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Paxton goes after DACA

I have no words.

Best mugshot ever

Texas Attorney General Ken Paxton and officials from nine other states on Thursday urged the Trump administration to end an Obama-era program that’s allowed hundreds of thousands of undocumented immigrants to live and work in the country without fear of being deported.

In a letter to U.S. Attorney General Jeff Sessions, Paxton urged the White House to rescind the 2012 Deferred Action for Childhood Arrivals, or DACA, program. DACA applies to undocumented immigrants that came to the country before they were 16 years old and were 30 or younger as of June 2012. It awards recipients a renewable, two-year work permit and a reprieve from deportation proceedings.

As of August 2016, more than 220,000 undocumented immigrants in Texas had applied for a permit or a renewal of one under the program, and nearly 200,000 of those have been approved, according to government statistics. It’s the second-highest total behind California’s estimated 387,000 applications and 359,000 approvals during the same time frame.

“We respectfully request that the Secretary of Homeland Security phase out the DACA program,” Paxton wrote. He was joined by the attorneys general of Arkansas, Alabama, Idaho, Kansas, Louisiana, Nebraska, South Carolina, Tennessee and West Virginia, as well as Idaho Gov. C.L. Otter.

“Specifically, we request that the Secretary of Homeland Security rescind the June 15, 2012 DACA memorandum and order that the Executive Branch will not renew or issue any new DACA or Expanded DACA permits in the future,” Paxton wrote.

[…]

The Mexican American Legal Defense and Educational Fund, or MALDEF, blasted the move and warned the signatories they’ll be remembered for being on the wrong side of history.

“Their evident xenophobia is not remotely consistent with the trajectory of our nation’s history and future progress,” MALDEF president and general counsel Thomas Saenz said in a statement. “Their political careers and each of their states will suffer from their mean-spirited stupidity.”

I don’t even know what to say about this. It’s cruel, it’s stupid, and I can’t think of a meaningful definition of “Christian” that would allow for it. The one sure to be effective thing we can do about this is to elect an Attorney General who won’t pull this crap. Nothing will change until we change who we elect. The Press, the Current, and Daily Kos have more.

Here comes I-14

Don’t hold your breath waiting for it, however. This will take awhile.

Texas is getting a new interstate, as part of a long-term federal transportation bill.

Interstate 14 will be cobbled together mostly from U.S. 190 and other existing roads to create a new freeway from western Texas to the Louisiana border. The Gulf Coast Strategic Highway Coalition, based in Austin, announced the designation Tuesday.

The interstate will take years to build as highway segments must be brought up to freeway standards such as no at-grade intersections and various safety upgrades to allow for higher speeds.

According to the coalition, I-14 will connect Killeen, Belton, Bryan-College Station, Huntsville, Livingston, Woodville and Jasper before terminating at Texas 63 at the Sabine River.

Houston-area drivers would most likely encounter the new interstate where it crosses Interstate 45 in Huntsville, among the most used routes to and from Houston.

[…]

The designation is the first of many steps to convert federal and state highways into I-14. Efforts to turn portions of U.S. 59 into Interstate 69, for example, have taken decades, with many more sections to go.

In many spots, it will take rebuilding and potentially re-routing the highway. Bushell said officials are still working through some of those specifics, including where U.S. 190 currently shares roadway with I-45 northeast of Huntsville.

“Where possible we would want to stay on existing highway footprints but that may not be possible in some places,” Bushell said.

I-14 will go all the way to the Georgia/South Carolina border. Lord only knows how many years it will be before we see even a single I-14 road sign, but someday this new interstate may divert a bit of truck traffic from I-10. Of course, by then I-10 will likely have been widened to the point of being right next to I-14 anyway. Link via Streetsblog, and Paradise in Hell has more.

How should the San Antonio court proceed after SCOTUS rules on Section 5?

That’s what the San Antonio judges in the redistricting case asked the parties to help it figure out.

In its order, the court told parties what has been widely assumed – namely that the panel would “not issue any opinion, if at all, under after the Supreme Court resolves the Section 5 matters.”

However, the court also showed concern for the upcoming Texas election schedule, asking the parties for their opinions on how “the Court would need to proceed under” various alternative section 5 scenarios.

This included asking the parties for ”a realistic time estimate on how long it would take for the Court to complete its task while still leaving sufficient time for local election officials to implement any necessary changes prior to the 2014 election cycle, assuming no postponement of statutory deadlines.”

Among the lengthy list of questions asked by the court are:

  • What further steps would need to take place if section 5 is found to be unconstitutional?
  • If section 5 is upheld but the Texas redistricting case is pending on appeal, would the “Court would be required to issue interim maps for the 2014 elections?”
  • If so, what map would the court use as the benchmark in drawing new interim maps?
  • What would happen if the Supreme Court remanded the preclearance case to the D.C. panel for further proceedings?
  • Under what circumstances would section 2 issues and constitutional claims have to be decided?
  • What additional evidence would be needed to decide those claims? And to the extent could the court rely on findings in the preclearance decision of the D.C. court?

The court asked that the parties’ advisories be filed by March 15, 2013, with any optional responses to other parties’ advisories to be filed by March 25.  The order said the panel would decide whether to hold a status conference after reviewing the parties’ submissions.

A copy of the court’s order can be found here.

Pretty complex stuff. What happens elsewhere after SCOTUS rules, especially if SCOTUS knocks down Section 5, is mighty complicated as well. Rick Hasen pondered this a little while ago.

One possibility is that nothing happens after Section 5 falls and minority voters in covered jurisdictions lose their important bargaining chip. Then, expect to see more brazen partisan gerrymanders, cutbacks in early voting and imposition of tougher voting and registration rules in the formerly covered jurisdictions.

The fight over these rules will be mostly political, not legal. I do not expect many successful constitutional cases or cases under Section 2 of the Voting Rights Act – a different provision which applies nationwide but is harder for plaintiffs to win.

Another possibility, and one which seems fairly likely, is that negative public reaction to the Supreme Court striking down a crown jewel of the civil rights movement creates a political opening for Congress to enact a new piece of voting rights legislation. The GOP may also be eager to support some kind of legislation to blunt the likely fallout from an adverse action from the Roberts Court.

The choice of post-Shelby County legislation threatens to split the civil rights and election reform community over whether any New Voting Rights Act will be race-based – focused on protecting minority voters in particular – or whether the law will be focused on election reform more broadly, though still in ways that could significantly help minority voters.

A race-based reform could try to impose something like Section 5 nationally, though without the requirement that jurisdictions get permission before changing their voting rules. For example, a New Voting Rights Act could give groups challenging a new voting practice anywhere in the country the opportunity to show that the law makes minority voters worse off. It is unclear, at this point, whether such a race-conscious law would survive Supreme Court review after the Shelby County case and the Fisher affirmative action case.

An election reform-based proposal, in contrast, could set national standards for lines at the polls, ensure access to voting, rein in gerrymandering, create a uniform federal ballot design or address other issues, such as modernizing voter registration. If legislation comes, a new national standard seems inevitable. Even if we need a special law for election disaster zones like Florida and Ohio, it is hard to see the political path for Congress to pick a new set of jurisdictions to be subject to special federal control.

Even non-race based reforms could raise potential constitutional problems. This term the Supreme Court is hearing another case, out of Arizona, which raises questions over how much power Congress has over states to set the rules being used in federal elections. In the Arizona case, the specific question is whether Arizona officials must accept a federal voter registration form that does not include citizenship information required by Arizona law.

Hasen reminds us of why we have Section 5 in the first place, so read the whole thing, then go read what Emily Bazelon and Nina Perales have to say about Section 5 as well. It seems abundantly clear to me that Section 5 is still needed, and that if there’s a need for remediation it should be to extend Section 5 to the whole country, not to take it away from the places that brought it on themselves and continue to demonstrate why they can’t be trusted. All I know at this point is that if you were nervous about the Obamacare ruling, you should be nervous about this. The Express News has more.

Texas files suit to preclear voter ID

They’re a mighty busy bunch at the OAG these days.

The only voter ID anyone should need

The only voter ID anyone should need

The Texas attorney general’s office today filed suit against U.S. Attorney General Eric Holder and the Department of Justice to have the state’s controversial voter ID law implemented without further delay.

The law, Senate Bill 14 by state Sen. Troy Fraser, R-Horseshoe Bay, was scheduled to take effect Jan. 1. It requires that voters show a picture ID before casting a ballot. It has been tied up at the Justice Department since July. Under Section 5 of the federal Voting Rights Act, the department reserves the right to review laws that affect voter participation before they are enacted.

“The U.S. Supreme Court has already ruled that voter identification laws are constitutional,” Texas Attorney General Greg Abbott said in a prepared statement. “Texas should be allowed the same authority other states have to protect the integrity of elections. To fast-track that authority, Texas is taking legal action in a D.C. court seeking approval of its voter identification law.”

Abbott’s office said that if the department grants the state’s request for preclearance, it would dismiss the suit.

You can see a copy of the complaint here. As Michael Li notes, the suit “does not challenge the constitutionality of section 5 on a facial basis but does extensively argue that failing to preclear Texas’ voter ID law would raise constitutional concerns, including possible violations of the 10th amendment and the state’s right to equal sovereignty”. The right of any individual to cast a vote is apparently not the State of Texas’ concern.

Rick Hasen delves more deeply into what the state is seeking.

In a recent Slate piece, I explained how South Carolina might file suit—and expedite it to the Supreme Court—arguing that section 5 of the VRA is no longer constitutional because it intrudes on state sovereignty.  (In 2009 the Court strongly hinted that a majority of the Court would take that position unless Congress changed the act, or demonstrated that covered jurisdictions present a greater danger of intentional race discrimination than other states to justify the strong preclearance requirement.  Congress did not act, but needs to.)  As some evidence South Carolina is considering going down that road, they’ve hired Supreme Court ace lawyer Paul Clement.

Today’s filing by Texas takes a slightly different tack.  It offers two ways for courts to preclear the voter identification law without striking down section 5 of the Voting Rights Act.  First, as TPM explains, Texas argues that the VRA’s established “nonretrogression standard” (i.e., are minorities worse off) should not apply outside the context of redistricting.  Second, Texas argues, in multiple ways and across numerous pages, that the Court can avoid the “grave constitutional doubts” raised if section 5 is read to bar Texas’s voter id law by reading section 5 in some narrow way so as to avoid the constitutional problem.   The 2009 case, NAMUDNO, was a very questionable application of the “constitutional avoidance” doctrine, and this looks like an attempt for a repeat performance.

The question is whether the conservative majority on the Court wants to kill the Voting Rights Act outright, or let it die the death of 1,000 cuts.  South Carolina may offer the Court the former, and Texas the latter.

You have to wonder how history will judge some of the things we do this year, and the people who do them.

Anyway. As we know, the Justice Department has been asking the state for data about how this law will affect minority voters, and it’s only in the last couple of weeks that the state has sort of fulfilled those requests. The DOJ refused to preclear a new voter ID law in South Carolina on the grounds that it was discriminatory, with AG Abbott expressing at that time the opinion that Texas’ law was headed for a similar fate. We’ll see what the DC court makes of this. For what it’s worth, they so far have not shown any inclination in the redistricting preclearance lawsuit to be more lenient on the state than Justice would have been. Postcards has more, Texas Redistricting has a response to Abbott from MALC Chair Trey Martinez-Fischer, and a statement from Sen. Rodney Ellis is here.

SOS sends voter registration info to DOJ

Took them long enough, not that I’m complaining.

The only voter ID anyone should need

The only voter ID anyone should need

Two weeks after Texas’ voter ID law was scheduled to go into effect, the measure is back in the U.S. Department of Justice’s hands.

The Texas secretary of state’s office on Thursday submitted its latest batch of data in hopes of satisfying the federal government’s request for proof that the law, SB 14 by state Sen. Troy Fraser, R-Horseshoe Bay, will not disenfranchise minority or lower-income voters. The law, passed during the 82nd Texas Legislature, would require voters to furnish a state-issued ID before casting a ballot.

Under Section 5 of the federal Voting Rights Act, the Justice Department reserves the right to review laws that affect voter participation before they are enacted. The federal government now has 60 days to review the recently submitted information and render a decision.

The rest of the story is a review of how we got here, plus the information that the SOS doesn’t think the data it sent was very reliable. Though the SOS has now finally complied with the DOJ’s request, the state is expecting the law to not be precleared, as was the fate of South Carolina’s law. Assuming that happens, you can expect the whole thing to wind up before the Supreme Court. It’s going to be a long year.

DOJ refuses to preclear South Carolina voter ID law

Good.

The U.S. Department of Justice on Friday rejected as discriminatory a South Carolina law requiring voters to show photo identification at the polls. The action by the department’s civil rights division, coupled with Attorney General Eric Holder’s call 10 days earlier in Austin for more aggressive federal review of such laws, appears to increase the likelihood that the Texas version could meet a similar fate.

Texas Republicans criticized the decision, calling it improper and vowing to defend Texas’ voter ID law.

The Justice Department said the South Carolina law makes it harder for members of minority groups to cast ballots, to the point that tens of thousands of them might be turned away at the polls because they lack the required photo ID. The law requires a state-issued driver’s license or ID card, a U.S. military ID or a U.S. passport.

The Texas law, which was signed by Gov. Rick Perry in May, requires voters to show a valid government-issued photo ID, such as a Texas driver’s license, Department of Public Safety identification card, state concealed handgun license, U.S. military ID or U.S. passport.

Like the South Carolina law, the Texas law needs approval from the Justice Department under the 1965 federal Voting Rights Act. Such “pre-clearance” to ensure that minority political power is not harmed is required in states that failed to protect minority voting rights in the past.

See here for more on Holder’s speech. As Michael Li noted on Twitter, AG Greg Abbott expects Texas’ law to be similarly slam dunked. Part of the reason for that is that in South Carolina, “the state’s own statistics demonstrated that the photo identification requirement would have a much greater impact on non-white residents”. In Texas, the state has been unable to provide sufficient information to the DOJ about the effect its voter ID law would have on minorities. It’s not hard to get the impression that neither of these states, or any of the others that are going down this road, really care about it.

And that’s the point, of course, but for reasons I don’t understand, the issue continues to be portrayed by lazy media outlets as follows:

Supporters of voter ID laws say they are needed to combat voter fraud. Critics say they discriminate against minority and low-income voters, including many such voters who tend to vote Democratic.

Yes, it’s always he-said, she-said. But let’s take a look once again at that “supporters” – that is, Republicans – “say they are needed to combat voter fraud”. Like many other of those “critics”, I have repeatedly pointed out that “supporters” are unable to point to even one case of the kind of fraud that voter ID laws might be able to mitigate against actually taking place. The reason for this is that a moment’s thought clearly demonstrates how ridiculously implausible and impractical a fraud-by-impersonation scheme would be.

Suppose you’re a candidate in a race you believe will be close, and you want to pad your totals a bit to help improve your odds of victory. Let’s use the recent Thibaut-Burks runoff, a race decided by some 250 votes, as an example of the kind of race where you might want to consider cheating in this fashion. From the perspective of either candidate, if you believe the race will be sufficiently close to make cheating attractive, you first have to consider how many extra votes you need. You don’t want to make it too close, since that attracts scrutiny and you might either be off by a little and just miss or barely squeak by and risk losing after provisional votes are counted. For either candidate, I’d say a thousand votes would be the minimum amount to make the effort worthwhile. That’s about two percent of the vote total, so enough to be reasonably sure it will make a difference but not so much as to make anything stand out.

So instead of identifying a thousand legal voters who might vote for you if they dragged themselves to the polls and work on getting them to vote for you, you decide to find a thousand people who can’t vote and give them the forged credentials of a thousand people who can vote but won’t and herd them to the polls to vote for you. These are the people that voter ID laws are supposed to stop, because now in addition to their forged voter registration cards they’d also need to produce a forged driver’s license to commit their crime, and that apparently is a bridge too far for cheating candidates. You also have to choose very carefully the voters that your illegal horde will be impersonating, because if even one of them decides to vote, the existence of their duplicated ballot will be strong evidence that something untoward is going on, and would risk your entire scheme.

Now that you have a plan, you need to execute it. That first means creating all those forged voter registration cards and distributing them to your impersonators. Well, I guess technically you have to locate the impersonators and get them to agree to participate. I don’t think there’s a listing for that in the phone book or on the Internet, but let’s just wave our hands at that and assume that being the resourceful cheating candidate that you are, you can find an army of impostors. The next obstacle you face will be cost. I figure it’ll run you some ten grand to design and produce a thousand fake voter registration cards. Your fake voters need to be paid something, too. Even if they’re too unsophisticated to realize that you are asking them to commit a felony, they need to be compensated for their time. If they agree to work for ten bucks apiece, that’s another ten grand. And of course, you need someone to coordinate all of this – finding the voters, identifying the non-voters they’ll be portraying, producing and distributing the documents, and ensuring that they actually go and vote. I don’t even know how to estimate the cost of all that, but again since the person or persons involved will be risking jail time, you have to figure it starts in five digits. You’re talking a minimum of thirty grand, which would be more than enough to cover the cost of a couple of mail pieces to the voter universe for a city runoff, all without the worry that you’ll someday be carted off in handcuffs. Tell me again why this was a good idea?

Oh, and remember that this all has to be done off the books, or at least in a way that the expenditures look innocent on a campaign finance report. Either way, you’re potentially adding other fraud charges to the list of things you could be arrested for. Now stop and think about all the people who know at least a little something about your illegal activities. Again, even if you assume that none of the thousand illegal voters has any idea they’re doing anything wrong, at the very least you have your illegal vote coordinator and your campaign manager, who presumably has signed off on this even if he or she refrains from doing any of the overt activity, as well as you yourself and perhaps your spouse or significant other. How likely is it that no one involved ever talks about this? Not just to the authorities, but to bloggers and other political lowlifes who traffic in gossip and innuendo and whatnot. There’s an entire right-wing media machine out there that would desperately love (and handsomely compensate) anyone who came forward with even the flimsiest evidence of such a conspiracy to steal an election, and they would trumpet that story 24/7 until everyone involved were arrested, waterboarded, and sent to Gitmo. Yet somehow a single name has never been associated with such a scheme.

This is what those “supporters” of these laws want you to believe is happening and has happened many times in our elections, enough to justify laws that will make it not just harder but downright impossible for legal, habitual voters to do what they’ve always legally done. And the media, which can’t be bothered to think this through, is content to tell you that there are also “critics” who say that voting rights could be compromised. Hey, what’s a little dispute among partisans, right?

Now, I’m not saying there’s no such thing as vote fraud. There certainly is, and there almost certainly is a fair amount of undetected vote fraud. What I am saying is that this particular type of vote fraud, the only type of vote fraud that voter ID legislation could possibly be an effective solution for, is so ludicrously unfeasible on its face as to completely invalidate the argument for it. The proper response to this is to laugh scornfully and ask why, if the Republicans who keep pushing voter ID as a cure for election integrity care so much about safeguarding the process, there is no expressed concern about fraud by absentee ballot, or fraud by compromising electronic voting machines, which after all this time are still basically black boxes. I mean, if I wanted to steal an election, that’s the way I’d go. Figure out a way to alter the bits on the memory sticks, or attack the program that tallies the vote directly. More bang for the buck, far less exposure, and complete control over the outcome. What more could you want? When Republicans turn the conversation to protecting the integrity of our elections on these fronts, then we can talk. Until then, I will continue to call bullshit on voter ID.

Amazon complains to the SEC about Texas trying to collect taxes on it

Poor dears.

Amazon said in a regulatory filing this week that the SEC is looking into its dispute with Texas, which began last year when the Texas comptroller’s office sent Amazon a $269 million assessment for four years of uncollected sales taxes.

“In March 2011, the SEC staff notified us of an inquiry concerning this assessment, and we are cooperating with the staff’s inquiry,” Amazon said in its SEC filing.

The company gave no additional information. An SEC spokeswoman declined to comment on the investigation Friday.

[…]

In an earnings conference call this week, Amazon Chief Financial Officer Tom Szkutak sought to downplay the potential impact if more states put an end to tax-free online sales. He said Amazon generates more than half of its revenue in places where it already collects sales or consumption taxes, including markets outside the U.S.

However, in Amazon’s SEC filing, the company wrote that additional tax obligations “could create administrative burdens for us, put us at a competitive disadvantage if they do not impose similar obligations on all of our online competitors, and decrease our future sales.”

Whatever. If the only reason Amazon is viable is because they have this tax advantage over brick and mortar stores, then they’re not really viable at all. Does anyone believe they’ll go down the drain if they have to pay sales taxes? I don’t either. Quit whining, Amazon.

On a related note, Amazon is pulling out of another state over a sales tax dispute.

On the heels of a legislative vote in South Carolina that rejected Amazon’s plea for a sales tax collection exemption, Amazon said it won’t open a distribution center in the state, a project that included a one-million-square-foot building already under construction and 1,249 jobs.

“As a result of today’s unfortunate House vote, we’ve canceled $52 million in procurement contracts and removed all South Carolina fulfillment center job postings from our (Web) site,” said Paul Misener, Amazon vice president for global public policy, according to a report on The State newspaper website.

[…]

Amazon’s “our way or the highway” strategy suggests Amazon thinks it will easily find other alternatives to fulfil the company’s needs to open more distribution centers to keep those boxes of goods flowing. Maybe so. But it remains to be seen if this is a sustainable strategy, given the fact that Amazon currently doesn’t collect sales taxes in half the U.S. states.

Amazon this week said it plans to open 11 distribution centers, maybe more, as the company tries to keep up with demand from consumers who have flocked to its website looking for deals on books, music and other merchandise.

But Amazon also has played hardball in states where Amazon does not collect sales taxes from those sales. In March Amazon announced it was closing its affiliate program in Illinois, a day after the governor signed a law requiring Amazon and other online retailers to collect sales taxes on goods sold in the state.

Via Dwight. I’ll say it again, this really needs to be resolved at the federal level, and the sooner the better.

CLC gambling update

Today there will be committee hearings on various gambling-related bills. I am reprinting here an email sent by Suzii Paynter of the Christian Life Coalition, which is one of the leading organizations that are fighting the expansion of gambling in Texas, as it has a pretty good summary of what has gone on so far.

Casino Hearing

On Wednesday, April 8, the House Committee on Licensing and Administrative Procedures will hear all the major gambling bills filed in the House this session. There are 16 gambling related bills currently on the notice of hearing which can be found here. This hearing is sure to draw the most vocal gambling proponents from all segments of the casino industry. We think it is important that the committee hear the other side of the argument as well. The CLC will be at the hearing to offer testimony. This is an entirely new committee made up of members who may not know this issue. It is important that they know people out in the state care about the issue and are paying attention. If your representative sits on this committee it would be an excellent time to let them know you oppose the expansion of gambling in Texas. A list of the committee members and their contact information can be found here.

The CLC recently completed a comprehensive newsletter outlining our most important arguments against the expansion of predatory gambling and in support of our current family-friendly economy. You can view the newsletter here (large PDF).

First Gambling Bills Voted Out of Committee

On the same afternoon that the House Licensing and Administrative Procedures Committee announced the agenda for Wednesday’s hearing, they quietly passed out two gambling expansion bills. Both bills now sit in the Calendars committee and await a chance to be considered on the House floor.

The first bill is HB 222, by Rep. Menendez (D-San Antonio). This bill would legalize poker to be played at electronic tables in certain bars, restaurants, horse and dog race tracks and on Indian reservations. The proponents claim that only simple majorities in both the House and Senate are needed to pass this bill. It is the opinion of the CLC, based on previous opinions offered by the Attorney General, that the element of chance inherent in this card game requires a constitutional amendment and the support of 2/3rds of the House and Senate. Additionally, the electronic facsimile of a game of chance makes this a Class III game as described under the Indian Gaming Regulatory Act (IGRA). As other states have experienced, and according to IGRA, the approval of a Class III game in Texas will lead to the expansion of Native American gambling in Texas above and beyond what is contemplated in this bill and in a way that weakens the state’s ability to control further casino expansion.

The second bill is HB 1474 by Rep. Geren (R- Ft. Worth). This bill is meant to be a “clean up” bill to standardize and improve the regulation of Bingo in Texas. However, the bill also greatly increases the number and type of organizations that are eligible to receive a bingo license. The CLC is concerned that bingo in this state is moving far beyond the original public understanding of the game and that the charitable purpose is being watered down. Specifically, during the legislative interim period after last session, the lottery commission approved new bingo games which would allow versions of electronic pull tab bingo as well as a type of Keno. We are concerned that these new games could lead to a rapid expansion of electronic casino-style games. This threat is even more possible with the broadening of organizations eligible to apply for a license stated in HB 1474.

The list of members on the Calendars Committee can be found here. If your representative is member of this committee, let them know that the best way to defeat these bills is to never allow a vote on the House floor.

Indian Gambling Bills Get Hearing

On Monday, March 30, two Native-American casino bills by Rep. Chavez (D-El Paso) were heard in committee. The first bill, HB 1308 was heard in the subcommittee on Criminal Procedure of the Criminal Jurisprudence Committee.

The CLC testified in opposition to this bill. HB 1308 would give a defense to prosecution for Indian tribes that conduct otherwise illegal casino gambling operations. The bill is the exact same piece of legislation which failed to pass the House last session. According to Rep. Chavez and other supporters, the bill would simply allow two tribes, the Tigua of El Paso and the Alabama-Coushatta of Livingston to reopen illegal casinos that were shut down several years ago. While sympathetic to the desperate conditions on these two reservations, the Christian Life Commission opposes this piece of legislation because we believe that the consequences of passage may be far more expansive than what proponents are indicating.

HB 1308 does not improve the legal standing of gambling by the Texas tribes bound by the Restoration Act. The state has never used criminal charges to shut down illegal Native-American casinos. The state has the right to sue the tribe in federal court and seek injunctive relief. This is how the casinos were closed in the past and the bill cannot prevent the state from closing any casino opened by the Tigua or Alabama-Coushatta. The gambling activity the tribes seek to conduct is not just an illegal violation of the penal code that this bill amends; it is UNCONSTITUTIONAL according to the Texas Constitution. A statute passed by a simple legislative majority cannot trump the state constitution. While it may preclude criminal penalties the state may still seek to have any operating casino shut down in federal civil court. The bill is an attempt to expand gambling by a simple majority vote in the legislature rather than the two-thirds majority needed for a constitutional amendment. The end result of this bill would likely be more costly litigation on the part of the state in federal court.

Additionally, the vague language in the bill would actually open a legal loophole to Native-American tribes that are 1) named in the list of tribes referenced in the bill, 2) which have historic, recognized land ties to Texas and 3) are not bound by the Restoration Act. The list of tribes referenced in the bill includes over 300 tribes from across the country, several of whom have entered into agreements with state agencies acknowledging “historic property” in Texas. There are currently letters of intent to petition for recognition on file with the Bureau of Indian Affairs from 10 tribes seeking recognition in Texas.

The members of the Criminal Jurisprudence Committee should hear from those opposed to this bill so that it is defeated in committee. A link to the committee and their contact info can be found here.

That afternoon, the House Committee on Border and Intergovernmental Affairs heard testimony on HJR 108. This Joint Resolution proposes a constitutional amendment to allow the Tigua tribe of El Paso to operate a full blown, Las Vegas style casino. The CLC testified in opposition to this bill as well. Any constitutional amendment which would allow Class III gambling as defined under the Indian Gaming Regulatory Act (IGRA) would be a “trigger” for further Native-American casinos beyond what is authorized in this resolution. It is impossible to authorize gambling for only one tribe without affecting the rights of other tribes in this state. As has been the case in other states, once the Class III threshold is crossed, the state loses much of the ability to control casino expansion since many of the decisions will be made on the federal level.

A link to the members of the Border and Intergovernmental Affairs Committee can be found here.

A news report of these two hearings can be found here.

To learn more about HB 1308 and the history of Native-American gambling in Texas see here (PDF).

Couple things. First, as you know, I support HB222. Of all the various gambling expansion options I’ve seen, allowing for poker seems to me to be the most sensible and least potentially harmful. Plus, as a bridge player who has had the chance to play for money legally, I think poker is a legitimate game of skill and should be treated as such. In fact, poker players in Pennsylvania and South Carolina recently won court rulings that agreed poker is a game of skill. As such, it’s not clear to me that the AG’s opinion would agree with the CLC about the inherent level of chance here. Of course, I Am Not A Lawyer, and Lord only knows what Greg Abbott will do. The point is that recent legal history is on the poker players’ side. I welcome any feedback on that question, and on the other legal points raised, by anyone who has more expertise on the topic.

Second, you can’t talk about the Tigua and Alabama-Coushatta tribes and the litigation over their past attempts to open casinos without noting that a lot of the opposition to them has come from out of state Indian tribes and casinos, who have an obvious interest in minimizing their competition, and that along the way some really sleazy double-dealing was done by former Christian Coalition honcho Ralph Reed and Tom DeLay’s felonious friend Jack Abramoff. Here’s some previous blogging on the subject, plus a couple of corrected links to Observer articles to give you the background.

Finally, just to reiterate, outside of HB222, I am officially agnostic on the subject of expanded gambling in Texas. I have plenty of issues with it, and I may wind up voting against any future ballot propositions to allow for more gambling, but I am not comfortable being opposed to the idea. I thought this email was informative and worth highlighting, but please don’t take that as an endorsement, because it’s not intended as one.