of trouble with that during the last election because there were people wearing these yellow shirts with red lettering that said ‘Vote for Prop B’ but they were almost identical to a shirt that just said ‘Houston Fire Fighters.’”

He said the shirts had the same colors, logo and lettering but one had “Vote for Prop B” and one didn’t. The county attorney’s office advised election judges that the yellow shirts were problematic if they said something specific about voting.

“But that is just advice,” Ray said. “The election judge in that situation makes the adjudication.”

[…]

The Texas law is more specific than the Minnesota one that the Supreme Court addressed last year, which could help or hurt the case, according to David Coale, a constitutional law expert at Lynn Pinker Cox & Hurst in Dallas. The Minnesota law prohibited voters from wearing political badges, buttons or other political insignia to the polls, while Texas law prohibits inside or within 100 feet of the voting site the wearing of badges, insignia, emblems representing any a candidate, measure or political party appearing on the ballot or to the conduct of the election.

“The Supreme Court said it was a legitimate state interest to have a polling place free of distracting political activity. But by doing so, it still requires the election official to make judgment calls about what ‘relates to’ the election…and also means that the official can get it wrong,” Coale said. “The argument that a ‘MAGA’ hat ‘relates to’ the subject of this election is not a strong one. I think that is why the Pacific Foundation focused on this case as its test case, to get some law made on how far away from the specific subject of an election you can be and still ‘relate to’ it.”

There are always going to be some issues when you are relying on individual election judges to exercise their own judgment in interpreting election law. We see plenty of examples of this every year with the voter ID law and whether or not the name on their ID matches what’s on their voter registration card. Restricting what is allowed at the polling place is much more fraught than that. Wherever a line is drawn for what is acceptable, there will be cases right on that line where reasonable people may disagree. I have a certain amount of sympathy for these plaintiffs, but I don’t know that it adds up to enough weight to warrant throwing out the existing law. I suspect the courts will say that it does, but we’ll see.

Not so open meetings

We’ll have to see how big a deal this is.

In a major blow to the state’s government transparency laws, Texas’ highest criminal court has struck down a significant provision of the Texas Open Meetings Act, calling it “unconstitutionally vague.”

That law, which imposes basic requirements providing for public access to and information about governmental meetings, makes it a crime for public officials to “knowingly [conspire] to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations.” That provision aims to keep public officials from convening smaller meetings — without an official quorum present — to discuss public business outside the view of the taxpayers and the media.

Craig Doyal, the Montgomery County judge, was indicted under that statute for allegedly conducting “secret deliberations” — without a quorum of the commissioners court present — about a November 2015 county road bond. Doyal filed to have the charges dismissed, claiming the statute was unconstitutional. The case eventually made it to the Texas Court of Criminal Appeals, which handed him a victory Wednesday. Two judges on the nine-member, all-Republican court dissented.

“We do not doubt the legislature’s power to prevent government officials from using clever tactics to circumvent the purpose and effect of the Texas Open Meetings Act,” Presiding Judge Sharon Keller wrote for the majority. “But the statute before us wholly lacks any specificity, and any narrowing construction we could impose would be just a guess, an imposition of our own judicial views. This we decline to do.”

Attorneys for Doyal argued months ago that the case should not be interpreted as a broad “take-down of the entire Texas Open Meetings Act.”

“This case is not about discussions of public matters in a quorum,” they wrote in a July 2018 brief. “This case is not about shutting out the public and the press from the political process.”

But open government advocates warned that the ruling, while specific to one slice of the open meetings act, importantly undermines its aims.

“I’m disappointed in the ruling,” said Kelley Shannon, executive director of the Freedom of Information Foundation of Texas. “Some people will use it as a chance to try to get around the spirit of the law. But the vast majority of people want to follow the law and want the public to understand government and participate in government. The vast majority of public officials know they can’t go around in secret and deliberate.”

See here for a bit of background on the Doyal case. I don’t know about you, but I have always assumed that Sharon Keller imposes her own judicial views on every appeal she hears. Be that as it may, my first thought on reading this story was whether it might have an effect on the accusations against five HISD trustees who are alleged to have formed a “walking quorum” and met illegally to discuss replacing Superintendent Grenita Lathan. That charge, if justified, represents another reason for the TEA to take over HISD. Unless, I presume, it turns out that what they allegedly did wasn’t actually illegal. As of yesterday, that was unclear.

The ruling could impact the Texas Education Agency’s investigation into allegations of Open Meetings Act violations by some members of the Houston ISD Board of Trustees.

TEA officials are investigating whether five trustees illegally coordinated ahead of an October 2018 vote to oust Interim Superintendent Grenita Lathan, who took over the position indefinitely in March 2018. The five trustees each spoke with Lathan’s chosen replacement, Abelardo Saavedra, prior to the vote. Some trustees have said they communicated with one other board member about a potential motion to remove Lathan.

Trustees ultimately voted 5-4 to replace Lathan with Saavedra, but they reversed the decision several days later following intense public backlash and Saavedra’s decision to back out of the job. Saavedra told the Houston Chronicle he quickly discovered HISD’s issues stemmed from the school board, as opposed to Lathan’s administration.

TEA opened a special accreditation investigation in January after receiving “multiple complaints” about violations of the Open Meetings Act. TEA leaders said they are investigating whether trustees were “deliberating district business prior to a regularly scheduled board meeting,” regarding Lathan’s removal.

While the notice alludes to misconduct described in the same statute that was overturned Wednesday, TEA officials did not indicate they are investigating HISD based on that statute. Rather, the TEA notice lists the entire chapter of open meetings laws, leaving it unclear whether the investigation rested entirely on the now-invalidated statute.

TEA officials declined to comment Wednesday “due to the open investigation.”

I Am Not A Lawyer and am thus not qualified to assess that possibility, but as a blogger I’m fully capable of speculating about it. My point is that this ruling may well have some odd and unexpected consequences. Greg Abbott says he wants state agencies to “continue to follow the spirit of the law”, whatever that means. I expect that would eventually lead to more litigation, until or unless the Lege fixes the law to satisfy this ruling. Anything is possible, but I tend to bet the under in these matters. Welcome to the mostly post-Open Meetings Act world that we now live in. The Observer has more.

Judge blocks any voter purges from the SOS advisory

Good. Let’s hope this lasts.

Still the only voter ID anyone should need

In a major victory for voting rights groups, a federal judge has ordered that no Texas county should purge suspected noncitizen voters from the rolls or issue letters demanding that they prove their citizenship “without prior approval of the Court with a conclusive showing that the person is ineligible to vote.”

The Wednesday order from U.S. District Judge Fred Biery comes a month after the Texas secretary of state flagged nearly 100,000 voters for citizenship review — and a flurry of civil rights groups filed three lawsuits to block state and county officials from purging voters based on what has proven a deeply flawed set of data.

Biery ordered that as the litigation continues, counties can “continue to find out if in fact someone is registered who is not a citizen” — some local officials have proposed comparing lists of flagged voters with names of individuals made citizens at recent naturalization ceremonies, for example — but may not communicate directly with any particular individual on the list. Reaching out to a voter to demand proof of citizenship starts the clock on a process that can lead to that voter being purged from the rolls.

[…]

Biery’s order directly addresses the more than a dozen counties that are named defendants in the flurry of lawsuits. It also directs the state to inform Texas’ other 200-plus counties that they may not purge voters or demand proof of citizenship without his approval.

Last week, eight counties agreed voluntarily to halt their efforts, and on Monday, Biery extended that order to a total of 15 counties.

[…]

Much like his remarks in court this week, Biery’s order contained harsh words for the state’s bungled attempt to review its rolls, and good omens for the civil rights groups aiming to prove that Texas has treated two groups of people, native-born citizens and naturalized citizens, differently.

“Notwithstanding good intentions, the road to a solution was inherently paved with flawed results, meaning perfectly legal naturalized Americans were burdened with what the Court finds to be ham-handed and threatening correspondence from the state which did not politely ask for information but rather exemplifies the power of government to strike fear and anxiety and to intimidate the least powerful among us,” Biery wrote. “No native born Americans were subjected to such treatment.”

Biery also wrote — as civil rights groups and voting experts have long maintained — that “there is no widespread voter fraud” in Texas and that an attempt to root out noncitizens on the voter roll forces officials to figure out “how to ferret the infinitesimal needles out of the haystack.”

State officials have said that moving forward, they plan to watch for noncitizens who are registered to vote by comparing voter rolls with more recent lists of individuals who present proof of legal status, but not citizenship, at DPS. Biery’s Wednesday order allows that process to proceed but advises that officials may not purge those voters or demand proof of citizenship without approval from him.

See here, here, and here for the background. As a reminder, this is just the wrangling over an injunction, to determine whether or not the state and counties can continue to pursue this purge while the case is being litigated. It’s not a decision on the merits, just a stop sign for the state until a decision is reached. Assuming the Fifth Circuit doesn’t step in and screw things up as it usually does, of course. No word as of the publication of that story as to whether or not the state would appeal. Judge Biery made a good call, but as always this is far from over. The Lone Star Project, which picks out some highlights from Biery’s order, has more.

Of course there are bills to do something with that bogus SOS advisory

What else did you expect?

Still the only voter ID anyone should need

Among other things,  Senate Bill 960 and Senate Bill 953, filed late last week, would require voter registrars across the state to kick every person off the voter rolls who at one point said they were not a citizen to any government agency.

Beth Stevens, voting rights program director with the Texas Civil Rights Project, said the bills could potentially reduce “protections that a voter has to address a claim that they are a noncitizen.” The nonprofit is one of many groups challenging the state’s effort in court.

“It further adds an element of intimidation of voter registrars,” she said.

[…]

If enacted, SB 960 and SB 953 would require registrars to immediately remove flagged voters from voter rolls. The bills wouldn’t require registrars to notify individuals their citizenship was being questioned. SB 960 would also subject any registrar who does not immediately remove those voters to a civil penalty and a possible Class A misdemeanor charge.

SB 960 would also give the Attorney General’s office the power to petition a court to remove a registrar from office if he or she does not kick those voters off the rolls.

“These two bills – and particularly SB 960 – are very much voter suppression on their face,” Stevens said.

SB 960 was filed by state Sen. Paul Bettencourt, a Republican from Houston. Bettencourt did not respond to a request for comment. He did, however, weigh in on the issue last year and admonished local officials for not pursuing and removing alleged noncitizens from voter rolls.

“This really strikes at the fabric of the integrity of the whole election process,” Bettencourt said in a written statement last June. “The fact is that non-citizens simply cannot vote in our elections.”

SB953 was authored by Sen. Pat Fallon. Of course Bettencourt would have a hand in this. He made his bones as Harris County Tax Assessor finding many creative and legally questionable ways to purge voters he didn’t like. There’s a reason why voter registration numbers in the county were flat for so long. Whether this particular ploy will work or not remains to be seen. These bills can probably pass if the leadership wants them to, but in the absence of a push they may die the usual death by natural causes. I’ll try to keep an eye on them.

Testimony ends in SOS advisory lawsuit

Now we wait for a ruling. We’ve already sort of gotten one, but it’s not all official yet.

Still the only voter ID anyone should need

As part of an ongoing flurry of litigation in federal court here over the state’s bungled citizenship review of its voter rolls, a federal judge on Monday told a handful of Texas counties they may not — for now — purge registered voters or send them letters demanding proof of citizenship.

Eight counties named in one of three pending lawsuits over the review effort agreed last week that they will not cancel any voter registrations as lawyers from a host of civil rights groups tangle with the state in court. U.S. District Judge Fred Biery said from the bench Monday that the other counties named in a separate lawsuit should consider themselves restrained in the same way as litigation proceeds.

That doesn’t apply to the other 200-plus counties in the state, but “we expect all the counties are watching these proceedings,” said Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund, one of the groups suing Texas and several counties.

[…]

Still to come from the judge’s chambers is a decision on civil rights groups’ broader requests to block the state from taking any further action related to the list as the lawsuits proceed. And the judge seemed at least somewhat amenable to that argument during a day of testimony that revealed fresh troubles with the state’s initial rollout of what it has come to characterize as “routine list maintenance activity.” Critics label it as an attempted widespread voter purge.

State officials conceded in federal court here Monday that a quarter of the nearly 100,000 voters flagged for citizenship review are naturalized citizens whose voter registration should never have been questioned in the first place.

And the list is only expected to get smaller, Keith Ingram, elections director for the Texas secretary of state’s office, acknowledged during cross-examination Monday.

The initial number shrank to about 74,000, Ingram explained, after “additional refinement” of data sourced from DPS, where Texans can register to vote while applying for or renewing their driver’s licenses.

About half of the 25,000 flagged erroneously were what Ingram called “code 64s” — a bureaucratic tag indicating that the voters registered at DPS while applying for or renewing their driver’s licenses. Since Texans have to present documentation, either as a citizen or as a legal permanent resident, to receive an identification card from the state, voters who registered at DPS would have demonstrated citizenship status.

The other half of the 25,000 “refined” off the flagged list had demonstrated citizenship to DPS but not registered to vote at the same time, Ingram said.

Before the original list was rolled out at the end of January, the state wasn’t aware it could utilize DPS data in order to narrow its target list, elections officials said Monday.

“I wish all of this could’ve been done back as the original effort,” Biery said. “Would you agree that all of this refinement would not have been done but for the sunshine light of the press and litigation?”

“The thing is that it’s the category of Donald Rumsfeld, the ‘unknown unknown’ — the things you don’t know you don’t know,” Ingram responded. “We didn’t know until the counties reported to us.”

See here and here for the background. I mean, sure, mistakes were made and all, but you know what made those mistakes so much worse? Handing the original, unvetted, known to be full of mistakes list to the rabid dogs at the AG’s office and then offer “these things happen” regrets when the Twitter crapstorms get unleashed. David Whitley is bad at his job – frankly, I’m not all that impressed with Keith Ingram, either – and everything he did made this worse. There were many ways in which this could have been handled in a more professional, less messy fashion. Maybe the next Secretary of State will be capable of doing that. The DMN has more.

Same sex employee benefits lawsuit tossed again

This is great, but as always that’s not the end of it.

The lawsuit dates back to 2013, when pastor Jack Pidgeon and accountant Larry Hicks sued the city to end the policy. In 2015, after the U.S. Supreme Court handed down the landmark Obergefell ruling that opened up marriage rights to same-sex couples in all states, Pidgeon and Hicks continued to pursue the lawsuit, arguing that the decision did not extend to the right to city spousal benefits.

In June 2017, the Texas Supreme Court agreed, ruling unanimously that while same-sex marriage had been made legal, there is still room for state courts to explore the “reach and ramifications” of the landmark Obergefell ruling. The all-Republican high court sent the case back to a Houston trial court for further consideration.

Nearly two years later, Judge Sonya Heath on Monday threw out the case, ruling for Houston in what the city has touted as a major win.

“This is a victory for equality, the law of our nation and human rights,” Houston Mayor Sylvester Turner said in a statement Thursday evening. “I thank our Legal Department for its diligent work defending common sense and fairness, and I’m glad we get to continue the policy established by the city 6 years ago.”

Still, that win won’t go unchallenged. Jared Woodfill, the lawyer who represents Pidgeon and Hicks, said Thursday night that his clients will appeal the ruling — and that he expects the case to land again before the Texas Supreme Court and that it could eventually be decided by the U.S. Supreme Court.

See here, here, and here for some background. There’s a bunch of blathering by Jared Woodfill in the story about how unfair it was that a Democratic judge, who ousted the Republican judge that originally gave him an injunction that was quickly overridden, got to rule on his case, while also gloating that Republican judges up the line and on SCOTUS will surely be in the bag for him. He failed to mention that the only reason this case is still being litigated is because the State Supreme Court bowed to political pressure after initially giving him the brushoff. I don’t know what will happen in this case once the appeals process starts up again, but I do know two things. One is that Woodfill and his crank case plaintiffs represent a shrinking fringe, and two is that we need to win more elections so we can pass some more robust laws protecting the fundamental rights of all Americans. (Honestly, just ensuring that no more bad legislation gets passed would be a big step forward.) Mayor Turner’s press release has more.

Another reason David Whitley has to go

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

Still the only voter ID anyone should need

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But others were caught flat-footed.

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

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

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

Is the Lege going to try to “fix” HD90?

Here’s a legislative to do list item that has been completely off the radar.

Rep. Ramon Romero

Federal courts last year gave Texas lawmakers 45 days from the beginning of this year’s legislative session to start redrawing boundary lines for Fort Worth’s House District 90 because of gerrymandering.

The 45-day mark [was] Thursday.

If a proposal isn’t introduced within the first month and a half of the session — or if it doesn’t appear likely that a new plan will come up during the session that wraps up May 27 — then the three-judge panel in a U.S. District Court in San Antonio will undertake the “unwelcome obligation” of fixing the district.

So far, no bill to redraw the district represented by Democrat Ramon Romero has been filed.

“The Supreme Court has ruled that we must have a narrow tailored correction to District 90,” Romero said. “The most narrow tailored line is that those precincts split by amendments in 2013 must be brought back to the way they were before.

“Will the district be fixed by the Legislature or will the Legislature pass on filing a bill … to let the courts do it?”

He said the next step is to see what fixes are proposed by the Texas Attorney General’s Office.

See here and here for the background. This was brought to my attention by regular commenter blank, who also noted it at Daily Kos. This story was published on Tuesday, and as far as I can tell, no bills relevant to this issue have been filed. That doesn’t mean that the courts will absolutely jump in with their own fix – the AG will propose something, the deadline for all bill filing hasn’t passed yet, and I’m sure the court won’t consider taking action until after the session if nothing passes and someone files a motion. Whatever the case, this is out there. What makes it more complicated, as blank noted in his Kos comment, is that if such a bill gets filed and heard in committee, it could be amended in all kinds of ways as it works through the system. You could in effect redistrict the entire Lege using this bill as a vehicle if you have the votes for it. Or you may just decide nothing is worth the bother and leave it to the court to clean up. I have no idea which way this will go, but we’ll keep an eye on it.

Civil rights groups want Whitley to not be confirmed

No kidding.

Still the only voter ID anyone should need

More than 30 civil rights and community groups are calling on Senate Democrats to block the confirmation of embattled interim Secretary of State David Whitley, who oversaw the botched rollout of an investigation into the citizenship of tens of thousands of Texas voters.

“Under no circumstances should Mr. Whitley be allowed to continue to serve as the Texas Secretary of State. The Senate Democratic caucus – and each of you individually – have the power to unite in defense of the voting rights of all Texans and stop his confirmation,” the groups wrote in a letter sent to Democratic senators on Thursday morning. “We call on you to affirmatively block the confirmation of David Whitley for Texas Secretary of State.”

[…]

“It has become exceedingly clear that Mr. Whitley is unfit to serve in that office,” the letter reads. “Mr. Whitley has targeted naturalized citizens for disenfranchisement and falsely accused them of committing voter fraud.”

The letter’s signatories, which include the League of Women Voters of Texas, the Texas NAACP, the League of United Latin American Citizens and the Texas Democratic Party, took Whitley to task for being unable to answer questions during his confirmation hearing in front of the Senate Nominations Committee about how his office handled the advisory’s rollout.

“Mr. Whitley demonstrated an embarrassing lack of knowledge about the process he initiated,” the letter reads.

Calling Whitley’s conduct “disqualifying,” the groups said he “knew or had reason to know that a substantial number of these 58,000 Texas residents had not voted unlawfully, and still he sent the entire list to the Attorney General for criminal investigation and potential prosecution.”

“Mr. Whitley’s actions demonstrate a level of incompetence that we cannot accept in a position tasked to protect and advance our most fundamental rights of civic participation,” the groups wrote.

I found a copy of the letter here. You will recognize a number of the signers as plaintiffs in the multiple lawsuits filed against Whitley and the SOS. Whitley’s confirmation remains in limbo as the Senate committee has yet to vote out his nomination following the hearing two weeks ago; it’s still pending after another no-action committee meeting on Thursday. It would take at least two Dems to vote for Whitley, assuming he gets unanimous Republican support, which maybe isn’t a sure thing given that he’s still pending in committee. And as of yesterday, every Dem Senator was on record opposing Whitley.

All 12 Democrats in the Texas Senate have publicly confirmed they are opposed to confirming embattled Secretary of State David Whitley, giving them more than enough votes to block his nomination if they’re all in the chamber when the vote comes up.

The tally of “no” verdicts from Senate Democrats hit a dozen on Friday, upping the ante on the minority party’s ability to block his path to confirmation if they all stick together. To be confirmed, Whitley needs a two-thirds vote in the 31-member chamber. But whether Whitley’s nomination will make it that far remains unclear.

[…]

If Whitley’s nomination is left pending for the rest of the session, he can serve only until the Legislature leaves Austin in late May. After that, Abbott could nominate a replacement who would immediately take over as secretary of state and serve at least until the next legislative session in 2021.

If the Senate votes and Whitley is rejected, he must leave office immediately.

Doesn’t look good for Whitley, does it? My guess at this point is that Whitley never comes up for a vote, and Abbott appoints someone else after the session. Basic competence for the task at hand, and not regularly insulting everyone’s intelligence, that’s all we’re asking here. This Twitter thread from the press conference has more.

SOS advisory lawsuit continues

From Day Two of testimony:

Still the only voter ID anyone should need

Despite a glaring error in the original data that questioned the citizenship status of tens of thousands of registered voters, a state elections official defended the investigation in federal court Wednesday, saying some potential illegal activity has been uncovered and blaming several county officials for problems that have arisen.

Keith Ingram, head of the Elections Division at the Texas secretary of state’s office, said 43 people on the list of suspect voters contacted his agency and asked to have their voter registration canceled because they were not U.S. citizens.

“I believe some have voted,” he told U.S. District Judge Fred Biery during a hearing into efforts by civil rights groups and an affected voter to halt the investigation as an error-riddled effort that improperly singles out naturalized citizens.

An additional 37 people asked to be removed from the state list of registered voters but gave no reason for the request, Ingram said.

[…]

Under questioning by opposing lawyer Chad Dunn, Ingram admitted that his agency’s original list of 95,000 suspect voters included about 20,000 people who had shown proof of citizenship to the Department of Public Safety.

Ingram blamed the mistake on the DPS, saying officials originally indicated that the information was not reliable because it was self-reported by the 20,000 people, only to later say that each registered voter had provided the DPS with proof of citizenship.

Asked by Dunn if his agency had publicly acknowledged that “the 95,000 figure is wrong and ought to be reduced,” Ingram said it had not.

Ingram also blamed officials in several counties for jumping the gun by immediately sending investigation letters demanding proof of citizenship to registered voters on the suspect list, saying they failed to heed warnings from his office that the names needed to be investigated first.

Ingram acknowledged that state officials were aware that the list included an unknown number of naturalized U.S. citizens because of shortcomings in citizenship data provided by the DPS.

See here for more from Day One of the trial, in which we first observed the state strategy of blaming the local county administrators for this fine mess we’re in. Sure seems to me that a lot of this could have been avoided if 1) the SOS had been more clear in its advisory to counties that there were likely a lot of false positives, 2) SOS wannabe David Whitley hadn’t stoked the fire by immediately referring the whole known-to-be-deeply-flawed list to the Attorney General, and 3) the SOS had at least backed off its initial and highly problematic “95,000 suspect voters” claim. The fact that we’re here in federal court tells you all you need to know about that.

In the meantime, there was a bit of drama in that courtroom.

A federal judge weighing whether to block Texas’ effort to investigate the citizenship of tens of thousands of people on its voter rolls said he wants to hear from a secretary of state employee who abruptly resigned from the office.

Betsy Schonhoff ran a nearly yearlong effort to match the state’s voter lists with databases at the Department of Public Safety for people who had obtained driver’s licenses when they weren’t citizens.

But she has not been served a subpoena, and there is evidence that she has been “evading service for five days,” said Chad Dunn, a lawyer for Julie Hilberg, a naturalized citizen whom the investigation flagged for review.

U.S. District Judge Fred Biery made it clear he wanted to hear Schonhoff’s testimony in his San Antonio court, saying he knows U.S. marshals “who are very good at finding people.”

“She’s going to be here,” he said.

Late Wednesday, the Texas Attorney General’s office pushed back on the plaintiff’s characterization of efforts to reach Schonhoff.

“It’s our office’s understanding that, despite not having been served, the former employee of the Secretary of State’s office is willing to voluntarily appear at the next scheduled hearing and will do so,” Marc Rylander, a spokesman for the office said in a statement.

That next hearing will be today, and I for one would also like to hear what Ms. Schonhoff has to say.

Later in that first story, we learn that the lawsuit filed in Corpus Christi by MALDEF on behalf of seven naturalized citizens has been consolidated with this one. The third lawsuit, filed in Galveston by a coalition of civil rights groups who had initially demanded that the advisory be rescinded, will also have a hearing today following a phone conference on Wednesday to address a state request to fold this into the current suit as well. That’s pretty common – there were many lawsuits relating to the 2011/2013 redistricting that were eventually all joined into one action – but the plaintiffs may oppose the motion and there may be reasons to keep them separate. We shall see. In the meantime, MALDEF has already come out swinging.

Lawyers for two Texas naturalized citizens who landed on the state’s list of “potential noncitizen voters” are re-urging a federal court to block state and county attempts to remove people from voter rolls before their clients lose their right to vote next week.

In a Thursday filing, Nina Perales of the Mexican American Legal Defense and Education Fund told U.S. District Judge Fred Biery in San Antonio that the “situation is urgent and requires the Court’s immediate intervention.”

“If they do not comply with the purge letter’s demand and provide proof of U.S. citizenship they will lose their right to vote on March 2, 2019,” the filing says.

The two clients, identified as Jane Doe #1 and John Doe #1, received letters in late January from Smith County, where they are registered to vote, asking them to verify their citizenship within 30 days or be taken off the voter rolls. Jane Doe #1 is a college student who has an internship in Austin through the end of May and can’t return home to procure the documents, according to the filing.

John Doe #1 said “he does not want to be treated like a second class citizen” simply because he is naturalized and “will not go through Smith County’s additional steps and requirements” because he has already proven his citizenship, the filing said.

You can see that brief here. I’m hopeful that the plaintiffs can get a favorable ruling, though whether it would stand up on appeal is a more fraught question. I’ll be keeping an eye on this as always.

City proposes partial pay raise to firefighters

Progress, of a sort.

Houston officials have offered to raise firefighters’ base salaries, but not sufficiently to establish pay parity with police officers as approved by voters, city and firefighter union officials said Wednesday.

“In my mind, the proposal makes no effort to implement Prop B,” union attorney Troy Blakeney said, referring to the ballot item reflecting a city charter amendment approved in a Nov. 6 referendum. “It makes an effort to pay firefighters additional salaries that do not include all the components of Prop B.”

The proposal nonetheless marks the first evident progress made since Mayor Sylvester Turner met last month with Blakeney and Houston Professional Fire Fighters Association President Marty Lancton to discuss Proposition B, which compels the city to pay firefighters the same as police of equal rank and seniority.

City Attorney Ron Lewis confirmed the city had made an offer, but neither he nor Blakeney disclosed the amount.

Still, it was clear Wednesday that Turner and Lancton remain far from an agreement to phase in the raises over time. Both say they support that idea, with Turner arguing the city cannot afford to instantly implement Proposition B.

Lancton told reporters Wednesday that the city’s legal efforts to invalidate the proposition, based on the argument that it is unconstitutional, are hampering negotiations.

“He appears to be a victim of his own ego,” Lancton said of the mayor. “His relentless political and legal war on Houston firefighters and their families must end.”

Turner has said the firefighters’ decision Jan. 15 to seek a court order compelling the city to implement the proposition has similarly soured negotiations. Lancton has said the city should already be paying firefighters because the proposition became law nearly three months ago, which is why the union sought the court order.

See here for some background. At this point, I don’t have anything new to say. I don’t know how this ends and I don’t know how long it will take to get there. If we’re still fighting about this in the next city elections in 2023, I won’t be surprised.

First day in court for SOS advisory lawsuits

First day for the first lawsuit, one of three filed against that bogus SOS advisory.

Still the only voter ID anyone should need

A federal judge in San Antonio will hear arguments Tuesday in one of three legal challenges to the state’s initiative to purge tens of thousands of Texans from voter rolls who officials claim are not U.S. citizens.

U.S. District Judge Fred Biery will hear a request by a group headed by the League of United Latin American Citizens seeking a court order to block the plan. LULAC and others say many of the people targeted by the rollout were wrongly placed on the purge lists.

The state, in court records, defends the initiative as necessary. The hearing could last much of Tuesday, and possibly into Wednesday, but the judge is not expected to issue an immediate ruling.

[…]

LULAC’s suit said the initiative amounts to a discriminatory “witch hunt” targeting mostly Hispanic voters, in violation of the federal Voting Rights Act. The Campaign Legal Center joined the suit, adding constitutional concerns. The groups also filed a request to turn it into a class-action lawsuit for others who might be wronged.

The Mexican American Legal Defense and Educational Fund later filed a separate suit in Corpus Christi, which contends that state officials singled out naturalized citizens because they were born outside the country. A coalition of other groups — MOVE Texas Civic Fund, Jolt Initiative, League of Women Voters of Texas and the NAACP of Texas — filed a third lawsuit in Galveston to prevent the purge, saying Texas officials are treating those who have been naturalized as second-class citizens. Both lawsuits are pending.

See here for more on the LULAC lawsuit, and here and here for the other lawsuits. The Trib filed a story later in the day with more details about what happened so far.

Facing three federal lawsuits challenging the legality of Texas’ efforts to review the citizenship of 98,000 registered voters, a top lawyer for the state opened up his defense in one of the cases by claiming the state had not made any mistakes or imposed unconstitutional burdens on certain voters in rolling out the review. Actually, he argued, it was certain county election officials who had acted “contrary to state law.”

In a federal courthouse Tuesday, Assistant Attorney General Chris Hilton repeatedly questioned why two local election officials — Kerr County Tax Assessor Bob Reeves and Blanco County Tax Assessor Kristen Spies — immediately sent voters who were flagged by the state letters demanding that they prove their citizenship in order to remain on the voter rolls. Hilton said counties should have first reviewed their lists to determine whether they had reason to believe a voter was ineligible.

The two voter registrars told the court their staff was simply following the state’s instructions — laid out in an official election advisory — on how to determine if those individuals were in fact U.S. citizens and therefore eligible to vote. In her reading of the state’s advisory, in which state election officials repeatedly noted they had worked to provide counties with “actionable information,” Spies said she believed that meant “that we should work the list.” She was echoed by Reeves, who indicated the state’s decision to flag those voters gave them enough reason to move forward with those notices.

[…]

Hilton contended the secretary of state had merely told counties they had the choice to investigate the voters or take no action — not immediately send out notices.

“Unfortunately, Mr. Reeves, I think your staff has acted contrary to state law,” Hilton told Reeves, who oversees the county’s voter rolls and whose staff sent out 68 proof-of-citizenship letters the day the county received its list of voters from the state.

[…]

Chad Dunn, one of Hilberg’s attorneys, followed Hilton’s questioning by projecting a copy of the secretary of state’s advisory onto a large screen in the courtroom and reading from the part of the document that indicated that state officials “believe” the data they provided “can be acted on in nearly all circumstances.”

“Is a reasonable reading of that sentence that this list of voters is ready to be sent notices without any further steps?” Dunn asked.

“Based on this, yes,” Reeves responded.

Dunn then asked what effect a combination of that advisory and the statements made by top Republican officials about supposed voter fraud had on Reeves’ understanding of whether he needed to send those notices.

“To the best of my knowledge, that’s why my office sent that out,” Reeves said.

Classy move by the state, blaming the local officials for the SOS’s actions. The case continues today, and we probably won’t get an immediate ruling. And whatever happens here, those other lawsuits are out there as well.

Back to court for Prop B

Here we go again.

Mayor Sylvester Turner

Lawyers for Houston Mayor Sylvester Turner filed a motion Friday afternoon seeking to declare Proposition B invalid, contending the voter-approved referendum supporting pay parity for firefighters violates Texas law.

The move is the latest in an extended legal battle between the city and firefighters over the November ballot measure requiring the city to pay firefighters the same as police of equal rank and seniority.

[…]

The city’s motion claims that Proposition B is illegal under the Texas Local Government Code and the Texas Constitution, an allegation the city previously made in December.

The filing is notable, though, because Turner has said he hopes to negotiate a plan with the fire union to phase in pay parity over a number of years, arguing the city cannot find the funds to do so immediately.

His efforts to again invalidate the charter amendment altogether appear to cast doubt on whether both sides can ultimately reach an agreement. Though Turner has said “those conversations are taking place,” neither side has indicated they have made any tangible progress since [firefighters union president Marty] Lancton and Turner met publicly in January.

The day before that meeting, the union sought a court order aiming to force the city to enact parity, a move Turner questioned at the time. Lancton, skeptical of Turner’s sincerity in offering the meeting, said the city’s inaction had forced the union’s hand, while Turner said the union should not have gone to the courthouse on the eve of the meeting.

Here’s the Mayor’s press release, which you can take however you want. I’m mostly noting this for the record, because as far as I can tell there’s no legal impediment at this time to proceeding with Prop B, a subject that I’m sure will continue to arise. The one thing I find surprising is that so far no individual voters have filed a lawsuit over the wording of the ballot referendum. It seems like every other one we’ve had in recent memory has faced litigation over that, some more credible than others, so it’s a little odd to me that this referendum hasn’t had that same experience. Just a though.

A lawsuit against bail reform

That would be a No from me.

A Harris County judge has sided with lawyers for the Harris County Sheriff’s Office and a slate of new Democratic judges vying to loosen misdemeanor bail rules this weekend, rather than grant a request of three bail bond companies that would have delayed the start of the proposed revisions .

The companies argued Thursday that the court-ordered bail reform — believed to be a key step in a lengthy legal fight over the pre-trial detention of poor, low-level offenders — would jeopardize their Houston bail bonds business.

“They won’t get to write as many bail bonds as they did before and they won’t make as much money as they did before,” said Allan Van Fleet, a lawyer representing the judges.

[…]

The reform, the companies argue, violates state law because it would guarantee many defendants a specific type of bail without first providing them individual hearings before a judge, and because it would require the sheriff to reject some bonds that otherwise would be valid under state law, among other reasons.

“We have a constitutional right to make our living by bail bonds and if they want to amend the way the things are, they can do that but it still has to be by state law,” said Kevin Pennell, who represented Set ‘Em Free Bail Bonds, A Better Bail Bond and Advantage Bail Bonds in the county suit filed Thursday.

Eightieth Civil Court Judge Larry Weiman countered the argument before he denied the order.

“Doesn’t the court have to balance the constitutional right of the defendants, those who are arrested and charged with a crime,” Weiman asked, before resetting the temporary injunction hearing to March 11.

I’ll bet tobacco farmers used to make a pretty good living, too. I don’t know about you, but I’m not sorry for the societal and legal changes that led to the decline of that profession. There will still be a need for bail bonds going forward. There just won’t be as much of a need for them. That is as it should be. A hearing to review the proposed settlement in the original lawsuit will be on March 8. We’ll see where we stand then.

Texas Central gets an adverse court ruling

Hard to say how much effect this will have.

The planned high-speed rail project from Houston to Dallas hit a big obstacle last week in rural Leon County when a judge there declared the project’s backers did not have authority to force landowners to sell or provide access to properties.

Opponents of the rail project on Monday cheered the ruling as a death knell for the line — albeit one that will take years to savor and finalize.

“This project cannot be finished without eminent domain and the project is completely off track,” said Blake Beckham, the Dallas lawyer who has represented opponents of the Texas Central Railway project.

Company officials said Monday many of the opponents’ claims and the significance of the ruling were exaggerated.

“Texas Central is appealing the Leon County judge’s decision and, meanwhile, it is moving forward on all aspects of the train project,” the company said in a statement.

The heart of many of the legal fights, and Monday’s decision, center on whether the company is, in fact, a railroad. Backers since 2014 have insisted the project — using Japanese bullet trains to connect Houston and Dallas via 90-minute trips as 220 mph — is a railroad and entitled to access to property to conduct surveys and acquire property via eminent domain.

“Texas has long allowed survey access by railroads like Texas Central, pipelines, electrical lines and other industries that provide for a public good and a strong economy,” the company said.

Opponents have insisted that since the company does not operate as a railroad, owns no trains and has not laid a single piece of track. it is not eligible for the access.

“Simply self-declaring that you are a railroad … does not make it so,” said Kyle Workman, one of the founders of Texans Against High-Speed Rail.

Judge Deborah Evans of the 87th District Court agreed, issuing an order Friday that found Texas Central and another company it formed “are not a railroad or interurban electric company.”

[…]

The ruling covers Freestone, Leon, and Limestone counties where the line is planned.

In previous court cases related to land access in Harris County and Ellis County, the company has been denied access or dropped its request in the face of mounting questions from the court or opponents.

“They have lost every single legal interaction,” Beckham said.

Texas Central disputed that in a statement.

“A judge in Ellis County said trials should be held on survey cases for three local property owners,” the company said. “The judge did not rule on the merits of those cases, instead only saying they should proceed to trial.”

See here and here for some background. We’re still very early in the legal process, with some procedural rulings but nothing decided on the merits yet. It will be years before the courts sort it all out, and nothing will be settled until the Supreme Court weighs in. In the meantime, there will be further attempts by members of the Lege to put roadblocks in Texas Central’s way. KUHF has more.

Here’s one solution to the SOS problem

Works for me.

Rep. Roland Gutierrez

A San Antonio state rep wants to repeal the law that let Texas Secretary of State David Whitley refer a poorly vetted list of 95,000 people’s names to the attorney general for investigation for voter fraud.

Rep. Roland Gutierrez, a Democrat, this week filed HB 1450, which will strip the Secretary of State’s office of authority to demand sensitive personal information from the Department of Public Safety.

[…]

“With as many as three lawsuits filed by an array of civil rights groups, it is clear that we need to fix this now,” Gutierrez said in a press statement. “The problem with relying on the DPS information for voter registration is its failure to account for those who became naturalized U.S. citizens after applying for a Texas driver’s license.”

In the lawsuits, civil rights groups including the American Civil Liberties Union and LULAC, called Whitley’s purge unconstitutional, arguing that it sets up discriminatory road blocks for voters.

Gutierrez and 13 colleagues voted against HB 2512, the original law that allowed Whitley’s office to access the driver’s license records in the name of sniffing out voter fraud.

“As an attorney I don’t take lightly accusing 100,000 Texans of breaking the law,” Gutierrez said. “We need to ensure that no illegal votes are cast, but we must do it with precision and integrity instead of targeting based on race. Texas is better than this.”

Here’s HB1450. I mean, I can’t imagine this passing, but it’s the right idea.

Whitley’s “apology”

He can do a lot better than this. He should do a lot better than this if he wants to get confirmed.

Still the only voter ID anyone should need

Facing an uncertain path to confirmation after ordering a deeply flawed voter citizenship review that seemingly focused on naturalized citizens, Texas Secretary of State David Whitley is apologizing to state lawmakers for the way his office bungled its rollout of the review — but he is still holding firm behind the overall effort.

In a letter sent to state lawmakers late Wednesday, Whitley largely defended the review efforts as a legally sound exercise, and he did not admit that his office had erred when it mistakenly threw into question the eligibility of tens of thousands of U.S. citizens or when it sent counties lists of voters it knew very likely included naturalized citizens.

Instead, Whitley vaguely admitted there were some shortcomings to the data his office used to flag almost 100,000 registered voters for citizenship reviews and noted his office should have devoted more time to “additional communication” with local and state officials to “further eliminate anyone from our original list who is, in fact, eligible to vote.”

“After close consultation with the Texas Department of Public Safety (DPS), the counties, and members of the Texas Legislature, I have discovered that additional refining of the data my office provides to county voter registrars, both in substance and in timing, is necessary to ensure a more accurate and efficient list maintenance process,” Whitley wrote in the letter obtained by The Texas Tribune.

[…]

In his letter to lawmakers, Whitley said his announcement “could have been communicated better” by including “more substance” from the advisory his office sent out to counties detailing the release of the data and “by emphasizing my goal to ensure that no qualified voters are removed from the rolls.”

“I recognize this caused some confusion about our intentions, which were at all times aimed at maintaining the accuracy and integrity of the voter rolls,” Whitley wrote. “To the extent my actions missed that mark, I apologize.”

You can click over and see the letter if you want – I see no real value in that, given the clear lack of substance. Nothing about this should inspire any confidence in David Whitley’s ability to do the job. At the very least, we deserve an explanation of how this shoddy list was constructed, why there were no controls in place to properly vet it, why it was referred to the AG’s office despite these obvious shortcomings, and what is being done to prevent anything like this from happening again. Oh, and an apology to the people who have been wrongly accused. Come back after that and then we can talk.

In the meantime:

The confusion and chaos caused by Texas’ bombastic voter fraud allegations has manifested in almost every element of the fallout.

The latest example is a voter purge notice sent out by one Texas county that lacked basic contact information or even an official letterhead.

The notice left one citizen mistakenly flagged by the stake feeling “very worried” and a “sense of fear,” according to court documents filed Monday.

[…]

In Wood County, those notices went out with the space left blank where the phone number of the local elections office should have been. The notices also lacked the response form the recipients were asked to use to reply, and there was no letterhead on the notices.

A woman in the court docs known as “Jane Doe #2” — who received the notice despite being naturalized in March 2018 and voting legally in that year — recounted in a declaration her frustration and her “sense of fear,” given that she could not tell if the letter was fake or real.

“I questioned whether I had done something wrong, or if somebody was trying to prank me.” Jane Doe #2 wrote in the declaration. “I did not know where to go or who to call to receive answers to my questions.”

She first tried to call the county clerk’s office, where the staff member who answered her call said the letter might be fake and that the person whose name was on the notice didn’t work for the county clerk, according to Jane Doe #2’s statement. She finally got in touch with the county elections administrator, Lisa Wise, who explained that the notices had been sent out without the contact information by mistake. Jane Doe #2 eventually traveled to meet Wise in person and showed Wise a copy of her naturalization certificate.

This was part of a filing by MALDEF in their lawsuit against the SOS. What would David Whitley say to Jane Doe? What he has said so far is completely inadequate.

Paxton double-talks on that SOS advisory

Ken Paxton really can’t be trusted. Not exactly earth-shattering, I know, but always good to remember.

Best mugshot ever

Texas Attorney General Ken Paxton assured lawmakers on Friday that his office hadn’t launched criminal investigations into nearly 100,000 voters flagged by the secretary of state’s office for citizenship review.

But email correspondence obtained by The Texas Tribune between an assistant county attorney and a Paxton deputy who cites “pending criminal investigations related to these issues” appears to contradict the attorney general’s claim.

The two opposing statements were put into writing within a week. Paxton made his assurance in a letter received by the Senate Nominations Committee, which had grilled Secretary of State David Whitley a day earlier over his decision to hand over to the attorney general’s office the list of voters whose citizenship he was questioning. Whitley’s confirmation is in doubt, in part because of questions from Democrats about whether he knew there were naturalized citizens on the list but referred the names to the state’s top prosecutor anyway.

Paxton wrote that it would “not be possible to investigate tens of thousands of [secretary of state] matters” before local voter registrars had reviewed the lists they received from the state.

“We plan to begin our investigations only once some counties have completed their list maintenance,” Paxton said.

But the Friday before, Assistant Attorney General Lauren Downey wrote the opposite in an email to Guadalupe County’s assistant county attorney: “The Office of the Attorney General has pending criminal investigations related to these issues.”

See here for the background. Never trust a word Ken Paxton says. I don’t have anything to add to this, so let me turn the microphone over to Julieta Garibay:

Finally, 26 years after I had migrated to the United States and made Austin my home. After all the trials and tribulations as an undocumented immigrant. After being a survivor of domestic violence and getting my green card because of the Violence Against Women Act (VAWA). Justice had prevailed — I would be a U.S. citizen.

In April 2018, my family and friends joined me as I took my citizenship oath. I couldn’t help but cry in joy and excitement as I waved my American flag. A month later, I proudly cast my first vote in the United States — one of the new rights I was most excited about. At the polls, I thought of all the people in the immigrant community who were counting on my vote to ensure we are treated with dignity and respect.

But a couple weeks ago, when I saw Texas Attorney General Ken Paxton proclaim “VOTER FRAUD ALERT,” my heart sank. It was clear to me that the Secretary of State’s office hadn’t thoroughly investigated the data it had released on 95,000 potential non-citizen voters. Frightened, I emailed the Travis County Voter Registrar to ask if I was on the list. A couple of days later, I received a call that confirmed my fear — my right to vote was being questioned.

She goes on to call for Secretary of State David Whitley to resign. Failing that, not confirming him would be adequate. I’m with her on this.

The Southern Baptist Convention’s sexual abuse problems

Some excellent longform reporting from the Chron, with more to come.

Thirty-five years later, Debbie Vasquez’s voice trembled as she described her trauma to a group of Southern Baptist leaders.

She was 14, she said, when she was first molested by her pastor in Sanger, a tiny prairie town an hour north of Dallas. It was the first of many assaults that Vasquez said destroyed her teenage years and, at 18, left her pregnant by the Southern Baptist pastor, a married man more than a dozen years older.

In June 2008, she paid her way to Indianapolis, where she and others asked leaders of the Southern Baptist Convention and its 47,000 churches to track sexual predators and take action against congregations that harbored or concealed abusers. Vasquez, by then in her 40s, implored them to consider prevention policies like those adopted by faiths that include the Catholic Church.

“Listen to what God has to say,” she said, according to audio of the meeting, which she recorded. “… All that evil needs is for good to do nothing. … Please help me and others that will be hurt.”

Days later, Southern Baptist leaders rejected nearly every proposed reform.

The abusers haven’t stopped. They’ve hurt hundreds more.

In the decade since Vasquez’s appeal for help, more than 250 people who worked or volunteered in Southern Baptist churches have been charged with sex crimes, an investigation by the Houston Chronicle and the San Antonio Express-News reveals.

It’s not just a recent problem: In all, since 1998, roughly 380 Southern Baptist church leaders and volunteers have faced allegations of sexual misconduct, the newspapers found. That includes those who were convicted, credibly accused and successfully sued, and those who confessed or resigned. More of them worked in Texas than in any other state.

About 220 offenders have been convicted or took plea deals, and dozens of cases are pending. They were pastors. Ministers. Youth pastors. Sunday school teachers. Deacons. Church volunteers.

Nearly 100 are still held in prisons stretching from Sacramento County, Calif., to Hillsborough County, Fla., state and federal records show. Scores of others cut deals and served no time. More than 100 are registered sex offenders. Some still work in Southern Baptist churches today.

Journalists in the two newsrooms spent more than six months reviewing thousands of pages of court, prison and police records and conducting hundreds of interviews. They built a database of former leaders in Southern Baptist churches who have been convicted of sex crimes.

The investigation reveals that:

• At least 35 church pastors, employees and volunteers who exhibited predatory behavior were still able to find jobs at churches during the past two decades. In some cases, church leaders apparently failed to alert law enforcement about complaints or to warn other congregations about allegations of misconduct.

• Several past presidents and prominent leaders of the Southern Baptist Convention are among those criticized by victims for concealing or mishandling abuse complaints within their own churches or seminaries.

• Some registered sex offenders returned to the pulpit. Others remain there, including a Houston preacher who sexually assaulted a teenager and now is the principal officer of a Houston nonprofit that works with student organizations, federal records show. Its name: Touching the Future Today Inc.

There’s a lot more, so go read the whole thing. Along the way, it references the Paul Pressler scandal, which continues on. Here’s the index page for this series – there are two more stories coming – where you can also search their database of offenders. If there’s one lesson we can learn from the Catholic Church’s long-running scandal, it’s that no matter how much we think we know now, there will be more to come. And it can’t be emphasized enough that both the SBC and the Catholic Church have been among the biggest power players behind all of the main “morality” crusades in recent decades, most prominently restrictions on women’s reproductive freedom and LGBT equality (Paul Pressler was a big donor to the anti-HERO campaign). Never, ever forget any of that.

Buc-ee’s comes to Alabama

Tomorrow, the world.

Texas road stop institution Buc-ee’s has opened a store in Alabama, its first location outside the Lone Star State.

Despite chilly weather, more than 100 people were lined up outside the Baldwin County store when it opened at 6 a.m. Monday. They were eager to experience a Buc-ee’s supersized gas station and convenience store, renowned for its cartoon beaver logo, clean bathrooms and clever billboards. Some die-hard Buc-ee’s fans drove hours to get to the store opening, said Jeff Nadalo, Buc-ee’s general counsel.

“It was packed and very busy all day,” Nadalo said. “I think a lot of people had heard what Buc-ee’s was about from friends and family who had been and were familiar with the experience.”

The 52,000-square-foot store, in Robertsdale, features 124 fueling stations and the “biggest, most pristine bathrooms the state of Alabama has ever seen,” a Buc-ee’s press release crowed. The store, has a similar layout to the new Buc-ee’s in Katy, except the Alabama location doesn’t have a car wash, Nadalo said.

[…]

Since it was founded in 1982, Buc-ee’s has mostly stuck to its Texas roots, operating 34 stores across the Lone Star State. A couple of years ago, the Lake Jackson company began looking to expand across the southeastern U.S., which shares a similar customer profile to Texas, Nadalo said.

“We’re taking the great experience that is Buc-ee’s to other states,” Nadalo said. “We felt it was something that would work well, certainly in Alabama, and we think it’ll be well-received in Florida.”

We first heard about this almost three years ago, though at the time they were aiming for Louisiana. It’s on I-10, so if you’re driving to Florida (where Buc-ee’s plans future expansions), you’ll see the familiar signs. Less familiar was this:

A lawsuit claims that Buc-ee’s illegally priced gasoline when it opened its first Alabama travel center last month along Interstate 10 in Baldwin County.

The lawsuit, filed in federal court by Oasis Travel Center LLC, alleges that the Lake Jackson, Texas-based company violated the 35-year-old Alabama Motor Fuel Marketing Act, and demands that the company halt its pricing strategies while the case is pending.

The law, passed in 1984, prohibits big oil companies from selling gasoline to the public for less than it costs to buy and transport it to a retail outlet.

Similar lawsuits, over the years, have been filed in Alabama against big-box retailers like Costco and Murphy Oil Corp., which operates Walmart gas stations.

“We contend Buc-ee’s, when it opened up two weeks ago, it opened at prices for regular unleaded and other grades at below costs as defined under the Alabama law,” said H. Dean Mooty, a Montgomery-based attorney who has represented smaller-sized convenience stores in similar cases.

The lawsuit specifically cites several dates when Buc-ee’s posted a price of regular gasoline under what state law allows. Among the dates cited is Buc-ee’s Jan. 21 opener, when regular gasoline was sold at a rounded price of $1.80 per gallon.

Oops. You really are not in Texas any more, y’all. As for the rest of us, enjoy the beaver nuggets and the clean bathrooms while you can.

The Whitley hearing

Not a great day at the office for our Secretary of State and his advisory-ing ways.

Still the only voter ID anyone should need

Almost two weeks after calling into question the citizenship status of almost 100,000 registered voters, Texas’ new chief elections officer, David Whitley, defended his office’s decision to hand over those voters’ names to law enforcement around the same time his office was also acknowledging to local election officials that the list of names could contain mistakes.

At a Senate hearing to consider his confirmation as secretary of state, Whitley vacillated between telling lawmakers he referred the list of voters to the attorney general’s office because his office had no power to investigate them for illegal voting and describing the citizenship review efforts as an ongoing process based on a list that still needed to be reviewed by local officials. But he made clear is that his office knew from the start that the data could be faulty.

He stated that in response to a question from state Sen. Lois Kolkhorst, a Brenham Republican, who asked whether the secretary of state’s office had “cautioned the counties that there may be mistakes on the data.”

“Yes,” Whitley responded.

But when he was pressed by Democrats over his decision to send the list to the statewide office that handles criminal voter fraud prosecutions before the list was fully vetted, Whitley responded he wanted to get the data “in the hands of someone who could do something with it,” given that the secretary of state’s office had no power to investigate. That prompted follow-up questions about whether he should have waited until the list was scrubbed by local election officials, and Whitley doubled down with his defense, despite describing the data as “preliminary.”

“I can tell you senator that 100 percent my reason for transmitting this data to the attorney general’s office was to ensure that these lists were as accurate as possible,” Whitley said to state Sen. Kirk Watson, D-Austin.

Sitting before senators in a packed committee room, Whitley faced blistering questions from Democrats for the better part of two hours. After brief opening remarks in which he touted his long career as a public servant, he somberly defended the controversial citizenship review efforts he ordered. But at times he struggled to answer technical questions about the flawed data at the heart of it.

At one point, Watson asked Whitley whether he’d consider asking the attorney general to hold off on investigating voters until the list was cleaned up. Whitley responded it was a “reasonable request” but said he was unsure “that it’s appropriate coming from my office.”

“You were the one who made the referral and blasted it all over the state,” Watson said.

See here for the background. It goes from there, and it never gets any better for Whitley, who mostly comes across as unprepared. As discussed, he will need a two-thirds vote of the Senate to be confirmed, and right now he doesn’t look to be on track to win over any Democrats, from whom he will need at least one vote to clear the bar. As I understand it, if he does not get confirmed, he will serve till the end of the legislative session, then Abbott will have to name someone else. The last time I can recall such an appointment getting scuttled was in 2011, when we had the fortunately-doomed nomination of David Bradley to the Forensic Sciences Commission. Before that was the 2009 nomination of Don McLeroy as Chair of the SBOE. I don’t care who you are in Texas politics, those are not names you want to be associated with.

Anyway. It’s still early to say what will happen for sure, but David Whitley didn’t win anyone over yesterday. See Progress Texas’ Twitter feed for in-the-moment coverage, and the Chron editorial board, which calls for Whitley to be rejected, has more.

Trying again for bail reform at the Lege

A very worthwhile pursuit.

Sen. John Whitmire

State Sen. John Whitmire, D-Houston, and state Rep. Andrew Murr, R-Junction, announced Monday at the Capitol that they have again filed legislation that would implement a risk-assessment tool for judges to use when making bail decisions, among other proposals. Joining them in support of the legislation were the state’s two top judges, Texas Supreme Court Chief Justice Nathan Hecht — who has publicly called for a change to Texas’ system for years — and Court of Criminal Appeals Presiding Judge Sharon Keller.

“I don’t believe I’ve seen anything more broken in the criminal justice system than our current bail bond process,” Whitmire said. “If we do not fix it, ladies and gentlemen, the federal courts will.”

Bail is a legal mechanism to ensure defendants appear in court for their hearings after being charged with a crime. The most common practice is money bail, in which judicial officers set a bond amount that defendants must pay in order to be released. In the last few years, lawsuits have popped up all over the country — including in Texas — arguing that the system wrongfully detains poor defendants until their case is resolved while similar defendants with cash are allowed to go free.

In a speech to the 2017 Legislature, Hecht argued for reforms by noting that 75 percent of people in Texas jails have not been convicted. To illustrate what he considers a flawed system, he cited the case of a grandmother who was kept in jail for about two months on a $150,000 bond after allegedly shoplifting $105 worth of clothes for her grandchildren.

The bipartisan legislation filed Monday aims to help poor, low-level defendants get out of jail on free bonds and keep in jail those thought to be flight risks or threats to public safety. The proposed risk-assessment tool would have to be used within two days of arrest to help judges determine the defendant’s level of risk based on criminal history, not just the current offense. The bills are similar to last session’s, when legislation passed the Senate but died before reaching the House floor.

Whitmire blamed his 2017 bill’s failure on the powerful bail bond industry, which includes companies that front the full cost of a bail bond at a fee of about 10 percent. (A defendant being held on a $1,000 bond, for example, could pay $100 to a bail bond company to be released.) He said last session that bail bond companies opposed the bill because it would cut into their cash flow, but those in the industry have argued the measure would lessen a judge’s discretion and threaten public safety by letting more people out of jail.

[…]

To set bail, most Texas jurisdictions use bail schedules, in which a bond amount is set based solely on the criminal charge. The proposed risk assessment tool would also take into account the defendant’s criminal history and age.

If the tool determines that a defendant shows a lower risk of skipping court hearings or posing a threat to public safety, the judicial officer would release the person on a no-cost “personal bond” with or without conditions, like GPS tracking or drug testing. Under the proposed measure, judges and magistrates could still impose money bail if they decided it was the least restrictive way to ensure court appearance and public safety, but they could not use it as a way to detain poor defendants before their trials.

The risk assessment tool is meant to keep poor defendants from being kept in jail before being convicted simply because they can’t afford a low-cost bond amount. Critics of current bail practices have argued that risk assessment tools considering criminal history can reinforce a system that prejudices against poor people of color. If someone was arrested on a charge earlier tied to race or poverty status, that person would be given a higher risk level. But the critics still support the tool over current practices.

“Until we can get some better tools, then the risk assessment system would need to work for now,” said Tarsha Jackson, criminal justice director of the Texas Organizing Project, a nonprofit that advocates for low-income communities and people of color.

The other piece of the proposed legislation would change bail practices — and the Texas Constitution — to allow judicial officers to deny bail if they believe money bail or a personal bond couldn’t reasonably ensure the person would show up for court or if that person might endanger the safety of a victim or the public.

Since release on bail is a constitutional right in Texas except in capital murder cases, changing this part of the law requires voter approval even after the Legislature passes it.

See here and here for the background. Whitmire got his bill through the Senate in 2017, but neither his bill nor Murr’s made it out of committee in the House. This year, we have the settlement of the Harris County litigation and support for the idea of bail reform from Greg Abbott, so perhaps the odds are better. It’s never a bad time to call your legislators and let them know you would like them to support these bills.

SOS Whitley still has to be confirmed by the Senate

His committee hearing is today.

Still the only voter ID anyone should need

Secretary of State David Whitley, who sent a flawed data analysis to every elections official in Texas warning that nearly 100,000 non-U.S. citizens may have illegally registered to vote, is due Thursday to meet with state senators who will decide whether he should keep his job.

Democratic lawmakers say they want answers from Whitley, appointed in December by Republican Gov. Greg Abbott, whose list of possible illegal voters has spurred a flurry of civil rights lawsuits, denunciations from county elections officials — and applause from the Texas GOP as well as President Donald Trump condemning voter fraud.

Whitley will “need to be able to answer that there is not an effort to infringe people’s right to vote,” said Sen. Kirk Watson, D-Austin, vice chairman of the nominations committee that will hear testimony on Thursday. “This is, in my view, a very important step in the process and a unique opportunity to start getting on the record answers about why we’re in this situation.”

There are four Republicans and three Democrats on the committee.

[…]

The hearing Thursday will be the first with Whitley speaking publicly about the voter rolls. Whitely declined an invitation to discuss the matter with the Mexican-American Legislative Caucus, said state Rep. Rafael Anchia, D-Dallas, although Whitley’s staff says the secretary has met privately with some legislators.

The issue is at best a “scandal of incompetence and at worse, it is a scandal of maliciousness,” said Anchia, who chairs the caucus. “The fact that a group of duly elected legislators is getting the stiff arm from the state is troubling.”

His confirmation is not assured.

Though Republicans hold 19 seats in the 31-seat upper chamber and can largely consider legislation without the say of any Democrat, Whitley needs a two-thirds vote among the senators present when the full Senate votes on his nomination. That means even with the support of all of the Republicans, he’ll need at least some Democratic support unless several senators are gone the day of the vote.

Whether he’ll clear that hurdle remains a question. Democrats on the Nominations Committee say they’re heading into Thursday’s hearing with a set of what are likely to be blistering questions about whether Whitley acted to suppress the votes of naturalized citizens.

“There is very little about this that doesn’t concern me — everything from intent to what a reasonable person would do under these circumstances to flaws in the system,” said state Sen. Kirk Watson, an Austin Democrat who serves as the vice chair of the committee.

Watson described Thursday’s hearing as a “very important step” in the confirmation process. It will allow senators to question Whitley about a review of the voter rolls “that has caused great concern — justifiable concern — about whether it’s an effort to infringe on people’s right to vote,” Watson said.

Whitley knows the appointments process well. Though he most recently served as Abbott’s deputy chief of staff, he previously oversaw appointments for the governor, remaining in that role during the confirmation of his predecessor, Rolando Pablos. Like Abbott’s first secretary of state, Carlos Cascos, Pablos was confirmed on a unanimous vote by the Senate.

But Abbott’s prior appointees haven’t had to explain themselves in the way Whitley might.

You can say that again. In the end, his nomination will surely advance out of committee for a vote by the full Senate, likely on a 4-3 vote. After that, who knows. He will finally get asked some questions about how this debacle came to be. Given all the lawsuits, getting him on the record, no matter how much he tries to dissemble and evade, will be both helpful and clarifying. Plus, you know, that ought to be part of the job description. The Statesman has more.

Paxton asks for summary judgement to end DACA

Not much coverage of this, and I’m not sure what that means.

Best mugshot ever

Texas Attorney General Ken Paxton on Monday asked a federal judge to strike down Obama-era deportation protections for immigrants whose parents brought them to the United States illegally as children.

In a motion filed in Brownsville federal court, Paxton asked U.S. District Judge Andrew Hanen to follow through on his ruling in August, when Hanen determined that the Obama administration did not have the authority to implement the Deferred Action for Childhood Arrivals program.

At the time, however, Hanen declined to issue an injunction blocking enforcement of DACA.

In Monday’s motion for summary judgment joined by seven other states, Paxton asked the judge to end the program and block the federal government from issuing or renewing any more DACA permits to young immigrants.

Congress, not the president, has the authority to determine federal immigration law, he said.

“Whatever its policy merits, DACA is clearly unlawful, as this court has already held,” Paxton’s motion said. “Underlying the program is a limitless notion of executive power which, if left unchecked, could allow future presidents to dismantle other duly enacted laws. The court must not allow that to occur.”

[…]

If Hanen agrees to issue an order ending DACA, he would be in conflict with federal judges in California and New York who have blocked the Trump administration’s effort to end the program in 2017. DACA remains in force while appeals in both cases proceed.

See here and here for the background. The Statesman was the only news outlet with a story on this, which may mean there’s little chance it will go anywhere or it may mean we’re all so distracted by the eleventy jillion other news stories out there that no one is paying much attention to Paxton’s latest stunt. SCOTUS just declined to take up the Trump administration’s appeal of lower court rulings keeping DACA in place, which you’d think might give pause to even a Paxton-friendly judge. I’m never quite that optimistic. Anyway, I’m noting this for the record so when something happens I’ll be able to refer to this at that time.

(And a day later, he’s petitioning to have abortion and transgender health protections “wiped permanently” from Obamacare. I think he feels emboldened after having survived re-election. But don’t worry, I’m sure he’d use those new powers he wants responsibly.)

Three times a lawsuit

Hat trick!

Still the only voter ID anyone should need

A group of civil and voting rights organizations is suing the state’s chief election officers and local election officials in five counties, claiming Texas’ voter citizenship review efforts are unconstitutional because they intentionally target naturalized citizens and voters of color.

In a lawsuit filed Monday in a Galveston federal court, the MOVE Texas Civic Fund, the Jolt Initiative, the League of Women Voters of Texas and the Texas NAACP allege that the state’s move to flag tens of thousands of voters for review using faulty data violates the equal protection clause of the U.S. Constitution. They claim the effort places an undue burden on the right to vote and treats naturalized citizens differently than those born in the county.

The groups also allege that the state violated the Constitution and the federal Voting Rights Act by acting at least in part with the goal of discriminating against voters of color when it advised counties to verify the citizenship status of the voters it flagged.

The lawsuit against Texas Secretary of State David Whitley, Director of Elections Keith Ingram, and local election officials in Galveston, Blanco, Fayette, Caldwell and Washington counties is the third one filed against state officials since Jan. 25, when the state announced that it was sending counties a list of approximately 95,000 registered voters who told the Texas Department of Safety they were not citizens when they obtained their driver’s licenses or ID cards.

[…]

In their complaint, the plaintiffs — represented by the ACLU of Texas, the national ACLU, the Texas Civil Rights Project, Demos and the Lawyers’ Committee for Civil Rights Under Law — argue that Whitley “declined to include safeguards” in the process that would ensure naturalized citizens weren’t erroneously included on the list.

“The right to vote is a fundamental and foundational right, possessed equally by U.S. born and naturalized citizens,” the complaint reads. “The Secretary of State’s purge treats those who have been naturalized as second-class citizens whose right to vote can be uniquely threatened and burdened solely because at some point in the past, these individuals were not U.S. citizens.”

See here and here for the scoop on the other lawsuits, and here for a copy of the complaint. I had speculated in yesterday’s post about Lawsuit #2 that we could get this one as well, as the groups representing these plaintiffs had had specifically said they would sue if the SOS didn’t back all the way off. Gotta follow through when you say stuff like that, so folks will know you don’t mess around. At this point, we’re waiting to see what the courts will say. In an ideal world, they will force the state to do what these plaintiffs asked in the first place, which is to get their crap together before they put out baloney like this. Here’s hoping. On a related note, Mayor Turner released a statement urging Harris County Tax Assessor Ann Harris Bennett to reject the SOS advisory, which you can find here.