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MALDEF

DACA lives another day

But don’t relax just yet.

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

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

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

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

[…]

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

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

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

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

Trump administration seeks to dismiss MALDEF lawsuit over Census citizenship question

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

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

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

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

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

[…]

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

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

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

[…]

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

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

The DACA hearing

I don’t know about this.

The state of Texas will continue to incur irreparable financial harm if an Obama-era immigration program isn’t halted immediately, attorneys for the state argued in Houston on Wednesday.

But lawyers representing nearly two dozen recipients of the Deferred Action for Childhood Arrivals program countered by saying Texas sat back for six years and did nothing, and its attorneys have yet to prove the harm the state claims it has faced since the program was implemented in 2012.

Those were just two of the arguments presented to U.S. District Judge Andrew Hanen on Wednesday after Texas Attorney General Ken Paxton sued the Trump Administration in May to end the 2012 program, which protects immigrants brought into the U.S. as children from deportation and allows them to obtain a two-year work permit.

[…]

MALDEF and New Jersey said Texas could have filed suit in 2012 or amended its 2014 complaint aimed at DAPA to also include DACA, but instead waited six years to take action. They also argued that while DAPA would have benefitted more than 4 million people, DACA has a much smaller pool of potential applicants. Nina Perales, MALDEF’s vice-president of litigation, said there are only about 702,000 DACA beneficiaries in the country today.

The state of Texas defended its timing by arguing it was waiting for the DAPA outcome to come down and was subsequently encouraged by President Trump’s announcement in September 2017 that DACA was going to be phased out.

Perales also argued against Texas’ assertion that the coalition of states suing to end the program have spent hundreds of millions of dollars to provide DACA recipients with education, health care and law enforcement services. She said the plaintiffs also cite in their evidence the cost of unaccompanied minors who came to the country after 2014, while DACA applies only to people who were in the country from 2007 or before.

She made a similar counter argument to Texas’ claim that it has spent vast sums of money providing healthcare to only DACA recipients.

“What Texas does is it estimates the cost of serving undocumented individuals statewide and applies it to DACA,” she said. “Undocumented immigrants are eligible for a few state funded programs but they are eligible for those regardless of DACA or not.”

She added after the hearing that the evidence actually shows that Texas benefits from DACA recipients working and participating in society.

Throughout Wednesday’s proceedings, Hanen peppered both sides with questions, often interrupting the attorneys and pressing them for more evidence to justify their claims. He also asked the attorneys to submit by Monday a brief on whether DACA violated the federal Administrative Procedures Act if applicants are subject to individual discretion. Hanen ruled in 2015 that DAPA violated the APA, which governs how federal regulations are made

Perales said after the hearing that she was pleased by the judge’s desire for more details.

“The judge was very patient, he allowed each side to get up and make its arguments,” she said. “I was encouraged by the judge’s curiosity and interest in additional questions.”

See here, here, and here for some background. I think we can take it on faith that Paxton’s arguments are more pretext than anything else, but there’s a reason he picked this court and this judge for this lawsuit. We just had a ruling from another federal court that ordered DACA to be restarted, so if Paxton wins here we’re on a direct course to the Supreme Court, and who knows what from there. ThinkProgress, Mother Jones, and Daily Kos have more.

Justice Department won’t defend DACA, either

Even less of a surprise.

Agreeing with a lawsuit filed by the state of Texas against the Trump administration to end the Deferred Action for Childhood Arrivals program, the U.S. Justice Department told the courts late Friday the program should be terminated.

Texas Attorney General Ken Paxton sued the administration May 1, alleging the Obama-era program was unconstitutional.

[…]

The Department of Justice said in its filing Friday that DACA is unlawful because it violates the U.S. Constitution in the same way the ill-fated 2014 Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, did. That program that was never implemented after Texas and a coalition of states successfully challenged it in court.

“In sum, as the [U.S.] Attorney General correctly advised DHS, DACA is unlawful because it is an open-ended circumvention of immigration laws that shares the same legal defects that DAPA (and expanded DACA) did,” the filing states.

The DOJ asks that if Texas’ request to halt the program is granted, that the court delay its ruling for two weeks to seek immediate relief from the other court rulings that have mandated the federal government keep the DACA program.

“The DACA litigation brings into sharp focus the problems with nationwide injunctions, and the United States continues to maintain that injunctions that are broader than necessary to redress the plaintiffs’ own injuries are improper,” the DOJ attorneys wrote.

See here for the background. The complaint about nationwide injunctions is kind of precious, since that’s what Paxton is seeking here and has sought in other litigation, which is why he picked this particular court for his filing. This is now the second major Paxton-filed lawsuit that the Justice Department has washed it hands of. MALDEF was allowed to intervene in this lawsuit on behalf of a group of DREAMers in May, so DACA will be defended, no doubt more vigorously than the Justice Department would have done anyway. It’s still a crappy and dangerous thing to do, to pick and choose what laws are worth defending.

On a side note:

In total, the seven states that are part of the lawsuit would lose an estimated $6.9 billion in annual gross domestic product loss by kicking DACA recipients out of the labor force in the respective states. The bulk of these losses would be concentrated in Texas, which stands to lose $6 billion from its annual GDP.

[…]

The seven states suing the Trump administration stand to lose an estimated $369 million annually in state and local tax revenue they currently receive. Texas would lose the most at $313 million in revenue annually.

You know, just in case you needed another reason to think that killing DACA is a really bad idea. Link via Daily Kos.

Dreamers can litigate in support of DACA

Good.

A federal district judge has allowed a group of young undocumented immigrants to intervene in a lawsuit where the state of Texas seeks to put an end to the 2012 Deferred Action for Childhood Arrivals, or DACA, program.

Brownsville-based U.S. District Judge Andrew Hanen will allow the Mexican American Legal Defense and Educational Fund to represent the group of young “Dreamers,” the common term for young undocumented immigrants who were brought to the country as children and have lived here most of their lives. They argue they would be irreparably harmed if the popular Obama-era program ends. The initiative shields recipients from deportation and allows them a renewable, two-year work permit.

The decision Tuesday comes after Texas Attorney General Ken Paxton made good earlier this month on a long-standing promise to sue the Trump administration with the hopes of ending the program, alleging it is unconstitutional. Neither side opposed the intervention, according to a MALDEF press release.

[…]

MALDEF officials have said the intervention is necessary because Texas and the Trump administration are in lockstep in their efforts to see the program eliminated.

“Today’s order of intervention ensures that this case will not go forward as a sweetheart arrangement between non-adversaries who agree with each other on almost every relevant issue,” Thomas A. Saenz, MALDEF’s president and general counsel, said in a statement. “Interveners and their counsel will present a vigorous defense of DACA, an initiative in effect for many years and from which Texas and every other state have benefited.”

See here for the background, and here for the MALDEF press release. This is not the first time we’ve seen a group of stakeholders who had not been directly involved in a lawsuit for which the federal government was a party ask to be included because they didn’t have any faith that the Trump Justice Department would litigate in good faith. If there was ever a case for which the affected parties needed vigorous representation, this is it. Here’s hoping for the best.

More on the status of SB4

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

What did the Fifth Circuit Court decide?

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

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

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

Where are we in this case?

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

What can I do to help?

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

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

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

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

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

[…]

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

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

SB4 at the Fifth Circuit

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

Pasadena will settle voting rights case

Excellent news.

Pasadena Mayor Jeff Wagner on Friday asked the City Council to settle a voting rights lawsuit that led to national portrayals of the Houston suburb as an example of efforts to suppress Latino voting rights.

The proposed settlement with Latino residents who sued the city in 2014 over a new City Council district system calls for the city to pay $900,000 for the plaintiffs’ legal fees and $197,341 for court costs. The item will be on Tuesday’s City Council agenda.

“While I strongly believe that the city did not violate the Voting Rights Act or adopt a discriminatory election system,” Wagner said in a statement, “I think it’s in the best interest of the city to get this suit behind us.”

[…]

Approval of the settlement would end the city’s appeal of Rosenthal’s January ruling that the new council system intentionally diluted Latino voting strength. Voters approved the new system, which added two at-large council positions and removed two district seats, in a 2013 charter change election initiated by the former mayor.

Rosenthal ordered the city to use the previous system of eight district positions in the city elections last May. The city has paid more than $2 million to attorneys for the trial and appeal.

See here, here, and here for the background. This was a big decision to make – Pasadena could possibly have prevailed in the lawsuit, in which case they would not have owed the plaintiffs’ attorneys or the courts any money. That came at significant risk, as they would have had to spend a lot more on their own attorneys to see this all the way through, and would have owed a lot more if they had lost in the end. And then there was the whole matter of justice, which didn’t mean anything to the last Mayor but which thankfully seems to mean something to this one. All in all, this was very much the right thing to do. Council still has to approve it, but that should not be a problem. Well done, Mayor Wagner. Rick Hasen has more.

Ken Paxton REALLY wants your “sanctuary complaints”

What could possibly go wrong?

Best mugshot ever

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

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

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

[…]

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

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

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

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

More on the SB4 ruling

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Enforcement of SB4 halted

Excellent!

U.S. District Judge Orlando Garcia granted a preliminary injunction of Senate Bill 4, one of Gov. Greg Abbott’s key legislative priorities that seeks to outlaw “sanctuary” entities, the common term for governments that don’t enforce federal immigration laws.

The bill was scheduled to go into effect Sept. 1, but opponents of the legislation, including the cities of Houston, Austin, San Antonio and El Cenizo, as well as Maverick and El Paso counties and the Mexican American Legal Defense and Educational Fund, argued the bill violates several provisions of the Constitution. Garcia’s decision means the bill is on hold until that issue is decided; his court will now likely set another date to determine SB4’s constitutionality.

His decision is a temporary, but significant blow to Abbott and other Republican backers of the bill who said it would help keep Texans safe from undocumented immigrants that have been arrested on criminal charges but released from custody by sheriffs or other elected officials who refuse to hold the alleged criminals for possible deportation.

See here for the background. You know how I feel about this. The story broke late yesterday, so this was all that was available at the time. I’m sure there will be much more reporting soon.

UPDATE: From the Chron story:

“The best interest of the public will be served by preserving the status quo and enjoining, prior to Sept. 1, the implementation and enforcement of those portions of SB 4 that, on their face, are preempted by federal law and violate the United States Constitution,” Garcia wrote.

The decision, which can be appealed to the Fifth Circuit Court of Appeals in New Orleans, is a blow to one of the toughest immigration laws in the nation.

In order to obtain an injunction, the local governments and organizations challenging the law needed to prove they were harmed by it and likely to succeed in their claim that it is unconstitutional.

“We won over 90 percent of it,” said Luis Vera, a lawyer for the League of United Latin American Citizens, which represented the border city of El Cenizo in the lawsuit. “The state cannot mandate to the cities or police officers or sheriff’s offices how they run their police departments.”

[…]

The ruling found the plaintiffs made their case and were even helped during oral arguments by the state.

For instance, the judge noted the state “essentially concedes that the irreparable harm requirement is met.”

The judge quoted an argument made by one of the lawyers with the Texas Attorney General’s Office: “The state of Texas concedes, Your Honor, that if Senate Bill 4 is unconstitutional or a provision of it is severed by this court or this court finds it unconstitutional, if it is, and it would violate the constitutional rights of the public, then there is irreparable harm.”

The judge found that certain provisions of SB 4 conflict with, and are pre-empted by, federal law because enforcing SB 4 will interfere with the federal government’s authority to control immigration. The judge also found that enforcing SB 4 will result in First Amendment violations.

The judge also determined that vague prohibitions in SB 4 violate due process and “create a real danger of arbitrary and discriminatory enforcement.”

In addition, he found that enforcement of the mandatory detainer provisions “will inevitably lead to Fourth Amendment violations.”

I am sure this will be appealed, and who knows what happens next. But for now, this is a big win.

Paxton’s preemptive “sanctuary cities” lawsuit dismissed

Good.

Best mugshot ever

U.S. District Judge Sam Sparks on Wednesday dismissed the state of Texas’ lawsuit against Travis County and other defendants over the state’s new immigration enforcement law.

Attorney General Ken Paxton filed a pre-emptive lawsuit shortly after the bill was signed in May seeking a ruling that the controversial measure is constitutional. Among the defendants named in Paxton’s suit were the city of Austin; Travis County and its sheriff, Sally Hernandez; and the Mexican American Legal Defense and Educational Fund.

[…]

But opponents of the measure, including the cities of Houston, Austin, San Antonio and El Cenizo, as well as Maverick and El Paso counties, have argued the law violates several provisions of the U.S. Constitution. Those entities filed a separate lawsuit against Abbott and Paxton in San Antonio, trying to prevent the law from taking effect. Oral arguments in that case were heard in June.

Sparks’ ruling means the case will stay in San Antonio.

In a statement, the attorney general said he was disappointed in Sparks’ ruling but that Wednesday’s decision has no effect on the San Antonio case.

“We were first to file a lawsuit concerning SB 4, filed this case in the only proper court, and moved quickly to consolidate other lawsuits against SB 4 in Austin,” he said. “The health, safety, and welfare of Texans is not negotiable. We’re disappointed with the court’s ruling and look forward to pressing our winning arguments in the San Antonio cases and beyond (if necessary) on this undoubtedly constitutional law.”

Though Sparks’ ruling Wednesday is a small victory for SB4’s opponents, they must now wait and see what U.S. District Judge Orlando Garcia decides following a seven-hour hearing in Bexar County on June 26.

So that means that Judge Garcia will get to decide whether the law goes into effect on September 1 or if it is put on hold pending final judgment in the lawsuit. I don’t think this ruling changes the basic contours of the case, but as I recall if Paxton had prevailed in his lawsuit, that would have put the defendants he filed against on the hook for court costs. That’s no longer the case now. Now we await what Judge Garcia has to say.

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

We’re waiting.

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

[…]

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

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

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

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

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

Pasadena has a decision to make

To continue the redistricting appeal, or to drop it and accept the ruling? One factor to consider is the cost involved.

Pasadena has already paid more than $2.5 million to its outside attorneys.

But there’s a complication: Under federal law, if the plaintiffs prevail, the city would be on the hook for their legal fees in addition to its own. The five Latino Pasadena residents who filed the lawsuit have been represented without charge by the Mexican American Legal Defense and Education Fund.

“As a nonprofit, we do depend on collecting legal fees when we are entitled to them when we represent plaintiffs who have been found to have been discriminated against,” said Thomas A. Saenz, MALDEF president and general counsel.

The potential for additional legal fees could support an argument to continue the appeal or to end it.

If the city instructs its lawyers to drop the case now, the two sides would negotiate a payment to MALDEF based on the market rate for this type of legal work in Houston and the number of hours devoted to the case.

If the city appeals and wins, its own legal fees will increase but it will owe nothing to MALDEF. If it loses, the bill goes up even more.

“They can stop the bleeding now or take the risk that it goes even higher,” said Saenz.

First, let’s be clear that however much money Pasadena winds up spending, primary responsibility for it falls on its former Mayor, Johnny Isbell. Of course, Isbell couldn’t have done what he did without four willing Council members, one of whom was new Mayor Jeff Wagner, who gets to decide the course going forward. The state of Texas would like Pasadena to continue the fight, but it’s not like they’re going to pony up some money for the lawyers at the end of it all. Settling now give Pasadena cost certainty, and maybe they can get a good-faith discount from the plaintiffs’ attorneys. Fighting on has the chance of getting to pay less than what they owe now, but good luck calculating an expected value for that outcome. And fighting on and losing is the worst of all worlds. So how risk-averse do you feel today, Mayor Wagner?

Redistricting trial update: Invoking privilege

Interesting choice.

Texas’ defense of its electoral maps suffered a setback Friday when a state witness couldn’t defend lawmakers’ intentions for much of his testimony.

[…]

Rep. Drew Darby, R-San Angelo, was the chairman of the House Select Committee on Redistricting in 2013. He invoked legislative privilege for more than 20 minutes Friday during the plaintiffs’ cross-examination.

Legislative privilege, according to the Texas Constitution, protects lawmakers from having to explain their decision process. It prevents them from being called into court to explain every law they pass. But it is used with caution because once invoked, a lawmaker can’t choose to answer any questions on the legislative process.

Nina Perales, a lawyer for the Mexican American Legal Defense and Education Fund, which represents a group of Latino lawmakers in the case, asked whether Darby evaluated amendments to the congressional maps based on racial polarization and whether the maps complied with the federal Voting Rights Act.

She asked whether he analyzed the gains of Latino voting power in certain districts and whether court rulings that previously found discriminatory issues with the maps influenced changes made during the 2013 special session. Perales also posed a question about whether an incumbent had proposed changes to his district to preserve his seat.

But because Darby had invoked legislative privilege and could not testify, it effectively ceded ground to Perales, who laid out her argument unchallenged through her line of questioning.

“The fact that he doesn’t testify about his reasons means that the state has no evidence to counter our evidence,” Perales told The Dallas Morning News.

Like I said, interesting choice. This isn’t a criminal case, and there’s no jury, so I presume the judges are free to draw whatever inferences they want from this.

There was more to the state’s defense than that. Both that story and the Trib have those details.

Throughout the week, lawyers representing plaintiffs have offered several alternative House and congressional maps, which they say demonstrate ways to add more opportunity districts and fix violations judges have flagged in past rulings. (The maps were not aimed at maximizing minority representation in Texas, but rather to meet legal standards.)

John Alford, a political science professor at Rice University who the state offered as an expert witness, dismissed those maps as not addressing the problem that the plantiffs claim exist.

“It’s not possible to create an additional majority-minority district in Texas,” Alford said.

[…]

“I don’t think there’s ever been a more exhaustive attempt to redraw a map, than the one here in Texas,” Alford testified.

The state on Friday sought to poke holes in the maps offered by plaintiffs, which rely partly on “coalition” districts where Hispanic and black voters, only in the majority when combined, could elect candidates of their choice — at least in general elections when they overwhelmingly favor Democrats.

Alford, the state’s expert, criticized the plaintiffs’ demonstrated coalition districts, arguing — largely relying on past Democratic primary election results — that Hispanic and black voters in various districts vote differently, preferring candidates of their own race. He underplayed general election data and testimony from voters, which the plaintiffs point to suggest the minority voting groups clearly coalesce around Democrats following primaries.

In that sense, Alford testified, the maps plaintiffs offered would not address Hispanic voters’ statewide underrepresentation.

Lawyers’ for the plaintiffs criticized the minimal value Alford put on general election data, and they highlighted one instance — an even split in black and Hispanic support for U.S. Rep. Mark Veasey, D-Fort Worth, in his 2014 primary win — that did not fit within Alford’s analysis.

The trial is scheduled to wrap up on Saturday. [US Rep. Will] Hurd is expected to testify, and the judges are also expected to pepper lawyers with a lengthy set of lingering questions.

The judges have forty-five questions for the lawyers, which, wow. Alford has been the state’s go-to expert on redistricting for years; he was their expert witness for all of the litigation that followed the DeLay re-redistricting of 2003. Seems to me a claim that you can’t create another majority-minority district in Texas is ludicrous on its face, but that’s for the judges to decide.

Hearing for that other SB4 lawsuit

The SB4 lawsuit that Ken Paxton filed, to get the law pre-emptively declared to be constitutional, had its hearing in Austin on Thursday.

A federal judge on Thursday criticized the politics surrounding Texas’ new immigration-enforcement law and hinted that he’d be unable to take the case over from his colleague in Bexar County.

U.S. District Judge Sam Sparks told attorneys for the state of Texas that he had a docket twice as busy as San Antonio-based Orlando Garcia after he was asked by the state to declare Austin the appropriate venue for what’s gearing up to be a lengthy court battle over Senate bill 4.

[…]

“San Antonio has a track record of evidence that Judge Garcia can take into consideration,” Sparks said, referring to a seven-hour hearing on Monday in San Antonio where attorneys for both sides argued over the legality of allowing state governments to enforce federal immigration laws. He added that he has a trial scheduled in August that could likely spill into September.

Thursday’s hearing was a dramatic shift from Monday’s display, where Garcia sat largely silent and appeared to take every motion, argument and counter-argument into consideration. Sparks instead often interrupted the attorneys and repeated what he said should be simple questions to answer when the attorneys strayed off topic. He also hinted that he believed parties that joined the lawsuit against the state did so for political purposes.

“The city of Austin just got in because it’s political and they get a lot of advertisement” [in the press], he said.

[…]

The judge also cast doubt on whether any court would be able to declare a law constitutional when it hasn’t gone into effect yet.

“I don’t have the authority to forecast the future and you have a statute that doesn’t come into effect until September,” he told David Hacker, a lawyer for the attorney general’s office.

Sparks didn’t give a time line on when he’d rule on the motion to move the case to Austin.

See here and here for the background. I’m sure there was a good helping of politics in the various cities’ and counties’ decisions to pile onto the anti_SB4 lawsuit, but then SB4 itself was all about politics. Based on the things Judge Sparks said during the hearing, I’d prefer he leave the San Antonio lawsuit be rather than combine it with the Paxton lawsuit. At least he doesn’t seem inclined to take any action before the law is scheduled to go into effect. The Statesman and the DMN have more.

City of El Paso joins in on SB4

Add one more to the list.

The city of El Paso voted on Tuesday to join the growing list of local governments that have filed a legal challenge in hopes of stopping Texas’ new immigration enforcement law from going into effect.

The city council’s vote to join El Paso County and the cities of Dallas, Austin, San Antonio and Houston to halt the legislation, Senate Bill 4, means Fort Worth is the only major Texas city that hasn’t registered its opposition to the bill. Maverick and Bexar counties and the border city of El Cenizo are original plaintiffs in the lawsuit, which was filed in a federal court in San Antonio in May, just one day after Gov. Greg Abbott signed the bill.

[…]

In a statement, the city council said even though El Paso is not considered a “sanctuary city,” they voted to join the effort because local leaders are “concerned with provisions in SB 4 that raise questions related to the compliance and integration of the proposed bill in current law enforcement operations.”

“The unfunded mandate is expected to put additional strain on the El Paso Police Department, as SB 4 will add an extra requirement on the workforce that is already seeing a shortage in staff,” the statement continues. “The City of El Paso has a long successful history of working alongside our federal law enforcement partners, to add additional mandates on local resources will only limit officers from performing their public safety responsibilities.”

As you know, the hearing for a temporary injunction was Monday, but there’s a long way to go to get to the arguments on the merits, so it is far from too late for any entity to join in. I had previously listed El Paso as a plaintiff in the litigation, but it was El Paso County; I had assumed the city was in there as well, which was my mistake. No big deal, they’re in there now. I hope they and the other plaintiffs have a lot more company by the time this gets to the main event.

Getting ready for the first SB4 hearing

All eyes are going to be on this next week.

On Monday, June 26, U.S. District Judge Orlando Garcia will hear the City of San Antonio’s request for a preliminary injunction to block Senate Bill 4, the “sanctuary cities” law, from taking effect on Sept. 1.

The Mexican American Legal Defense Fund (MALDEF) is representing the City in the lawsuit, along with the following nonprofit organizations: The Texas Association of Chicanos in Higher Education, the Workers Defense Project, and La Unión Del Pueblo Entero. The hearing, which is open to the public, will take place at 9:30 a.m. at the Federal Courthouse at 655 E. César E. Chavez Blvd.

“Judge Garcia consolidated three separate lawsuits into one,” MALDEF Vice President of Litigation Nina Perales told the Rivard Report Friday. “The City of Austin is now a part of our case, [along with] El Paso County, Texas Organizing Project, the City of El Cenizo in Webb County, and Maverick County,”

[…]

On Friday, the State of Texas dropped MALDEF from a pre-emptive lawsuit asking a federal court to declare the “sanctuary cities” law constitutional.

“We wrote them a letter and said that if they didn’t drop us we were going to ask the judge to fine Texas for bringing a frivolous lawsuit against MALDEF,” Perales said. “We’re the lawyers – you don’t sue somebody else’s lawyers. MALDEF has five cases against the State of Texas right now, so it’s not just about SB 4. They were draining our resources in other cases, including school finance and redistricting.”

The pre-emptive lawsuit was filed by Attorney General Ken Paxton on May 8 before any legal action was taken against Senate Bill 4. It still includes the following defendants: Travis County Sheriff Sally Hernandez, all of Austin’s City Council members, Austin Mayor Steve Adler, and Austin Interim City Manager Elaine Hart. El Paso County, El Cenizo, Texas Organizing Project, and LULAC have since been added to the list.

“Today, after MALDEF made very clear its intention to pursue all available remedies against the state of Texas for filing a completely frivolous lawsuit against a civil rights law firm, the state relented and filed a voluntary dismissal of all of its claims against MALDEF,” said Thomas A. Saenz, MALDEF president and general counsel, in a statement. “This now permits MALDEF to devote its energies to the appropriate forum for resolving the many constitutional questions surrounding SB 4 – federal court in San Antonio.

“Today’s dismissal represents only a partial cure of Governor Abbott’s and Attorney General Paxton’s apparent problem with premature litigation. A more complete cure involves dismissing the entire preemptive lawsuit they filed in Austin, which is illegitimate against the remaining defendants, just as it was against MALDEF.”

See here, here, and here for some background. I’m sure there will be national coverage of this, which will remind everyone that we’re not just about bathroom bills here in Texas. Houston City Council may have voted to join the fight by this time, though I’d expect it to get tagged for a week. Mark this one on your calendar, next Monday is going to be a big deal. The Observer, which notes that there will be a hearing in Austin on the 29th for “all pending matters” pertaining to his pre-emptive lawsuit, has more.

Matt Rinaldi’s words will be used against him

Good.

Matt Rinaldi

On Monday, Representative Matt Rinaldi, called Immigration and Customs Enforcement (ICE) after hundreds of mostly Latino activists filled the House gallery to protest Senate Bill 4, the controversial ‘sanctuary cities’ ban.

Jose Garza, an attorney representing El Paso County in its suit against SB 4, told the Observer that the incident will “almost assuredly” be used to help establish in court that the Texas Legislature passed the law with “discriminatory intent.”

“This was a peaceful protest and many were citizens,” Garza said, “and Rinaldi sicced ICE on them because they were brown.”

Rinaldi, a member of the far-right House Freedom Caucus and an outspoken supporter of SB 4, said in a statement on Monday that he called ICE after seeing signs that read “I am illegal.”  After several people, including Democratic lawmakers, said there was no evidence of those signs, Rinaldi clarified in a radio interview Thursday that the signs read “undocumented and unafraid” and “undocumented and here to stay.”

See here for some background. As we have seen with the Muslim ban litigation, judges have been more than willing to pay attention to what politicians have said outside the courtroom to help discern their intent. In this case, it’s Rinaldi’s actions that give away the show. You can say whatever you want about SB4 not being anti-Latino or it not being about harassing law-abiding people, but when you have a State Rep calling ICE on peaceful protesters because he got freaked out by them and wanted to put them in their place, it all rings pretty damn hollow. Now it’s up to the courts to step in and sort it out. There will be plenty of evidence for them to consider.

(It should be noted that while Jose Garza has brought this up, the ACLU attorneys in the litigation, who are the same attorneys that successfully halted Donald Trump’s Muslim ban, are not including Rinaldi’s words at this time. Of course, that can change, and there will be plenty of opportunities for others like Rinaldi to add to the pile.)

San Antonio files “sanctuary cities” lawsuit

Here they go.

The cities of San Antonio and Austin announced on Thursday they have joined the fight to stop the state’s new immigration enforcement law, Senate Bill 4, in federal court.

[…]

The Mexican American Legal Defense and Educational Fund filed the suit Thursday on behalf of San Antonio City Councilman Rey Saldaña and a trio of nonprofit groups: La Unión Del Pueblo Entero, the Worker’s Defense Project and the Texas Association of Chicanos in Higher Education.

The city of Austin’s city attorney will file a motion to intervene and join the plaintiffs Friday but will use its own attorneys and introduce certain Austin-specific claims, a spokesperson for Austin City Councilman Greg Casar said.

Abbott and Attorney General Ken Paxton are the named defendants in the litigation.

During a press call late Thursday afternoon, Thomas A. Saenz, MALDEF’s president and general counsel, said the lawsuit contains “arguments against each and every provision in SB4.” Specifically, the lawsuit alleges the bill, if enacted, would violate the First, Fourth and 14th Amendments to the U.S. Constitution.

“All of those multiple constitutional claims basically relate to the illegality of empowering each and every police officer, sheriff’s deputy, booking agent and other law enforcement figures in the state of Texas to decide on their own, without any guidance or restriction from their duly elected superiors and appointed police chiefs … whether and how to enforce federal immigration law.”

CM Saldaña had been pushing for this since SB4 was signed, and it was reported earlier in the week that the suit would be filed on Thursday/ Here’s more on Austin’s role in this.

Austin plans to file a motion to intervene, bringing “Austin-specific issues to the table,” City Council Member Greg Casar said on a conference call.

“Soon after Gov. Abbott signed this disgraceful law, community groups announced a summer of resistance against SB 4, calling on elected officials to file challenges against the law in court,” Casar said, refering to Senate Bill 4. “City leaders have responded swiftly. Upon filing suit against the State of Texas tomorrow morning, El Paso, El Cenizo, San Antonio and Austin all will have responded to the community’s call.”

The lawsuit alleges SB 4 violates the First, Fourth and Fourteenth Amendments of the U.S. Constitution. It names the State of Texas, Gov. Greg Abbott and Attorney General Ken Paxton as defendants.

As the story notes, Austin City Council had previously voted to pursue litigation, so this is the culmination of that vote. This lawsuit joins with the other lawsuits already in progress. MALDEF attorney Saenz is quoted in the Trib story saying that the Austin/San Antonio suits will likely be combined with the El Cenizo/Maverick County one at some point, but until then and before the September 1 implementation date there’s plenty of time for motions and discovery.

San Antonio’s decision to file suit was a bit contentious as Mayor Ivy Taylor did not want to get involved, at least at this time. That stance has become an issue in the Mayoral runoff.

Taylor’s move gives her an 11th-hour wedge issue in her mayoral runoff campaign. Her challenger, Councilman Ron Nirenberg, supports the lawsuit and Taylor is banking on the idea that North Side conservatives will remember that when they go to the polls.

Nirenberg said in a Thursday statement that he hopes the lawsuit “will bring a fast and final resolution on the constitutionality of the law so our local law enforcement can move forward with the job of protecting the people of San Antonio.”

Taylor was joined in her anti-lawsuit stance by North Side council members Joe Krier and Mike Gallagher. Like Taylor, Gallagher suggested that the city should work in coordination with the state’s other major cities before committing to litigation. Krier said the council should have voted in an open session, with full transparency and the chance for public discussion.

I agree with that point. That’s how Austin handled it, with a May 18 council vote to file suit over SB 4. By definition, City Council makes policy and deciding to participate in this lawsuit is a major policy move. In the words of former New York Jets head coach Herm Edwards, “Put your name on it.”

Saldaña agrees with the calls for transparency, but said San Antonio was running out of time because Austin and other cities are looking to S.A. to decide how they should proceed against SB 4, which goes into effect on September 1.

“The question that I posed to the mayor and the manager (Sheryl Sculley) and our city attorney was, ‘What is the best way to move quickly?’ And they said, ‘Let’s first discuss this in executive session and see what folks have an appetite for.’ But it kept getting stalled and several weeks passed from the time I originally proposed this,” Saldaña said.

“The people who are most in favor of getting it up for a (public) vote are just trying to delay the action that we’re taking. And Councilman Krier was one of them.”

Saldaña pointed out that Krier had no objections in 2014 when the council made an executive-session decision to file lawsuits against the police and fire unions over the city’s collective-bargaining agreements.

Here’s a list of statements by the Mayor and Council members following the vote to file suit. The runoff concludes June 10, so we ought to have some feedback on the political effect shortly. In the meantime, all eyes remain on Houston and Mayor Turner. ThinkProgress and the Current have more.

MALDEF gets injunction in recapture lawsuit

From their website:

Please attribute the following statement on a Texas court ruling ordering state education officials to cease bypassing existing school funding rules to Marisa Bono, Southwest regional counsel of MALDEF (Mexican American Legal Defense and Educational Fund):

“MALDEF is pleased that the District Court saw through efforts by the Texas Education Agency to circumvent school funding rules. The court was abundantly clear in its finding that efforts to relieve wealthier school districts of their responsibilities to poorer districts under ‘recapture’ amounted to ‘an inadequate, improper, and invalid attempt at a rule amendment.’ As MALDEF argued, and the court found, state education officials failed to comply with the mandatory requirement that any changes in funding rules must include a fiscal impact statement – TEA’s own witness confirmed that this rule change will cost public schools $88 million a year. We call on the Texas legislature to take immediate and binding steps to bar the TEA from doing this again.”

Read the injunction order here.

Read the jurisdiction order here.

See here for the background. I started writing this before there was any reporting on it, just a bit of chatter on Facebook that led me to Google and the MALDEF statement. Now here is the Chron story.

Just weeks after voters approved a $77.5 million payment to the state in so-called “recapture” fees, the Houston school district could be stuck with another $60 million in fees after a judge’s ruling that the state improperly slashed wealthy districts’ bills.

The ruling, by state District Judge Darlene Byrne in Travis County, temporarily halts an agreement by the Texas Education Agency that allowed the Houston Independent School District and other property-rich districts to reduce the amount of “equalization” payments required to fund public education.

The ruling throws HISD’s recapture bill back into question and could affect more than a dozen other property wealthy districts across the state, though no official list has been released.

“We understand the financial situation even wealthy school districts are in, which is why we’re pushing for school finance reform in the Legislature,” said Marisa Bono, southwest regional council for the Mexican American Legal Defense and Educational Fund, a civil rights organization that filed the suit.

“But the solution is not to give wealthy districts a tax break on the backs of property poor districts.”

[…]

The deal was cut in February, when TEA said it would give districts such as HISD credit for half of their local homestead exemptions, along with adjustments for student enrollment and property values, to cut the districts’ recapture bills.

The changes were outlined in a Feb. 1 memo penned by TEA Chief School Finance Officer Leo Lopez that were later incorporated into TEA’s recapture manual.

TEA officials at the time concluded the would result in “no fiscal implications to state or local government, including local school districts.”

But attorneys for the property-poor districts argued the state would lose $88 million in funding, causing significant financial loss to local governments.

In a ruling released late Friday, Byrne concluded that the reprieve granted by TEA was “inadequate, improper and invalid,” and that the TEA manual did not contain an accurate financial note describing the fiscal impact of the changes.

She granted a temporary injunction to halt the recapture calculations until the case can go to trial Aug. 11.

Unless the state works out another way to grant HISD and the other districts a reprieve, the district could be forced to pay $137 million. The adjustments for enrollment and property values were allowed to stand, said Bono, the MALDEF lawyer.

So there you have it. It’s very frustrating, especially with the Senate undermining efforts to address the problem. I don’t know what happens next, but I hope HISD and the TEA can work something out that will be accepted by the judge and the plaintiffs.

More “sanctuary cities” plaintiffs gearing up

Local governments are not going down without a fight.

On Tuesday, which organizers said was the beginning of a “summer of resistance,” Austin City Council member Delia Garza said the city will move this week to take formal action to stop SB 4 in the courtroom.

“I am proud to announce today, with much gratitude for my colleagues, this Thursday we are poised to approve a resolution that directs our city legal team to take any legal action necessary to challenge this awful law,” she said at Tuesday’s rally, which was organized by the Austin City Council, Texas Organizing Project and United We Dream.

[…]

“I have to preserve the work of these brave leaders in Austin,” said Phillip Kingston, a member of the Dallas City Council. “We will be discussing intervening in the case, coming to the aid of Austin because we have a large city attorney’s office we have lots of legal resources.”

Later, El Paso County Commissioner David Stout said the Commissioner’s Court there voted 4-to-1 to move forward with a federal lawsuit in the Western District of Texas.

“We feel that it’s discriminatory and unconstitutional but also we have a settlement agreement … from back in 2006 that basically states we’re not able to have our law enforcement officers to enforce federal immigration law,” he said. “So [SB4]will in effect put us in non compliance.”

Stout was referring to a 2006 legal settlement that El Paso County agreed to after a local resident sued, accusing sheriffs’ deputies of conducting unlawful immigration checks at roadside checkpoints. The parties reached an agreement: The sheriff’s office had to “memorialize in writing its policies that prohibits Sheriff’s Department Deputies from enforcing civil immigration law.”

Paxton has since said that El Paso County would be in compliance but local leaders disagree. The El Paso Times reported that County Judge Veronica Escobar said the county would allocate about $150,000 for litigation costs.

There are multiple lawsuits already in the courts or in the works, plus the one filed by the state to try to head this off. The main question I have at this point is whether there will be a bunch of individual lawsuits filed by various entities – cities, counties, and school districts may all want in on the action – or one monster lawsuit with a gazillion plaintiffs. Either way, there will be no shortage of work for a lot of attorneys. One other point is that while several cities – Austin, Dallas, El Paso, San Antonio – are gearing up to fight, as yet I have seen no indication that Houston will join in. I have seen some griping about this on Facebook, but so far it’s limited to that. CM Robert Gallegos was at the event in this story, but if anyone has asked Mayor Turner what his intentions are or if a Council member has announced an intention to push the issue, I have not yet seen it. The Statesman, the Observer, the Current, and the Press have more.

More “sanctuary cities” litigation in the works

Coming soon.

Civil rights groups vigorously opposed to Texas’s new anti-“sanctuary cities” law – which would allow the jailing of sheriffs and police chiefs if they refuse to cooperate with federal immigration authorities – expect to file within the next two weeks long-awaited lawsuits seeking to block the measure, they said.

They are prepared to ask a federal judge to temporarily halt the law’s enforcement until the court can undertake a broader review of its constitutionality, while Republican state leaders who passed the law remain confident they will prevail.

The Mexican American Legal Defense and Educational Fund, a constant thorn in Republicans’ sides from earlier legal battles, is expected to play a key role in the litigation over Senate Bill 4, which will allow police officers to question people about their immigration status if they are detained during routine interactions. Gov. Greg Abbott, who believes the law is legally sound, signed the bill May 7.

Thomas A. Saenz, MALDEF’s president and lead attorney, focused on a provision of the law that commits the state to use taxpayer money to defend every local entity that could be sued for incorrectly honoring a federal detainer request. In such a case, Saenz said, a police department could mistakenly hold the wrong person because they have a similar or identical name than the person’s listed on the detainer request, which would be a clear violation of constitutional rights.

One lawsuit has already been filed against the law, while another was filed by the AG in an effort to get the law declared constitutional. As this story notes, while there have been lawsuits in other states relating to laws like SB4, Texas’ large Latino population and no doubt the recent rulings that the Legislature had passed discriminatory laws could well factor into how these play out. Expect something to be filed in the next couple of weeks.

Justice Department will send election monitors to Pasadena

Okay.

Pasadena City Council

The U.S. Department of Justice is monitoring the Pasadena city elections as the suburb faces mounting federal scrutiny in the wake of a federal judge’s ruling that the city intentionally violated the Voting Rights Act by discriminating against Hispanics.

Two observers will be present to ensure the Saturday elections are conducted smoothly, said C. Robert Heath, an attorney representing the city in the voting rights case.

But he said he didn’t know who asked for them, what their specific charge would be and which polling locations may be watched.

“They’re observers, and make sure everything goes right,” Heath said. “The city is happy to cooperate and we don’t have anything to hide.”

He said the city has already received preclearance from the Justice Department for its election contract with Harris County and for changes to polling locations that he described as “very minor.”

[…]

The justice department’s decision to use observers for the election drew praise from advocates for the city’s Hispanic voters.

“This week’s election is an important opportunity for all Pasadena voters, especially Latinos, to have their voices heard in selecting candidates to represent their interests and needs,” said Nina Perales with the the Mexican American Legal Defense and Educational Fund and lead attorney in the voting rights lawsuit. “MALDEF welcomes the U.S. Department of Justice, along with other observers who will watch this historic vote.”

Mayoral candidates Pat Van Houte and Gloria Gallegos, whose campaign sent out a press release about this item on Tuesday, are both quoted in the story with positive reactions to the news. I don’t know what to make of this any more than anyone else, but it can’t hurt to have some outside experts keeping an eye on things. Jeff Sessions is an evil troll, but there are still plenty of good rank and file people in the Justice Department. One hopes there will be nothing particularly interesting for them to observe.

Big day for redistricting in court

Tomorrow the questions of what happens next in the redistricting lawsuits begin to get answered.

Will Texas soon see new political maps that are friendlier to Latino and black voters and, in turn, Democrats? If so, who would draw them: the scolded Republican-led Legislature or the courts themselves? Will the maps land ahead of the 2018 elections?

A three-judge panel based in San Antonio will start wading through such questions on Thursday as lawyers for each side of the redistricting dispute return to court for a high-profile status conference.

“This hearing is a very important event in the sequence of what’s going to happen,” said Jose Garza, an attorney for the Mexican American Legislative Caucus, a plaintiff in the case.

In a 2-1 March ruling, the San Antonio panel ruled that Texas lawmakers knowingly discriminated in drawing three of the state’s 36 congressional districts: CD-23, represented by Will Hurd, R-Helotes; CD-27, represented by Blake Farenthold, R-Corpus Christi; and CD-35, represented by Lloyd Doggett, D-Austin.

And last week the same judges found fault with the 2011 state House map, finding that lawmakers intentionally diluted the clout of minority voters statewide and in districts encompassing areas including El Paso, Bexar, Nueces, Harris, Dallas and Bell counties.

Each ruling matters mightily because, if they withstand appeals, they could ultimately land Texas — which has a well-documented history of racial discrimination in elections — back on a list of states needing outside approvalto change their election laws.

More immediate questions, however, surround what the rulings mean for the 2018 elections since new district lines could affect both voters and candidates. Already, one potential U.S. House candidate — former U.S. Rep. Pete Gallego — told The Texsas Tribune he would consider running again for Hurd’s CD-23 seat, but perhaps only under new boundaries.

[…]

Civil rights groups and other plaintiffs argue that 2011’s discrimination carried over to the maps currently in use.

Nina Perales, representing the Mexican American Legal Defense and Educational Fund in the lawsuit, suggests the case against the 2013 congressional maps is more straightforward partly because there are fewer districts in play and also because the court’s decision more clearly identified discrimination that carried over into the new maps. For instance, the boundaries of two of its districts — Farenthold’s 27th and Doggett’s 35th — are identical to those drawn in 2011.

“We get a better picture on the Congress decision about where the court thinks the map is still flawed,” Perales said. “We do not get a sense in the House opinion where the court thinks the 2013 map is flawed.”

See here and here for some background. There are a lot of questions for the court to address – Michael Li rounds up and summarizes the remaining disputes for the Congressional plan; there are no doubt at least as many issues still in contention for the State House plan – and not a lot of time to get something in place for the 2018 filing season, which begins in a bit more than six months. The plaintiffs had previously proposed a schedule that would have the state submit a remedial map by May 5, with a final decision in place by July 1. A similar schedule for the State House districts would mean a state-proposed remedial map by the beginning of June, with a final decision by early August. That actually gives the Legislature enough time to pass new maps if they want to, but with little room for delay. I can’t wait to see what the judges say.

MALDEF files suit over change to recapture

This is a twist.

Texas education officials illegally changed how property taxes are calculated in wealthy school districts, with the effect of substantially reducing the funds available for schools in poorer districts, a lawsuit filed Thursday charged.

The change would cost the state’s poorer schools districts and their students approximately $440 million per year or $880 million for the two-year funding cycle, according to the lawsuit filed by MALDEF (Mexican American Legal Defense and Educational Fund) and the law firms Gray & Becker, P.C. and Ray & Wood, on behalf of Le Feria and Joaquin Independent School Districts.

The La Feria Independent School District in Cameron County and the Joaquin Independent School District in Shelby County want the court to permanently block the newly amended rule adopted February 1, calling it invalid and unenforceable.

“Breaking the rules to once again benefit property-wealthy districts to the detriment of our property-poor districts is not the fix we need for our broken public school system,” said Marisa Bono, MALDEF Southwest regional counsel. “We look forward to vindicating in court our clients’ efforts to ensure fair funding for all students.”

Texas’ system of “recapture” requires wealthier school districts with more valuable property to send some of their tax funds to the state to help fund poorer districts. Those funds are then administered through the Foundation School Program.

The recapture formula assesses the contributions of wealthier districts based on the full value of each property. But those districts may provide two types of tax deductions to residents. The first is a mandated $25,000 homestead exemption. The second deduction allows districts the option of granting an additional homeowners exemption of up to 20 percent of a home’s value, known as a local optional homestead exemption (“LOHE”).

State law allows some wealthy districts to reduce their contributions to recapture and the Foundation School Program by recognizing the LOHE-reduced property values. However, state law provided clear conditions to ensure that poor districts aren’t underfunded. Those conditions required that either state lawmakers appropriate more funding, or that there be a surplus in the Foundation School Program. Until recently, the Texas Education Agency (TEA) interpreted the law to apply only when those conditions were met.

But in February, state education officials issued a statement changing its longstanding rule. Lawyers for the two plaintiff school districts argue that education officials illegally bypassed the existing rule, allowing certain wealthy districts with LOHE’s to reduce their contribution to recapture, without appropriating funds to fill the gap.

“The Education Code provides that the mission of the public education system of this state is to ensure that all Texas children have access to a quality education,” said Richard Gray of Gray & Becker, P.C. “The recent actions of the Commissioner work squarely against that mission and will result in funding flowing only to students in certain property-wealthy districts of TEA’s choosing while at the same time cutting funding to other districts. It is estimated that the recent actions of the Commissioner could cost close to one billion dollars for the 2018-2019 school year and that cost will only increase in future years.”

Under the new rule, La Feria ISD will lose over $225,000 per year, or $1,435 per classroom a year. Joaquin ISD will lose over $48,000 per year, or $1,548 per classroom. These financial losses are reflective of the financial loss that many property-poor school districts throughout the state will incur as a result of the new rule.

The lawsuit comes as state lawmakers debate how Texas will finance public education for the more than 5 million students currently enrolled in schools across the state. The Texas Supreme Court ruled in May last year that while the state’s school finance system met “minimal constitutional requirements,” it needed comprehensive reform.

Read the lawsuit here.

This would of course affect HISD, though MALDEF did not mention them by name in that release. KUHF has the only news coverage of this I’ve seen so far.

HISD is not a party in the lawsuit, but said in a statement that it believes the commissioner’s decision was legal and will monitor the case and “is prepared to intervene if necessary to protect the interests of our students and taxpayers.”

At the very least, this puts a bit of uncertainty into the May 6 recapture re-vote, which the HISD Board is trying to sell to voters. One possible way to satisfy the conditions MALDEF is suing over is for the Lege to make up the difference to the school districts that are affected by the re-interpretation of the recapture rules. Rep. Dan Huberty’s HB21 might be able to do this, in an amended form if need be. I don’t know how likely that is to happen, but it’s a possibility. There are a lot of ways this can go, so we’ll have to wait to see what the defendants, the Lege, and the courts do.

Voter ID 2.0 clears Senate committee

Seems likely this will go the distance.

Still the only voter ID anyone should need

A Texas Senate panel cleared legislation Monday that would overhaul the state’s voter identification rules, an effort to comply with court rulings that the current law discriminates against black and Latino voters.

The Senate State Affairs Committee voted 7-0 to send the legislation to the full chamber.

Filed by Committee Chairwoman Joan Huffman, Senate Bill 5 would add options for Texas voters who say they cannot “reasonably” obtain one of seven forms of ID currently required at the polls. It would also create harsh criminal penalties for those who falsely claim they need to choose from the expanded list of options.

Huffman’s bill would allow voters older than 70 to cast ballots using expired but otherwise acceptable photo IDs. The bill would also require the Texas secretary of state to create a mobile program for issuing election identification certificates.

“The people of the state of Texas demand integrity at the ballot box,” Huffman said Monday. “I am committed to constitutionally sound voter ID.”

Voting rights advocates call the expanded list of options an improvement over the current embattled law, but have raised concerns over the strict penalties for false claims.

[…]

Huffman’s bill would follow that format, allowing voters without photo identification to present documents such as a utility bill, bank statement or paycheck. And election officers could not question the “reasonableness” of the excuse for not having photo ID. But those found to have lied about not possessing photo ID could be charged with a third-degree felony under Huffman’s bill. Such crimes carry penalties of two to 10 years in prison.

Celina Moreno, an attorney for the Mexican American Legal Defense and Educational Fund, testified Monday that Huffman’s bill was a “major improvement” over the current law. But she pressed lawmakers to remove the felony penalties, calling them “voter intimidation.”

Matthew Simpson, with the ACLU of Texas, suggested that a third-degree felony is often reserved for violent conduct.

See here, here, and here for some background. Let me state up front that voter ID is and will always be hogwash, a non-solution to a non-existent problem whose primary purpose is making it harder for some people to vote. A real fix for voter ID, if we must have voter ID, requires allowing more forms of acceptable ID and ensuring that everyone who is eligible to vote has easy access to at least one form of acceptable ID. This bill doesn’t do that. It does make our existing and now-illegal system of voter ID slightly better, and as such I agree with Moreno and Simpson. If SB5 does pass in this form it won’t surprise me if someone eventually sues over the harshness of the penalties. And if it does pass, even in a form that is much more to my preferences, it does not affect the big question of whether or not the Republicans who passed it in 2011 did so with discriminatory intent. I’d rather see SB5 pass than fail, but my first choice will always be for it to not be needed at all.

Judge affirms Pasadena redistricting order

Back to the previous map, pending appeal.

Pasadena City Council

Hours after candidates began filing paperwork to run for city office, a federal judge Wednesday denied a request by Pasadena officials to delay her order that the city election be run under an 2011 election scheme to protect the rights of Latino voters.

Chief U.S. District Judge Lee H. Rosenthal in Houston said Pasadena should conduct its upcoming May elections based on eight single-member districts, throwing out the six single-member and two at-large districts that the judge ruled had diluted the clout of Hispanics.

The focus now shifts to the Fifth U.S. Circuit Court of Appeals, where Pasadena officials are challenging the judge’s ruling in a landmark voting rights case that has drawn nationwide attention.

[…]

Pasadena officials filed a request Tuesday to stay Rosenthal’s judgment, which was issued Monday during the Martin Luther King Jr. Day holiday. City lawyers also appealed the ruling, challenging the judge’s conclusion that the new voting scheme was put in place with the aim of intentionally stopping Hispanics from gaining a majority of candidates of their choice on council.

See here, here, and here for the background. I have no idea if the Fifth Circuit will overrule Judge Rosenthal and order the 2013 map to be put back in place, but as candidate filing has begun, they would need to be quick about it if they do. I’ll keep an eye on it.

Pasadena will appeal redistricting ruling

Not a surprise.

Pasadena City Council

An attorney representing the city of Pasadena said Tuesday the city will appeal a ruling that found Pasadena deliberately violated the voting rights of its Hispanic population, a move that could have immediate consequences for the city’s upcoming May elections.

The attorney, C. Robert Heath, said the city disagreed with Chief U.S. District Judge Lee H. Rosenthal’s ruling earlier this month that a redistricting scheme adopted in 2014 violated the U.S. Voting Rights Act by diluting the Hispanic vote.

“I think we’re right on the law and ultimately we’ll prevail,” Heath said.

[…]

Heath said the city will seek court approval to temporarily halt execution of Rosenthal’s order, meaning that upcoming elections could be conducted using the redistricting scheme Rosenthal found to be discriminatory. The 2015 elections were also conducted using that scheme.

“I don’t think they were trying to prevent Hispanic success,” Heath said.

City Councilman Ornaldo Ybarra, who supported the goals of the lawsuit that led to Rosenthal’s ruling, called the appeal a waste of taxpayers’ money.

“The legal bill has already surpassed $2 million, but I guess since it’s not the mayor’s money, he doesn’t mind spending it,” Ybarra said, adding that “this council is told nothing” by the administration about the legal process.

See here and here for the background. Candidate filing begins today, so one way or the other we’re going to need a quick ruling on any motions for an injunction. I’ll be keeping an eye on it. The NYT, Rick Hasen, and the Texas Standard have more.

UPDATE: From the longer version of the story:

Timing in the case, now, is critical. Rosenthal must first weigh in on whether to stand firm in her decision to keep the single-member system in place for the May elections – or whether to grant a stay on her own ruling.

The city’s appeal of the full ruling, meanwhile, moves on to the Fifth U.S. Circuit Court of Appeals.

“It wouldn’t surprise me if Judge Rosenthal made a ruling on the stay right away. … It will be a yes or no, probably,” said Elaine Wiant, president of the League of Women Voters of Texas.

She said if Rosenthal denies Pasadena a stay, it is unlikely the city’s lawyers would be able to derail the May election.

Chad Dunn, a lawyer who has represented voters and governmental entities in voting rights cases, agreed.

“It would be out of the ordinary for the court to stop her ruling and let the election go forward under a plan that’s been found to be discriminatory,” said Dunn, who represents council members Ybarra and Cody Ray Wheeler, who vocally opposed changes to the city election system. “It’s more likely than not that Judge Rosenthal’s judgment will carry the day on this election.”

The circuit court can affirm the district judge’s decision, reverse it or remand it back to Rosenthal for additional fact-finding, said Austin attorney Roger B. Borgelt, who specializes in election and campaign law.

We ought to know pretty quickly what the election situation will be for Pasadena.

Final ruling in Pasadena redistricting lawsuit

It’s official – back to the original map.

Pasadena City Council

With candidate registration set to begin Tuesday, a federal judge Monday prohibited the city of Pasadena from using an unconstitutional redistricting scheme in the upcoming May elections, stating that the scheme violated the voting rights of Latino and Hispanic residents.

Chief U.S. District Judge Lee Rosenthal in Houston wrote in the final judgment that the city must use a map the city generated in 2011 that featured eight single-member districts and gave “Latino voters an equal opportunity to elect their preferred candidates.”

Rosenthal also ordered the city to face preclearance from the U.S. Department of Justice for 6.5 years before changing the election system again.

[…]

Rosenthals’ order Monday – on a federal holiday recognizing the birthday of Martin Luther King Jr., whose civil rights crusade led to the Voting Rights Act of 1965 – came two days before candidate registration opens for Pasadena’s municipal elections. All city council seats and the mayor’s office are up for contention.

See here for the background. There is no word as yet whether the city will appeal or not. The filing period opens tomorrow and runs through February 17, so if there is going to be an appeal and an injunction against using the previous map, the city will need to get its act together quickly. Not that I want them to, mind you, just stating a fact. We’ll see what they do.

UPDATE: Here’s a longer version of the story.

Judge rules for Pasadena plaintiffs

Wow.

Pasadena City Council

A federal judge in Houston dealt a major blow Friday to the city of Pasadena in a closely watched voting rights case, ruling that officials deliberately diluted the clout of Hispanic voters by revising the system for electing City Council members.

Chief U.S. District Judge Lee H. Rosenthal ordered Pasadena to revert to its previous use of single-member districts for the upcoming May elections and ruled the city would need preclearance from the Department of Justice for any future changes.

“In Pasadena, Texas, Latino voters … do not have the same right to vote as their Anglo neighbors,” Rosenthal concluded in the 113-page decision released late Friday.

Patricia Gonzales, one of the plaintiffs who filed the federal lawsuit, said fairness can be restored to the city election system.

“All right,” she said, when informed of the ruling. “Now each section will be able to vote on who they want and their voices will be heard. I’m very pleased with the outcome.”

The ruling could provide a key test of the U.S. Supreme Court’s decision in 2013 that gutted portions of the Voting Rights Act, legal experts said.

“It is a great win,” said Michael Li, senior redistricting counsel at the Brennan Center for Justice at New York University School of Law. “This case shows that there is something you can do, at least if you have the facts, lawyers and resources.”

[…]

Rosenthal cited witness testimony in her opinion, noting that both Texas and Pasadena had histories of exclusionary practices and that discriminatory attitudes toward Latinos still endured among Pasadena residents.

In recent years, the political balance in Pasadena had begun to shift, the judge wrote. But just as Latino voters were poised to elect a majority of single-district representatives to the City Council, longtime Mayor Johnny Isbell and his backers proposed changes to the election system, the judge said.

“In short, Pasadena’s elections are racially polarized,” Rosenthal wrote. “The City’s 2013 racially polarized vote in favor of the 6–2 redistricting map and plan and the Council’s 2014 vote to approve the change were narrowly decided. The effect was to dilute Latino voting strength. That effect was foreseeable and foreseen.”

The city is likely to appeal the decision to the 5th U.S. Circuit Court of Appeals, but the ruling could have a significant impact nonetheless on the May elections. All City Council seats and the mayor’s post are up for election; Isbell is facing term limits and cannot seek re-election.

See here for the last update. Rick Hasen has a copy of and some excerpts from the decision. This is a big deal, and as the city of Pasadena has now been put back under preclearance, it’s a possible preview of what could be in store for Texas when we get a final decision on voter ID. Of course, being under preclearance now means a lot less than it would have under President Hillary Clinton, but it’s still something. We’ll see if there is an appeal, and if so if the Fifth Circuit steps in to halt any reversions to the old system before the May election. For now, I say congratulations and well done to the plaintiffs. A statement from the Mexican-American Legislative Caucus is here.

Fifth Circuit hears immigrant harboring lawsuit appeal

This time it’s the state that’s appealing a lower court ruling.

A federal appeals court in New Orleans heard oral arguments Wednesday about whether a key portion of Texas’ omnibus border security bill is legal.

Lawyers for the state of Texas argued that two landlords, and an immigrant services agency, who sued the state over House Bill 11 had no legal standing to do so. But the plaintiffs say they have every right to sue, and that federal law pre-empts what the state wants to do with the passage of House Bill 11.

The 5th U.S. Circuit Court of Appeals in New Orleans did not say when its three-judge panel might rule. The judges on the panel were E. Grady Jolly, Jerry E. Smith, and Edward C. Prado — all Republican appointees, court records show.

Under a provision of HB 11, which went into effect in September 2015, a person commits a crime if they “encourage or induce a person to enter or remain in this country in violation of federal law by concealing, harboring, or shielding that person from detection.”

In January 2016, the Mexican American Legal Defense and Educational Fund filed a lawsuit in San Antonio against Texas Gov. Greg Abbott, Texas Department of Public Safety Director Steve McCraw and the Texas Public Safety Commission, which oversees the DPS. The lawsuit alleges the state violated the U.S. Constitution’s Supremacy Clause because immigration enforcement is a federal responsibility.

[…]

“I thought the argument went well today,” Nina Perales√, MALDEF’s vice president of litigation, said by email after presenting oral argument for the landlords. She said the judges listened carefully to both sides and asked thoughtful questions.

“Because the statute’s wording is very broad, and doesn’t contain exceptions for landlords and humanitarian workers, we argued to the court that landlords and humanitarian workers can be arrested under this law,” Perales said

See here and here for the background, and this Trib story for a pre-hearing overview. This is familiar ground we’re fighting over, and I expect this one will eventually make its way to SCOTUS. Unlike some other issues that have been fought and re-fought, this is one where the state may not care to push this beyond the current fight, in the belief that Donald Trump will build a glorious wall and make Mexico pay for it spend more federal money on border security. That assumes that they lose this fight, and that Trump is true to his word, both of which remain to be seen. In the meantime, we wait for the Fifth to do what it’s going to do.

Pasadena voting rights case in the judge’s hands now

We await a ruling.

Pasadena City Council

Armed officers guarded a closed-door committee meeting. Discriminatory comments surfaced at City Hall. Latino-backed council members were hustled from chambers by police.

The accounts of perceived intimidation and back-door dealings were detailed during testimony in a closely watched seven-day trial of a federal voting rights lawsuit that wrapped up Friday in a Houston courtroom.

Now, U.S. District Judge Lee H. Rosenthal will decide if Pasadena violated the federal Voting Rights Act by reconfiguring its city election system, a ruling that is expected in time for February filing deadlines for May elections in which city council seats and the mayor’s job are up for grabs.

A group of Latino voters filed the federal lawsuit, saying city leaders changed the structure of council elections in a deliberate attempt to quell the Hispanic vote.

“The city moved to dilute voting strength just as Latinos were starting to exercise it,” said Nina Perales, lead attorney in the suit for the Mexican American Legal Defense and Educational Fund, in her closing arguments to the court.

City attorneys argued that leaders did not set out to diminish Hispanic representation by presenting an option to voters to change the city election systems. The growing Latino population has an equal chance to participate in the political process to elect their candidate of choice, said C. Robert Heath, a veteran attorney who specializes in voting rights and election law.

“No one said, ‘Vote yes (on the ballot measure) to diminish Hispanic representation,’ ” he said.

See here and here for the background. There were a couple of other stories related to this case published last week. From Monday, when Mayor Isbell took the stand:

The mayor of Pasadena chuckled and shook his head Monday when his defense lawyer asked if he had ever been a member of the Ku Klux Klan, which had its headquarters in the city for many years.

“No. It’s a despicable organization as far as I’m concerned,” Mayor Johnny Isbell, who is white, testified.

He is not racist, nor is Pasadena a racist city, he testified.

[…]

Isbell said he had appointed African-Americans and Hispanics to top jobs in his administration and actively backed a few Hispanic candidates’ campaigns. He said he supported redistricting and switching from eight single-member districts to six single-member districts plus two at-large seats because decades in public office taught him a mixed election system worked best.

He also contradicted testimony last week by Hispanic City Council member Ornaldo Ybarra, who said Isbell was known to have said to like-minded constituents that if they didn’t back his proposed revisions that the city government would be overpowered by “an invasion of Hispanics.”

The mayor testified that the changing demographics of Pasadena don’t bother him, and he quibbled with Ybarra’s portrayal of a north-south split in Pasadena, with Hispanics in the northern sector having to live amid urban blight, poorly maintained streets and subpar drainage.

The judge asked questions to clarify how the city divided.

Isbell said the north was mostly Hispanic and the south was majority white. But Isbell said the charter vote was not a white-versus-Hispanic issue.

“It was a Democrat and Republican issue, that’s the way it ended up,” he said.

The next day one of Isbell’s allies made an embarrassing admission during his testimony.

A top Pasadena official admitted on the witness stand that he violated state ethics laws by campaigning during work hours for the mayor’s re-election bid and for a 2013 charter amendment to change the city’s election system.

Richard Scott, the city’s director of community relations, testified in trial in a federal voting rights lawsuit before U.S. District Judge Lee H. Rosenthal that he’d used city workers and resources to do campaign work during business hours and sent campaign-related emails from his city account.

He said he regretted his actions and knew they were in violation of state law.

The statute of limitations has expired on the 2013 admission but Scott could be charged with a crime for working on the mayor’s 2015 campaign, according to Nina Perales, one of the team of attorneys from the Mexican American Legal Defense and Educational Fund pursuing the lawsuit.

[…]

Scott’s testimony came during questioning by MALDEF attorney Ernest Herrera in the civil trial of a lawsuit filed by Hispanic voters.

Scott, a longtime confidante of Mayor Johnny Isbell, sat up tall and answered the questions without hesitation. Yes, he had used his work email address. Yes, he’d had city employees help him during work hours on the campaigns. Yes, he knew that was a violation of campaign law.

Okay then. Chron reporter Mike Snyder attended the trail and picked out a few key quotes to highlight from it.

“You don’t have to look at the budget to see that one side of town is clearly being treated differently than the other.” – Pasadena Councilman Cody Ray Wheeler.

The councilman, a Latino in his second term who is part of the faction that has opposed the mayor on contentious topics, was discussing the real-world consequences of the issues in the case. Residents of Pasadena’s mostly Latino north side have long complained that the quality of their streets, drainage and other essential services lags far behind conditions on the predominantly Anglo south side.

The most recently adopted council structure of six district seats and two at-large ones replaced a system of eight district positions. If, as the suit alleges, the new system makes it harder for the city’s growing Latino population to elect its preferred candidates, this under-representation is reflected in residents’ daily lives. This trial is not a theoretical exercise.

[…]

“Who are you to vote against me?” – Isbell to Wheeler, according to Wheeler’s testimony.

Wheeler said the mayor posed this question after Wheeler voted against a bond package that Isbell initially supported. Isbell has not confirmed or denied having made the statement, but it’s the kind of thing a longtime public official accustomed to having his way might say to a young, ambitious politician like Wheeler. Isbell, 78, has held elective office in Pasadena almost continuously since 1969 – 16 years before the 31-year-old Wheeler was born. A sense of entitlement can be a byproduct of all that experience.

[…]

“We’ve got to keep Pasadena Pasadena.” – unidentified Anglo precinct judge to Wheeler, explaining his support for the new council system on Nov. 5, 2013 – the day voters narrowly approved it.

I think this comment speaks for itself.

Indeed, though it’s up to Judge Rosenthal to decide if it merits legal redress. She has promised a decision in time to conduct the May elections in Pasadena, which all things considered probably means by February.

Pasadena voting rights trial update

Day One:

Pasadena City Council

The disparity in infrastructure is at the heart of a voting rights case that opened in federal court Thursday in which a group of Latino residents is challenging the city’s newly revised system of government, saying it discriminates against minority voters and intentionally dilutes their power.

By creating two at-large council seats and eliminating two of the eight district seats, the suit says, the city violated the federal Voting Rights Act, making it harder for Latino-backed candidates to get elected and leading to unfair allocation of resources.

“Filling a pothole is not a Democratic or Republican thing to do; neither is putting in a drainage ditch or a sidewalk,” said Nina Perales, one of a team of attorneys from the Mexican American Legal Defense and Educational Fund, which is representing voters. “The everyday business of a city – including maintaining the infrastructure – is not a partisan issue, and when a city council that operates almost exclusively in unison begins to divide over issues of resource allocation, that is not partisan.

“Here in Pasadena those divisions have everything to do with race,” she said, in an opening statement Thursday of the trial that will be decided not by jurors but by U.S. District Judge Lee H. Rosenthal.

Lawyers for the city, however, told the judge there were legitimate reasons to change the system of electing city council members.

Claude Robert Heath, a prominent defense lawyer experienced in redistricting law, said shifting two of the eight council seats to at-large positions did not diminish access or opportunity for Latinos, who make up about half the population. And he said the city would show that whites have not voted as a unified block in recent city races, but instead crossed over to back candidates Latino voters preferred.

[…]

MALDEF lawyers began their case before Rosenthal Thursday with data-heavy testimony from three expert witnesses: a demographer, a political scientist and a historian.

The demographer, David Ely, testified that Census data indicates Latinos in Pasadena have not achieved the same level of education as whites. They have a higher poverty rate and are likelier to live in overcrowded housing.

Next on the stand was Richard L. Engstrom, a visiting political science professor at Duke University, who is an expert in minority voting rights. Engstrom testified that the ballot measure changing the system of government passed because non-Latinos voted in a racially uniform block. He said 99.6 percent of Latinos voted “no” on the measure.

Under question by the city’s lawyers, Engstrom doubled down on his contention that the votes were not an aberration.

“Does racially polarized voting exist?” he asked, rhetorically. “In election after election after election after election, the choice of Latino voters is being eliminated as a result of non-Latino voters voting as a block.”

He later added, “Racially polarized voting exists and persists in Pasadena.”

Day Two:

It felt like a power grab in Pasadena, a Latino city councilman told the judge. Shortly after the U.S. Supreme Court eliminated federal oversight for local elections, the mayor and a committee he’d appointed met behind closed doors to draw up a plan to reduce the voting power of Hispanics.

The testimony came on the second day in the federal trial of a closely watched voting rights case challenging how Pasadena elects its city council. The mayor took the stand for about an hour at the end of the day and is expected to testify at length after the Thanksgiving break.

But for most of Friday, Councilman Ornaldo Ybarra testified about the disparities in representation. Ybarra was not included in the closed door meeting, which had been scheduled to be open to the public. Ybarra said longtime Mayor Johnny Isbell approved of the gathering with police protecting the door. He said the mayor pushed the changes because he realized he no longer needed advance approval from the federal Justice Department to make revisions to the city charter.

[…]

Ybarra also said he heard secondhand accounts that the mayor and others were warning voters of “an invasion” of Hispanics in the city government: “It was all over Pasadena that if we didn’t adopt this 6-2 council, there was going to be too many Hispanics on council.”

A defense attorney questioned whether the four-term councilman was certain of what the mayor meant by “invasion.” The mayor had backed Ybarra’s candidacy when he first ran for council in 2009.

“Only the mayor and his creator know what his intent was, but the message and behavior were racially motivated,” he said.

Given the Thanksgiving holiday, the trial will likely wrap up next week. As noted, the plaintiffs have a tall order to prove discriminatory intent. It’s interesting that this trial is going on at the same time as the litigation over whether the voter ID law had discriminatory intent. I’d normally look at both of those as consequential cases with the potential to bring about a lot of change, but that would necessitate an Attorney General who isn’t a horrible racist. Rulings for the plaintiff in either or both cases would still be a big deal, just probably not as big as it could have been.