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Supreme Court

Partisan statewide judicial elections upheld

I’d totally forgotten about this lawsuit.

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

Here we go again.

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

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

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

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

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

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

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

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

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

ReBuild re-vote approved

Add another item to the ballot.

Mayor Sylvester Turner

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

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

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

[…]

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

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

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

Austin drops its bag ban

What choice did they have?

The City of Austin says it will no longer enforce a ban on single-use plastic bags at most retail outlets, following a state Supreme Court ruling last month that struck down Laredo’s bag ban.

The court ruled Laredo’s ban was at odds with state law, but urged the Legislature to pass more specific laws to allow similar bans in the future.

The Texas Health and Safety Code says that local governments in Texas may not “prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law.” Opponents of bag bans argued that language makes the bans illegal, and the court agreed, saying state lawmakers haven’t effectively defined how plastic bags fit into that regulatory framework.

[…]

“Following the recent ruling from the Texas Supreme Court, the City will not enforce our current rules,” a city spokesperson said in an emailed statement. “While it’s disappointing that the City is losing a tool to help protect the environment, we are also confident that the Austin community will continue to do their best to minimize plastic bag waste. Meanwhile, the City of Austin will continue to educate Austinites about the benefits of bringing reuseable bags with them every time they shop.”

Austin officials say prohibiting retailers from giving away disposable plastic bags helped reduce litter, save wildlife and stop bags from clogging up storm drains.

“The people of Austin have gotten used to this. Not a single job was lost. Not a single business was harmed,” said Andrew Dobbs with Texas Campaign for the Environment. “We hope businesses and residents of this city will continue to do what works, regardless of what the Texas Supreme Court says.”

See here for the background. AG Ken Paxton has sent a letter to the other cities that had similar ordinances warning them they need to do the same, and I’m sure they will. The good news here, if you want to be optimistic, is that this was a statutory ruling, not a constitutional one. Which is to say, the Lege could fix this by amending the law in question. That’s not going to happen without a massive change in the type of legislator we elect, but it is possible, and something we can work towards.

The Lawrence decision, 15 years later

Time flies, but society moves slowly.

Theirs was an unlikely case.

John Lawrence and Tyron Garner weren’t in love, they weren’t a committed couple and it’s not clear that they were even having sex one September 1998 evening in Lawrence’s Houston apartment when a police officer burst in and arrested them for violating a Texas law that prohibited “deviate sexual intercourse with another individual of the same sex.” That law was rarely enforced, especially in homes — how often, after all, do police appear in private bedrooms? In the Lawrence case, officers entered in response to a false report of a weapons disturbance.

The factual details of that night are often called into question; Lawrence told one interviewer that he and Garner were seated some 15 feet apart when police arrived. But the two pleaded “no contest” to the sodomy charge, allowing them — and their team of advocate lawyers — to challenge the law itself.

Ultimately, they won, and it was their unlikely case that sparked a sweeping ruling from the nation’s highest court, one that overturned not just Texas’ ban on sodomy but 13 similar laws across the country.

That Supreme Court decision was June 26, 2003 — 15 years ago Tuesday. One law professor at the time said it “removed the reflexive assumption of gay people’s inferiority,” laying the legal groundwork for same-sex marriage. Without the immediate, presumptive criminal charge against LGBT people, new doors were opened — new jobs, new opportunities, new freedom in their skin.

The ruling “gave lesbian, bisexual and gay people back their dignity,” said Camilla Taylor, a Lambda Legal attorney who started with the legal advocacy group in 2003, just in time to watch her colleague, Paul Smith — a gay man himself — argue Lawrence before the Supreme Court.

“Everyone knew this case had the power to change the world. The court gave us everything we asked for and more — and went big, just as we demanded,” Taylor said.

Ten years later, June 26 became an even more important milestone for gay rights when the high court struck down the Defense of Marriage Act. And then, in 2015, the date again gained new significance with the ruling known as Obergefell that legalized same-sex marriage nationwide.

But this year, as the date rolls around, LGBT Texans are still reckoning with the legal and political landscape in a state where they have few protections against discrimination and their rights as couples are again being questioned in court.

Fifteen years later, some wonder, how much progress have same-sex couples in Texas really made?

You want to know how long I’ve been doing this blog thing? Long enough to have blogged about the Lawrence decision. As this story notes, the next big test of where we stand as a society with regard to the rights and dignity of same-sex couples comes in January, right here in Houston, when the anti-same sex employee benefits lawsuit gets heard in a Harris County district court. It’s a bullshit case from top to bottom, but as we’ve seen lately from both the state and federal Supreme Courts, being bullshit is not a hindrance when there’s an agenda at play. Just remember you’ll have at least one and probably two opportunities to have your own influence on our Supreme Court, with the first one being this November. Please do make the most of it.

Supreme Court affirms trashing Laredo’s plastic bag ban

Not really a surprise.

The Texas Supreme Court handed a loss to local government on Friday, striking down a Laredo ban on plastic bags. The decision imperils about a dozen other cities’ bans across the state.

In a decision viewed as one of the court’s most highly politicized of the term, justices ruled unanimously that a state law on solid waste disposal pre-empted the local ordinance. That decision drew immediate responses from both sides of the aisle, with high praise from Texas Attorney General Ken Paxton, a Republican who had weighed in against the bans, and condemnation from environmental groups, which had argued the ban kept at bay the harsh environmental damage brought by plastics.

The court’s ruling resolves a long-standing question over whether local governments may impose such bans, as cities including Austin, Fort Stockton and Port Aransas have in recent years. Friday’s unanimous holding makes those bans unenforceable as well, and likely tosses the issue over to the Texas Legislature for debate.

The court said in a unanimous holding that its intent was not to wade into the “roving, roiling debate over local control of public affairs” but simply to resolve the legal question at hand.

“Both sides of the debate … assert public-policy arguments raising economic, environmental, and uniformity concerns,” Chief Justice Nathan Hecht wrote for the court. “We must take statutes as they are written, and the one before us is written quite clearly. Its limitation on local control encompasses the ordinance.”

[…]

While arguments have seemed to center on semantics, the court’s decision is likely to have major implications for local control issues across the state. It’s a loss for local governments, said Bennett Sandlin, executive director of the Texas Municipal League.

“Plastic bags are the perfect case for why different geographies need different sets of rules,” Sandlin said. “This is a sad day.”

A long list of lawmakers have weighed in on the case, including by filing friend of the court briefs. Twenty Republican state lawmakers filed a brief against the ban in an earlier appeal of the case. And state Sen. Judith Zaffirini, a Laredo Democrat, told the Texas Supreme Court she supports the city’s ban.

In 2017, state Sen. Bob Hall filed a bill that would have prevented Texas cities from enforcing bag bans.

Now that the court has ruled, the issue is likely to become one for legislators to take up. Justice Eva Guzman urged lawmakers to do just that in a concurring opinion Friday.

“The legislative branch, not the judiciary, bears the unenviable task of making complicated policy decisions that balance the benefits of uniform regulation and the myriad burdens (financial or otherwise) that may be imposed on taxpayers, businesses, and the environment,” Guzman wrote.

She added, “I urge the Legislature to take direct ameliorative action. … Standing idle in the face of an ongoing assault on our delicate ecosystem will not forestall a day of environmental reckoning—it will invite one.”

See here and here for the background. Yes, the Legislature could remediate this – the case hinged on the definition of a “container”, which I think we can all agree is not something that was handed down by God to the Founding Fathers. But we all know that’s not what this Legislature is going to do. Quite the reverse, in fact. So while I appreciate Justice Guzman’s concern about the “ongoing assault on our delicate ecosystem”, I would encourage her to venture out of the ivory tower once in awhile to observe what is actually happening around her. In the meantime, we can all do our part to reduce, reuse, and recycle plastic bags. The Observer and the Current have more.

Judge sides with city in term limits lawsuit

The city wins for now, but we all know it’s not over yet.

Politicians at City Hall can continue serving four-year terms — at least for now — after a state district judge sided with the city of Houston Friday in a lawsuit seeking to void the November 2015 election in which voters lengthened elected officials’ terms from two to four years.

The plaintiffs, who plan to appeal, allege former mayor Annise Parker and the City Council misled voters in setting the ballot language for the proposition, which changed the city’s term limits to a maximum of two four-year terms, ending the system of three two-year terms that had been in place since 1991.

Local lawyer and Harris County Department of Education trustee Eric Dick sued, arguing the ballot language obscured the nature of the vote by asking whether voters wanted to “limit the length for all terms,” when, in fact, the change lengthened the maximum term of office from six to eight years. For council members first elected in 2013, the limit is 10 years — one two-year term followed by up to two four-year terms.

Judge Randy Clapp, a Wharton County jurist appointed to hear the case, granted summary judgment for the city on Friday, repeating phrasing he had used at a procedural hearing in the case two years ago, saying the city’s chosen language was “inartful” but not “invalid.”

See here, here, and here for some background. You know how I feel about Eric Dick and Andy Taylor and the bullshit they peddle – and remember, I say that as someone who voted against this referendum – so let’s just slide past that. I suppose I’m encouraged that the Supreme Court refused to intervene last year, but they will still have the last say and we know they don’t have any particular compunctions about overriding the will of Houston’s voters. I will also note that the original lawsuit was filed in November of 2015, a couple of weeks after the referendum was passed, and we just now have a ruling from the district court. We are still some unknowable number of years away from a final decision, and as with the Renew Houston case that final decision may just send the whole thing back to the lower court for a do-over. You see why I find the concept of a pay parity referendum for the firefighters to be so laughable? The lawsuit that will result from that, regardless of the verdict, may not be fully resolved until all of the firefighters who’d be affected by it are retired. The lawyers are warming up in the bullpen for it as we speak.

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.

Lawsuit over how judges are elected statewide goes to trial

Hey, remember that lawsuit that argued that statewide elections of judges was discriminatory against Latinos? The case is being heard in court this week.

El Paso lawyer Carmen Rodriguez and Juanita Valdez-Cox, a community organizer in the Rio Grande Valley, live hundreds of miles from each other, but they share an electoral grievance that could upend the way Texans fill seats on the state’s highest courts.

For years, Rodriguez and Valdez-Cox have noticed that campaigning for the Texas Supreme Court and Court of Criminal Appeals hardly reaches their corners of the state. And it’s left them feeling so neglected and undermined as voters that they decided to the sue Texas over the statewide election system it uses to fill seats on those courts.

“I think every vote should count and should have equal weight as much as possible,” Rodriguez testified in federal court on Monday on the first day of a week-long trial in a case challenging the state’s current election method for the Texas Supreme Court and Court of Criminal Appeals. But those campaigning for those seats hardly make their case to El Paso voters, Rodriguez added, so “they don’t seem to need our vote.”

That sentiment is a key component to a lawsuit filed on behalf of Rodriguez, six other Hispanic voters and Valdez-Cox’s organization, La Union del Pueblo Entero, that alleges the statewide method of electing judges violates the federal Voting Rights Act because it dilutes the voting power of Texas Hispanics and keeps them from electing their preferred candidates.U.S. District Judge Nelva Gonzales Ramos has set aside the rest of the week for the trial during which the plaintiffs’ lawyers will work to convince Ramos that Texas should adopt a single-member approach — similar to those employed by some city councils and school boards — that would carve up districts geographically in a way that could allow for Latino-majority voting districts.

“The courts cannot be the great equalizer of our social fabric when one group — Latinos — are disadvantaged in the election process,” Jose Garza, an attorney representing the voters, said in his opening statement Monday.

Throughout the day, Garza and other attorneys representing the voters suing the state called up individual plaintiffs and election law and history experts to help make their case that the state’s current system for electing Supreme Court and Court of Criminal Appeals judges “submerges Latino voters” in a manner that violates Section 2 of the federal Voting Rights Act, which prohibits an electoral practice or procedure that discriminates against voters.

Lawyers for the Texas attorney general’s office, which is representing the state in court, will offer up their own experts later in the week in hopes of dispelling those claims. The state’s lead attorney, Patrick Sweeten, on Monday provided a preview of their arguments when he described their defense and the plaintiffs’ arguments as “two ships passing in the night” because the state’s evidence will show that the plaintiffs cannot meet their legal burden of proving a Section 2 violation.

The state is also expected to call up an expert witness who will argue that single-member districts would “disempower more Hispanic voters than they could potentially empower” because they would only be able to vote for one seat on each high court instead of casting a ballot for all 18 seats.

Plaintiffs’ lawyers spent a large portion of the day arguing that that point would only hold up if you assumed Latinos had the opportunity to elect their preferred candidates to begin with.

See here and here for some background. The plaintiffs survived a motion to dismiss a few months ago. This story was from Tuesday, but I haven’t seen anything more recent so I can’t say how the trial is going. Seems like a heavy lift to me, and there’s an argument to be made that districting the courts would put a ceiling on the number of Latinos that could be elected. You have to figure that sooner or later things will be different for statewide races. That said, I very much understand not wanting to wait, though of course taking a court case to completion will take some number of years. We’re at the start of that process, and we’ll see how it goes. Courthouse News and KUT have more.

Supreme Court hears bag ban arguments

Hoping for the best, but not really expecting it.

In the case Laredo Merchants Association v. The City of Laredo, lawyers spent almost an hour arguing whether Laredo’s 2015 ban was illegal under state law. If the Republican-led court rules against the city, bag bans across the state could be deemed illegal.

The city of Laredo’s lawyer, former Supreme Court justice Dale Wainwright, argued single-use bags are not garbage, so they are not covered by the several lines of state law that the case hinges on. The code says local governments may not “prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law.”

The arguments made Thursday mirrored those in lower courts, where the case was originally decided in favor of Laredo before an appeals court overturned the verdict by a 2-1 margin. The city then appealed that decision to the Supreme Court.

[…]

The oral arguments represent the last public action taken on the case, but a decision by the Supreme Court could still be a long way away. The court has discretion over the timeframe for a verdict, and previous cases have taken anywhere from a few weeks to a couple of years to resolve.

See here for some background. An earlier Trib story that previewed the case had some further details.

The case hinges on only a few lines of the Texas Health and Safety Code, specifically section 361.0961, which states local governments may not “prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law.” In the lower courts, arguments focused on the specifics of the law, including the definitions of “container or package” and “solid waste management.”

Attorney Christy Drake-Adams filed a friend-of-the-court brief on behalf of the Texas Municipal League and the Texas City Attorneys Association supporting the city of Laredo and arguing that siding with the merchants would represent a swift departure from Texas’ history of supporting local governments.

“There just seems to be a trend that the state wants to consolidate power in the state’s hands,” Drake-Adams said. “They don’t want the federal government telling them what to do, and yet they want to tell local governments what to do.”

Drake-Adams also said this case could create a dangerous precedent of strict, uniform regulations on cities.

“Extreme uniformity and regulation fails to address diverse local concerns,” Drake-Adams said. “Texas is a great example of why that can’t work. A state as large and diverse geographically as Texas, that simply can’t work.”

Supporters of the merchants’ case are arguing that statewide enforcement of the law should overrule any local ordinances, and the inconsistent local laws like the plastic bag bans seen in cities across Texas cause unnecessary strain on small businesses.

“Inconsistent local ordinances harm the sales of affected retailers, force the layoff of employees, deprive retailers of their existing inventory of bags, and impose an expensive and complex requirement on multisite retailers to comply with varying ordinances across the state,” wrote Edward Burbach in a friend-of-the-court brief on behalf of the Texas Retailers Association in support of the merchants.

Remember, the goal here as expressed by Ken Paxton and abetted by Greg Abbott is to kill off all local bag laws, on the way to generally bringing cities to heel under the state. And yeah, we’re hoping the Supreme Court will stop them. If there’s a silver lining, it’s that the law in question can – someday – be easily modified to fix the flaw that the pro-bag-litter faction is exploiting. That would require winning some elections first, of course. But at least it gives us something to aim for.

Microbrewery legal setback

Kind of a lousy Christmas present.

Three Texas brewers are going back to battle with the state after an appeals court reversed a decision that would have allowed them to sell their distribution rights for monetary compensation.

In 2014, Peticolas Brewing Co. (Dallas), Revolver Brewing (Granbury) and Live Oak Brewing Co. (Austin) sued the Texas Alcohol and Beverage Commission, saying a newly passed law related to who could sell a brewery’s distribution rights was unconstitutional. The mandate, which passed in 2013 with a bundle of other beer regulation reforms, said breweries may not accept payment for contracting with a distributor, but that a distributor could get a payout if it sold those same territorial rights to another distribution company.

Last year, a judge served victory to the breweries. But on Dec. 15, the Texas Third Court of Appeals reversed that decision. It stated, in part, the law does not prevent the brewers from successfully operating their businesses and that it also upholds the industry’s three-tier system, which aims to avoid conflicts of interest between alcohol manufacturers, distributors and retailers.

The decision will be appealed to the Texas Supreme Court, according to a statement from Institute for Justice, which is representing the breweries.

“It is well established that the Texas Constitution protects economic liberties, and these rights do not cease to exist when the government begins licensing and regulating individuals and businesses,” said Arif Panju, managing attorney for Institute for Justice’s Texas office, in a statement. “Every business in Texas should be concerned with the court’s ruling in this case. It is dangerous and we will ask the Texas Supreme Court to reverse.”

See here, here, and here for the background. You know how I feel about this. The three-tier system is an anachronism and a travesty, a glaring counterexample to any politician’s paeans to how Texas has a great business environment. Yet it persists, a lasting tribute to the lobbying efforts of the beer distributors and the big breweries that support them. As with so many things in this state, the ultimate solution is going to have to be a political one. Nothing will change until we elect enough people who want it to change. Austin360 has more.

Inevitable lawsuit over pension bond ballot language filed

Like night follows day, like flies garbage.

Mayor Sylvester Turner misled voters into approving a $1 billion pension bond referendum last month, a new lawsuit alleges, claiming that city officials plan to use the bonds’ passage to sidestep a voter-approved limit on the property tax revenue Houston can collect.

A local businessman and former Houston housing department director, James Noteware, sued the city on Friday in state district court, contesting the Nov. 7 election on the grounds that the ballot language was “materially misleading.”

The full language, rather than the summary listed for voters on the ballot, stated that the taxes levied to repay the bonds would not be “limited by any provision of the city home rule charter limiting or otherwise restricting the city’s combined ad valorem tax rates or combined revenues from all city operations.”

The suit claims that phrasing means the taxes levied to pay for the bonds will be exempted from the 13-year-old revenue cap, which limits the annual growth of property tax revenue to the combined rates of inflation and population growth, or 4.5 percent, whichever is lower.

“Omitting the fact that the proposition created a billion-dollar exception to default limits on the city’s taxing authority renders the proposition materially misleading and void,” the suit states.

More coverage from the Chron here. This is, in a word, nonsense. I mean look, Paul Bettencourt, who insisted on the pension bond referendum and who loves the revenue cap and the spotlight more than his own children, had nothing to say about this during the campaign. Nobody complained about the ballot language. At this point, this kind of lawsuit is basically pro forma, and serves as nothing more than an attempt by the losing side to get bailed out by the Supreme Court. If you have the resources to hire a lawyer to file this kind of crap, you have the resources to mount some kind of campaign against the referendum before the election, even if it’s nothing more than sending an incendiary press release to a gaggle of reporters. If James Noteware, who by the way was a Mayoral candidate for about 15 minutes in 2013, did anything like that, he failed spectacularly to get a news story out of it. If this thing goes anywhere, it can only mean that the Supreme Court is now an official part of the referendum process, and we may as well ask their opinion before we bother wasting our time voting on anything.

(Also, too: Yet another reason to kill the awful, terrible, no good, very bad revenue cap. I’m just saying.)

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.

Five out of six ain’t bad

Five Democratic candidates for six statewide judicial positions, all from Harris County.

Four state district and county-level judges from Harris County and a Houston civil-litigation lawyer filed for seats on the Texas Supreme Court and the state Court of Criminal Appeals at state Democratic headquarters.

“The only time they open the courts is when it suits their cronies,” said state District Judge Steven Kirkland of Houston, referring to the nine Republicans on the Texas Supreme Court.

[…]

Harris County Civil Court Judge Ravi K. Sandill, who seeks Republican Justice John Devine’s Place 4 seat on the state Supreme Court, said voters would reject the leadership styles of Trump and Gov. Greg Abbott.

“We’ve got a bully in the White House. We’ve got a governor who’s a bully,” he said. “Texans stand up to bullies.”

[…]

Kathy Cheng, a native of Taiwan, said she’s been “the voice for people who don’t have a voice” in nearly 20 years of private law practice. She filed for the Place 6 seat of Republican Justice Jeff Brown.

Signing paperwork to run for Court of Criminal Appeals were Maria T. Jackson, presiding judge of the 339th state District Court in Harris County, and Ramona Franklin, who’s judge there in the 338th.

Jackson filed for the presiding judge seat now held by Republican Sharon Keller of Dallas. Franklin is seeking the Place 7 seat of Republican Barbara Hervey of San Antonio.
“No matter where you live or what you look like or who you love, in my courtroom, you’re going to receive justice,” she said.

Kirkland and Sandill you knew about. Jackson was elected in 2008 and has been re-elected twice. Franklin was elected in 2016. Cheng ran for the 1st Court of Appeals in 2012. The Chron story says that a sixth candidate is not expected to come forward, which is too bad. It’s great that Harris County is representing like this, but surely there’s someone somewhere else in the state who can throw a hat in the ring. Be that as it may, best of luck to these five.

New Braunfels can ban is back

A blast from the past.

New Braunfels officials plan to resume enforcement of the “can ban” and limits on coolers on rivers on Wednesday even as opponents of the controversial municipal codes continue to pursue a legal challenge to them.

The development follows the Texas Supreme Court’s refusal this month to bar the city from enforcing the ordinances, which prohibit bringing disposable containers or coolers over 16 quarts in size onto the Guadalupe and Comal rivers inside city limits.

“Everyone is still invited to enjoy their favorite beverage on our rivers. We just ask that they do so responsibly and in consideration of the health and sustainability of these important community assets,” Mayor Barron Casteel said in announcing Friday that enforcement of the measures would resume this week.

The resumption of enforcement after a lull of more than three years was called premature Monday by attorney Jim Ewbank, who brought suit in 2012 on behalf of local river outfitters and tourism-related businesses who contend the codes are an overreach of municipal authority.

Despite rejecting plaintiffs’ request to issue an immediate stay on enforcement of the contested codes, he noted the Texas Supreme Court did request a full briefing by the parties, “which is a good sign for us.”

The city’s brief is due to be filed by late November, said Ewbank, who expects the high court to decide by January whether to hear the whole case.

[…]

State District Judge Don Burgess granted the plaintiffs a summary judgment in 2014, but that decision was overturned in May by the 3rd Court of Appeals. It held that the plaintiffs lacked legal standing to challenge a penal code, therefore Burgess lacked subject matter jurisdiction on the case.

See here for my last update. I apparently missed the appellate ruling. Be that as it may, the city expects to get the ball rolling this week, with an eye on putting the ban back in place next year, assuming the Supreme Court doesn’t set them back. Adjust your tubing plans for the future accordingly.

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.

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.

Harvey and the elections

Labor Day weekend of odd-numbered years is considered to be the opening weekend of Houston election season. The filing deadline has passed, so the fields are set and people (supposedly, at least) begin to pay attention. Candidate forums are held, endorsements are made, Chronicle candidate profiles are written, that sort of thing. Sure, some candidates have been at it for weeks if not months, but by tradition this is when things are officially underway.

This was always going to be a weird year in Houston, as we were either going to have no city elections or a mad dash for candidates and campaigns to get up and running, thanks to the 2015 term limits referendum and subsequent litigation. As someone who follows these things closely, I was partly enjoying the lull and partly beginning to fret about getting candidate interviews done for the HISD and HCC races we will have.

And then Harvey came to call. In addition to the devastation and misery, as well as triumph of the spirit, it has knocked the usual campaign schedule for a huge loop. I know of at least one candidate whose house flooded, but every candidate has suspended their campaign activities, out of respect for the victims and to pitch in for the recovery. I have no idea at this point when enough of us will feel normal enough to get back to the usual business of running for office and picking candidates to vote for. Election Day is November 7, so early voting will begin October 23. I think it’s safe to say we’re going to get that mad dash to the finish line, though likely with a lot of hearts not really in it. Though I totally understand this, it is a bit of a concern. HISD has even more challenges ahead of it, and two-thirds of its Trustee seats are up for a vote. Three Trustees are stepping down. One Trustee was appointed earlier this year to fill out the term of a Trustee who resigned. Another Trustee won a special election last December for the same reason. Only one Trustee who had previously been elected to a full term is on the ballot, current Board President Wanda Adams, and she has several opponents. The HISD Board will be somewhere between “very different” and “completely remade” net year. It’s a pretty big deal. The HCC Board has three contested elections, two for Trustees who won special elections to fill out terms, and one to succeed the disgraced Chris Oliver. Again, the potential for change is big.

The good news, I suppose, is that while basically no one is paying attention to any of these races, there are at least fewer races for them to not pay attention to. Imagine if we had a full slate of city elections going on now, too. Campaigns attract money and volunteer energy, two things that are desperately needed for Harvey relief right now. I have to say, I’m not unhappy with the way events in the term limits lawsuit played out.

Two more things. Harvey’s destruction was not limited to houses. It flooded out churches, schools, community centers, government offices, and many other places. Some roads are still under water, and Metro has not yet fully restored bus service – you can’t have buses on roads that are under water, after all. Some of these places are places where voting happens. Some of them may be ready by October 22/November 7, some may not be. Some may not be ready by next March, when the 2018 primaries are currently scheduled. It would be nice to know what kind of shape our polling locations are in, and what the contingency plans are for the sites that may not be ready in time. One possible solution, as put forth by Nonsequiteuse, is to allow people to vote wherever they can/wherever they want to. For a low-turnout odd-year election like this, a bunch of precinct polling places were always going to be combined anyway. It’s a small step from there to say that all polling locations will be open to all voters, as they are during early voting.

Also, too: Remember how I said that there will not be a Rebuild Houston re-vote on the ballot this November, but we should expect one maybe next year? This leads me to wonder, what exactly is the argument at this point to put this up for another vote? More to the point, what is the argument against having a dedicated fund, paid for by a fee charged to property owners based on their impermeable cover, these days? After reading enough hot takes on how a lack of zoning and unchecked development are to blame for Harvey to make me gag, I can only imagine what kind of punditry would be getting committed if we also had a ReBuild re-vote in two months. The principle at the heart of this litigation was that the people (supposedly) didn’t know what they were voting on because the ballot language was unclear. Does anyone think we’re still unclear on this now? Just a thought.

Ballot order

Kevin Drum finds this paper, entitled “The Ballot Order Effect is Huge: Evidence from Texas”, by a professor at Sam Houston State, and notes that it confirms what we have all long believed, that being first on the ballot in a non-partisan race like a primary or a municipal election is an advantage. From the paper:

Across all twenty-four contests, the effect is invariably positive and, with two exceptions in runoff elections, statistically significant. The smallest effects are found in high-profile, high information races: the Republican primary for U.S. Senator, which featured the incumbent, John Cornyn; the governor’s race, which featured long-time Attorney General Greg Abbott; and Land Commissioner, which featured well-known political newcomer George P. Bush. In these races the ballot order effect is only one or two percentage points.

Larger estimates obtain for most “medium-profile, medium-information” races such as Comptroller, Railroad Commissioner, or the Democratic nominee for U.S. Senator. Most of these fall in a fairly tight band that ranges from three to five percentage points. Estimates are even larger in the low-profile, low-information judicial elections, generally ranging from seven to ten percentage points. Overall, the ballot order effect tends to be larger in contests that receive less attention and in which voters are likely to know less about the candidates on the ballot.

[…]

In an ironic twist of fate, we were recently able to [test our hypothesis] with the March, 2016 Texas Republican primary, held just after the first draft of this paper was completed. Featuring a highly visible Presidential race, it drew twice as many voters as in 2014—and had contests for three Supreme Court positions, one of which was between Paul Green and Rick Green, two men with common first names and identical last names. It was The Perfect Storm, and our logic implies that this should lead to large ballot order effects. This is immediately evident in the histogram of county vote shares presented in Figure 2(a), without even looking at ballot order: in a race won with 52.1% of the statewide vote, virtually no county’s vote was nearly evenly split. Instead Paul Green’s vote shares are bifurcated into two clusters, one around 40%, and another around 60%, suggesting a ballot order effect approaching twenty percentage points. The regression results in Figure 2(c) confirm this: the coefficient estimate is 19.4 percentage points. We have never seen a ballot order effect this large, and may never again.

Drum concludes that randomizing ballot order for each voter, which is something that is certainly feasible with electronic voting machines, is the best answer to this. I’ve been on that hobby horse for a long time, so it’s nice to have some empirical evidence in my corner, but in the absence of a new law from the Lege, nothing will change. But we persist in highlighting the problem, in the hope that some day our cries will be heard.

I should note that while the first-on-the-ballot effect is largest in low-information races like judicial primaries and executive offices like Railroad Commissioner, some races defy that effect. I will always cite the three-way Democratic primary for RRC in 2008, between gentlemen with basic, simple names, as Exhibit A for counterexamples. Mark Thompson, who nearly won the race on the first go, basically carried every county regardless of where he was on the ballot. Here’s Harris County:


Dale Henry       85,153  32.00%
Art Hall         69,377  26.07%
Mark Thompson   111,598  41.93%

Travis County:


Art Hall         37,444  30.87%
Mark Thompson    57,909  47.74%
Dale Henry       25,959  21.40%

Dallas County:


Art Hall         45,670  24.84%
Dale Henry       57,234  31.13%
Mark Thompson    80,980  44.04%

Three different orders, Mark Thompson was second or third on all three, and yet he easily led in all three counties, despite being a first time candidate with no money. Henry had been the Democratic nominee for Railroad Commissioner in 2006, and Hall had been a City Council member in San Antonio (Hall did carry Bexar County, though Thompson came in second), yet Thompson overcame it all and ran away with the nomination. Till the day I die, I will never understand that result.

The ReBuild Houston footnote to the November ballot

The following paragraph is buried deep in the full story about what will and will not be on the November ballot in Houston.

Voters also will not face a reconsideration of the 2010 vote that established ReBuild Houston, the program that funds streets and drainage repairs without debt by drawing on a monthly fee. Courts have ruled that the city used unclear ballot language in that election, but a last-minute flurry of filings by the plaintiffs in that case did not convince a court to order the city to hold another vote this fall.

There’s been a frustrating lack of news around ReBuild Houston and the ongoing litigation surrounding. The Supreme Court stuck its nose in back in June of 2015, and the district court judge voided the 2010 referendum in October of 2015. The last update I have is from this February, in which plaintiffs were trying to force a re-vote this year. I’ve heard scuttlebutt that suggested there would indeed be a re-vote in November, but I guess that was premature. The city’s position is that while the charter referendum was thrown out, City Council subsequently voted to approve the ReBuild program, including the fees that were levied, so all that was affected was the fact that the funds were to be dedicated to drainage and road construction. I have no inside information, but it seems to me there’s a pretty big question to be settled about just what it is we’d be re-voting on. Maybe that will happen next May, maybe it will happen next November, maybe it will happen sometime after the planned 30-year lifespan of the ReBuild project. Who knows? Not this November, that much we do know.

RK Sandill for State Supreme Court

Very good news, from the inbox:

Judge RK Sandill

The Supreme Court of Texas is elected to serve all of the nearly 28 million residents of our great state. Yet, after more than two decades of one-party rule, today’s Court is increasingly out of touch with the needs of everyday Texans.

On issues from public school finance to equal protection under the law, our state Supreme Court is ignoring its duties and instead catering to an extreme, special interest agenda.

It is time for a change.

I want you to know I’m running for the Supreme Court of Texas, Place 4, to restore an independent voice to our state’s highest judicial body and to focus on the rule of law, rather than a fringe ideological agenda.

I am a Texan — the proud son of immigrants — who grew up in a military family that knows the meaning of service. I have been a district court judge in our state’s largest county for nearly nine years. I am a husband, dad and cancer survivor. And I am running to serve all Texans.

I know this race won’t be easy. Texas is a big state and changing the status quo will be a challenge. I’m ready for the fight. Will you join me?

It is time our state’s highest court got back to working on behalf of everyday Texans.

I know Judge Sandill personally, and will attest he’s a super guy. He was elected in the 2008 Harris County Democratic wave, and won re-election in 2012 and 2016; he’s not on the ballot next year, so he does not have to decide between running again for the same position and trying to move up. His opponent is the execrable John Devine, who was the one Supreme Court justice to dissent when that court originally declined to take up the appeal of the Houston spousal benefits lawsuit. Devine isn’t qualified to be a district court judge, but there he is on the top bench in the state. Almost anyone would be an improvement, but Judge Sandill would be a vastly better jurist. Here’s his website and Facebook page. Get to know him if you don’t already, and give him some support.

July 2017 campaign finance reports – City of Houston

Let’s continue our survey of campaign finance reports with reports from the city of Houston.


Name        Raised    Spent     Loans    On Hand
================================================
Turner     520,430  138,068         0  1,643,519

Stardig     59,470   36,402         0    102,289
Davis        5,500   13,231         0    147,050
Cohen        5,000    8,382         0     63,120
Boykins     93,839   40,547         0     57,358
Martin      20,092    8,221         0    106,427
Le          12,250    1,788    31,823      1,951
Travis      51,751   25,051    76,000     51,109
Cisneros    24,043    5,203         0     25,336
Gallegos    30,600    7,048         0     50,366
Laster      31,650    8,104         0    170,714
Green       17,150   39,770         0     84,627

Knox        21,185   13,373         0     23,149
Robinson    63,850   14,932         0     92,520
Kubosh      26,725   17,388   276,000     30,557
Edwards     73,843   31,295         0    144,198
Christie    33,090   20,323         0     31,458

Brown       59,220   19,494         0     79,101


HHRC        55,000   47,500         0     23,250
HTPR         3,625    1,652         0      3,624

As we now know, there will be no city elections of the non-referendum kind on the ballot this November. That would be one reason why there are no reports from anyone who has not already been a candidate. Only a couple of the reports belong to people who are not current or term-limited officeholders. These are folks like Bill Frazer, and none of them have any cash on hand worth mentioning. Actually, there is one person who may be of interest here, and that’s Helena Brown, who could run again in District A to succeed Brenda Stardig. Brown has $18,911.19 on hand, which would not be a bad start if she were so inclined.

I don’t want to dwell too much on this, but had the State Supreme Court dropped an election on us out of the blue, there was basically nobody outside of the current incumbents who have any resources for it. Usually, at this time of an odd numbered year, there are a lot of non-incumbent candidates, mostly circling around the offices that will be vacant. Whether people didn’t think the Supreme Court would take action, or if we were all just in denial about it, there were no candidates out there raising money. In a world where the Supremes had intervened, incumbents and people who can provide at least startup capital for themselves would have had a sizable advantage.

Now for those incumbents. We all knew Mayor Turner could raise money, right? All Houston Mayors can, it kind of comes with the office. Don’t underestimate the resources he could bring to a campaign over the firefighters’ pay parity proposal.

Despite the advantages for incumbents I talked about, four of the seven biggest cash on hand balances belong to those who can’t run – term-limited CMs Starding, Davis, Laster, and Green. Starding in particular makes me wonder what she was up to, raising all that cash this year. Usually, that makes one think maybe she’s looking at her next opportunity to run for something. I have no idea what that might be, but feel free to speculate wildly in the comments. Mike Laster has been mentioned as a county candidate once his time on Council ends. Maybe County Commissioner in Precinct 3 in 2020? I can speculate wildly too, you know.

I have a couple of PAC reports in there. HHRC is the Houston Heights Restaurant Coalition, gearing up for the next Heights alcohol referendum. HTPR is the Houston Taxpayers for Pension Reform, with Bill King as its Treasurer. Maybe that was for a vote on forcing a switch to defined-contribution system that is not in the works? They didn’t have much activity, and most of their expenditures went to an outfit called PinkCilantro for advertising. Other PACs of note with reports are Campaign for Houston, which I believe was an anti-HERO group from 2015 and have a $50,000 outstanding loan, and Citizens to Keep Houston Strong, which belongs to Bill White and which has $56,734.11 on hand.

Finally, two reports from former officeholders. Anne Clutterbuck, who was last a candidate in 2009, filed a final report, to dispose of the remaining funds in her account. She donated the balance – $5,094.55 – to the Hermann Park Conservancy. Last but not least is former Mayor Annise Parker, whose account still has $126,013.31 on hand. She may or may not run for County Judge next year – she has talked about it but so far has taken no action – and if she does that’s her starter’s kit. I’ll have more reports in the coming days.

There will be no city elections this November

Here’s the early version of the story. I’ll add a link to the full story in the morning.

The Texas Supreme Court on Monday denied plantiffs’ attempts to expedite their case challenging the [2015 term limits referendum] ballot language that lengthened city officials’ terms two years ago, making it unlikely the matter will be resolved before the state’s August 21 deadline to order a fall election.

Instead, the case is positioned to return to trial court for a hearing on whether the wording of the city’s proposition authorizing two four-year terms, instead of three two-year terms, was too obscure.

“There’s no way,” Austin election lawyer Buck Wood said. “I don’t see any way that they’re going to get any final order in time for the filing deadline.”

Plaintiffs’ attorney Eric Dick conceded the timing makes a November mayoral election “unlikely.”

“But I don’t think it’s impossible,” Dick added, saying he plans to ask the high court to reconsider its decision.

See here for the background, and here for a copy of the court’s order, which actually came down on Monday. We were getting dangerously close to what I figured would be the functional deadline for a ruling on the mandamus, in order to ensure enough time for people to file for office if they needed to. This doesn’t mean that we won’t get another election until 2019 – I’ve heard many people speculate about a special election next May, which I suppose could happen – but barring anything unexpected at this point, the case will plod on through the appeals process, which suggests that the people who were elected in 2015 will get to serve out most if not all of that four-year term.

UPDATE: Interestingly, there doesn’t appear to be a fuller version of this story on the website, and there was nothing I could find in the print edition this morning. Maybe tomorrow.

Anti-spousal benefits plaintiffs ask for injunction

Ridiculous.

Conservative activists are seeking an injunction blocking Houston from paying same-sex spousal benefits to its municipal employees, after Texas’ Supreme Court ruled last week that gay couples may not be entitled to them.

Attorneys filed a motion Friday in District Court in Harris County, which includes Houston.

They also want to recover public funds that America’s fourth-largest city spent on same-sex spousal benefits since November 2013, though how much such “clawbacks” would be worth is unclear.

See here for the background. I looked for a more detailed version of this story, which hit on Friday afternoon, but couldn’t find one. The Supreme Court decision, ludicrous as it was, merely reinstated the plaintiffs’ lawsuit after it had been dismissed, saying there were questions to be addressed. To argue for an injunction – with clawbacks, no less – is an enormous stretch. The animus radiating from this action is so strong it must be giving Justice Kennedy a migraine. I don’t know how this could possibly go anywhere, but then I thought this was a settled matter back when the Supreme Court initially declined to gt involved. I don’t know what to think any more.

City responds to term limits mandamus

Here’s what the city had to say in response to the request that the Supreme Court vacate the district court ruling that let the 2015 term limits referendum stand and order an election for this November:

In an unusually blunt response filed last week, city attorneys accused plaintiffs’ attorney Eric Dick of an “unrelenting bum’s rush” and “near-hysterical ravings.”

“In short, (the plaintiff) cannot file a big pile of stuff, violate every rule designed to facilitate organization and efficiency, and expect other parties and the Court to try to sort through the mess and find any arguments and evidence in there on a ridiculously accelerated schedule,” lawyers from the City Attorney’s office wrote the state Supreme Court, responding to plaintiffs’ request to accelerate the case. “That is not due process. It is a tantrum.”

[…]

[The lower court ruling] positioned the case for a likely return to trial court for a hearing on the substance of whether the city’s ballot language obscured the nature of the vote by asking whether voters wanted to “limit the length for all terms.”

Dick was anxious for a faster resolution.

“Because of the crucial election timelines, there are extraordinary circumstances,” Dick wrote in a request for Supreme Court intervention.

He followed up last week with a motion to expedite after the court asked the city to reply by July 3, less than two months before the Aug. 21 deadline to call a November election.

See here for the previous update. I wish I had a copy of the full city response, but alas they didn’t send it out. The statutory deadline for having an election is the end of August as noted above, but I figure the realistic deadline is the end of July. People need to have some time to decide whether or not to run; you can’t just spring this on everyone a week before then. I don’t put anything past this Supreme Court, but I agree that every passing day reduces the odds of an election, and if we make it to August without an order it’ll be like making it to October without a hurricane – technically, there’s still time, but in real life it ain’t happening. Stay tuned.

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.

When might the Supreme Court speak on the Houston term limits lawsuit?

So as you know there is an ongoing lawsuit over the language used in the 2015 referendum that altered the city’s term limits ordinance. It was filed shortly after the election, with the city winning the first round in district court. Appeals are ongoing, with the most recent ruling coming this past January on a procedural matter. In addition to all this, the plaintiff in the original suit filed a writ of mandamus with the Supreme Court on June 2 that asks them to direct the district court judge to vacate his previous order allowing the 2015 result to stand and to require city elections this November. I’m on the plaintiff’s attorney’s email list (for my sins, no doubt) and as he sent out a missive last week urging his followers to contact the Supreme Court and ask them to rule on the writ in time for an election to occur, I figured I ought to bring this up.

So as we are now halfway through June, I have to think that time is rapidly running out for a non-farcical election to be conducted this November. Normally at this time, multiple candidates for a variety of offices, especially the open ones, will have been at work for months. There are always people who pop up to run in July and August, including a few at the filing deadline, but by this point you usually have a pretty good idea of who is out there. Funds have been raised, materials have been printed, websites and social media presences have been built, volunteers have been recruited, etc etc etc. Campaigns require resources, and one of those resources is time. We’re basically four months out from the start of early voting. To get a campaign up and running from scratch, especially for an At Large position, that’s not a whole lot of time. It could be done, but it would greatly favor those who already have some of the other resources, namely money and some amount of name recognition. In other words, incumbents and people who can write a check to get their campaign going quickly.

For what it’s worth, the Supreme Court issued a ruling requiring a vote on HERO on July 24, 2015, which was in response to a writ of mandamus. That was about a referendum and thus didn’t directly involve any candidates, though I’d argue that it had a negative effect on the pro-HERO side, since the antis had been gearing up for a campaign for some time by then. Let’s call that the outer bounds of when a writ mandating city elections for this year may happen, though really I’d say that’s too late. Bear in mind that Council members Brenda Stardig, Jerry Davis, Ellen Cohen, Mike Laster, Larry Green, and Jack Christie are all in their last terms one way or the other, so if those terms wind up ending this year instead of 2019, a whole gaggle of hopefuls are going to have to get up to speed immediately. There’s no question that the Supreme Court has no qualms about meddling in the affairs of the city of Houston, but that doesn’t mean it feels compelled to do so. We ought to know soon enough.

Paxton seeks to overturn all local bag ban laws

It’s up to the Supreme Court to decide whether he gets it or not.

Attorney General Ken Paxton on Thursday filed paperwork urging the Texas Supreme Court to eliminate plastic bag bans across Texas, including Austin’s.

Paxton is seeking for the court to affirm an earlier decision that overturned a bag ban in Laredo. However, he also wants to court to expand the ruling to eliminate all bag bans across the state.

“Texas must be empowered to enforce its statewide solution of waste disposal,” the brief said. “To give full meaning to the Legislature’s directive about the management of waste, the Court should clarify that municipalities cannot pass waste management duties onto consumers by banning packaging or containers.”

[…]

Paxton said the Texas Health and Safety Code prohibits cities from creating bag bans that restrict the sale or use of a waste container.

“Municipalities do not get to violate Texas law merely because they don’t like it,” Paxton said in a news release. “We’re asking the Texas Supreme Court to uphold the law so that the ruling can be used to invalidate similar ordinances across Texas.”

See here and here for background on the Laredo case. The bag law was upheld by the district court and then overturned by the 4th Court of Appeals. A statewide restriction on municipal bag laws was on the Abbott anti-local-control agenda for this legislative session, but did not succeed. If Paxton and the plaintiffs against Laredo win, that won’t matter.

School finance bill is dead

It started with this.

State Rep. Dan Huberty said Wednesday that he would not accept the Senate’s changes to his school finance bill, launching a last-ditch effort to hammer out a compromise with less than a week left in the session.

After a passionate speech railing on the Senate for gutting his bill, Huberty, a Houston Republican who is chairman of the House Public Education Committee, announced he has decided to request a conference committee with the Senate on House Bill 21.

The bill was originally intended to inject $1.5 billion into the state’s funding for the majority of public schools and to simplify some of the complex, outdated formulas for allocating money to school districts across the state. The Senate took that bill, reduced the funding to $530 million, and added what many public education advocates have called a “poison pill”: a “private school choice” program that would subsidize private school tuition and homeschooling for kids with disabilities.

“Members, some of your schools will be forced to close in the next year based on the committee substitute of House Bill 21,” as passed by the Senate, Huberty said, before moving to go to conference. “I refuse to give up. I’ll continue trying. Let’s at least attempt to rescue this bill.”

The House voted 134-15 to request a conference committee with the Senate on the bill.

See here and here for the background. The House’s request for a conference committee was denied by the Senate.

An effort to overhaul the state’s beleaguered school finance system has been declared dead after the Texas Senate Education Committee’s chairman said Wednesday that he would not appoint conferees to negotiate with the House.

“That deal is dead,” Larry Taylor, R-Friendswood, said.

Taylor’s remarks come after his counterpart in the House, Dan Huberty, R-Houston, gave a passionate speech in which he said he would not accept the Senate’s changes to House Bill 21 and would seek a conference committee with the Senate.

HB 21 was originally intended to inject $1.5 billion into the state’s funding for the majority of public schools and to simplify some of the complex, outdated formulas for allocating money to school districts across the state. The Senate took that bill, reduced the funding to $530 million, and added what many public education advocates have called a “poison pill”: a “private school choice” program that would subsidize private school tuition and homeschooling for kids with disabilities.

Lt. Gov. Dan Patrick pronounced the bill dead in a statement Wednesday afternoon.

“Although Texas House leaders have been obstinate and closed-minded on this issue throughout this session, I was hopeful when we put this package together last week that we had found an opening that would break the logjam. I simply did not believe they would vote against both disabled children and a substantial funding increase for public schools,” he said in the statement. “I was wrong. House Bill 21 is now dead.”

House Speaker Joe Straus said in a statement Wednesday that the Senate has not prioritized school finance reform this session.

“We appointed members of a conference committee today because the House was willing to continue to work on public school finance immediately. Unfortunately, the Senate walked away and left the problems facing our schools to keep getting worse,” he said.

HB 21 was the first time in years that the Legislature has taken up major school finance reform without a court mandate.

HB21 was also the vehicle for addressing the recapture issue that is costing HISD (among other districts) millions and which is being litigated on the grounds that the TEA didn’t make its changes to the formula properly. You can kiss that good-bye as well. It’s somehow fitting that the Lege could not come to an agreement on school finance, as this proves the lie of the Supreme Court ruling that insisted they could do this on their own without the Supremes forcing them to. Not as long as we have Dan Patrick presiding over this Senate they won’t. The Chron has more.

House approves bill to kill margins tax

Dumb.

The Texas House on Thursday approved a proposal that would phase out an unpopular business tax that provides funding for public schools.

The proposal by state Rep. Dennis Bonnen, R-Angleton, would not reduce the state’s franchise tax during the current penny-pinching legislative session, but it would do so in future years. Under Bonnen’s bill, economic growth would trigger reductions in the tax, which currently brings in about $8 billion every two-year budget cycle, until it ultimately disappears.

About $1.8 billion in franchise tax revenue in the current two-year budget cycle goes to the Property Tax Relief Fund, which pays for public schools. Democrats, arguing that the tax cut would cause lawmakers in later years to underfund crucial public programs, railed against the proposal for nearly two hours. They offered a series of amendments that would have lessened the extent of the tax cut or redirected funds for college tuition, pre-kindergarten and other priorities, but all were defeated.

The final vote took place late Thursday evening at the end of a long day on the House floor, which followed a marathon debate Wednesday over “sanctuary” jurisdictions that lasted until roughly 3 a.m. When Bonnen’s proposal finally hit the floor, few Republicans offered any remarks in response to Democrats’ outrage; most lawmakers in the chamber appeared to be paying little attention.

[…]

Businesses dislike the franchise tax, often called a “margin tax,” because they say it’s overly complicated and can punish them in less-prosperous years. Because it’s based on a business’s gross receipts, a business can still be required to pay the tax even in years it takes a loss. Many call the tax, which was passed as a way to reform the state’s school finance system, an unnecessary burden, and high-profile Republicans including Gov. Greg Abbott have sought its demise.

Lawmakers in 2015 cut the tax rate by 25 percent, which gave them $2.6 billion less revenue to help craft a budget this year. Proponents of the tax’s elimination argue it would stimulate the state’s economy and create jobs.

In the short term, it’s difficult to say just how much revenue is at stake in Bonnen’s proposal because the tax is highly dependent on economic conditions. A fiscal note written by the state’s Legislative Budget Board estimated it could cut public school funds by up to $3.5 billion in the 2020-2021 biennium.

I mean, look, I know the margins tax was a poorly conceived kludge that everyone hates (or at least claims to) and which has been a top GOP whipping boy for a couple of sessions, but please do keep two things in mind. One, this tax, which replaced the also-hated and seldom-paid franchise tax, was created in 2006 to help fill the revenue void left by the Supreme Court school finance decision in 2005 that led to a mandated across-the-board property tax cut. It was never going to fully fill that void, and indeed its poor design and regular underperformance has been a problem, but it at least made up for some of the funding for schools that disappeared when the previous system was declared to have been an unconstitutional statewide property tax. Something is going to need to replace the revenue lost to this tax being (eventually) eliminated, and all we have right now is wishful thinking about economic growth, a continued reliance on local property taxes, and a handful of magic beans. And two, it’s probably not a coincidence that the amount of revenue lost in this biennium to the previous one’s margins tax cut is almost precisely the amount the House and Senate are arguing about in order to make this session’s budget “balance”. Cause and effect, y’all. You should have one of your interns Google it.

House passes school finance reform bill

Well done.

Rep. Dan Huberty

State Rep. Dan Huberty succeeded at a difficult task Wednesday: getting the Texas House of Representatives to vote for legislation overhauling the funding system for public education, without a court mandate.

After a four-hour discussion of more than 30 proposed amendments, the House voted 134-16 to tentatively accept its top education leader’s plan to inject $1.6 billion into public schools, simplify the complex formulas for allocating that money, and target certain disadvantaged student groups for more funding. The bill must still be approved on a third and final reading in the House.

[…]

The tentative victory comes after senators approved a budget that cuts state funding for public schools by $1.8 billion in general revenue, and uses local property tax revenue to make up the difference.

Huberty’s bill would increase the base per-student funding the state gives to school districts, in part by increasing funding for students who are bilingual and dyslexic. The Legislative Budget Board estimates about 96 percent of districts and 98 percent of students would see more money under the bill.

“This is the first time in over 30 years that we have the opportunity to vote for school finance, to make a holistic change,” Huberty said before Wednesday’s vote.

Throughout the evening, Huberty successfully moved to table many of his colleagues’ proposed amendments to the bill, either because they would add to the bill’s price tag or because he deemed them irrelevant to his legislation.

“This is the school finance bill,” he reminded Rep. Jason Isaac, R-Dripping Springs, who unsuccessfully tried to attach a provision to HB 21 that addressed the testing and accountability system.

The House budget allowance for this bill would provide more funding to more school districts for busing, but many legislators expressed concern that the money would be stretched thin because districts that didn’t provide bus service would still receive transportation money. None of the amendments to address transportation funding passed.

Rural legislators banded together to add a provision that would help hundreds of small districts with fewer than 1,600 students. The provision, proposed by Rep. Drew Darby, R-San Angelo, would remove an existing financial penalty for school districts smaller than 300 square miles, which was originally intended to encourage them to consolidate.

Darby proposed putting all districts with fewer than 1,600 students at similar levels of funding, which he said would increase funding for more than 400 districts.

“Almost half the school districts in Texas will benefit from these amendments,” he said.

Legislators voted 86-59 to approve Darby’s amendment, despite Huberty’s opposition.

See here for the background. The Darby amendment was about Additional State Aid for Tax Reduction, for which you can get some background here. Getting something through the House is a big accomplishment; as the story notes, Rep. Jimmie Don Aycock declined to put a bill forward in 2015 on the grounds that it didn’t stand a chance. Priorities are shifting, and there seems to be a lot of support for finally addressing some of the serious shortcomings in the current system. Which, if it happens, would vindicate the Supreme Court’s decision to not force the issue but leave it up to the Legislature. Assuming that Dan Patrick and the Senate – and Greg Abbott – go along, of course, That’s far from a sure thing, as a brief perusal of the Senate’s budget proposal would show. But it’s a start, and it could happen. That’s more than what we’ve had in a long time. Kudos all around.

Some Texas voting rights lawsuit updates

This has been a busy week for litigation related to voting rights issues in Texas. Here are updates to some cases, all of which happened this past week.

From Texas Redistricting:

The three-judge panel in the Texas redistricting case has set a status conference for April 27, at 9:30 a.m. in San Antonio to discuss a trial schedule for the remaining claims in the case as well as the redistricting plaintiffs’ request to block the state’s use of its current congressional plan (Plan C235) on the grounds that defects found by the court in the 2011 plan continue to exist in the current plan. The court directed lawyers for the state to be prepared to discuss at the status conference “whether the Legislature intends to take up redistricting during this legislative session to remedy any violations that persist in the 2013 plans.”

The court also asked the parties to be ready to discuss the timing for its consideration of requests that Texas be bailed back into preclearance coverage under section 3© of the Voting Rights Act.

A copy of the court’s order setting a status conference can be found here.

See here and here for the background. The plaintiffs want a new map in place by July 1.

A couple of days after that happened, the plaintiffs responded.

On Friday, plaintiffs in the Texas redistricting responded in a court filing to the State of Texas’ position that it was premature to consider the plaintiff’s request to block and require a redraw of the state’s congressional map (Plan C235).

In the filing, the plaintiffs told the court that while there was sufficient time to remedy constitutional defects in the map if the process began now, “delaying all relief until the Court schedules and holds another trial and issues another merits determination would raise a serious risk that Plaintiffs will be forced to vote in yet another election under unconstitutional districts.” The plaintiffs noting that filing for the 2018 Texas primary will open on November 11 and that a number of steps would have to occur to finalize any map changes, including redrawing precinct boundaries.

Circle April 27 on your calendar. We won’t have final answers to these questions then, but we should have some idea of what answers to expect.

From the Texas Civil Rights Project:

[On April 3], Chief Judge Orlando Garcia of the U.S. District Court for the Western District of Texas denied the state’s motion to dismiss Stringer v. Pablos, TCRP’s “motor voter” case.

This decision provides critical validation of the arguments advanced by the plaintiffs — disenfranchised Texas voters — who challenge voter registration processes at the Department of Public Safety under the National Voter Registration Act, or NVRA, and the U.S. Constitution.

One by one, Judge Garcia considered the state’s arguments for dismissal and rejected them. Judge Garcia found the state’s current procedures “inconsistent with the plain language of the NVRA,” refusing to adopt “circular and self-defeating” interpretations of the NVRA offered by the defendants. Instead, the Judge expressly found that the NVRA applies to the thousands of online transactions Texans initiated through DPS.gov every day. This ruling means that the Secretary of State should be registering and updating voter registrations for all of these individuals as a matter of course unless they opt out. Moreover, any alleged interest in avoiding the upfront expense in creating a modern system cannot justify “the burden imposed on voters” under the Equal Protection Clause.

From the beginning, TCRP has argued that “motor voter” failures have excluded countless eligible voters from the Texas electorate. The judge acknowledged the systemic nature of the state’s actions, noting that the plaintiffs had “produced evidence that thousands of Texans submitted complaints to the state that related in some way to DPS’s processing of voter registration information through its website.”

Judge Garcia’s decision comes on the heels of sanctions imposed against Texas on February 17th for causing undue delay and for repeatedly, and without justification, ignoring court orders to provide the necessary documents to move forward with the case. TCRP represents the plaintiffs with co-counsel at Waters Kraus LLP.

Mimi Marziani, Executive Director with the Texas Civil Rights Project, said:

“Today’s opinion is a resounding victory for the countless Texas voters who have been disenfranchised by the state’s failure to adhere with federal law. With this decision, we are hopeful that we can resolve the case before the 2018 election so that every eligible voter can cast a ballot that counts.”

See here, here, and here for some background. Link via Rick Hasen.

From the Express News:

A federal judge has denied the state of Texas’ attempt to quash a lawsuit that challenges the way the state elects judges to the Texas Supreme Court and Court of Criminal Appeals.

Seven Hispanic voters (six from Nueces County and one from El Paso) and a civic organization, La Unión Del Pueblo Entero Inc., allege in the suit that Latino candidates almost always lose statewide elections for judges to the two highest courts in Texas.

In an opinion issued Monday, U.S. District Judge Nelva Ramos ruled that all the plaintiffs have standing to bring the suit under the Voting Rights Act.

The judge rejected the state’s argument that the plaintiffs had failed to state a cause of action under Section 2 of the law, noting that the U.S. Supreme Court has already held that Section 2 applies to judicial elections.

The ruling clears the way for a trial, according to a news release from two law firms and an organization representing the plaintiffs.

See here and here for the background, and here for a copy of the judge’s order. It’s not clear to me what a remedy for this looks like if the plaintiffs ultimately prevail, but in the meantime it will be interesting to see how this plays out. Rick Hasen has one of the press releases mentioned in the story; I couldn’t find any others googling around.

And finally, also from the Express-News:

Proposed legislative changes to Texas’ voter ID law won’t affect a lawsuit’s claim that the law is discriminatory, a federal judge has ruled.

U.S. District Judge Nelva Gonzales Ramos, based in Corpus Christi, made the declaration in an opinion that also allowed the Justice Department to withdraw from the case.

The opinion follows a hearing in February in which — as directed by a federal appeals court, the U.S. Fifth Circuit — she heard more arguments about whether the law, SB 14, was passed with discriminatory intent.

The state argued that lawmakers planned fixes to be made in Austin with a measure called Senate Bill 5.

“The court holds that the Fifth Circuit did not direct this Court to withhold a decision on the discriminatory purpose claim and that the claim is not, and will not be, moot as a result of pending or future legislation,” Gonzales Ramos wrote.

The civil rights groups that brought the suit say the proposed changes, if passed in the newly introduced legislation, are irrelevant and that the GOP-controlled Legislature designed and passed the 2011 voter i.d. law with discriminatory purpose.

See here and here for some background. Judge Ramos did let the Justice Department officially withdraw from the case, so only the private plaintiffs will continue on. Her order can be seen here, in which she sets a status call on June 7 to discuss whether an evidentiary hearing on remedies is required, how long that might take, and what the deadlines for briefs and whatnot should be. This too came via Rick Hasen.

So the TL;dr summary of all this is:

1. The judges in the redistricting case will discuss wrapping up the other items and figuring out what to do with the Congressional map on April 27 with the litigants. This isn’t a hearing, just a discussion of what they all will be doing and when they will be doing it.

2. Similarly, the judge in the litigation to determine (again, under the standards set by the Fifth Circuit) whether the 2011 voter ID law was passed with discriminatory intent will discuss the schedule and logistics with the attorneys on June 7.

3. Two previously filed lawsuits, one that alleges the state of Texas does not comply with federal Motor Voter laws and one that argues that the statewide election of judges violates the Voting Rights Act, survived motions to dismiss.

Whew!

An ironic might-have-been on redistricting

From Rick Casey.

Still the only voter ID anyone should need

The three judges who decided the case include one Democrat and two Republicans. Ironically, the decision may have gone the other way if one of the judges hadn’t been punished for joining in an earlier ruling in the case. Here’s the backstory.

Judge Rodriguez, a graduate of Harvard University and the University of Texas law school, was appointed to the Texas Supreme Court by Gov. Rick Perry. He lost in the Republican primary, however, when he had to stand for election. He returned briefly to private practice before being appointed to a federal district bench here by President George W. Bush.

Back in 2013, Rodriguez was asked to fill out the voluminous paperwork to be considered for promotion to the 5th Circuit U.S. Court of Appeals. President Barack Obama had selected a Democratic judge from Corpus Christi, but the two Republican senators reportedly made it clear they would block her nomination. So the Obama administration lit on Rodriguez — a nonideological choice who had been appointed to important benches by two Texas Republican leaders.

But the appointment languished until 2015 when, a friend of Rodriguez said, he was told his name was withdrawn because of a lack of support from the two senators. The reason: His previous rulings in the redistricting case.

Had Rodriguez been elevated to the appellate court, he might well have been replaced with a more conservative Republican on the three-judge panel hearing the redistricting case. The 2-1 decision could have gone in the other direction, with Rodriguez’s replacement joining the very conservative third member of the panel, Judge Jerry Smith of Houston.

We don’t know for certain that the ruling would have been different had Judge Rodriguez not been on the district court. I don’t know what the overall population of judges in that district is like, and I suppose the plaintiffs could have filed in a different district. For what it’s worth, where I think the plaintiffs got lucky was in having two judges of color hearing the case. We’ll never know how things might have been, but I for one am glad with how they turned out.

On a tangential note, this Texas Lawyer story from awhile ago talks about how the Fifth Circuit changed during the Obama years.

At first glance, the math confronting President Barack Obama’s three appointees on the U.S. Court of Appeals for the Fifth Circuit appears daunting.

If you include senior members of the bench, Obama’s appointees—Judges James Graves, Stephen Higginson, and Gregg Costa—are outnumbered more than 4-to-1 by judges who were chosen by Republican presidents.

Dig deeper, however, into court events and listen to appellate lawyers who make their livelihoods practicing before the Fifth Circuit and a more nuanced picture emerges. In the last eight years, the Fifth Circuit bench has begun shifting away from predictable conservative patterns, the appellate lawyers said.

Although Obama appointees may only be part of that change, they are using their youth, vigor and intellectual curiosity to influence outcomes, according to appellate lawyers including Jane Webre, a partner in Austin’s Scott Douglass & McConnico who practices civil appellate law and handles most of her firm’s appeals.

“It has moved away from how staunchly conservative it was known to be,” said Webre, who works with associates who have recently clerked for the Fifth Circuit.

Senior Fifth Circuit Judge Thomas Reavley, an appointee of former President Jimmy Carter, ranks among many who heap praise on the Obama picks. Reavley, who served as a state district and Texas Supreme Court justice before he started on the Fifth Circuit bench, observed its judges in the ’60s courageously enforce emerging civil rights protections. Asked by Texas Lawyer recently if he longed for the days of those judges, Reavley said Obama’s three appointees were equally equipped with the smarts and dispositions to handle such challenges: “I don’t think politics would enter into their decisions,” Reavley said.

Kurt Kuhn of Austin’s Kuhn Hobbs agrees. “They are not doctrinal. They are known as fair and not predisposed to any particular side,” Kuhn said.

[…]

On the Fifth Circuit, Higginson, Costa and Graves share the bench with six judges tapped by George W. Bush, six by Reagan and two by George H.W. Bush. Former Democratic Presidents Bill Clinton and Carter together had appointed only five of the judges currently serving on the Fifth Circuit. Two vacancies are currently pending.

Obama’s ability to shape the Fifth Circuit has been hampered by the powerful sway held over the nomination process by Texas’ two Republican senators. John Cornyn and Ted Cruz are both members of the Senate Judiciary Committee and also appoint the Federal Judicial Evaluation Committee, which recommends federal judicial candidates to the White House.

It was three years before Obama made his first appointment to the Fifth Circuit. David Prichard, the committee’s chairman and partner in the San Antonio office of Prichard Hawkins Young, has no expectation that the court’s two vacancies will be filled before Obama leaves office.

“Those positions are just carefully negotiated between the Texas senators and the occupants of the White House,” Prichard said.

And yet, despite Obama’s difficulty seating judges on the Fifth Circuit, the passage of time and societal change has tempered the Fifth Circuit and made it less conservative, said Webre of Scott Douglass.

Given how few appointments he has made, Webre added, “I don’t know if we can say: ‘Thank you, President Obama,’ for those changes.”

But she, Gunn and Townsend detect a change. Before Obama took office, Webre and associates at her firm who clerked recently at the Fifth Circuit counted the active full-time judges on that court: There were 13 Republican and four Democratic appointees. That ratio has since shifted to 10-5.

But then Webre and the associates adjust for individual judges’ tendencies, regardless of who appointed them. “Not all Republicans are created equal,” Webre explained.

She and the former clerks put asterisks beside some of the Republican-appointed judges—she wouldn’t say which judges specifically—to denote that they lean less conservative than their fellow Republican appointees. Webre’s estimate is that eight of 15 judges are moderate or liberal compared with seven who are very conservative.

That has made a difference when lawyers receive an unfavorable panel decision.

“Now,” Webre said, “seeking an en banc hearing is a realistic venture.”

That story was published just before the November election, and I had flagged it at the time to discuss how things might change even more for the better post-Obama. Needless to say, that premise was scotched shortly thereafter. Nonetheless, this seemed like a reasonable time to dredge it up. Maybe we’ll get to discuss it again in a more positive way in four years.