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Anti-same sex employee benefits lawsuit moved back to state court

On and on we go.

Nearly three years after the U.S. Supreme Court legalized same-sex marriage nationwide, the city of Houston continues to battle for the rights of its gay workers.

On Tuesday, a judge struck down Houston’s attempts to defend its city benefits policy in federal court. The case will be remanded back to state court, and the city will have to pay the legal fees of the two men suing to overturn the policy, which extends spousal benefits to same-sex marriages.

The outcome of this case will be limited to the city of Houston. Dallas has a similar policy that has not been challenged.

But the fight is a good example of the war waged to erase, erode or at least stop the expansion of LGBT rights since since the 2015 marriage ruling, Noel Freeman said.

“These are people who are never, ever going to give up. They are going to go to their grave hating us,” Freeman, the first city of Houston employee to receive spousal benefits for his husband, told The Dallas Morning News on Wednesday. “And there is no court case … that’s going to change their minds.

“That’s just the way it is.”

[…]

In a last-ditch effort to shift the fight to federal court, Houston asked to move the case to the Southern District Court earlier this year. On Tuesday, Judge Kenneth Hoyt ruled the city did not prove federal court was the proper venue and ordered it to pay Pidgeon and Hicks’ legal fees.

The case will be remanded to Harris County District Court. Married gay city employees will continue to receive benefits for their spouses until a final ruling.

See here for previous coverage of this atrocity, which is still a thing because our feckless State Supreme Court allowed itself to be pressured into giving the case a second chance after previously refusing to consider it. Noel Freeman, who’s a friend of mine, is quite right that the people pursuing this action (including Jared Woodfill) will never give up – if this suit is ultimately ruled against them, they’ll find some other pretext to keep LGBT folks from being treated as full and equal members of society. We all need to oppose the politicians who enable these haters, and support those who favor equality. It’s the only way this will get better.

It’s going to be redistricting time for Texas at SCOTUS soon

Here’s an update.

In their latest brief to the U.S. Supreme Court, the voting and minority rights groups challenging Texas’ political maps painted Republican state lawmakers as “opportunistically inconsistent in their treatment of appearance versus reality.”

Pointing to the lawmakers’ 2013 adoption of a court-drawn map that was meant to be temporary, the groups chronicled the actions as “a ruse,” a “shellgame strategy” and a devious “smokescreen” meant to obscure discriminatory motives behind a previous redistricting plan.

Channeling their anger toward the lower court that found lawmakers intentionally discriminated against voters of color, state attorneys used a February brief to denounce the court’s ruling as one that “defies law and logic,” suffers multiple “legal defects” and “flunks the commonsense test to boot.”

[…]

The legal fight between the state and its legal foes, which include several voters of color, has been churning through the courts since 2011. That was when lawmakers embarked on redrawing the state’s congressional and legislative districts to account for explosive growth, particularly among Hispanic residents, following the 2010 census.

Those maps never took effect because Texas, at the time, was still required to get federal approval of changes to its political maps before using them in elections. A federal court in Washington eventually rejected the boundaries, ruling they violated federal safeguards for voters of color. But by then, a three-judge federal panel in San Antonio had ordered up interim maps for congressional and state House districts to be used for the 2012 elections.

The San Antonio court at the time warned that the interim maps were still subject to revision. But state lawmakers in 2013 adopted those maps as their own, with few tweaks.

That move, the state contends, was a “conciliatory act” in which the Legislature “embraced the court’s maps for the perfectly permissible reason that it wanted to bring the litigation to an end.”

But in their brief filed last week with the high court, attorneys for voters and legislators challenging the maps described the 2013 maneuver in much different terms:

“In the State’s telling, there was a brief, shining moment in 2013 when Texas history reversed course and the Texas Legislature fell all over itself to conform state conduct to a federal court’s provisional observations. The district court rightly saw through the 2013 masquerade.”

As noted before, oral arguments will be on April 24, so gird your loins and make sure children and pets are in safe places. I will remind everyone that there were actually two remedial maps produced by the three-judge panel way back in 2011. The first one, which was based on the previous decade’s pre-cleared-and/or-ruled-VRA-compliant-by-SCOTUS maps, was thrown out by SCOTUS on the grounds that the panel needed to defer to the new maps as drawn by the Lege as their starting point. Which the court did, and which it did without taking into consideration the VRA Section 2 claims on which the plaintiffs subsequently prevailed. As such, claims that the interim maps solved all the problems and should have been the end of the litigation are false. The maps had problems, which the courts ultimately found, and that’s even before we get into the “intent” question.

Anyway. What happens from here is unknown. SCOTUS has had a busy term grappling with redistricting questions, but unlike the partisan-gerrymandering claims from Wisconsin and Maryland, this is old-fashioned racial discrimination/Voting Rights Act stuff. It’s also our last chance to remediate any damages before the next redistricting cycle. It would not be much of a win for the plaintiffs if we never get to have an election under non-discriminatory maps.

SCOTUS will hear oral arguments in the Texas redistricting case in April

On April 24, to be specific, according to Michael Li on Twitter. Both the Congressional and state legislative cases will be consolidated into one for the arguments. That means we should have a ruling by the end of June. See here for some background, and the Brennan Center for pretty much everything you need to know.

SCOTUS will not hear Texas partisan gerrymandering appeal

Not really a big deal.

Texas, for now, will not join the list of states fighting in court over the limits of partisan gerrymandering.

As it considers cases out of other states over whether extreme practices of partisan gerrymandering can be deemed unconstitutional, the U.S. Supreme Court on Tuesday dismissed the efforts of Texas Democrats and other plaintiffs to revive a related legal claim in the ongoing litigation over the state’s political boundaries.

The high court’s dismissal comes just days after it agreed to hear a case over whether Texas’ congressional and House district boundaries discriminate against voters of color. In that case, the state appealed a three-judge panel’s ruling against the state that included findings of intentional discrimination by state lawmakers, unconstitutional racial gerrymandering and violations of the Voting Rights Act.

[…]

Pointing to Texas’ “stark admission” that lawmakers were “motivated by the Legislature’s desire to dilute the voting strength of Democratic voters,” the Texas Democratic Party and other plaintiffs had asked the Supreme Court to reconsider the three-judge panel’s decision to dismiss partisan gerrymandering claims in the case in 2011 and 2014 without any discovery or trial. But the Supreme Court on Tuesday agreed with state attorneys who had argued that the court lacked jurisdiction to consider the party’s appeal.

See here for the background. Hey, it was worth a shot. There are other cases ongoing, and as Michael Li notes, there will be other opportunities for the TDP or some other interested party to try again later. The Chron and Rick Hasen have more.

SCOTUS will take up Texas redistricting appeal

As the man once said, hold onto your butts.

Further extending a drawn-out legal battle, the U.S. Supreme Court on Friday agreed to hear a case over whether Texas’ congressional and House district boundaries discriminate against voters of color.

The high court’s decision to take the case is a short-term win for Texas’ Republican leaders who, in an effort to preserve the maps in question, had appealed two lower court rulings that invalidated parts of the state’s maps and would have required the district lines to be redrawn to address several voting rights violations.

The Supreme Court’s decision to weigh that appeal will further delay any redrawing efforts even after almost seven years of litigation between state attorneys and minority rights groups that challenged the maps.

[…]

The state’s currents maps, which have been in place for the past three election cycles, were adopted by the Legislature after the three-judge panel in San Antonio in 2012 tweaked boundaries drawn following the 2010 census.

It’s unclear when the court will schedule oral arguments.

See here for the background. We expected this, and Rick Hasen called it the day before it happened. One way or another, we’ll finally get to a resolution, in time for one last election before we start the cycle anew. When the first lawsuits were filed, I figured we’d have new maps in place for 2016, based on how things went after the 2001/2003 redraw. Shows how much I know, or maybe things really are that much different. Strap in and hold on, it’s going to be a consequential term at SCOTUS. Mother Jones, ThinkProgress, the Chron, Hasen again, and the Lone Star Project have more.

Yet another ruling against North Carolina’s Congressional map

Because redistricting litigation is always of interest.

A panel of federal judges struck down North Carolina’s congressional map on Tuesday, condemning it as unconstitutional because Republicans had drawn the map seeking a political advantage.

The ruling was the first time that a federal court had blocked a congressional map because of a partisan gerrymander, and it instantly endangered Republican seats in the coming elections.

Judge James A. Wynn Jr., in a biting 191-page opinion, said that Republicans in North Carolina’s Legislature had been “motivated by invidious partisan intent” as they carried out their obligation in 2016 to divide the state into 13 congressional districts, 10 of which are held by Republicans. The result, Judge Wynn wrote, violated the 14th Amendment’s guarantee of equal protection.

The ruling and its chief demand — that the Republican-dominated Legislature create a new landscape of congressional districts by Jan. 24 — infused new turmoil into the political chaos that has in recent years enveloped North Carolina. President Trump carried North Carolina in 2016, but the state elected a Democrat as its governor on the same day and in 2008 supported President Barack Obama.

[…]

The ruling left little doubt about how the judges assessed the Legislature’s most recent map. Judge Wynn, who sits on the United States Court of Appeals for the Fourth Circuit and was a member of a special panel considering the congressional map, said that “a wealth of evidence proves the General Assembly’s intent to ‘subordinate’ the interests of non-Republican voters and ‘entrench’ Republican domination of the state’s congressional delegation.”

Most federal lawsuits are first heard by a district court, and later — if needed — by an appeals court and the Supreme Court. But under federal law, constitutional challenges to the apportionment of House districts or statewide legislative bodies are automatically heard by three-judge panels, and appeals are taken directly to the Supreme Court.

See here and here for some background, and here for a copy of the opinion. As noted, SCOTUS is likely to weigh in on this, and as with Texas that could mean the current map will be left in place until further litigation has concluded. The key takeaway, as Nicholas Stephanopolous notes, is that the judges used a recently-developed system for determining what makes a “partisan” gerrymander too extreme, and it did so without any difficulty. That’s a question that’s already on SCOTUS’ docket. The potential is there for a lot of good to be done, but we’re still a ways away from that happening. ThinkProgress, Mother Jones, the Associated Press, the WaPo, Daily Kos, and Rick Hasen have more.

SCOTUS to consider Texas redistricting case in January

Batten down the hatches.

The U.S. Supreme Court will meet Jan. 5 to consider whether to take up a case on how Texas draws its congressional and statehouse maps.

In a 5-4 decision split along ideological lines in September, the justices blocked two rulings by a three-judge federal panel in San Antonio. The panel had ordered lawmakers to redraw Texas’ congressional and statehouse maps, which the judges said discriminated against minorities in violation of the Constitution and the Voting Rights Act.

The Supreme Court’s involvement is the latest twist in a six-year legal battle that could have a major impact on Texas’ political landscape, including the Dallas-Fort Worth area.

[…]

The plaintiffs wanted the districts redrawn in time for the 2018 midterm elections. But Attorney General Ken Paxton appealed the decision to the Supreme Court and was granted a stay by Justice Samuel Alito, which torpedoed the plaintiffs’ efforts to expedite new maps.

Since then, both sides have started to prepare for the possibility of a showdown at the Supreme Court. The Mexican American Legislative Caucus, one of the lead plaintiffs in the statehouse suit, hired voting rights expert Pamela Karlan to present their case. Karlan is the co-director of the Supreme Court Litigation Clinic at Stanford Law School.

See here, here, and here for the background. You know the stakes, and how long this godforsaken case has taken to even approach some kind of resolution. There are several other big redistricting and gerrymandering cases coming to SCOTUS soon as well, so we could be in for a world of changes, or a world where basically nothing changes. As the man once said, hold onto your butts.

Voter ID back before the Fifth Circuit

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

Still the only voter ID anyone should need

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

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

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

[…]

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

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

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

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

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

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

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

SCOTUS declines to hear Houston’s appeal of same-sex marriage lawsuit

Disappointing, but nowhere close to the end of the line.

Denying the city of Houston’s request, the U.S. Supreme Court will not review a June decision by the Texas Supreme Court, which ruled that the landmark decision legalizing same-sex marriage does not fully address the right to marriage benefits.

The high court on Monday announced it would not take up the case — which centers on Houston’s policy to provide spouses of gay and lesbian employees the same government-subsidized marriage benefits it provides to opposite-sex spouses — just months after the city of Houston filed its appeal, arguing the state court’s June decision “disregarded” precedent.

In that decision, the Texas Supreme Court threw out a lower court ruling that said spouses of gay and lesbian public employees are entitled to government-subsidized marriage benefits, and it unanimously ordered a trial court to reconsider the case. The ruling found that there’s still room for state courts to explore “the reach and ramifications” of marriage-related issues that resulted from the legalization of same-sex marriage.

That’s despite the U.S. Supreme Court’s landmark ruling in Obergefell v. Hodges, which legalized same-sex marriage nationwide in 2015 and noted that now-defunct marriage laws were unequal in how they denied same-sex couples the benefits afforded to opposite-sex couples.

See here for the previous update. What this means is that the district court needs to reconsider the lawsuit in light of the state Supreme Court’s assertion that Obergefell may have made marriage universal, but it did not specifically address the question of whether same-sex marriages are entitled to the same actual rights and benefits as traditional marriage. If all this sounds to you like unfathomable pinhead-ery, in which the concept of marriage is divided into an upper class and an underclass based on biology and the easily offended sensibilities of a couple of old coots, you’re correct. But this is where we are. The city will continue to provide spousal benefits for all its married employees, as it has the right to do, at least for now. The Chron, the Dallas Observer, the Texas Observer, and the Current have more.

State has not appealed the voting rights case on language interpreters

Interesting.

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

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

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

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

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

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

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

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

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

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

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

Sports betting at SCOTUS

A case you might want to watch.

Internet gambling in the United States has been limited to just three states since it began in 2013, but it could soon get a big boost from an unlikely source: the U.S. Supreme Court.

Some gambling industry officials, regulators and analysts think that a favorable ruling by the high court in New Jersey’s challenge to legalize sports betting could also lead to an expansion of internet gambling.

“If we win sports wagering, online gaming will go to every state that adopts sports betting,” said David Rebuck, director of the New Jersey Division of Gaming Enforcement, who predicts a favorable sports betting ruling could help internet gambling “explode” across the nation. “As soon as sports wagering is legalized, online gambling will follow right behind it.”

The Supreme Court will hear arguments in New Jersey’s case on Dec. 4; a ruling could be weeks or months away. The state is taking aim at a 1992 law that forbids state-authorized sports gambling in all but four states that met a 1991 deadline to legalize it: Delaware, Montana, Nevada and Oregon. Nevada is the only state to allow single-game wagering.

The sports leagues oppose the lawsuit, arguing that legalized sports betting could taint the public’s perception of the integrity of their games.

[…]

Experts think that the sports betting legislative push would likely help expand internet gambling. David Schwartz, who runs the Center for Gaming Research at the University of Las Vegas-Nevada, says that offering online casino games and sports betting would go hand-in-hand online.

“It makes a lot of sense to offer sports betting over the internet,” he said. “Once you have the systems for letting people bet on sports in place, it isn’t a huge step to permit them to bet on casino games or poker as well.”

The law in question is the Professional and Amateur Sports Protection Act (PASPA). Texas doesn’t have a direct stake in this, just the same potential to allow online sports gambling if it wanted to if the plaintiffs succeed, but it does have a position, in favor of overturning PASPA.

Texas joined an amicus brief siding with New Jersey in favor of overturning the federal law, arguing that sports betting should be up to the states and not the federal government.

Attorney General Ken Paxton signed on to the brief, not to legalize sports betting, but to keep the federal government out of state decisions.

“PASPA is unconstitutional and tramples on state sovereignty,” Paxton told the American Sports Betting Coalition. “By ending PASPA, states can rightfully decide whether they want regulated sports betting or not.”

That means Paxton is on the opposite side of the debate from the White House. The U.S. solicitor general’s office has sided with the sports leagues and will join them for the court’s oral arguments Dec. 4.

But Paxton hasn’t shown any signs of wanting sports betting to be legal in the Lone Star State. In fact, the attorney general has been at odds with daily fantasy sports sites for years.

In 2016, Paxton issued an opinion that deemed paid fantasy sports sites to be illegal gambling.

If SCOTUS sides with the state of New Jersey and throws out PASPA, it would not change the debate about expanded gambling in Texas, but it would raise the stakes as there would be more things we could expand it to include. I could imagine there being more pressure on the Lege to take it up, but that doesn’t mean it would be any more successful than previous efforts. Like I said, worth keeping an eye on.

Paxton officially appeals redistricting ruling to SCOTUS, part 2

The state House version.

Attorney General Ken Paxton on Friday asked the U.S. Supreme Court to reverse a lower court ruling that ordered nine of Texas’ statehouse districts redrawn after being found discriminatory.

In August, a three-judge panel in a federal district court in San Antonio ruled that parts of Texas’ statehouse maps were discriminatory and ordered nine districts in four counties, including Dallas and Tarrant, redrawn. Paxton appealed that decision to the Supreme Court and had the lower court’s ruling blocked in September.

Now, Paxton is asking the Supreme Court to reverse the lower court’s ruling and settle the six-year legal battle.

[…]

Paxton’s move follows a similar request on Texas’ congressional maps earlier this month. In August, the three-judge panel in San Antonio invalidated two congressional districts, Lloyd Doggett’s in Central Texas and Blake Farenthold’s in Corpus Christi, and ordered them redrawn. But after an appeal from Paxton, the Supreme Court blocked the lower court’s ruling. Paxton has also requested that order be reversed.

See here for the background. Not much more to this – we knew it was coming, and here it is. Some day we’ll get a resolution.

Paxton officially appeals redistricting ruling to SCOTUS

Here we go.

Attorney General Ken Paxton asked the U.S. Supreme Court on Tuesday to take up an appeal of a lower court ruling that invalidated two of Texas’ congressional districts.

“It’s fitting that the Supreme Court hear this case, given that it ordered the district court in San Antonio to draw the congressional maps in 2012 that were adopted by the Legislature in 2013 and used in the last three election cycles in Texas,” Paxton said in a news release. “The lower court’s decision to invalidate parts of the maps it drew and adopted is inexplicable and indefensible. We’re eager for the high court to take up the case.”

[…]

Immediately after the lower court’s August decision, Paxton appealed the ruling to the U.S. Supreme Court, which in September sided with Texas and blocked the lower court’s ruling until it could fully consider the case. That ruling allowed the state to keep intact its electoral maps through the 2018 elections, a major defeat for the plaintiffs, who had hoped for a more advantageous political landscape during the midterm elections.

Now Paxton is asking the court to settle the issue once and for all. The lower court ruling also invalidated nine statehouse districts. Paxton said he will ask the Supreme Court to take up that question, too.

See here, here, and here for some background. This was where things were always headed, so now it’s just a matter of time. Not in time for 2018, of course, but it’s something, I suppose. Well, not for everyone.

Juanita Wallace was among many voters of color who sued the state over its redistricting plans in 2011, accusing lawmakers of redrawing its political boundaries in a way that diluted the power of black and Latino Texans.

Six years later, several elections have played out using embattled state House and congressional maps, even though federal judges so far ruled that Texas leaders intentionally discriminated in approving the boundaries. And the maps will probably stay in place for the 2018 elections as the U.S. Supreme Court weighs the state’s latest appeal.

Wallace — a longtime educator, civil rights advocate and former head of the Dallas NAACP — won’t be around to see the result. She died of cancer last year at age 70.

“To me, it gets to this question of how do you fight back against this,” said Allison Riggs, who represented Wallace as the senior voting rights attorney with the Southern Coalition for Social Justice. “You want to give this complicated legal analysis a human side, but you’re literally dragging the litigation so long that people are passing away. It’s nuts.”

You know what they say about justice delayed. See the brief filed by the state for more.

Kirkland for Supreme Court

Good.

Steven Kirkland

Houston State District Court Judge Steven Kirkland has announced his candidacy for a seat on the all-Republican Texas Supreme Court, making him the first openly gay candidate to run for the state’s highest civil court.

Kirkland, a Democrat, is seeking Place 2 on the court, which is currently held by Justice Don Willett. Willett was nominated to the U.S. Court of Appeals for the Fifth Circuit by President Donald Trump in September, setting the stage for an open primary if Willett wins Senate confirmation.

“I’m running because the Texas Supreme Court has entered far too many decisions recently that reek of politics and it’s time to change that,” Kirkland said.

Kirkland points to the court’s recent unanimous decision on June 30 in Pidgeon v. Turner, which ruled that the City of Houston should not have extended its benefits policy to same-sex couples as a primary example of a political decision.

Kirkland notes that since the U.S. Supreme Court issued its landmark 2015 decision in Obergefell v. Hodges that legalized same-sex marriage nationwide that “marriage means marriage.”
“They were thumbing their noses at the law and thumbing their noses at the U.S. Supreme Court, all to protect themselves in the Republican primary,” Kirkland said of the ruling.

He’s dead-on right about that, and with any luck our state Supreme Court will get smacked down by the federal one. Kirkland’s candidacy, whatever happens next November, will provide an opportunity to remind everyone what a crappy and craven ruling that was, and that we the people have a chance to do something about it. Kirkland joins his colleague RK Sandill in mounting a statewide race. (Like Sandill, Kirkland is not on the ballot for district court again until 2020.) We need one more to fill out this slate, plus three for the Court of Criminal Appeals. Much as I love these guys, I do hope we get some candidates from outside Harris County as well. OutSmart has more.

SCOTUS takes up partisan gerrymandering

So much coverage on this potentially ground-breaking and earth-shaking case. Here’s the Washington Post:

Opponents of political gerrymandering had reason for optimism at the Supreme Court on Tuesday, with Justice Anthony M. Kennedy, the likely swing vote, appearing more in sync with liberal colleagues who seemed convinced that a legislative map can be so infected with political bias that it violates the Constitution.

But it’s what Kennedy didn’t say that could determine whether the court, for the first time, strikes down a legislative map because of extreme partisan gerrymandering. While he has previously expressed concerns about the political mapmaking practice, he has yet to endorse a way of determining when gerrymandering is excessive, and Kennedy give no sign at oral arguments Tuesday that he had found one.

In a case from Wisconsin that could reshape the way American elections are conducted, the Supreme Court heard from challengers that it was the “only institution in the United States” that could prevent a coming wave of extreme partisan gerrymandering that would distort the basic structure of democracy.

“Politicians are never going to fix gerrymandering,” said Paul M. Smith, representing Democratic voters who challenged a 2011 redistricting plan drawn by Wisconsin’s ruling Republicans. “They like gerrymandering.”

Even conservative justices skeptical of Smith’s argument seemed to agree that it was unsavory for members of the party in power to draw legislative districts to protect themselves and their own, and make it hard for opponents to ever gain power.

“Gerrymandering is distasteful,” said Justice Samuel A. Alito Jr. “But if we are going to impose a standard on the courts, it has to be something that’s manageable.”

Finding a test that courts could use to determine when political favoritism had become too great — the “Rosetta Stone,” Alito called it — has always been the hurdle. Kennedy said as much the last time the court examined the issue, in 2004.

If anything, Kennedy seemed more convinced this time around that the courts have a role in finding that partisan gerrymandering can be so extreme as to be unconstitutional.

He pressed lawyers for the state and its legislative leaders about whether it would be unconstitutional for a state to undertake the redistricting process by forthrightly saying it intended to favor one party over another.

Erin Murphy, representing the legislative leaders, hesitated and said that was not the case in Wisconsin.

Kennedy was undeterred. “I’d like the answer to the question,” he said.

Murphy and the state’s lawyer, Solicitor General Misha Tseytlin, agreed that would be unconstitutional.

See here, here, and here for some background. Basically all the coverage was focused on Justice Kennedy, who is not only our supreme overlord the main swing vote in the chamber but also who had suggested that a partisan gerrymander could be illegal if there were a good, objective standard to determine it. That’s what this case is about, and it seems likely that if this isn’t where he draws a line, there isn’t a line he’ll be willing to draw. This case is about Wisconsin, but if SCOTUS sides with the plaintiffs it would surely have a broad impact, as many other purple or even blue states – Florida, Pennsylvania, Michigan, Ohio, Virginia, North Carolina – have similarly extreme gerrymanders in them. We’ll know by the spring. SCOTUSBlog, the NYT, Rick Hasen, Ari Berman, Kevin Drum, Mark Joseph Stern, Dahlia Lithwick, and ThinkProgress have more.

Don’t expect any further redistricting activity this year

Michael Li explains it all to you.

In one-line orders today (here and here), the Supreme Court rejected a request by plaintiffs in the Texas redistricting case that the Supreme Court expedite appeals by the State of Texas.

The plaintiffs’ requests would have sped up the cases by having the parties forgo the filing of jurisdiction statements (essentially skipping one step in the process) and setting an expedited briefing schedule. This would have allowed the high court to consider whether to take the cases at its January 5, 2018 conference.

The denial of the plaintiffs’ requests means that Texas will have until October 17 and 27 to file jurisdiction statements on the congressional and state house rulings respectively. The plaintiffs then will have up to 30 days to ask the court to dismiss the appeals or summarily affirm (though they could file early to try to expedite the timeline). The state then will have 14 days to file a reply.

See here for the background. As Li notes, in addition to the state’s appeal of the order that new maps be drawn, the plaintiffs have their own appeal of issues where they lost in court as well. There are many filings to be made, and the state has no incentive to be prompt about any of theirs. As such, while everything could be teed up for the Court in January, it’s unlikely that will happen. So settle in, this will once again take awhile. The Statesman has more.

City goes to SCOTUS over same-sex spousal benefits

Good.

The City of Houston and Mayor Sylvester Turner filed a petition Friday asking the U.S. Supreme Court to review a decision that came down earlier this summer, concluding that states did not have to provide publicly funded benefits to same-sex couples, according to a news release from the city.

The decision in Pidgeon v. Parker from the Texas Supreme Court on June 30 said states did not have to provide government employee benefits to all married persons, regardless of whether their marriages are same sex or opposite sex.

The Texas court claims the U.S. Supreme Court’s landmark 2015 decision Obergefell v. Hodges, that recognized marriage rights among gay couples did not determine whether same-sex couples have spousal benefits. The court also said the Pavan vs. Smith case does not conclude whether same-sex couples are entitled to spousal benefits.

See here and here for the background, and here for the city’s press release. There is also a lawsuit filed by affected employees against the city to force it to continue paying the benefits, which as this statement indicates the city is doing and intends to continue as long as a court doesn’t order it not to. The Pavan v. Smith case held that “Having chosen to make its birth certificates more than mere markers of biological relationships and to use them to give married parents a form of legal recognition that is not available to unmarried parents, Arkansas may not, consistent with Obergefell v. Hodges, deny married same-sex couples that recognition”. Seems pretty damn clear that the same standard would apply for employee benefits, but as we know some lessons have to be learned the hard way. Kudos to the city for trying to short-circuit this homophobic nonsense.

SCOTUS puts new maps on hold

Ugh.

The U.S. Supreme Court has dealt a serious setback to those hoping Texas would see new congressional and House district maps ahead of the 2018 elections.

In separate orders issued Tuesday, the high court blocked two lower court rulings that invalidated parts of those maps where lawmakers were found to have discriminated against voters of color. The justices’ 5-4 decisions stay the rulings — which would have required new maps — as they take up an appeal from Texas Attorney General Ken Paxton.

Justices Ginsburg, Breyer, Sotomayor, and Kagan dissented from the majority opinion.

[…]

The state argued in a legal brief that if the Supreme Court allowed the redrawing of the state’s proposed maps to move forward ahead of the election, the court risked throwing “the Texas election deadlines into chaos for the second time this decade.”

Election administrators have said they need clarity on district boundaries by October to meet timelines to prepare and send out voter registration certificates and avoid electoral delays.

Minority rights groups suing the state rebutted those claims, arguing that “the right to legal districts prevails” when choosing between delaying electoral deadlines and addressing “voters’ ongoing harm” under the current maps.

In siding with the state, the high court made it more likely that Texas will use its current maps in the upcoming elections. The high court could also choose to delay the March primary elections. Its decision is likely months away.

See here and here for the background. At this point, we’re either going to get the same maps as before for 2018, or we’re going to have a (possibly much) later primary. I suspect the former is more likely, which shows the power of having Section 5 (preclearance) of the Voting Rights Act versus not having it: Even if SCOTUS ultimately agrees with the lower court, the state will have gotten to use these illegal maps in four out of the five elections from the 2011 redistricting cycle. The consequences for breaking the law will be next to nothing. Under those circumstances, who wouldn’t take advantage?

The plaintiffs are keeping a stiff upper lip:

“I can’t say that I am pleased with this. I can’t say that I am surprised either,” said Jose Garza, counsel to the Mexican American Legislative Caucus, the lead plaintiff in the lawsuit. “At the end of the day it may all work out. Maybe it’s better to have this discriminatory plan in front of the court and have the state of Texas try to defend it sooner rather than later.”

[…]

Chad Dunn, the Texas Democratic Party’s general counsel, said he believes the evidence of discriminatory intent is so strong, the Supreme Court will agree.

“Getting a final resolution to this matter, that has essentially been pending since 2011, is a step in the right direction,” he said.

I hope you’re right, but it’s a little hard to feel positive about it right now.

ThinkProgress points out the elephant in the room:

It is likely that, if Senate Republicans had not held a seat on the Supreme Court open for more than a year until a Republican president could fill it, that this stay would not have been granted, and the 2018 election would be run under different maps.

It took that fifth vote on SCOTUS for this to happen. Let that sink in for a minute. Eyes on the prize, y’all. Rick Hasen, the Lone Star Project, the DMN, Mother Jones, Daily Kos, Michael Li, the Current, and the Observer have more.

Plaintiffs ask SCOTUS to back down in redistricting fight

This week’s update:

The challengers told the justices that the Supreme Court lacks the power to review the state’s request because there is nothing to put on hold: The lower court has neither blocked the state’s current redistricting plan nor entered any orders to remedy the violations it found. Instead, the challengers emphasized, the lower court simply directed the two sides to show up for a hearing today to come up with a new plan. If the lower court had held the hearing and then entered an order, the challengers explained, Texas could have asked the Supreme Court to step in – but it cannot do so now.

The challengers also dispute any suggestion that if the justices do not intervene now, the district court might impose its own map, which the state will not have time to appeal before the October 1 deadline by which the congressional maps must be in place for next year’s elections. Any “deadline” is purely self-imposed, they say: “This alleged ‘deadline’ is simply the date that Texas claims is required to permit local officials two months’ time to coordinate with third-party vendors to print and mail voter registration certificate cards.” And in any event, they add, there is no reason to believe that the court would both decide to review the dispute and reverse the lower court’s judgment – a key criterion in deciding whether to put a lower court’s ruling on hold. The challengers conclude by pleading with the court not to “countenance Texas’s attempts to introduce further delay and multiply the proceedings in this Court in an attempt to run out the clock.”

See here for the background, and here for the plaintiffs’ filing. Plaintiffs also went and filed some proposed remedial maps, which is what we would have been talking about in this case had Justice Alito not called a timeout. Michael Li has links to those maps. There was also supposed to be a response to the same ruling from the State House case as well, but I have not seen any reporting on it. In any event, the expectation seems to be that a ruling from the full Court will come next week or so. Let’s hope we can get this show on the road. The Statesman and KUHF have more.

State House map paused as well

Not a surprise, given the previous order.

A lower court ruling that invalidated parts of the Texas House state map has been temporarily blocked by the U.S. Supreme Court.

Responding swiftly to an appeal by Texas Attorney General Ken Paxton, Justice Samuel Alito on Thursday signed an order to put on hold a three-judge panel’s unanimous ruling that nine Texas legislative districts needed to be redrawn because lawmakers intentionally discriminated against minorities in crafting them. Alito directed the minority rights groups suing the state to file a response to the state’s appeal by Sept. 7.

The lower court’s ruling could affect nine House districts across Dallas, Nueces, Bell and Tarrant counties. But adjusting those boundaries could have a ripple effect on neighboring districts.

The move comes days after Alito also temporarily put on hold a lower court ruling that invalidated two of Texas’ 36 congressional districts and instructed the minority rights group suing the state to file a response to the state’s appeal of that ruling. Responses from the state’s legal foes on that map are due Tuesday.

See here for the background. We are in wait-and-see mode right now. The same variables – which maps do we use, and when will the primaries be – remain in question. If we don’t have a definitive answer to #1 by the end of October, the answer to #2 will not be “March”. Stay tuned.

SCOTUS puts a pause on the Congressional redistricting ruling

Hopefully, just a temporary one.

The U.S. Supreme Court on Monday put on hold a lower court ruling that invalidated two of Texas’ 36 congressional districts.

In an order signed by Justice Samuel Alito, the high court indicated it wanted to hear from the minority groups suing the state before the state’s appeal of that ruling moves forward. The high court ordered the state’s legal foes to file a response by Sept. 5 to the state’s efforts to keep congressional district boundaries intact for the 2018 elections.

[…]

Texas and the minority rights groups suing the state were scheduled to return to court in San Antonio on Sept. 5 to fight over a new map. On Monday, the San Antonio three-judge panel advised that the Supreme Court’s order did not prohibit the state and minority groups from “voluntarily exchanging” proposed fixes. A clerk indicated the court would confirm on Tuesday whether the hearing would move forward.

Separately, Texas is defending its state House map, which the same San Antonio panel partially invalidated last week because of intentional discrimination behind the crafting of several legislative districts.

The court had indicated that lawmakers should be prepared to also meet on Sept. 6 to consider changes to the state House map. But Paxton also plans to appeal that ruling, which said nine districts must be redrawn.

See here, here, and here for some background. Assuming those hearings do go forward, I’ll be very interested to see what the state brings to them. Their contention is that the 2013 maps were just fine, so it might undermine that position to propose an alternative, even if under the gun. The plaintiffs have already put forward a variety of maps, it’s more a matter of what they narrow it all down to for them. As for the SCOTUS order, Rick Hasen says not to read too much into it, so I will continue to worry about other thing instead. Stay tuned.

Will we have maps in time for March primaries?

Maybe. It’s up to the courts.

State officials insisted Friday they expect to stop the court challenges on appeal, and reverse Texas’ losing streak on the voting-rights lawsuits, legal experts predicted Texas could end up back under federal supervisions of its elections rules if the appeals fail.

In short, the court fight is shaping up as a political game of chicken, with significant consequences no matter how it turns out.

“In both of the cases where there are new decisions, the courts have ruled that Texas has purposefully maintained ‘intentional discrimination’ in the way it drew its maps,” said Michael Li, an expert on Texas redistricting who is senior counsel with the Brennan Center for Justice at New York University.

“That’s an important finding that could result in Texas being placed back under pre-clearance coverage. Based on that, there may be a good chance that could happen.”

[…]

On Friday, Paxton asked the Supreme Court to overturn the lower-court decision on Texas’ congressional maps. “We are confident that the Supreme Court will allow Texas to continue to use the maps used in the last three election cycles,” he said.

Even so, until that appeal is decided, “we don’t expect or anticipate any delay in the Texas election schedule,” said Marc Rylander, Paxton’s communications director.

Li and other legal experts are not so sure.

First, an appeal to the U.S. Supreme Court to overturn Thursday’s ruling by the three-judge panel will almost certainly not be decided until after the filing period in November and December for House seats is over.

And if appellate court rulings in other cases go against the state, the schedule could be upended by court orders to redraw political boundaries for candidates running in those elections. And any boundary changes to benefit blacks and Hispanics could mean gains for Democrats, who those groups traditionally vote for.

“There’s a good chance that, given the way these cases stand with the courts, that the primary election schedule could be affected,” Li said.

The state had previously announced its intention to appeal the Congressional map; you can see a copy of their brief here. I presume an appeal of the State House ruling will ensue. As far as next year’s primaries go, basically one of two things will happen. Either SCOTUS will step in and say that the current maps will remain in place until the appeals process has played out, or it won’t. In that case, new maps need to be drawn. The court will have hearings right after Labor Day to determine a schedule for hearings and whatnot in the event there is no halt from SCOTUS and Greg Abbott declines to call a special session and have the Lege draw compliant maps. Whether it’s the court (most likely) or the Lege, it needs to be done by roughly the end of October so election officials can provide maps and files to county party chairs and interested candidates in time for the normal November-December filing period. There are people who are going to make run/don’t run decisions based on what those maps look like. There’s a decent chance we wind up with later primaries next year – perhaps May, as we had in 2012 – but it’s not certain yet. We should be in a better position to know by the end of the first week of September.

Texas appeals voter ID ruling

On to the next phase.

Still the only voter ID anyone should need

As promised, Attorney General Ken Paxton appealed what he called an “outrageous” federal court decision tossing out the state’s new voter ID law.

In a 25-page filing to the U.S. Court of Appeals for the Fifth Circuit Friday, the Republican attorney general argued the state complied with the court’s call to fix to the state’s voter ID law, which the court found to be discriminatory. But the a U.S. district court judge out of Corpus Christi on Wednesday struck down the law anyway, issuing an injunction permanently barring implementation of the law.

Texas lawmakers passed Senate Bill 5 this year as a remedy after the state’s last voter ID law got tied up in the courts and caused last-minute procedures for people to vote in the 2018 election and a directive lawmakers fix the law this year.

“Texas complied with all the changes to the voter ID law requested by the 5th Circuit, which should reverse the district court’s misguided ruling,” Paxton said in a statement. “Voter ID guarantees to Texas voters the opportunity to cast an in-person ballot and protects the integrity of our elections.”

See here for the background, and here for the press release and filings from the AG’s office. Paxton is also asking the district court for a stay on the ruling pending appeal. I’m sure that won’t be granted, but it’s possible the Fifth Circuit could do that. In the meantime, there’s the question about putting Texas back under preclearance, which could be a game changer.

Kristen Clarke, the president and executive director of the Lawyers’ Committee for Civil Rights Under Law, one of several groups challenging the law, wrote in an email that Wednesday’s ruling was especially powerful because Ramos did not even attempt to craft a remedial solution, such as a softened ID requirement. Recognizing the overwhelming taint of racial animus, Ramos simply struck the whole thing down. “Judge Ramos’ decision,” Clarke explained, “recognizes that a state cannot escape the consequences of its pernicious conduct without completely eliminating all vestiges of discrimination.” Put differently, Texas is effectively barred from imposing new voter ID rules for the foreseeable future.

[…]

Of course, the Supreme Court’s conservative majority could always intervene and prevent Texas from falling under preclearance by reversing Ramos. But such a decision would contradict the court’s own reasoning in Shelby County. Writing for the court, Chief Justice John Roberts explained that Congress’ preclearance formula was unconstitutional because it was obsolete, chiefly because it relied on old historical patterns rather than contemporary evidence. Ramos, in contrast, has now spent more than three years collecting and analyzing evidence that the Texas legislature purposely suppressed minorities’ right to vote. Her first 147-page opinion overflows with facts, statements, and data establishing that the Texas legislature intentionally discriminated against black and Latino voters—not only in the past, but also this decade, starting in 2011. Her follow-up opinions added further proof that the state is systematically suppressing minority votes.

If Roberts rejects Ramos’ judgment, he will have essentially acknowledged that Shelby County’s rationale was pure pretext. In his majority opinion he demanded evidence that racism is still alive in Southern statehouses; now he has it.

I wouldn’t put it past Justice Roberts to overrule Judge Ramos, but he will have to work for it. Remember, this is not the only possible cause for a return to preclearance. And also remember, preclearance doesn’t necessarily mean the Justice Department gets to be the arbiter of legality. The court could give that responsibility to the DC Circuit Court, which you may recall denied preclearance to both the voter ID law and the redistricting plans back in 2011. There’s a real chance the state has put itself in a box, one of its own making. Any restrictions that do get imposed will have been richly earned. The Observer has more.

Court throws out State House map

Once more, with feeling.

Parts of the Texas House map must be redrawn ahead of the 2018 elections because lawmakers intentionally discriminated against minorities in crafting several legislative districts, federal judges ruled on Thursday.

A three-judge panel in San Antonio unanimously ruled that Texas must address violations that could affect the configuration of House districts in four counties, where lawmakers diluted the strength of voters of color. In some cases, the court found mapdrawers intentionally undercut minority voting power “to ensure Anglo control” of legislative districts.

These are the nine districts the court flagged:

  • Dallas County’s HD 103, represented by Democrat Rafael Anchia, HD 104, represented by Democrat Roberto Alonzo and HD 105, represented by Republican Rodney Anderson
  • Nueces County’s HD 32, represented by Republican Todd Hunter, and HD 34, represented by Democrat Abel Herrero
  • Bell County’s HD 54, represented by Republican Scott Cosper, and HD 55, represented by Republican Hugh Shine
  • Tarrant County’s HD 90, represented by Democrat Ramon Romero, and HD 93 represented by Matt Krause.

Adjusting those boundaries could have a ripple effect on other races.

[…]

In both the congressional and state House rulings, the court ordered Attorney General Ken Paxton to signal whether the Legislature would take up redistricting to fix violations in the maps.

But so far, state leaders have signaled they have no appetite to call lawmakers back to Austin over mapmaking. Instead, Texas is looking to the U.S. Supreme Court to keep its political boundaries intact.

“The judges held that maps they themselves adopted violate the law,” Paxton said in a Thursday statement. “Needless to say, we will appeal.”

Meanwhile, the state and the parties that sued over the congressional districts are scheduled to return to court on Sept. 5 to begin redrawing the congressional map. In its Thursday ruling, the court indicated they should be prepared to also meet on Sept. 6 to consider changes to the state House map.

“Today’s ruling once again found that Texas racially gerrymandered its voting districts and used Latino voters as pawns in doing so,” said Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund, who is representing plaintiffs in the case. “With the 2018 election cycle fast approaching, it’s time for Texas to stop discriminating against Latino voters and agree to a remedy that will provide equal opportunity to all.”

It was just over a week ago that the same court invalidated the Congressional map, also calling it intentionally discriminatory. Add in the voter ID ruling and you’ve got three such judgments in a span of eight days; you can also toss in the ruling on interpreters for a four-game losing streak for the state. Don’t forget the Pasadena case, too – it’s not the state, but it is another intentional-discrimination opinion. Maybe this will all add up to enough to convince Chief Justice Roberts to change his mind about the state of voting rights and the need to protect communities of color.

Or not. I wouldn’t hold my breath. Be that as it may, this ruling could have an effect on the effort by wingnuts to oust House Speaker Joe Straus. RG Ratcliffe explains.

The court found that in Nueces County, the district maps discriminated in the placement of minority voters in a way that favored the re-election of Representative Todd Hunter, a key Straus Republican ally and chairman of the House committee that sets bills for debate on the daily calendar. To make his district safe, the court said Hispanic voters were packed into the district of Representative Abel Herrero, a Democrat. Redrawing the districts won’t automatically guarantee Hunter’s defeat, but it will make it more difficult for him to win re-election.

The court also ruled that the Legislature intentionally split a minority community in Killeen to guarantee the election of two white Republicans in Districts 54 and 55, Scott Cosper of Killeen and Hugh Shine of Temple. Both have backed Straus in the past. Putting the minority community in Killeen back together probably endangers Cosper’s re-election, and may put a Democrat in that rural district. Either way, this likely is a wash in the politics of electing the next speaker.

In Dallas and Tarrant counties, the court ruling likely would help Straus win re-election. In declaring that five districts in those two counties discriminated against minorities, the most likely losers in any redrawing of the district maps will be Republican Representatives Rodney Anderson of Irving and Matt Krause of Fort Worth. Anderson was among nineteen House members who voted against Straus in one election for speaker, and Krause is a member of the Freedom Caucus, which has been trying to force a speaker vote in the caucus instead of on the House floor, where Democrats also have a say.

Anderson barely squeaked by in 2016, in a district that was ever so slightly bluer than HD107, which flipped to the Dems. He was going to be a target no matter what. The ripple effect in Dallas could be very interesting. And of course, anything that puts jerks like Krause in jeopardy is a good thing. We’ll know if and when SCOTUS intervenes if a second special session will be forthcoming. A statement from MALC is here, and Michael Li, the Chron, the DMN, Rick Hasen, the HuffPost, and the Lone Star Project have more.

Voter ID law thrown out

Fantastic.

Still the only voter ID anyone should need

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

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

[…]

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

Ramos agreed in her ruling Wednesday.

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

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

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

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

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

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

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

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

We could get a special session on redistricting

At least, that’s what State Sen. Dawn Buckingham thinks.

Sen. Dawn Buckingham

State Sen. Dawn Buckingham, R-Lakeway, expects the Legislature to be called back for another special session — this time to tackle the state’s congressional map.

Monday evening at the Central Texas Tea Party’s monthly meeting, Buckingham discussed federal judges invalidating two Texas congressional districts and the recently concluded special legislative session.

[…]

Whether Gov. Greg Abbott calls another special session hinges on the U.S. Supreme Court’s ruling, Buckingham said.

If the nation’s highest court upholds the lower ruling then the Legislature will be back to address the map, the senator added. And it’s a very sensitive issue, too, she said.

“When you touch one, it touches the line next to it and it touches the line next to it,” Buckingham said. “You’re touching a lot of lines when you’re doing that.”

On top of the congressional districts, Buckingham thinks state House districts will get swept into a possible redrawing. Legal challenges to the state House map were not addressed by the federal judges, the Tribune reported.

“I’m guessing we’re heading back for that,” the first-term senator said, adding it’s up to Abbott to call a special session and what lawmakers will legislate. “He’s in charge of specials. He can call them when he wants them.”

See here and here for the background. The three-judge panel has denied the state’s motion to stay its ruling pending appeal, so if SCOTUS declines to intervene at this time then we are getting new maps, whether Lege-drawn or court-drawn. I don’t know how much of what Buckingham says is based on speculation, but this scenario makes sense, especially if the State House map is thrown out as well. All eyes on SCOTUS, y’all. Via Bud Kennedy on Facebook.

Texas to appeal redistricting ruling

Here we go.

If Gov. Greg Abbott calls a second special legislative session this summer, it won’t be for redistricting.

Texas Attorney General Ken Paxton revealed Friday that Abbott won’t ask lawmakers to redraw the state’s congressional map — found by a federal court this week to discriminate against Latino and black voters — in a fresh round of legislative overtime.

Instead, Paxton is appealing the ruling to the U.S. Supreme Court and trying to keep the boundaries intact for the 2018 elections, according to his filings to a panel of three judges in San Antonio.

[…]

In his filings Friday, Paxton revealed a state plan to wriggle free of any consequences ahead of the 2018 elections. While asking the Supreme Court to overturn the lower court’s ruling that Texas intentionally discriminated against minority voters — the fourth such federal ruling this year — Paxton also requested an injunction that would protect Texas from needing a new map.

Barring a Supreme Court order, the San Antonio judges would approve new boundaries.

“Judges should get out of the business of drawing maps,” Paxton said in a statement. “We firmly believe that the maps Texas used in the last three election cycles are lawful, and we will aggressively defend the maps on all fronts.”

See here for the background. The state is playing for all the marbles here – if they don’t get a stay, and Rick Hasen thinks SCOTUS may not care to get involved at this time, then it will indeed being judges drawing the maps. The upside for the state is they get to keep the current maps, and then maybe get the discriminatory intent ruling(s) overturned down the line. The downside is judge-drawn maps, possibly delayed primaries for this year, and a return engagement with preclearance, which could extend into the next Presidential administration. No big deal, right? I’m sure the plaintiffs will contest the motion for a stay, so now we wait and see what SCOTUS chooses to do. In the meantime, assuming SCOTUS hasn’t put up a stop sign before then, everyone heads back to court on September 5 to fight over what new maps should look like. Michael Li and the DMN have more.

(On a side note, Li quotes from the state’s motion in which they say one reason why they will not call a special session to consider drawing new maps is because there wouldn’t be time to “hold protracted hearings involving interest groups”. Which is pretty frigging funny considering that they didn’t bother holding any hearings when they drew the current maps. Do you think Ken Paxton ever had shame, or do you think he had it surgically removed at some point?)

Houston city employees file their own lawsuit (again) on spousal benefits

A shame it’s had to come to this, but this is where we are.

On Thursday, three married couples from Houston filed a lawsuit in federal court aimed at forcing the city to preserve health coverage and other benefits for same-sex spouses of city employees. That’s because, despite the Supreme Court’s 2015 decision in Obergefell v. Hodges, which affirmed same-sex marriage nationwide, the Texas Supreme Court this summer opted for something more like marriage equality-lite, ruling that same-sex spouses of government employees in Texas aren’t guaranteed the actual benefits of marriage such as dental, health or life insurance.

Kenneth Upton is a Dallas lawyer and senior counsel with the LGBT rights group Lambda Legal, which is representing the married couples that filed Thursday’s lawsuit. He says it’s become clear Texas state courts have no intention of upholding marriage equality.

“I don’t know a judge in the Southern District of Texas that’s going to thumb their nose at both the Fifth Circuit and the Supreme Court,” he told the Observer on Thursday. “We need to be in federal court, because that’s who’s going to follow the law.”

[…]

Upton says the Texas courts’ handling of marriage equality post-Obergefell has been “an almost Alice in Wonderland kind of scenario,” which is why Lambda Legal wants to move the issue to the federal courts. “What makes it so offensive is there’s no question what the law is.”

One of Upton’s clients is a Houston police officer. “She puts her life on the line for the city and the people who live there every day,” he said. Were she to die in the line of duty, Upton said, “her surviving spouse would be treated differently than that of a straight officer, and that’s just offensive.”

See here and here for the recent background. The Associated Press adds some details:

Alan Bernstein, a spokesman for Houston Mayor Sylvester Turner, said in a statement the city, as does the state of Texas, offers employees coverage for all legally married spouses without regard to sex.

“As Mayor Sylvester Turner said in June, ‘The city of Houston will continue to be an inclusive city that respects the legal marriages of all employees. Marriage equality is the law of the land, and everyone is entitled to the full benefits of marriage, regardless of the gender of their spouse,'” Bernstein said.

But the mayor might not have a choice if ordered by a judge to stop paying them, Upton said.

“The city is caught in the middle,” he said.

Upton said he expects the Harris County civil court judge will grant the motion for an injunction blocking the payment of benefits because the judge has granted similar requests twice before.

Also named in Thursday’s lawsuit are the two Houston residents who initially filed the lawsuit in 2013 asking that the city stop paying such benefits and who were backed by a coalition of religious and socially conservative groups.

See here for more on the original lawsuit, here for the Lambda Legal overview of the case, and here for a copy of the complaint. This bit, from Section VI on the Current Litigation, explains where we are and why this lawsuit needed to be filed:

52. The Texas Supreme Court has not yet issued its mandate returning jurisdiction to the state district court. Nonetheless, the Taxpayers prematurely filed an Amended Petition and Brief seeking a new preliminary injunction against the Mayor and the City to prohibit them from continuing benefits to same-sex spouses of employees, including the Plaintiffs. The filing also shows the Taxpayers will request an order requiring the City to claw back benefits previously paid for spousal coverage to same-sex spouses of City employees, including Plaintiffs.

53. Barring the filing of a petition for rehearing by the City or a stay granted pending a petition for certiorari to the United States Supreme Court, the Texas Court’s mandate will vest jurisdiction back in the trial court as early as August 17, 2017, at which time there is a substantial likelihood the state district court will issue another temporary injunction—the third one issued by that court—ordering the City to withdraw, and even claw back (i.e., demand immediate reimbursement from the employees), spousal benefits from the City Employees and their Spouses without further notice.

Both of the previous injunctions were overturned by federal court order. That’s the goal here, to prevent or knock down another such injunction. Please note that the state court lawsuit was filed in the 310th Family District Court, presided over by Judge Lisa Millard, the granter of those injunctions. Judge Millard is up for election next year, and Democrat Sonya Heath has filed to run against her; Heath does not currently have a primary opponent. Elections have consequences, and that will be your opportunity to create some. The Dallas Voice has more.

Paxton joins defense of Wisconsin partisan gerrymandering

Of course he does.

Best mugshot ever

Texas Attorney General Ken Paxton is backing Wisconsin in a high-profile case asking the U.S. Supreme Court whether lawmakers can go too far when drawing political maps to advantage one party.

Paxton, a Republican, filed an amicus brief seeking to protect the status quo in political gerrymandering — redistricting maneuvers that allow controlling parties to bolster their majorities in state Legislatures and Congress even when statewide demographics shift against them.

“Never has the U.S. Supreme Court disallowed a legislative map because of partisan gerrymandering, and it surely can’t find fault with Wisconsin’s, which is lawful, constitutional and follows traditional redistricting principles,” Paxton said in a statement Tuesday.

[…]

It’s unclear how the Wisconsin case could directly affect the pending case in Texas, because of the different timelines and arguments being made. And the Supreme Court must also decide whether it has the jurisdiction to rule in the Wisconsin case, a question it left open in accepting the challenge.

But if the high court ultimately establishes a new limit on the role politics can play in redistricting, it would almost certainly affect map-drawing in Texas going forward and give opponents of Texas’ current maps a new avenue to challenge them.

See here for some background, and here for the Paxton brief. It’s unlikely this case will affect the current one, at least at this time, but it could make a difference of some kind down the line. At this point, anything that legally restricts gerrymandering will hinder the Republicans, though of course some day the shoe may be on the other foot. But for now, the reason why Paxton would want to pitch in is obvious.

How the redistricting case could play out

Michael Li games out how the Texas redistricting litigation may go from the anticipated court ruling to final resolution.

So, in short, Texans could end up with a new set of maps (drawn by the Texas Legislature or drawn by the court or drawn by the legislature and then tweaked/modified by the court). Or the whole process could be put on hold [until] the Supreme Court rules on whether there are underlying violations that require redrawing of the maps.

In any event, maps may not be final until early 2018. That would mean, at a minimum, that candidate filing deadlines for state house and congressional races will be moved (and potentially much angst for those thinking about running for those offices). Depending on how long it takes for the Supreme Court to rule, it is possible that the entire March 2018 Texas primary might have to be moved or, in the alternative, that the primary might be held in two parts – one part for congressional and state house races and one part for everything else).

I jumped ahead to the conclusion in Li’s piece. Go read the whole thing to see how he arrived there. Along the way, he cited this Upshot post about possible outcomes in the Congressional map.

Texas’ defense seems simple. How could it have discriminated in adopting a court-drawn map? The problem: Two of the districts found to be in violation in the April ruling were unchanged on the court-drawn map.

Short of victory, the best case for Texas Republicans might be a ruling confined to those two districts. It would probably cost them one seat in the Austin area, most likely the one belonging to Roger Williams.

But the challenge is far wider.

A third district was found to be in violation in April; it was altered on the temporary map, but only slightly. That district belongs to Will Hurd, already one of the most vulnerable Republicans in the country. He won both of his elections by the margin of the high-turnout Republican suburbs of San Antonio, which were said to dilute the power of the district’s low-turnout Hispanic majority. Without those high-turnout Republican suburbs, Mr. Hurd’s re-election chances would look bleak, especially in what is already shaping up as a tough year for Republicans.

The April decision also left open the possibility that Texas might be required to draw an additional minority opportunity district — where the goal is to give racial or ethnic minorities the sway to elect the candidate of their choice — in the Dallas-Fort Worth area. If that happened, a Republican seat would need to be sacrificed here as well, most likely Joe Barton or Kenny Marchant, or perhaps the district held by Sam Johnson, who is not going to seek re-election.

What would “Armageddon” look like? Well, the likeliest version is the possibility that such changes to a few districts ripple across the map, endangering additional Republican incumbents.

The “Armageddon” scenario was reported on by the Trib in late May, which I blogged about here. The worst case scenario for the Republicans is a loss of six, maybe even seven, seats. That’s unlikely, but the low end is two seats, and that may not be much more probable. We won’t know what the scope may be for a few more weeks, when the court’s ruling comes down, and we may not know for certain until January or February. If you thought the 2012 primaries were fun, just you wait for 2018.

Redistricting trial wraps up

Now we wait.

The state of Texas faced a healthy dose of judicial skepticism on Saturday as its lawyers laid out final arguments in a trial over whether lawmakers intentionally discriminated against minority voters in enacting current Texas House and Congressional district maps.

A three-judge panel peppered lawyers from Texas Attorney General Ken Paxton’s office with questions that suggested they were having trouble swallowing the state’s defense of its maps, premised on the argument that lawmakers were merely following court orders in creating them.

The state Legislature adopted the maps in 2013 in an effort to half further legal challenges that began in 2011.

In the final hours of six days of hearings, U.S. District Judge Xavier Rodriguez said he saw “nothing in the record,” to suggest the 2013 Legislature, before approving the boundaries, considered fixing voting rights violations flagged by another federal court identified ahead of time.

He and another district judge, Orlando Garcia, also criticized the state’s unwillingness to offer documents and testimony that might shine a light on lawmakers’ intentions. State lawyers kept such evidence out of court throughout the trial by claiming “legislative privilege,” which allows lawmakers to keep secret their communications on policy along with their “thoughts and mental impressions.”

The plaintiffs “get no documents, because you invoke legislative privilege. They get no testimony because of legislative privilege,” said Rodriguez, a George W. Bush-appointee. “How else are they going to get it?”

[…]

It’s not clear when the judges might rule, but they said they wanted to avoid affecting the 2018 elections which could be pushed back if new maps are not approved in time.

There’s a lot more, so go read the rest. Michael Li notes that however quickly (or not) the judges may rule, there will still be appeals. Lord only knows when we may have a final map – the possibility that primaries will be delayed, as was the case in 2012, cannot be overlooked. Li also rebuts the argument that it’s just not possible to draw additional minority districts.

Consider, for example, the configuration of Dallas-Fort Worth area congressional districts in Plan C286, the demonstration map drawn by Harvard professor Stephen Ansolabehere and offered at trial by the Rodriguez plaintiffs.

Under Plan C286, TX-24 would become a coalition district with a citizen voting age population that is 36.1% Latino, 18.7% African American, and 5.8% Asian (mostly of Indian and Pakistani descent).

The district largely overlaps the Dallas County commissioner district currently represented by Elba Garcia and like that district would in all likelihood elect the Latino preferred candidate in the Democratic primary, although a candidate supported by a cross-ethnic coalition could also win. But, regardless, in the general election, the minority preferred candidate would win overwhelmingly virtually every time.

Compared to the 1991 version of TX-30, Plan C286′s TX-24 is much more compact and confined wholly to western Dallas County.

More importantly, unlike minority districts that in the past drew criticism for splitting cities and towns, TX-24 in Plan C286 keeps the cities of Irving, Grand Prairie, and Farmers Branch intact, joining them seamlessly to heavily Latino parts of the adjacent City of Dallas. (TX-33 a coalition district in neighboring Tarrant County, likewise, closely tracks municipal boundaries).

Li has a couple of maps from the demonstration plans to illustrate his point. Indeed, he says, you have to divide up cities to avoid the creation of minority districts nowadays. There were multiple maps creating such districts on offer, it’s just a question of whether or not the judges will accept one of them. Hopefully, we’ll know soon enough.

Redistricting trial week begins

This will be the main event of the week.

Eight months ahead of the 2018 primaries, Texas and its legal foes on Monday will kick off a week-long trial that could shake up races across the state.

The state and minority rights groups have been squabbling for six years over new political district boundaries drawn following the 2010 census. As part of a long-winding legal battle, a panel of three federal judges this week will reconvene in a federal courthouse here to consider the validity of the state’s political maps and whether changes should quickly be made to the state’s House and Congressional boundaries ahead of the midterm elections. At issue is whether the current boundaries violate the voting rights of millions of Texans of color.

The showdown comes months after the panel of judges found fault with the state’s 2011 drafts of the political maps. In a pair of rulings this spring, the judges also found that Texas lawmakers intentionally discriminated against minority voters in crafting them.

Those rulings did not require an immediate remedy because the state has been running elections since 2013 under court-drawn maps that were crafted amid an election scramble and later adopted by the Legislature.

But the judges are now turning their attention to the existing boundaries.

There’s an overview of how we got here and what is at stake in that story and also in this Statesman story, which notes the time factor:

Don’t expect immediate gratification. When the trial closes Friday or Saturday, the judges will take the matter under advisement — though a written ruling is expected relatively quickly as the court labors under looming election deadlines.

State officials have advised the court that any new maps would have to be ready by around Oct. 1 to meet deadlines for setting precinct lines and to allow candidate filing for the 2018 primaries to begin, as scheduled, in mid-November. Complicating the timing will be the inevitable appeal that the losing side will make directly to the U.S. Supreme Court.

If new maps are needed, the judges likely will order additional input on how to redraw district boundaries, lawyers said Friday.

The maps in question are the Congressional and State House maps that were implemented in 2013. Those maps in turn are basically identical to the interim maps created in 2011 after preclearance was rejected; the Lege adopted them with a couple of tweaks. The state claims that since the current maps are based on ones that had been drawn by the court, they cannot be discriminatory. The plaintiffs note that the 2013 maps differ only a little from the 2011 maps, which were ruled to be discriminatory, and that many of the problematic elements of the 2011 maps exist in the same form in the 2013 maps. The trial this week is to answer the question whether the existing maps are discriminatory, and if so what should replace them and also should the state be bailed back into preclearance under Section 3 of the Voting Rights Act. This Brennan Center article explains it better than I just did, with more details.

Here’s the Trib Day One story. A couple of highlights:

With Texas becoming less white each day, lawyers for minority rights groups opened their push for new maps by parsing the state’s demographic growth, which shows that the population of eligible white voters has significantly declined since 2010.

When asked by federal district Judge Orlando Garcia how this relates to the 2013 maps, the Mexican American Legislative Caucus’ lawyer, Jose Garza, indicated it was proof that Texans of color don’t have proportional representation under the maps currently in place.

“Even today … minorities are underrepresented when measured against population data and population figures,” Garza said.

MALC also presented an alternative map to demonstrate that the state House boundaries could have been drawn in a way that minimized the slicing of municipalities and created additional “opportunity districts” where minority voters are able to select their preferred candidates.

Creating that type of district was not a legislative priority when the House took on redistricting in 2013; lawmakers only made “cosmetic changes” that didn’t “improve the overall map for minority opportunity,” former state Rep. Trey Martinez Fischer testified before the court.

In 2011, state lawmakers drew legislative and congressional maps following the 2010 census, but they were immediately challenged in court on the basis that they diluted the voting strength of Hispanic and black voters. The court drew interim maps amid an election scramble, and the Legislature in 2013 moved to adopt them.

Martinez Fischer argued that efforts to improve those maps for minority representation were rebuffed by the Republican majority.

“It was almost all upon deaf ears,” Martinez Fischer said.

All the plaintiffs’ briefs for the trial can be found here. The demonstration map mentioned in the story for the State House is H391, and C285 is for Congress, with the former drawn by MALC and the latter by MALC, LULAC, and the Perez plaintiffs. There more of these – go to http://gis1.tlc.state.tx.us/, choose a Shaded Plan, change the Category to All, and scroll down. The last maps listed for each type will be the ones being shown in the trial. Michael Li of the Brennan Center is live-tweeting the trial, so follow along with him for the play-by-play. I’ll do my best to keep up as well.

Supreme Court sends same-sex marriage benefits question back to lower court

Unbelievable.

The Texas Supreme Court on Friday threw out a lower court ruling that said spouses of gay and lesbian public employees are entitled to government-subsidized same-sex marriage benefits. The state’s highest civil court ordered a trial court to reconsider the case.

As part of a case challenging Houston’s benefits policy, the Supreme Court suggested a landmark ruling legalizing same-sex marriage does not fully address the right to marriage benefits. Justice Jeffrey Boyd, writing on behalf of the court in a 24-page opinion, said there’s still room for state courts to explore the “reach and ramifications” of the U.S. Supreme Court’s 2015 ruling in Obergefell v. Hodges.

“We agree with the Mayor [of Houston] that any effort to resolve whether and the extent to which the Constitution requires states or cities to provide tax-funded benefits to same-sex couples without considering Obergefell would simply be erroneous,” Boyd wrote.“On the other hand, we agree… that the Supreme Court did not address and resolve that specific issue in Obergefell.”

[…]

During a March hearing, Douglas Alexander, the lawyer who defended Houston’s benefits policy, told the court that the case was moot under Obergefell’s guarantee that all marriages be equally regarded.

Jonathan Mitchell, the former solicitor general for the state and the lawyer representing opponents of the Houston policy, argued that marriage benefits are not a fundamental right and that Obergefell did not resolve questions surrounding such policies.

On Friday, the Texas Supreme Court agreed with that argument, noting that Obergefell requires states to license and recognize same-sex marriages in the same manner as opposite-sex marriages but did not hold that “states must provide the same publicly funded benefits to all married persons.”

That does not mean Houston can “constitutionally deny benefits to its employees’ same-sex spouses,” the court added, but the issue must now be resolved “in light of Obergefell.”

See here and here for the background, and here for a copy of the opinion. I’m going to let ThinkProgress’ Ian Millhiser speak for me here:

The Texas Supreme Court’s decision does not outright declare that [the plaintiffs] should win this case, but it does keep their suit alive by claiming that Obergefell left open an unresolved question.

“The Supreme Court held in Obergefell that the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages,” according to Justice Jeffrey Boyd’s opinion, “but it did not hold that states must provide the same publicly funded benefits to all married persons.”

Texas’ highest civil court claims, in other words, that despite the Supreme Court’s decision that same-sex couples must be allowed to marry “on the same terms and conditions as opposite-sex couples,” a state may be permitted to give same-sex couples a piece of paper declaring them married while denying them the actual legal benefits of marriage.

After reaching this dubious conclusion, the Texas court plays coy, saying that it is merely sending the case back down to a lower court in order to resolve a supposedly open question. “Of course, that does not mean that the Texas DOMAs are constitutional or that the City may constitutionally deny benefits to its employees’ same-sex spouses,” Justice Boyd writes.

One of the plaintiffs in this case, Boyd continues, “contends that neither the Constitution nor Obergefell requires citizens to support same-sex marriages with their tax dollars, but he has not yet had the opportunity to make his case. And the Mayor has not yet had the opportunity to oppose it. Both are entitled to a full and fair opportunity to litigate their positions on remand.”

Such a decision makes no sense if you understand the Texas Supreme Court as a court that is trying to resolve legal cases in a timely and efficient manner — but it does make perfect sense if you understand its justices as political actors.

The only way one can reach this conclusion is if one believes there is such a thing as “gay marriage” and “straight marriage”, and that the two are fundamentally different, with the former deserving less respect than the latter. The only way to begin down the path towards that conclusion is to start from a point of antipathy towards same-sex couples, and more broadly towards LGBTQ people. This is exactly what the SCOTUS decision in Obergefell addressed. Everything about this is so much sophist bullshit. It’s wrong, it’s completely out of touch with public opinion, and it’s shameful in a way that I have a hard time finding words for. Mayor Turner’s statement, which reaffirms the city’s commitment to marriage equality, is here, and the Chron, the Statesman, the Current, the Press, Daily Kos, and the DMN have more.

Another look at redistricting in Texas

We’re in the spotlight right now.

The odd shapes tell the story.

A huge Republican majority in the Houston-area 2nd congressional district represented by Ted Poe curls around the region from Lake Houston, northeast of the city, makes a meandering, snakelike loop out to the western suburbs, and ends south of downtown near Loop 610.

Nearby, the 29th congressional district has a big Democratic majority and is represented by Gene Green. It resembles a partially-eaten doughnut, forming an undulating shape from north to east to south.

Like virtually all 36 congressional districts in Texas – Republican Will Hurd’s West Texas district being the only exception – neither Poe’s nor Green’s district is particularly competitive in general elections.

The political art of drawing boundaries to protect incumbents is called gerrymandering – a word derived from salamanders, lizard-like creatures known for their slender bodies and short limbs. The whole idea behind the practice is to carve up the political map for partisan advantage.

It happens everywhere, and has been the subject of legal challenges for years.

And now the U.S. Supreme Court has signaled it may take a fresh look in a Wisconsin redistricting case that has the potential to fundamentally alter the political landscape from Texas to Washington, D.C.

[…]

“Clearly the Texas congressional map, and the state House map and state Senate map, are partisanly gerrymandered, and they are way out of balance with the political performance of the state,” said Matt Angle, head of the Lone Star Project, which seeks to make Democratic gains in Texas.

Some Republicans downplay the significance of the Wisconsin case, saying that they believe Texas’ political boundaries are already fair and, most importantly, legal.

“Unless the court does some serious overreach, we shouldn’t be facing needing to redraw those lines at all,” said James Dickey, the newly-elected chairman of the Texas Republican Party.

The problem for Texas Republicans is that the state’s congressional district boundaries already are under legal challenge over alleged racial discrimination for the way minorities were packed into a limited number of urban districts.

Some of the boundaries drawn in 2011 already have been ruled intentionally discriminatory, and a federal court is set to hear a challenge next month on a new map drawn in 2013.

Unlike the Texas challenge, which focuses in the racial makeup of political districts, the legal fight in Wisconsin is over the partisan makeup of the state’s boundaries, which also favor Republicans.

But the two criteria are closely related. “If you correct for the racial discrimination in Texas, you go a long way toward balancing the partisan makeup of these districts,” Angle said.

[…]

In Texas, Angle argues, “There’s no question what’s happened is you’ve got safe districts created, Democrats packed into as few districts as possible, and the rest of them cracked into as many safe Republican districts as possible, and what that’s done is it’s made the primaries matter the most, and primaries are driven by the most ideological people within their party.”

In the Wisconsin case, Gill v. Whitford, the court will be asked to look at the allegedly skewed results of the state’s recent elections. In 2012, Republicans won 60 of 99 legislative seats despite winning only 48.6 percent of the state’s two-party statewide vote. In 2014, Republicans won 63 seats with only 52 percent of the statewide vote.

Texas Democrats say they could make the same case. While Democratic presidential candidates won more than 40 percent of the statewide vote in the past three elections, Democratic voters were distributed in such a way that their party controls only about a third of the state’s legislative and congressional seats.

Critics call that an “efficiency gap,” which can only be explained by partisan gerrymandering. Now before the high court, they hope to find a way to close the gap.

“This is a historic opportunity to address one of the biggest problems in our electoral system,” said Wendy Weiser of the Brennan Center for Justice, a left-leaning law and public policy institute at the New York University School of Law. “Gerrymandering has become so aggressive, extreme and effective that there is an urgent need for the Supreme Court to step in and set boundaries.”

Conservative groups argue that there is no way to estimate what each party “should” win in a fair election. The redistricting tests that have been proposed to close the “efficiency gap” in Wisconsin, they say, are arbitrary.

See here for more on the Wisconsin case, which will not affect the ongoing Texas litigation at this time. Poe’s district is certainly a Republican one, and for most of this decade it was deep red, but after a significant Democratic shift in 2016, it’s still very favorable to Republicans but not overwhelmingly so. Given the overall trends in Harris County, I suspect that the fate of CD02 in the 2021 redistricting cycle will be to take on a piece of Montgomery County in order to keep it sufficiently Republican, much as Pete Sessions’ CD32 needed to incorporate some of Collin County in 2011 to stay red.

It’s really hard to say what will happen going forward. Between the Texas case and the Wisconsin and North Carolina cases, the range of outcomes stretches from “no real difference” to multiple seats flipping this year with fewer ways for the Republicans to put their thumb on the scale in 2021. As I’ve noted before, Texas isn’t all that out of whack in terms of how many seats each party wins, but Republicans have gained a huge advantage in multiple swing states thanks to having gained control of those states’ legislatures in 2010. SCOTUS could put a stop to that going forward, or they could just apply a remedy to Texas for its own brand of egregious gerrymandering, or they could shrug their shoulders and decline to get involved. We’ll just have to wait and see.