Hegar, Paxton, sued over "ESG" Senate Bill 13: thoughts

Kenny Boy and the under-the-radar semi-nutter, Comptroller Glenn Hegar, are being sued for the state's law requiring "divestment" from companies that themselves have divested of fossil fuels. The lawsuit by the American Sustainable Business Council (the Trib, to which I'm not linking, said "Coalition") claims this is viewpoint discrimination and violates both First and Fourteenth Amendments. Also, members of the coalition claim, and rightly, that the economic harms of climate change make this a legitimate business decision. It also claims lack of due process and other reasons for hauling in the Fourteenth Amendment.

Odds of success? Per the old cliché, probably "slim," but yet, definitely more than "none."

First, this is a federal lawsuit, not a state one. Right there, that. increases the odds of success.

Related to that? Contra some BlueAnon that want to paint the Fifth Circuit as a monolith on all wingnut issues, many cases over the past few years have shown it's sympathetic to First Amendment cases.

Second, these are folks with deep pockets. They can and will fight.

Related to this? They want to cut off at the pass similar ideas in other states.

Third, they make sound business decision arguments as well as First and Fourteenth Amendment ones.

So, the likely course?

They win the preliminary injunction request at district. State appeals.

They possibly win at Fifth Circuit. Win or lose, somebody appeals.

IF SCOTUS grants the injunction, Hegar and Paxton are before next year's Lege, asking for follow-up legislation, knowing that this trial is going to take a few years.

The on the merits issue?

I think they can win on lack of due process, on that portion. Assuming the suit's various claims can be considered as severable, the First Amendment angle will be harder to fight. Federal law allows lower governments, I think, some leeway on state investments, and certainly, Texas state law does.

Quick take on SCOTUS keeping Trump on the ballot

First, the 9-0 ruling meant that everybody was on board.

The biggie is "inside baseball." As I see it, per that link above from the Guardian, with these quotes:

“We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency,” the court wrote in an unsigned opinion. Congress, the court said, had to enact the procedures for disqualification under Section 3.

“State-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform answer consistent with the basic principle that the President … represent[s] all the voters in the Nation,” the court added.

 this means that Congress, were it to so choose, can "nationalize" voting standards for president. Yeah, states that wanted to buck that could run two elections with two sets of standards, but would probably get tired of that. It also means that vote-counting standards for president could be nationalized.

Indeed, it's arguable that the "nationalization" could extend, or be extended, to House and Senate races, too.

I'm frankly surprised that the six conservative justices didn't pull a Bush v. Gore and say that this case was not to be used as legal precedent. I mean, Thomas was part of that case himself. That said, since then, it has been used as an occasional precedent.

But, the court, even with a quasi-per curiam ruling, wasn't unanimous on the issue of how to enforce Section 3 of the 14th Amendment:

The majority opinion went on to say that the only way to enforce section 3 was by specifically tailored congressional legislation to determine which individuals should be disqualified for insurrection.But Justices Amy Coney Barrett, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson all said that finding went beyond the scope of the case, with the liberal justices specifically saying the court was shielding insurrectionists from accountability.

Barrett wouldn't go that far, but rowed her own oar in attacking that last statement.

Question for the last four: How do they envision this would be enforced in some other way than by enabling legislation? A January 2025 replay of sorts of 2021?

==

As for the ruling? Given the dogma (sic) of federalism in U.S. jurisprudence, one could argue it was wrongly decided, or, at a minimum, if the six wanted to find a reason to find in favor of Trump, this was the wrong legal reason. One wonders if a Thomas indeed wanted to find for Trump, but on other grounds, and The Umpire pushed for unanimity on this ground. At Law Dork, Chris Greidner indirectly addresses some of this.

That said, let's look at the language of Section 3:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Per the last sentence, it's arguable that the five-justice majority, while violating textualism, may have followed originalism. Going back to Confederate days, this basically was not tested by attempts to run for office until the large Congressional amnesty of the 1872 Amnesty Act (over-broadly offered, IMO) late in Grant's first term. And then Congress, by amnesty, generally removed the disqualification, then, per that link and Victor Berger's case, it could decide whether to disqualify later actors or not.

I've always said I thought the case was not "ripe" legally, the Trump case. He has not been charged with, let alone convicted of, insurrection. Blame Jack Smith for not even bringing a charge. Blame Merrick Garland, as well as Judge Aileen Cannon, for the dilatoriness of the Trump prosecution on acts connected in some way to, but not part of, Jan. 6, 2021, in general.

Via BAN, Marty Lederman also thinks, like me, that this was the right ruling but for the wrong reason. He adds that the reasoning followed was not at all an angle raised by Trump's attorneys. He doesn't raise the ripeness issue, though. He does reject the idea that the Supremes ruled that Trump cannot be removed from the ballot, period. Where Josh Blackman got that, I don't know; I don't and didn't need Lederman's help to know that's just untrue. (Exactly how one would get to a "ripeness" based issue on legal grounds, I don't know. In Colorado, since that was a lawsuit, you could do it on standing issues. But in Maine, with its Secretary of State ruling, you couldn't.)

Rick Hasen calls the ruling a "self-own" by the Umpire. He references Lederman and others, and notes the 1869 ruling that was part of the background was NOT a Supreme Court ruling. Follow various links of him for more. He agrees that a narrowly tailored ruling could have been defensible.

==

Per a commenter, the Colorado Supremes may have "adjudicated" Trump an insurrectionist. He was not tried on the charge of insurrection. Contra the first poster, insurrection is a criminal charge, and that's what matters. The issue of ballot removal being a civil charge must follow from that. Vis-a-vis the original purpose of the 14th Amendment, as noted, no Confederate official pursued running for office after the 14th Amendment and before the 1872 Amnesty Act. Ergo, whether a state court, or federal, could "adjudicate" rebellion was never decided.

==

Per same commenter, part 2?

First, the Congressional Research Service is wrong in various ways.

First of all, per this and many other analyses of federal statute, even if "rebellion" and "insurrection" aren't defined in the Constitution, and aren't clearly defined in statutory law, they're not the same. For that reason alone, this is not a self-executing issue, per my ripeness and other things. De facto, there was a rebellion since April 14, 1861, or possibly Dec. 19, 1860, in South Carolina. De facto, it was ended in 1865, and de jure, officially declared over by various statutory law, then the debt clause of the 14th Amendment and other things. Because the Confederate States of America constituted itself, specific persons could be identified with this rebellion on a de facto basis. It's quite arguably not the same with the insurrection of Jan. 6, 2021. Looking at then-president Trump's comments on that day about "go home in peace," and given that the electoral votes were counted, after delay, it would be hard to convict him of insurrection. Impossible? No. Hard? Yes. Ergo, even if insurrection and rebellion are the same. This piece linked at CRS pushes too hard. That gets me back to the original. Blame Merrick Garland for being dilatory. Blame Jack Smith for pulling punches on charges filed.

Second, Congressional membership, per the Constitutional specification of it judging the qualifications of its members, is not the same as the Executive. As noted, if members of House or Senate, on possibly more realistic grounds than on Jan. 6, 2021, want to refuse to count electoral votes for Trump next January if he has not yet been tried, let alone convicted, they can do that. In that same vein, CRS DOES note that Congress, not just the president, can call out the militia if deemed necessary. But it doesn't say how that would be achieved. Formal vote of both Houses? Just one House? The Speaker acting alone?

Related to that? This piece linked at CRS actually undercuts the thesis of the CRS piece. It notes that federal actions undertaken in the late 1860s and early 1870s were done after law, then the Amendment, were passed, and were done against sitting officeholders.

So, "cruxdaemon," I have actually read. You probably have not.

==

Also per that same commenter, I'm not going to expand this post and these responses to him to cover originalism or textualism in incredible detail, let alone go into either of those philosophies on specific yet broad issues like gun control and the Second Amendment. We're just not going there, and I remind you that I moderate comments here. 

And, no, I don't "revere" the Constitution. I'm a leftist, not a liberal. I "accept" the Constitution. THAT is something entirely different. See what I said above about the mechanism, or lack thereof, for Congress calling out the militia. And, I said, in my discussion of oral argument in the case a month ago, that the Constitution is in many ways a "clusterfuck."

==

Two final thoughts.

First, to any BlueAnon who don't get the difference between everyday-world thoughts and legal definitions and burdens of proof? Move on. I personally think Trump egged on what could be seen as an insurrection while continuing to stress that proving that as a criminal case is a high, high bar.

Second, to BlueAnon moaning otherwise? On paper, the SCOTUS ruling could be used to promote, or seen as promoting, uniformity in third-party presidential candidate ballot listing, but that will never actually happen.

America as failed state: Colorado v Trump

Caught snatches of the live argumentation in front of the Supreme Court on NPR. Here's one of the stories from Thursday. SCOTUSBlog has more.

A few thoughts, with an intro before that.

First, not only poor countries "out there" can be failed states, i.e. Afghanistan. The tail end of Weimar Germany was quite arguably a failed state even before Hitler took the oath of office as chancellor.

Second and related? If not a failed state, the USofA, aka Merikkka, is a failing state. Period and end of story, especially to backers of both duopoly parties.

OK, to the story itself.

First, this is obviously a reason to get rid of the electoral college. That's what, reason No. 412 or something?

Second, this is a good reason to move beyond that and officially make the election for president a national, not a "federal," election. If that meant different rules on absentee ballots, etc., than currently more restrictive states, so be it. Arguments by various justices in the SCOTUSBlog piece underscore that.

Third, it's also a good argument to, if possible, truly overhaul our government into a parliamentary system. It's harder to do the Hillary Clinton attempt at controlled opposition when a prime ministerial candidate is already leader of the opposition and depends on coming to power on nationwide vote for MPs. Arguments by various justices in the SCOTUSBlog piece underscore that, too.

That said?

A. Parliamentary systems are no guarantee against becoming a failed or failing nation. On the former, see Weimer Germany, above. On the latter, see post-Brexit Britain. 

B. The mechanics are partly at issue. Westminster-type systems with first past the post single-member districts tend to squeeze out third parties. Systems that are purely proportional and don't have modern Germany's 5 percent hurdle let in all the nutters.

Fourth, and related, we'll likely have more and more Russiagate-type bullshit claims in the future. After all, the NYT tried to revive it for the 2022 midterms. Note also former Speaker of the House Nancy Pelosi, not content with anti-Republican smears, claiming that Russia and president Vladimir Putin are behind pro-Palestinian protestors. (Code Pink and founder Medea Benjamin recently confronted her on this.)

Fifth, it's funny how people can always shape shift on federalism = states as "laboratory of democracy" when their ox is being gored. That includes, per the top link, a possible majority of the black-robed Kourt Klan Konklave thinking Colorado can't do what it did.

As for the black-robed KKK trying to reason its way to keeping Trumpy safe?

The only reason I would agree is "ripeness" grounds. Trump hasn't been directly charged with insurrection, or aiding and abetting. Blame Jack Smith, #BlueAnon. Trump's attorney, Jonathan Miller, tried to put a spin on this by differentiating between an election and actually serving. (Not that he thinks Trump should be disqualified should he be re-elected, of course.)

Otherwise? John Roberts et al seem to have a semi-novel interpretation of the 14th Amendment being written to rein in state powers.

If he, Slammin Sammy Alito et al are worried about different states reaching different conclusions, see the top of this piece. Colorado's attorney, Jason Murray, addressed much of his objections, and his fellow travelers, per SCOTUSBlog. Besides, there's that old Gorsuch ruling.

I will actually credit Alito for discussing what all might count as "insurrection." This gets much deeper, really, and beyond both duopoly parties, to things like undeclared wars and "cold wars."

There's also the issue of general deference to political parties on primary election ballots vs general election ballots. That said, given that Trump's going to win, it would be stupid to put him on a GOP primary ballot, if the Colorado plaintiffs are right about the 14th Amendment in general.

Sixth, doesn't this ultimately show what a clusterfuck the Constitution of the United States is? And, that gets us back to America as failed state.

Civil War historians: We back Colorado on Trump ballot removal

Per the Guardian, discussed also at Raw Story, a group of 25 US Civil War and Reconstruction historians back the Colorado Supreme Court removing Donald Trump from the ballot, in an amicus brief filed with the Supreme Court.

First, the group, referring to precedent from both the authors of the 14th Amendment and language used by the first impeached president, Andrew Johnson, to note that the presidency is an office and the language of the amendment applies to it.

I agree. And, contra various wrongful musings of Richard Winger at Ballot Access News, this would be no more anti-democratic than a minimum age to hold the presidency or other federal offices, residency requirements, birth requirements for the president and more.

Of course, Winger is an under-the-radar semi-hardcore libertarian who was converted by The Little House on the Prairie's author's daughter, Rose Wilder Lane contra the fact that most of her arguments for libertarianism don't square with the semi-reality of Laura Ingalls Wilder's Little House books, let alone the full reality behind them. See this book for more. And this story.

To the matter at hand? Contra this by Winger, even if ballots in 1868 were private and not government printed, the government still did the counting, and could tell political parties not to put Andy Johnson's name on the ballot.

That said, there's only three A-list historians on that brief: James McPherson, Nell Irvin Painter and Karen L. Cox. A few others are A-minus level.

But? No Eric Foner. No Gabor Boritt. Etc., etc.

Update: Also via BAN, as I guess historians are either squabblers or can't get their shit together, four others have filed a second amicus. David Blight might be A-list. Drew Gilpin Faust might be an A-minus. Jill Lepore? This is the Goodreads version of what was the top-rated one-star review of These Truths before the chuds at Amazon deleted all but one of my reviews for me reporting wingnut reviews and them getting pissed about me reporting them. She's not a good historian and definitely not an A-list Civil War historian. The four do cite Foner, but his name's still not there.

Dear BlueAnon: The 14th Amendment doesn't apply to Trump

At least not yet. Let's look at that Section 3 of the Fourteenth Amendment:

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Now, while it doesn't explicitly stipulate that a conviction by trial or guilty plea is necessitated, and while Reconstruction Radicals didn't consider it that way at the time, I have little doubt that any state or federal court today (and any state court ruling otherwise would be appealed to the federal level, or will be) would say that petitions and suits to remove Trump — or even state legislative actions to do so — are not "ripe" because of the lack of a legal verdict against him.

I don't care what Michael Luttig or Second Amendment flip-flopper Larry Tribe say, per PolitiFact. Nor do I care what the current generation of Kermit Roosevelt says:

Kermit Roosevelt, a University of Pennsylvania law professor, said, "There’s nothing in the text of the Constitution to make me think that this requirement for office-holding is any different from the others imposed by the Constitution, such as being 35 (years old) and being a natural-born citizen. Those obviously don’t require a conviction. So I think the argument is strong that court proceedings aren’t necessary for someone to implement the disqualification."

Besides federal courts in general likely differing, two SCOTUS Justices certainly will — Thomas and Alito, of course — probably Kavanaugh, possibly??? Gorsuch and maybe??? Barrett. If both the question marks agree, it doesn't matter what the Blind Ump thinks.

Madison Cawthorn? The appeals court was wrong.

Couy Griffin, Otero County, New Mexico, commissioner? Proves my point; charged and convicted first.

So, if Trump is on the ballot next year? Blame Jack Smith for not charging him with seditious conspiracy, or the federal version of "aiding and abetting." 

Oh, all of the above apply to renegade Republican celebrity candidate (best label I can think of for him) John Anthony Castro as well, and I'm still unsure exactly what string he's running. But, former federal prosecutor Neama Rahmini agrees with me.

Otherwise, this is basically like BlueAnon types (and some Never Trumpers) talking up the 25th Amendment without reason while Trump was president. (Greg AtLast also knew this.) They are again looking for a constitutional solution to a (currently) political question. And, since Jack Smith didn't indict him on anything close to sedition, I expect it will remain currently political through next November's election day.

Texas Progressives talk start of 2022 elections and more

County-level elected officials, just like Tex-ass Congresscritters like Cringe Me Crenshaw, now have the right again to solicit requests for blank absentee ballots and to mail them to constituents. To me, it's a clear First Amendment issue, but, of course, the Fifth Circuit could say otherwise. Stand by. Also, per the dual idenfiication requirements of SB1, I see opportunities for ID theft, something that Tex-ass Rethuglicans probably didn't think of. More here on how the new requirements are leading to many mail ballots or applications being rejected. That said, Rethuglicans who failed to recognize that lots of old white grannies vote by mail and probably vote GOP may have shot themselves in the foot. (Side note: Per the disclaimer at the bottom of that link, that's yet another thing wrong with the Trib's "sponsors." Taking dinero from the Texas Secretary of State's office is bullshit.)

Off the Kuff also sees the chaos with mail ballots caused by the Republican voter suppression law, and wants to see more data about the effects.

Christofascist Tim Dunn and pal Farris Wilks are pushing big money into the guv primary — for Don Huffines. Wonder why they settled on him instead of Allen West? And they're doing it via a PAC run by Former Fetus Forever Fuckwad Jonathan Stickland. This poll is two weeks old, but Strangeabbott, by recognition at least, had a HUGE lead over both of them. (That said, that's among the general public, not hardcore Rethugs. But, interesting? Gohmert Pyle has knotted up Kenny Boy Paxton. Pee Bush is well back in third, but still well, well ahead of Eva Guzman, which I expected.) Among other darlings of the trio? "She's baacckkk" Shelley Luther, running for another state senate seat after failing to beat Drew Springer in a special election to replace Pat Fallon 16 months ago.

SocraticGadfly saw North Carolinians wanting to disbar Madison Cawthorn from running for re-election due to the 1th Amendment, and he talks about the idea of applying that to Kenny Boy Paxton and others.

Both Rethugs AND Democraps on the Harris County Commissioners Court have multimillion dollar ethical problems. (Will Kuff write about that in the next week?)

AOC smokes the Gilberto Hinojosa crack, claims Texas turning Dem is inevitable.

More ethical problems could lie ahead in Harris County. Tough on crime, fuck you on bail DA Kim Ogg has a bunch of her assistant DAs running for judgeships.

Retiring Kel Seliger hopes some other Rethug in the state Senate will take on Danny Goeb. Wish away; the Monthly story notes you helped enable Dan Patrick by twice voting to lower the cloture number.

In case you missed it, Ballless Bob Mueller was back in the news. Sorry, Blue Anon, but obstruction of justice and similar isn't collusion, and Vlad the Impaler Putin was and is too smart to have entangled himself with Trump. Sorry, allegedly outside the box stenos like Aaron Maté and Max Blumenthal, but there WAS meddling and hacking by the Russkies. Sorry, Julian Assange blank-checkers, but the same Wikileaks head who probably hacked the password Wikileaks sent to Donald Jr. was also the first chief propagator of the Seth Rich conspiracy theory. Go away,  until you admit that

Rick Casey sees the big picture behind the voter suppression law.

The Austin Chronicle presents their 2022 Democratic primary endorsements.

Texas Dems' new suit against Abbott will quickly die

For the unaware, in the middle of last week, Texas Gov. Greg Abbott partially tightened his expansion of early voting rules that he had done because of coronavirus.

He had initially allowed counties to have several drop-off stations for in-person submission of vote-by-mail ballots as well as adding a week to early voting.

He pulled back on the "several drop-offs" and cut it to one. 

And now he's being sued. Twice And, in federal, not state court, on First and Fourteenth Amendment grounds as well as Voting Rights Act grounds. More here. And here. Complaints are here and here.

This is going to get crushed. And, in fact, the crushing may start with a venue rejection.

Next? There is no First Amendment ground on this case. None, so even if the feds don't bounce this on venue issues, that won't fly.

Second, as the Fifth Circuit rejected the Twenty-Sixth Amendment based attempt to expand vote by mail, the Fourteenth and VRA claims here that are age-based will also be bounced.

Back to state courts it will be, and they'll reject it, too.

Is this unethical by Abbott? Absolutely.

Could it backfire on him, at least a bit, also affecting outer-ring suburban voters? Possibly.

Is it illegal? Most certainly not.

Finally, given this is NOT Judge Marmolejo ruling, it will likely get crushed in state court when sent there. There's really not a lot of parallel between the two cases, legally. Abbott is modifying an executive order which had suspended part of the state's election code on early voting. He's not junking his original modification, nor is he being even worse and trying to tighten state election code. In the straight ticket voting case, it was an attempt to end run an established state law.

So, again, unethical? Yes. Illegal, no. Sorry, Kuff, both on your take, and on your degree of weirdly bromancing Abbott's degree of good action on coronavirus stuff before this in the last graf.

Third parties, independents sue Texas over HB 2504 and other ballot access restrictions (updated)

Note: The following, in Roman, is verbatim from a press release by Oliver Hall, legal counsel for Center for Competitive Democracy, and Jane Nam, media and communications manager with Shearman and Sterling. (It's not complete, but everything here is verbatim.)

And now that I have it up, I have posted a few interspersed thoughts in red italics.Updates from the original are in blue-green italics.

A group of Texas voters, candidates and minor political parties filed suit today (July 11) in federal court in Austin, alleging that the Texas Election Code violates their First and Fourteenth Amendment rights by imposing discriminatory and severely burdensome requirements on independent candidates and minor political parties that seek access to Texas’ general election ballot. The filing challenges the combined impact of several statutory provisions, including the large number of handwritten voter signatures that must be submitted on paper nomination petitions in a limited period of time, as well as the restrictions on when nomination petitions may be circulated, which voters are eligible to sign them, and the deadlines for filing nomination petitions.

Update, early August: The plaintiffs have already filed their first amended complaint. Among other things, it notes Texas has changed signature requirements in the past. The biggie is that it notes that "primary parties" have ballot access taxpayer-funded. (That said, the amended complaint follows Paxton's language in referencing just the gov's race, too.)

Then, to the heart of the matter. The complaint notes that "primary parties" can do many things electronically with the state, including most submissions related to the primary process.

Next, it attacks the issue that independents and non-2 percent third parties can only start signature drives after the duopoly primaries AND cannot get signatures from people who voted in primaries. Personally, I think this is a First Amendment violation. The complaint later notes that.

Next, it goes on to note the cost of paid petition drive workers, often necessary in such cases, and that this is not only an additional burden, it's one the duopoly parties again don't face.

-  -  -  -  -  -  -

Update, Aug. 9: Fresh off losing a case at the Fifth Circuit over Indian adoptions, the state's one-eyed spavined mule, AG Kenny Paxton, has filed to dismiss, citing the paucity of independent candidates. This not only ignores the third parties, of course, but, per Ballot Access News, ignores that the Eighth and Ninth Circuits have ruled individual voters, not just indy candidates, have standing in such types of cases. He also gets previous and current state law wrong; the access threshold is 2 percent of any statewide race, not the gov's race. He then claims the petition laws are sound. "Assuming facts not in evidence" would be the immediate counterargument, especially given that the plaintiffs have made the argument that they're not constitutional. 

Given the complexity of issues, I highly doubt the Fifth Circuit will dismiss in toto. I'm not sure if it will buy a counterargument from other circuits on independent candidates, or individual voters, and standing.

Should I see a second amended complaint, in response to Paxton, I'll post it.

-  -  -  -  -  -

Update, Aug. 22: The Secretary of State's office has now officially stated the fees of HB 2504 must be paid. With this, and per another comment at Ballot-Access News, I presume an injunction request by the plaintiffs is next.

-  -  -  -  -  -

And, update Oct. 10, yes, that injunction request has been filed. Reasons listed are threefold:
1. That the language of the law itself says it only applies to actual convention nominees, not anybody indicating a desire to be nominated. And so it does say, right up at the top.
2. It's a violation of due process due to relative lack of time to prepare for it.
3. The key to the whole case: that filing fees for convention parties are unconstitutional.

I'm not a constitutional law scholar, but, I think our plaintiffs have a very good chance of succeeding, since this is in federal court, on Article 1 alone. Were it in Tex-ass state court? Nuther story.

That said, I don't know if it was just time issues, or waiting for Abbott to name an official Secretary of State (Ruth Hughs) or some strategery that I don't know about that it was held for seven weeks.

Update, Oct. 18: Hughs has responded. And it's horrifically weak. She claims that 
1. The plaintiff's 1 is not true.
2. That nobody besides Greens and Libertarians have standing, arguably, to fight this (despite rulings to the contrary in other federal courts).
3. On plaintiffs' 3 et al, using language like "flout" is inflammatory and designed to be so.

-  -  -  -  -  -

Update, Dec. 3: Late last month, the federal judge in the case had a perplexer. Contra Hughs' request,  he refused to dismiss. Contra the plaintiffs, he also refused to enjoin. (Yes, judge Roger Pitman a preliminary injunction may be extraordinary, but there's this thing called a calendar and a time frame and plaintiffs' request is based on Dec. 9.)

But, Libertarians just won an enjoinment in Harris County. (Why Greens, in what has long been considered their bastion in Texas, weren't part of this, I don't know.)

Updates, Jan. 12, 2020: The SoS's fight against that enjoinment is getting hearty discussion over at Ballot Access News. For the SoS advisory on HB 2504 mentioned by Jim Riley, it's here.

=======

In 2020, the challenged provisions require minor parties to obtain 83,717 valid signatures on paper nomination petitions in only 75 days.  Independent candidates for statewide office must obtain the same number in as few as 30 days, if there is a run-off primary for the office they seek. Independent candidates for president need to collect 89,692 valid signatures in just 69 days. 

The plaintiffs – Mark Miller, Michele Gangnes, Scott Copeland, Laura Palmer, Tom Kleven, Andy Prior, America’s Party of Texas, Constitution Party of Texas, Green Party of Texas and Libertarian Party of Texas – allege that the cost of obtaining the required signatures will exceed $600,000 in 2020, largely because Texas’s nomination petition procedure is obsolete.  Texas first adopted that procedure in 1905, and it has not been significantly updated or improved in the 114 years since. 

“Collecting signatures by hand is inherently time-consuming, labor-intensive and expensive,” Miller said, “and collecting 80,000-plus valid signatures in the limited time allowed under Texas law is all but impossible without spending hundreds of thousands of dollars to hire paid petition circulators.” 

By contrast, Texas guarantees ballot access to the two major parties by means of taxpayer-funded primary elections.  Texas has also adopted electronic procedures, at taxpayer expense, which minimize the burden of administering the major parties’ primary elections.

This connects indirectly to the part of the suit that is about this year's HB 2504. See below. Per David Bruce Collins, this suit had been in the works well before 2504 was passed, but that legislation both was the more than the last straw and the foisting of primary-related costs on convention-based "minor" parties also provided the final legal wedge that could help boost the chances of success.

The plaintiffs allege that Texas could reduce the burden and expense its statutory scheme imposes on independent candidates and minor parties by adopting electronic procedures for obtaining voters’ signatures.  In Arizona, for example, the Secretary of State has implemented an online platform that enables voters to sign nomination petitions from the comfort of their own homes (available at https://apps.azsos.gov/equal/).  Other jurisdictions enable voters to sign nomination petitions on portable electronic devices.  Such procedures automatically validate a signature, and thereby eliminate the need to collect more signatures than the requirement. 

“We filed this lawsuit to restore and protect the right of all Texas voters to cast their votes effectively for the candidates of their choice,” Miller said.  “As plaintiffs, we represent a wide range of political views, but one point on which we all agree is that every citizen has an equal right to participate in Texas’s elections.”

The plaintiffs are represented pro bono by the non-profit Center for Competitive Democracy (“CCD”) and Shearman and Sterling, LLP, a global law firm with 23 offices, including in Austin and Houston. 

“Texas’ burdensome ballot access requirements and obsolete procedures combine to create a financial barrier to entry that is insurmountable for non-wealthy candidates and parties,” said CCD attorney Oliver Hall.  “We think the federal courts will recognize that Supreme Court precedent prohibits Texas from limiting participation in its electoral process to those with financial means.”

“It is essential that voter choice not be limited only to those candidates able to overcome severely burdensome Texas election procedures,” said David Whittlesey, a partner in the Litigation practice based in Shearman & Sterling’s Austin office who is representing the plaintiffs. “This lawsuit seeks to secure a more open, competitive election process to give Texas voters more options at the ballot box.”

A ballot access bill introduced in the Texas House in 2017 (HB 3068) and 2019 (HB 4439) would have established constitutional requirements and procedures for independent candidates and minor parties, but it was not enacted.  Instead, in 2019 Texas enacted HB 2504, which imposes an additional filing fee or nomination petition requirement on individual nominees of minor parties, in addition to the nomination petition the parties must file.  The plaintiffs also challenge these new requirements.

Texas does, as the suit notes, allow nominating petitions as an alternative to filing fees. But, as noted above, this still has its own burdens, even if the petition signature process for a third-party nominee is lower than for a third party to get party-wide ballot access, or for an independent to qualify.

The Texas Libertarian Party had indicated it would sue over this, even before Abbott signed the bill into law. It's good that Greens, and other third parties, as well as individuals, are all on the same page on this. It's bogus, and I personally think bill sponsor Drew Springer (R-Muenster) knew it was bogus. Without the portion of the bill that went from one election to a five-election cycle for the 2 percent threshold for getting party-line ballot access, he had peddled this same bill in the previous two legislative cycles. I think he figured adding that, knowing it would help Greens, with the idea it might hurt Democrats, convinced some Republicans to sign on.

The plaintiffs assert claims for the violation of their rights to cast their votes effectively, to speak and associate for political purposes, and to the equal protection of law.  The lawsuit, captioned Miller v. Doe, No. 1:19-cv-00700, names the Secretary of State of Texas (presently a vacant office) and Deputy Secretary of State Jose A. Esparza as defendants in their official capacities, and seeks to enjoin the state from enforcing the challenged provisions.

Commenting further, specific to 2504? Drew first drew this up as an anti-Libertarian bill, in my opinion. Don't forget, that without the amendment of the five-election period for determining qualification for statewide ballot access, he had peddled the original bill in the previous two legislative sessions. And, it will be fun to see emails and other communications from the previous two Lege cycles related to this bill's predecessors get brought up in discovery.

I'm not sure why it passed, and what sausage-making led Springer to amend it this time. Maybe some Republicans who have faced general election challenges from Libertarians were worried about getting them too angry, in the previous two Legislatures. Maybe they figured the apparent anti-Democrat angle of lowering ballot access to make it easier for the Greens to get on and stay on made it more worth it. (I'd love to see if any of this comes out in the discovery process, of course.)

TX Progressives talk gay marriage, climate change, Obamacare

The Texas Progressive Alliance is still celebrating love's victory — and pondering Texas AG Ken Paxton's combination on that of political pandering with lack of backbone — as well as pondering what SCOTUS will do when it again rehears the Fisher vs. University of Texas affirmative action case, as it brings you this week's roundup.

Off the Kuff discusses the next steps for equality advocates.

Lightseeker at Texas Kaos shares personal stories about the heartbreaking impact of overt racism.  And though he has come to hate prejudice and racism with a white hot passion, Lightseeker said the time has finally arrived for sharing the truth, change and healing. Time for Truth, Change and Healing is NOW.

Lost in the earth-shaking Supreme Court developments last week was a report from a former Harris County deputy sheriff that Adrian Garcia did not tell the truth when he said he did not know about the mentally ill jail inmate in a littered, feces-filled cell over a year ago. PDiddie at Brains and Eggs says it's a headache for the Houston mayoral contender, but shouldn't damage his prospects... unless things take a turn for the worse.

Socratic Gadfly notes that new polling from Yale shows that people concerned about global warming are NOT a minority, even in a red state like Texas, even to the point of supporting a carbon tax, and suggests there are political activism and outreach lessons to be learned.

From WCNews at Eye on Williamson. No surprise in SCOTUS ruling on Obamacare, ACA, aka, Obamacare Subsidies Upheld By SCOTUS.

Neil at All People Have Value said that the 14th Amendment--cited this week by the Supreme Court to allow gay marriage--is the product of blood and sacrifice. APHV is part of NeilAquino.com.

Texas Leftist is still trying to recover from this weekend's monumental Houston Pride celebration. Fair warning... What "turns up" must eventually come down.


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And here are some posts of interest from other Texas blogs.

Scott Braddock adds up the success rate for getting bills passed for legislators who opposed Speaker Joe Straus.

Texas Watch responds to Rick Perry's claims about his record on health care.

BEYONDBones explains why we should eat bugs. No, really.

Juanita Jean updates us on the activities of one of Dan Patricks's citizen advisors.

The Lunch Tray says we all have a Sid Miller problem now.

The Texas Election Law Blog highlights a respected federal judge's change of heart on voter ID.

Better Texas Blog evaluates the legislative session.

Paradise in Hell bids an un-fond farewell to the ideals of the Confederacy.

Lone Star Ma addresses some of the crazy objections that have been made to the SCOTUS same-sex marriage decision.

(Blog publisher's note: I would be willing to try bugs if, per the blog post, they were made into flour or something — and presumably didn't have a Whole Foods-level pricetag on them.)

#GayMarriage: 4 #SCOTUS dissents, 0 new arguments

Four Justices, four vacuous opinions

Unfortunately, after writing the 6-3 majority decision yesterday on Obamacare exchange subsidies (and seeing fellow justice Kennedy join him, reversing his original vote opposition to Obamacare), Chief Justice John Roberts acted a bit like Antonin Scalia today.

Roberts from bench: "Today 5 lawyers have ordered every state to change their definition of marriage. Just who do we think we are?"

Gee, just yesterday, Scalia was saying that, in essence, "6 lawyers have ordered every state to change their definition of the word 'state.' Just who do we think we are?" 

On this case, each of the four dissenters — Roberts, Scalia, Alito, and Thomas — wrote his own dissent. They can't even agree what's wrong legally with gay marriage, just that they don't like it. (Yes, I know they concurred in each others' dissents, but the fact that four separate dissents were written still shows they disagree with each other on the primary reason gay marriage is wrong.) 

More parsing of the dissents, from the full opinion, reveals just how vacuous they are.

Roberts was partially joined by Scalia and Thomas. If "this Court is not a legislature" is the best opening argument you can find for tap-dancing around the 14th Amendment, and ignoring the obvious parallels to Loving, you're weak tea indeed. And, to extend that parallel and refute your next sentence, no, on Loving, and in many other cases, the Court has indeed said just what the law should be.

Later, his dissent tries to explain away Loving parallels, noting that previous gay/lesbian petitioners raised that and were rejected. Yeah, well Loving cases themselves were once rejected, both interracial marriage, and just interracial marriage. That's why Think Progress claiming that Roberts' dissent is more bad news for conservatives is tendentious at best.

Beyond the above, per Roberts, I could almost extend his argument to say stare decisis on Plessy v Ferguson. Of course, Brown vs Board of Education trumped Plessy.

Next, he goes to a traditionalist-presentist stance, invoking the old "marriage for conception" argument. This has repeatedly been refuted.

Scalia and Thomas then added their concurring dissent with the this claim gay marriage is a "threat to American democracy." For Scalia, at least, I get the feeling that this was more important. And, by his logic, then, the Supreme Court IS supposed to be a legislature, bowing to the tyranny of actual, or perceived, or finger-in-the-wind tested majoritarianism.

The final laugh is the pair them, especially Scalia, calling out Kennedy for "hubris."

Thomas, to whom Scalia concurred, then tried to pull an economics rabbit out of his hat, claiming that marriage is a "government benefit" that's neither a right nor entitlement, ignoring the IRS, state tax codes, etc. Fine, then, your actual argument should have been to overrule any government benefit for ANY marriage.

He then, without irony as a minority, chides people for reading too much into the Due Process clause of the 14th Amendment.

He ends with the old "religious liberty" argument, as big a red herring as any.

Alito then brings in the "states rights argument," which in turn ignores the "full faith and credit" clause" of the Constitution itself. Like the Chief tap-dancing around Loving, Alito does the same here.

#Atheists: Maybe you're using the wrong amendment?

Come again?, you might be saying to yourself, if you are an atheist, especially if atheism and civil liberties are important to you.

I'm thinking of the most recent Supreme Court ruling related to that, Town of Greece v Galloway, of course.

But, I'm also thinking about recent federal district court rulings, and now an appellate one, on gay marriage.

All of these have been decided not on individuals getting married in a state that already had gay marriage, and asking for the "full faith and credit" clause of the Constitution to protect them, but on the 14th Amendment, namely the Equal Protection clause.

It might be hard for an atheist to argue that she or he were "losing anything" from public prayer before city council meetings, but, would it be impossible?

Without abandoning a primary focus on the First Amendment, would it be possible to bring in the Fourteenth as a supplement? 

At the least, atheists could argue that without atheists having the right to publicly lead a "moment of silence," they are being deprived of an equal psychological and sociological atmosphere at public meetings.

Yes, per Kennedy's lead opinion in the case, where he noted:
“To hold that invocations must be non-sectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and censors of religious speech,” Kennedy wrote for himself and the conservative members on the court. Lawmakers and judges would otherwise have to police prayer, he wrote, involving “government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact.”
Well, not having prayer of any sort would let government avoid that, Justice Kennedy! Besides, what if the original plaintiffs, or similar plaintiffs in other cases, start keeping documented records that show that conservative to fundamentalist Christians are disproportionately getting the podium in Greece?

Beyond that, Kennedy's stance is a clear example of the "tyranny of the majority" that some of our Founding Fathers warned against.

So, atheists? Next time, stay with the 1st Amendment, but add the 14th. Arguably, it's been "federalized" more than any other.

Two simple ideas to address attempted voter blocking

Both, of course, would require a President and an Attorney General with cojones, therefore they won't happen while the Compromiser-in-Chief is still in office.

The first is one I've touted before.

Nationalize the 1965 Voting Rights Act. Including the "preclearance" part. In my legal layperson's mind, especially when combined with the 1964 "one man, one vote" ruling by the Supreme Court, it could also be used to attack gerrymandering more generally.

The Act established extensive federal oversight of elections administration, providing that states with a history of discriminatory voting practices (so-called "covered jurisdictions") could not implement any change affecting voting without first obtaining the approval of the Department of Justice, a process known as preclearance.

And there's legal grounds for this. State laws clearly designed to impede the right to vote of the urban poor, especially those of color, are to be found in several Rust Belt states where the GOP has recently gained state control. Also, American Indians arguably face voting discriminations in far more counties and states in the western United States than is often reported.

Tool No. 2?

Employ the 14th Amendment. Specifically, the second sentence of Section 2:

But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

That's right. Arguably, it's Congress' power to enforce this, but, a strong President could take the bit in his mouth, and if necessary, sue Congress to take three House districts from Texas, two from Florida, or whatever else is deemed necessary. (Or one or two from Michigan, for that matter, per the discussion above.)

Of course, per the start of discussion, this administration would never do it.

Anchor babies DO exist

Sorry, fellow liberals, but conservatives are sometimes right. Even wingnuts are occasionally right. And, per this story out of Los Angeles, anchor babies do exist.

How much of an issue is it? I don't know. It almost surely is less, maybe even far less, than wingnuts play it up to be. But, if there is/was an entire "maternity hotel" in suburban LA for Chinese women to fly here on tourist visas (and, don't forget Bobby Jindal's parents wanting to make sure he was born in the US), isn't it just possible that similar facilities, if lower key, exist for Mexican illegal immigrants along the southern border?

The story says that there's a whole "industry" for this, apparently Chinese-specific, though the story is not quite clear, in LA's San Gabriel Valley. That would seem to underscore that something similar could indeed exist for Mexican and/or other Hispanic immigrants, whether illegal or legal.

Is the answer to revoke birthright citizenship, as wingnuts want to do? Probably not. That said, what answers short of a greater police crackdown on, and dragnet for, maternity hotels, is there?

#Debtmageddon - why no #14thAmdt?

For people who aren't Obamiacs, but aren't yet ready to join the club of writing him off (and why not?), this is certainly a puzzler. Even erstwhile Senate ally Dick Durbin wanted him to.

Or, if not that, why "compromise away the compromise" and have your press secretary announce, a week in advance of the deadline, that you won't do it?

Once again, although not 100 percent true, this is largely the budget deal Obama wanted. No, there's no "lobbyist bankshot" he planned of playing off defense vs. medical spending on the commission and the possible "trigger," or anything like that.

He wanted something like this, and that's why he appointed his Catfood Commission long ago. That's why he's got Robert Rubinites running his economic policy.

So, again, Obama wanted to be forced to "compromise" in a way that really wasn't compromise.

John Cornyn, 14th Amendment schwaffler

oes this surprise you? Big John, the reported reasonable conservative, again got overtaken by Whack Job John, the tea party panderer type, only to now back off again.

If the teabaggers maintain enough strength, he's going to get a primary challenger next time around, don't doubt it.