Late yesterday, in a stunning display of naked partisanship, Federal District Judge Marina Garcia Marmolejo in Texas — appointed by Pres. Obama in 2011 — granted a preliminary injunction in favor of Democrat party interest groups that could have a significant impact on the upcoming election — which she acknowledges in her opinion.
The naked, bottom line of the allegations set forth in the civil complaint filed in the case is this:
Changes in Texas election law passed by the Texas Legislature and signed by the Governor of Texas in 2017, which went into effect on September 1, 2020, will result in fewer votes being cast for Texas Democrat candidates for office, therefore the Texas law should be blocked from being used in the upcoming national general election.
It’s just that simple.
What are the changes to Texas law that are at the heart of this controversy?
Among a very small number of states, Texas election law provided for a ballot entry that allowed voters to vote a “straight ticket” of all candidates for a particular party on the ballot, without having to individually make a choice for each particular candidate in each race. The voters could mark their support for all of the candidates of either party by simply picking a “straight-ticket option” at the top of a ballot. This option was eliminated by an amendment to the Texas election law in 2017. Candidates will still be listed with their party affiliation, but voters will have to select each candidate individually.
Elimination of this option by legislation in 2017 met intense opposition from Democrats who feared the change would be most felt among voters of color and lead to voter drop-off, particularly in urban counties that have the longest ballots in the state. Texas Republican lawmakers championed a change during the 2017 legislative session, arguing it would force voters to make more informed decisions because they would have to make a decision on every race on a ballot. Implementation of the legislation was set almost three years into the future to provide time for public education about the change, and allow Texas state election officials to plan for implementing the change, but in time for this year’s general election.
In June, Judge Marmolejo dismissed a similar challenge to the same law, finding that the Plaintiffs in that action had not alleged in the complaint filed by them sufficiently “definite” injury that would be suffered if the law was allowed to go into effect on September 1, 2020, as set forth in the legislation. The key paragraph in her opinion dismissing that challenge read as follows:
Plaintiffs’ injuries only might occur: if the Bill causes longer lines at polling-places; if the Bill causes increased roll-off at polling-places; if the Bill causes voter confusion at polling-places; if these predicted effects cause Democratic-party voters—and not voters of other political affiliations—to leave lines at polling-places or fail to show up at polling-places altogether; if these predicted effects cause voters who would have voted for Tiedt or other Democratic-party candidates to engage in roll-off at polling places; and if all of these predicted effects—in a compounding fashion—cause Democratic-party candidates, including Tiedt and other candidates whom Plaintiffs support, to lose votes at polling-places that would have otherwise been cast for them. Given the numerous suppositions that must occur before Plaintiffs might suffer any harm, the Court finds that Plaintiffs’ injuries are not certainly impending and fail to satisfy Article III.
That decision was entered by Judge Marmolejo on June 24, 2020. Apparently, she got a memo from Democrat Party Bosses HQ since then, as she granted a Preliminary Injunction yesterday regarding the same law, in a challenge brought by different Plaintiffs.
The Plaintiffs in the case are 1) The Texas Alliance for Retired Persons, 2) the national senatorial committee of the Democratic Party, and 3) the national congressional committee of the Democratic Party, and the Chairperson of the Webb County Democrat Party. Notice a theme there? Conveniently, the “Retired Americans” are listed first on the complaint so the case is reported as “Texas Alliance of Retired Persons v. Hughes”. Judge Marmolejo does them all a favor by referring to them collectively as “Organizational Plaintiffs.”
Even though her decision in June acknowledged the effects of the COVID 19 pandemic on voting during the March primary elections — longer lines and longer waiting times at polling places, etc., — she did not find in June that the pandemic was a basis to block the changes in Texas election law from going into effect.
But in true blue “social justice warrior” fashion yesterday, flying her “wokeness” flag high and proud, Judge Marmolejo presaged her change of heart on the question with the following preamble in her decision:
We are a month away from the general election, and Texas, like the rest of our nation, is reeling from the effects of an ongoing pandemic. COVID 19 has strained our health systems, ravaged small businesses, and fundamentally altered the way we lead our day to day lives. In these extraordinary times, Plaintiffs call up on this Court to uphold the fundamental right to vote. This right, so necessary to our democracy to function and flourish, is guaranteed to all citizens regardless of race, color, ethnicity, gender, income, or political affiliation.
Yeah, yeah, yeah — enough with the lubricant, Judge Marmolejo. We see where this is headed.
A fundamentally important point of federal practice procedural law is called into question by some issues which Judge Marmolejo does not address directly in her ruling. The Opinion deals with BOTH Motions to Dismiss filed by the Texas office of elections, AND the Preliminary Injunction motion brought by the Plaintiffs.
Under procedural rules and controlling case law, those two matters are to be resolved using different standards on how the Court is to review the facts of the case as presented.
Judge Marmolejo begins with her decision on the Motions to Dismiss, and correctly notes that under procedural rules the “allegations of the complaint must be accepted as true.” A motion to dismiss doesn’t resolve “disputes” in the facts — a motion to dismiss begins from the premise that “even if the facts as alleged are true, the Plaintiffs still are not entitled to the relief they seek.” Judge Marmolejo then proceeds to go through the individual statutory and constitutional claims raised by the Plaintiffs — assuming the allegations as pled in the complaint are true — and finds, ultimately, that the claims do survive a motion to dismiss. In other words, if at the time of trial the Plaintiffs are able to prove all the things they allege in the complaint with competent and admissible evidence, they would be entitled to some form of relief from a jury or the Court — depending on the nature of the claim.
So, for purposes of her ruling, she basically found that the Plaintiffs would be able to prove that poor, dumb, minority voters living in poverty and without jobs or childcare, who would certainly vote for EVERY Democrat candidate if the “Straight Ticket” option were on the ballot, will not be able to make individualized selections in each race on the ballot, and the lines of these poor dumb minority Democrat voters will be too long on election day which means that other poor dumb minority voters at the end of the long lines will either leave and not vote, or won’t vote in all the races listed on the ballot as they would if they still had the option to vote for EVERY Democrat on the ballot by just marking one square —- AND the harm in all that is the Democrat candidates on the ballot will receive fewer votes.
Got that? Go read it for yourselves.
Just so there is no mistaking the NAKED PARTISAN considerations underlying the allegations, consider the following from P. 7:
Plaintiffs allege that these predicted effects will disproportionately burden minority voters and voters who support the Democrat party…. This will cause Democrat candidates to lose votes at polling places that would have otherwise been cast for them… These effects, plaintiffs allege, will be worse in subsequent elections, because the ballots in Texas’ midterm elections are even longer than those used in general elections.
Got that? It is not so much the election in 6 weeks that is the problem — it is the election in 2 years and 6 weeks that the Plaintiffs are really trying to address. So, they are not in Court for the purpose of altering the 2020 election via “lawfare”, they really are concerned about candidates and races that do not even yet exist.
But Judge Marmolejo pins the blame for her decision to reverse course on TEXAS — they haven’t done anything since she DISMISSED the last lawsuit to address the problems which she found to be SPECULATIVE in her dismissal. Oh, the horror!!!!
… the failure to take the necessary steps to mitigate the risks caused by COVID 19 and HB 25 does require reconsideration of the plaintiffs’ claims that HB 25 will unduly burden many Texans’ right to vote.
You can read that above sentence as code for “I got the memo from Democrat Party central and understand what is required from me.”
The absurdity of the claims boil down to this point — that having Texans vote in the same manner as most of the rest of the country — by eliminating the “Straight Ticket” option — burdens their right to vote.
If that is true, how are the rights to vote of EVERY citizen in EVERY state that doesn’t have a “Straight Ticket” option not similarly burdened?? The Judge is moronically silent on this obvious flaw in her “logic”.
But the Opinion moves near the very end to the matter of issuing a Preliminary Injunction. Such motions are NOT supposed to be decided on the standard of “assuming the facts alleged to be true”. If that was the case, then no plaintiff would ever lose a motion for a preliminary injunction. The Court references affidavits offered by both sides with regard to the “facts” before the Court. But even though the Court finds the election is not so close as to preclude ordering changes in the Texas voting law — the law now prohibits “Straight Ticket” voting — the Court opts to NOT hold an evidentiary hearing where the persons who have submitted affidavits can be challenged through cross-examination.
Hence, because both parties have presented extensive briefing in support of their positions, the Court finds that a hearing would be largely duplicative and add little, if any, value.
Got that? We can’t allow any opportunity to actually challenge the affidavits that have been presented by the Democrat Party Plaintiffs on behalf of the poor, dumb, minority voters who would vote for EVERY Democrat candidate on the ballot if this law didn’t exist, but can’t be expected to go to the trouble of picking the Democrat candidates on a race-by-race basis as listed on the ballot.
She concludes her opinion basically by saying — not a quote so don’t “@” me:
“Democrats will receive less votes, but Democrats should get more votes, and I can’t be troubled to allow the claims to undergo further scrutiny or my reversal from June will be revealed to be even more obviously nakedly partisan. So Democrat Plaintiffs win. Court adjourned.”
I suspect the shelf-life of this decision in the 5th Circuit will be relatively short — as it should be.