Take your ID with you when you vote, says the Fifth Circuit

Because it's too late to change the rules.

"Based primarily on the extremely fast-approaching election date, we STAY the district court’s judgment pending appeal," 5th Circuit U.S. Court of Appeals Judge Edith Clement wrote, in a ruling joined by Judge Catharina Haynes (and posted here). "This is not a run-of-the-mill case; instead, it is a voting case decided on the eve of the election....The judgment below substantially disturbs the election process of the State of Texas just nine days before early voting begins. Thus, the value of preserving the status quo here is much higher than in most other contexts."

The third appeals court judge on the panel, Gregg Costa, agreed with the decision to stay the district court ruling, but did not join their opinion. He said he was troubled about the prospect of an election being held under discriminatory rules.

"We should be extremely reluctant to have an election take place under a law that a district court has found, and that our court may find, is discriminatory," Costa wrote. However, he said it appeared the Supreme Court opposes federal court-ordered changes to election procedures on the eve of elections. "On that limited basis, I agree a stay should issue," he said.

Clement and Haynes are appointees of President George W. Bush. Costa was appointed by President Barack Obama.

Yeah, that's what I thought they were going to do.  More from Lyle Denniston.

Update:  I hope nobody showed the three Fifth Circuit judges any pictures of black people voting.

Update II:  More from Justin Levitt of the Brennan Center, at Election Law Blog (now appearing regularly in the right-hand column here), via Brad Friedman.

"So instead, the court makes it legal for all pollworkers to demand the more restricted set (preventing all individuals without the right ID from voting a valid ballot at all)," he continued. "Or, translated even further: if we let the district court's order stand, some people without the right ID will be able to vote, and some won't. And if we stay the district court, all people without the right ID won't be able to vote. And in elections, 'all' is better than 'some.'"

Levitt derides the ruling as 'foolish consistency'. "It's one thing to stop last-minute changes when the impact is less dire for those affected, another to stop last-minute changes when the change is new and unfamiliar, and still another to stop last-minute changes when the reason for the change isn't clear."

"Responsible procreation"

This is the legal premise Greg Abbott (also known in various lawsuits as "the state of Texas") advances in the case against marriage equality.

In a brief filed with the Fifth Circuit Court of Appeals on Friday, Texas attorney general and GOP gubernatorial candidate Greg Abbott argued that lifting the state’s ban on same-sex marriage would not encourage opposite-sex couples to procreate within wedlock, and therefore the ban should stay in place. Abbott reiterated the “responsible procreation” argument he has already made in defense of a same-sex marriage ban, saying that the motivation for denying marriage rights is economic, according to the Houston Chronicle.

“The State is not required to show that recognizing same-sex marriage will undermine heterosexual marriage,” the brief reads. “It is enough if one could rationally speculate that opposite-sex marriages will advance some state interest to a greater extent than same-sex marriages will.”

There's nothing new here.  Supporters of California's Prop 8 gave the postulate a test drive in 2013; Utah employed the argument as well.  What motivates a (supposed) small-government conservative to advance a state interest in procreation in the first fucking place, you might be asking yourself. 

The economic benefits to the state of people having children, it appears.

Texas, represented by Assistant Texas Solicitor General Mike Murphy, countered that the state has a legitimate interest in preserving the "traditional definition of marriage," calling the same-sex kind, which became law in Massachusetts in 2004, "a more recent innovation than Facebook."

[...]

"The purpose of Texas marriage law is not to discriminate against same-sex couples but to promote responsible procreation," Murphy said, according to The Dallas Morning News. Kids, he argued, fare better when they're raised by heterosexual couples.

That premise is false, as scientific data has revealed.

In a 2010 brief filed in a gay-marriage case in California, the American Psychological Association, the American Psychiatric Association and the American Association for Marriage and Family Therapy wrote that claims the straight people make better parents or that children of gay couples fare worse "find no support in the scientific research literature."

Indeed, the scientific research that has directly compared outcomes for children with gay and lesbian parents with outcomes for children with heterosexual parents has been consistent in showing that lesbian and gay parents are as fit and capable as heterosexual parents, and their children are as psychologically healthy and well-adjusted as children reared by heterosexual parents. Empirical research over the past two decades has failed to find any meaningful differences in the parenting ability of lesbian and gay parents compared to heterosexual parents.

As Supreme Court Justice Elena Kagan asked, what about when two heterosexual people over the age of 55 get married?  What about infertile couples of any age?  And I would ask: what about the children produced by women of low socio-economic status who are being compelled to give birth because the state refuses to allow them to end their pregnancies?  Weren't conservatives calling those mothers and their children 'moochers' and 'freeloaders' just the other day?  That's certainly counter to a claim of "economic benefit".

The speciousness of these legal arguments defies common sense.  More from the Chronic from behind the paywall.

"By encouraging the formation of opposite-sex marriages, the State seeks not only to encourage procreation but also to minimize the societal cost that can result from procreation outside of stable, lasting marriages," Abbott's brief read. "Because same-sex relationships do not naturally produce children, recognizing same-sex marriage does not further these goals."
 
LGBT and pro-gay marriage activists were surprised Abbott led with the "responsible procreation" argument since it has been rejected in the 10th and 4th Circuit Courts.

"It hasn't succeeded very often because it doesn't make a whole lot of sense and it doesn't really comport with what most of us think about marriage," said Rebecca Robertson, legal and policy director for the American Civil Liberties Union of Texas. "(State law) doesn't have to be perfect. It just has to be reasonable."

'Reasonable' and Greg Abbott shouldn't be mentioned in the same breath.

But these ridiculous, contorted legal justifications discriminating against people who love each other, wish to share their lives, and not be penalized by society, tax law, probate law, hospital visitation polices, and all the rest are actually not what concerns me most.

What is genuinely disconcerting is that Greg Abbott -- who had a tree fall on him and break his spine at the age of 26, leaving him paralyzed from the waist down -- has apparently been thinking about the sex other people have for a long time now.  And essentially he's reached the conclusion that the only people who should be allowed to have sex are straight married couples who desire children. (Let's overlook his ignorance of the reality of pre-marital and extra-marital sex, as well as recreational sex.  God only knows how wrong he must think masturbation is.  No economic benefit to the state there.  Likewise, Abbott is  probably only interested in the economic benefits of procreation by Caucasian and well-to-do Christian couples... but that's a digression.)

These are considerably more disturbing thoughts than anything I have read recently about wheelchairs and disabled people.  But since Abbott brought it up, it's fair to speculate: what economic benefit to the state has his own marriage produced (his only daughter is an adopted child)?  And if there's no responsible procreation activities going on in the Abbott household.... of what good to the general welfare of Texas has his marriage been?

By Greg Abbott's own logic, why should a paralyzed man be allowed to marry?

Charles has more, less graphic than me.  Update: And so do Margaret and Helen.  The Dallas News, tracking the case developments, notes that it will be several weeks before the Fifth weighs in.

The Weekly Wrangle

The Texas Progressive Alliance celebrates the advance of marriage equality...

...and looks forward to the day when it comes to our state as we bring you this week's roundup.

Off the Kuff published his interview with Mike Collier, Democratic candidate for Comptroller.

Libby Shaw, writing for Texas Kaos and Daily Kos, wants to make sure Texas women voters remember in November. Greg Abbott’s War on Poor Women is real and it is mean.

So there was this ad about a guy in a wheelchair on teevee last week. PDiddie at Brains and Eggs thinks that people observing Texas politics that don't live in Texas just don't get it.

As crunch time arrives, Texas Leftist wants voters to know just how far out in the political fringe we have to put Republican Dan Patrick. So far out, he started running against Rick Perry. Plus, don't miss the interview with the only sensible candidate in the lietenant governor's race, Democrat Leticia Van de Putte.

WCNews at Eye on Williamson says that of all the bad GOP statewide candidates -- and there are many to choose from -- Ken Paxton may be the worst, in Paxton's legal predicament: will he be indicted?

Vote this November with CouldBeTrue of South Texas Chisme if you want Latinas treated with dignity, people of African descent given life-saving efforts when ill, and Texas women to have proper health services.

Neil at Blog About Our Failing Money Owned Political System wrote about the two Ebola cases in the United States. BAOFMOPS is one of many worthy pages to review at NeilAquino.com.

jobsanger wonders if the polls even matter in this election.

Texpatriate plays it down the middle in the furor over the wheelchair ad.

====================

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

Unfair Park tallies the cost of assuaging irrational fears about Ebola.

Mark Phariss, one of the plaintiffs in the lawsuit seeking to overturn Texas' ban on same sex marriage, urges the Fifth Circuit Court of Appeals to schedule oral arguments in that case already.

Socratic Gadfly has a take on Bud Kennedy's column regarding Democrats, minorities, and thinking past abortion and gay marriage.

Fascist Dyke Motors wants you to understand that there are rules everybody has to follow.

Hair Balls explains why moving the Houston Pride parade out of the Montrose is a big deal.

Nonsequiteuse reminds us that sneakers are made for blockwalking as well as filibustering. Pink is optional.

Christopher Hooks provides another example of Breitbart Texas being stark raving loony.

The TSTA Blog highlights another education cutter seeking to get back into office.

Greg Wythe teases his return with a promised look at how the early vote is going.

Mustafa Tameez condemns Dan Patrick's "irresponsible" border ad.

Juanita Jean speaks as a person with disabilities about that Wendy Davis ad.

Finally, the TPA congratulates Grits for Breakfast on its tenth anniversary of blogging.

Overnight developments in voter ID case, polling

-- YouGov, which polled me on September 20 and completed fieldwork on these latest results on October 1, has Greg Abbott at 54% and Wendy Davis at 40%. (John Cornyn leads David Alameel 55-35).  In other words, nothing has changed.

YouGov has already polled me again over the weekend, for Texas statewide races all the way down to Land Commissioner (no judicials) and several hot-button issues.  Those include the National Guard at the border, supporting or opposing deportation of immigrants and the photo ID law, various circumstances under which a woman should be able to have an abortion, whether undocumenteds should receive in-state tuition, and gay marriage.  This sounds like a Texas Tribune/UT profile to me, and thus I would expect results from this polling in a week... just in time for early voting

In their overall US Senate measurements, YouGov has the Democrats losing Alaska, Arkansas, Georgia, Kentucky, Louisiana, and South Dakota.   They hold Iowa, North Carolina, Colorado, and Michigan.  Kansas is dead even.  In that scenario, Mitch McConnell becomes Senate Majority Leader (if his caucus will still have him, that is).

-- The Fifth Circuit has ordered all parties in the Texas photo ID case to submit their arguments by 3 p.m. today.  Lyle Denniston at SCOTUS blog reiterates what was posted here previously.

If this dispute moves on to the Supreme Court, which seems quite likely, it will be the fourth time in recent days that the Justices have been drawn into the widespread controversy in this election season over new restrictions on voting rights.

In three separate actions, the Justices blocked a voter ID law in Wisconsin, but permitted limitations on early voting in Ohio and limits on same-day registration and voting as well as some limits on vote counting in North Carolina.

The differing treatment has not been explained, but it appears that the Court has been less willing to permit changes in voting procedures to be changed close to elections.  That is a principle the Court appeared to establish in a late October 2006 decision, Purcell v. Gonzalez, involving an Arizona proof-of-citizenship requirement, which the Justices allowed to remain in effect, citing “the imminence of the election and the inadequate time to resolve the factual disputes.”

In the Texas dispute, the Fifth Circuit is expected to act quickly after the challengers and the Justice Department offer their views on the postponement request.  Those filings were limited to ten pages.

Texas conducted elections in 2013 using photo IDs.  Not requiring them for voting beginning a week from tomorrow could be considered a material enough revision by the SCOTUS for them to dodge an appeal from the plaintiffs if/when the Fifth Circuit rules against them.   If I were a betting man -- and I am -- my guess is that the Fifth overturns Judge Ramos' decision tomorrow evening or Tuesday morning, there is an immediate appeal to the SC which they decline to consider, and photo IDs go back into effect for the Texas election.

I'd be delighted to be wrong somewhere in there.

Updates: This report in the DMN details the hundreds of thousands of dollars in campaign contributions that Fulbright & Jaworski and Vinson & Elkins, two of the largest law firms in Texas, have made to Greg Abbott in exchange for even larger-dollar contracts for legal work from the state of Texas.  Thirty-nine million dollars to F&J, $13 million to V&E.  It's more of the same old quid pro quo from Abbott.

And via e-mail, the two major party state Comptroller candidates, Mike Collier and Glenn Hegar, will hold a debate on October 29, to be televised by Time Warner Cable.

Sunday Freak Out Funnies

Dan Patrick seizes on ISIS-at-border claims in first TV ad

Wheelchair ads

National media seems to have the vapors about Wendy Davis' latest teevee ad.  And if that's what the WaPo and the AP are saying, you can only imagine how offended Breitbart Texas is acting.  Why, even Mother Jones is clutching her pearls.

I just don't think any of these people have been following the race for Texas governor very closely.  Or if they have, they've been doing so from a posh suite of offices inside the Beltway.

Here's a couple of explanations for the out-of-towners about how political campaigns go in the Lone Star State from some of my fellow bloggers who know about these things.  Or you can read the comments on the story at the HouChron, which for the uninitiated is no bastion of Texas liberalism.  You will find several short -- even Tweetably short -- descriptions of precisely what the spot is about.

Specifically, a self-loathing sociopath.

For those who won't click: the ad is about the baldest demonstration of hypocrisy ever performed by any politician anywhere, and not the fact that he was too stupid to get out of the way of a falling tree.  So let's be certain that the corporate media outside Texas regains its focus by repeating the truth about Greg Abbott.

Now if someone wants to scream and cry about those who would make fun of people in wheelchairs, I got your outrage right here.  Swinging.

More Texas voter ID legal developments

-- Greg Abbott asks for some guidance (via Quorum Report).

While it is obvious that the federal court in Corpus Christi has rejected Texas' voter ID law as discriminatory and a de facto poll tax, it failed to issue a judgment instructing the state on required procedures, if any, for the November election.

The Office of the Attorney General has issued a request for guidance on the initiation and scope of the injunction and whether it will be implemented for this election. The request notes "The issuance of an opinion with no injunction or direction regarding the timing of the injunction is already adding to the confusion created by the Court’s decision. Texas respectfully requests that the Court enter the planned injunction and judgment by the close of business today."

The request for guidance can be found here.

Update (10/11): And guidance is supplied.

-- Chad Dunn, the TDP lawyer who makes his living doing this, weighs in (via Lone Star Project):

LSP: Greg Abbott has already announced that he will appeal Judge Ramos’ ruling to the 5th Circuit Court of Appeals. How long will that process take, and what happens after the 5th Circuit rules?

CD: We expect Judge Ramos to issue an order formally blocking enforcement of the Texas voter ID law within the next few days. Greg Abbott has already announced that he will appeal her ruling and ask the 5th Circuit US Court of Appeals to reverse her order. After the 5th Circuit rules, the case will almost certainly be appealed to the US Supreme Court. It would not surprise me if both the 5th Circuit and the Supreme Court issue rulings on this matter in next ten days. (emphasis mine)

I guess some attorneys are going to be working over the weekend.

For want of a stamp, the election was lost

All apologies to James Baldwin William Shakespeare whomever.  The following account is a transcript of the news report shown on the 10 p.m. newscast of Houston's ABC affiliate, KTRK, last night.  They don't have their own video posted to the website yet, so this one from Lane Lewis will have to suffice for now.

Hundreds of mail-in ballots that are being mistakenly held for days at a downtown post office will now be delivered to the Harris County Clerks Office.

The downtown post office was holding the ballots for insufficient postage, something they are not supposed to do.

"We found a glitch. And we're going to expose this," said Harris County Democratic Chairman Lane Lewis.

Lewis found out about the ballots and offered to pay for the postage shortage. Almost all the ballots were short on postage by just pennies.

"These votes whether Republican or Democrat, I don't know, but they need to be counted," said Lewis.

A postal worker told Eyewitness News the shortage was about $57. The worker said for that price, Lewis could take the ballots, put the stamp on himself and return them to the post office. That's against policy and illegal.

"We could have walked out of here with those ballots. But we did not," said Lewis.

"That is totally irresponsible on their part," said Harris County Clerk Stan Stanart.

Eyewitness News learned the county clerk's office has an account with the (Houston) postmaster, so any shortage should be billed to his office. Post office workers said they knew nothing about an account. They were ready to send the ballots back to the voters.

"By procedure and by law, deliver the ballots regardless of the postage on those ballots," said Stanart.

So then... it's not his fault, it's the post office's fault.

Eyewitness News learned Stanart made his own mistake. The return ballot states the postage is 69 cents. But it should have been 70 cents. Some ballots were being held for just a penny. Stanart said he didn't know about the change in postage.

"I personally didn't. I would have to talk to my office if they do know that," said Stanart. 

Uh oh.  So whose fault is it again?  There's no "Buck Stops Here" plate on that man's desk. This is how a person takes personal responsibility for their mistakes.

Dionne Montague, a USPS spokeswoman, released the following statement to Eyewitness News:

"We have policies in place to ensure absentee balloting material, received in the mail, is handled promptly. We do not delay delivering ballot materials even when they are received with insufficient funds or no postage. Our policy is to attempt to collect the postage due from the election office at the time of delivery or at a later date. This policy will be reinforced with all of our employees."

Stanart said the problem has been worked out, and the ballots will be soon delivered to his office.

There might be some chain-of-command issues regarding the way those ballots were handled, just from what I observed in the video.  And Stanart's deer-in-the-headlights, wide-eyed blinking on the videotape are as solid a tell as you'll ever see in any poker game.

It's been well-established for some time now that Stan Stanart is just in over his head.  After four years in office he still can't get the basic things right.  The Houston Chronicle choked in their endorsement of this race, and everyone -- I'm looking at you, Republicans -- needs to fix this mistake in government.

Ann Harris Bennett, everybody.  For the gracious sake of no more embarrassments in the County Clerk's office.  More mailed ballot news from Charles.

Federal judge crushes Texas photo ID law

Christmas came early, y'all.

A federal court has struck down Texas’s voter ID law.  It violates the Voting Rights Act, it violates the constitutional prohibition on poll taxes, it violates the constitutional prohibition of unjustified burdens, it violates the constitutional prohibition on intentional racial discrimination: indeed, in 147 pages of opinion, there’s little that the ID law doesn’t violate.

Also extremely important: the court expressly finds intentional discrimination relevant to bail-in under the Voting Rights Act, and says it will consider a bail-in order in the days to come.  If the court indeed follows up with a bail-in order, Texas could become the first state brought back under a pre-clearance regime since Shelby County.

The judge, Nelva Gonzales Ramos, destroyed the arguments Greg Abbott and Texas Republicans made that the law was necessary.  It's a wipeout for the conservatives who have staked their claim on suppressing the vote.

It's not over, though.  Expect an emergency appeal by Abbott to the Fifth Circuit, and a possible stay of Judge Gonzales' order, leaving the law intact for the coming election.

Update:  The SCOTUS tonight has also blocked the state of Wisconsin from implementing its photo ID law.  But keep in mind that they have already allowed both Ohio and North Carolina to proceed with their restrictive laws, so there's no telling how we might wind up.  If I had to guess, I would say that should the Fifth Circuit stays the lower court's injunction, then there isn't simply enough time for the Supremes to rule before Texans start voting, eleven days from now.

Update II: A good explainer from Think Progress.

Although the Supreme Court’s order does not explain why the Court halted the (Wisconsin) law, a short dissenting opinion by Justice Samuel Alito provides a window into the Court’s reasoning. Alito begins his dissent by admitting that “[t]here is a colorable basis for the Court’s decision due to the proximity of the upcoming general election.” In a 2006 case called Purcell v. Gonzalez, the Supreme Court explained that judges should be reluctant to issue orders affecting a state’s election law as an election approaches. “Court orders affecting elections,” according to Purcell, “can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” It is likely that the six justices who agreed to halt the Wisconsin law relied on Purcell in reaching this decision.

Only two justices, Antonin Scalia and Clarence Thomas, joined Alito’s dissent. Both Chief Justice John Roberts and Justice Anthony Kennedy joined the four more liberal justices in the majority.

Thursday’s order halting the Wisconsin voter ID law may also provide some explanation for why seven justices voted to reinstate a voter suppression law in North Carolina on Wednesday. If Purcell‘s fear of changes to election law close to an election is the rule, then that rule should apply no matter whose ox is gored.

King Street Thugs lose again

From the press release...

(Yesterday), the Texas Democratic Party prevailed in King Street Patriots v. Texas Democratic Party, when the Texas Court of Appeals for the Third District confirmed a lower court decision to uphold provisions of Texas campaign finance law. [Campaign Legal Center, 10/8/2014]

The Texas Democratic Party’s suit alleged that the King Street Patriots had made in-kind contributions to the Republican Party of Texas. These donations would have been a violation of the restrictions on corporate political contributions. They also failed to register as a “political committee” and comply with Texas Disclosure Law. In response, the King Street Patriots filed a counterclaim that challenged the constitutionality of parts of Texas’ campaign finance laws. [Houston Chronicle, 3/28/2012]

Update: Quorum Report had  more (including the "blast from the past" link to Hair Balls).

The controversial conservative group King Street Patriots on Wednesday lost its appeal to exempt itself from the Texas Election Code, paving the way for the group to file a writ before the Texas Supreme Court.

The Patriots were a serious source of contention during the 2010 elections in Houston, where they were accused of intimidating voters at the polls. The patriots, who called themselves poll watchers, were well known for their campaign called “True the Vote.”

The Texas Democratic Party sued the King Street Patriots, alleging it needed to register as a political action committee under the Texas Election Code. The King Street Patriots, which refused to participate in discovery, counter-sued the Texas Democratic Party and the party chairs in Harris and Dallas counties, saying they were an independent non-partisan non-profit group exempt from registration.

Even Alex Jones gets it: King Street Patriots/True the Vote is hamstrung -- by the terms of the lawsuit they settled with the Democratic Party two years ago -- from doing those things they do to intimidate voters and suppress voting.  Court-compelled designation as a PAC restricts their special brand of bullshit even further.  But that won't stop them, in fact will barely slow them down.

Some of you may have seen Campos' post (also here) about the surge in D mailed ballots.  Sidebar: it's a credit to Glen Maxey -- someone I have excoriated here in the recent past -- and county chairs like Lane Lewis (Harris) and Don Bankston (Fort Bend) to have executed what appears to be a very successful strategy to increase this level of turnout to nearly presidential-year levels.  It's got the Republicans running scared.  In particular, it's got Harris County Clerk Stan Stanart terrified.

There might be more about that I can blog later, but for now just know that James O'Keefe is in town, and he's looking for trouble.  We already knew that Harris County Republican elected officials and KSP/TTV and yes, the Texas attorney general have a long and corrupt history together.

Update: More on the overall increase in Texas voter registrations from MSNBC, which links to our very own Kuff for the numbers.

US Senate control is too close to call

Nate Silver says Republicans. Jerry Wang -- turning into Silver's archrival, perhaps even nemesis -- says Democrats. At least one person is saying it will be 50-50 (with indys like Angus King and Greg Orman of Kansas caucusing with the Dems).

I can't recall this much polling volatility in so many races this late in the season.  Kay Hagan (NC) appears to be pulling ahead; Mark Begich (Alaska) and Bruce Braley (Iowa) are falling behind.  Alison Lundergan Grimes just got her first good poll in awhile in her effort to topple Mitch "Mr. Turtle" McConnell.  Is it an outlier?

I have no instinct I can place faith in about how things are going to go with 3.5 weeks remaining.  That's unusual.  Some folks are a little more certain, which is to say pessimistic.

I feel pretty confident that Republicans are going to keep doing everything they can to allow as few people as possible to cast a ballot.  And while Democratic governors and gubernatorial candidates around the nation are poised for a big night on the first Tuesday of November... the only outcome I'm sure about, sadly, is Texas.

The Senate, meanwhile, is a coin flip.

Update (10/9): Developments in the 24 hours since this was posted suggest South Dakota is going to be hotly contested.

Caption this photo

Winner so far: "This is the only way I would ever shake Rick Perry's hand."