Big Jolly Politics

politics in Harris County and Texas

The Leaked Dobbs Draft Decision is a Disaster

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I’m sure there is going to be significant blowback on this post, and contemplated not writing because of the negative reaction that’s going to follow.  However, in light of the irrational exuberance in the wake of the leaked draft decision in Dobbs v Jackson Women’s Health Organization this needs to be written.  The draft decision is horrific.  We will soon see who understands law and who simply understands politics.

When addressing Roe three options for modification are available.  First erode Roe, but keep the “central holding” intact.  Second, overturn Roe based on federalism principles.  Third, overturn Roe, and replace with a different decision based on the right of the unborn child. The draft decision falls squarely in the second option and seemingly rejects the third option.  This leads to utterly horrific outcomes.

Federalism and the End Result of the Decision

The draft makes clear the Supreme Court is returning the issue to the states.  In various places the decision states:

It is time to heed the Constitution and return the issue to the people’s elected representatives.  “The permissibility of abortion, and the limitations, upon it, are to be resolved like the most important questions in our democracy: by citizens trying to persuade one another and voting.” (Emphasis added)

Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.  (Emphasis added.)

Both sides make important policy arguments… and we thus return the power to weigh those arguments to the people and their elected representatives. (Emphasis added.)

It’s clear from these statements that the Supreme Court is returning the power to the states to decide what is and is not permissible in the particular state.  If Texas doesn’t allow abortions, and someone wants an abortion they simply need to travel to a state where abortion is permissible.  The draft opinion empowers states to authorize abortion on demand at taxpayer expense.

If you can’t get an abortion in Houston simply hop on a plane and get the abortion in Chicago or one of the many other direct flight destinations that will have abortion available.  The impediment to abortion becomes an issue of logistics. Logistics can easily be overcome.  Judge Hidalgo already has tried to implement Harris County paying for such travel in the wake of the heartbeat bill.  Private companies are saying they will offer such travel as an employee benefit.

Unborn Babies are Regulated to Chattel

The specter of abortion on demand at taxpayer expense isn’t the only disturbing consequence if the draft decision is adopted.  The Court also in effect categorizes the unborn child as chattel.  The Court states:

Our decision is not based on any view when a State should regard prenatal life as having rights or legally cognizable interests. (Emphasis added.)

By specifically mentioning their decision s not based on prenatal life as having rights or legally cognizable interests the Court denies the personhood of the baby.  The baby is simply chattel in the sole control of the mother.  This decision is incompatible with the ban on partial birth abortion since that decision is rooted in the rights of the baby.  To maintain the ban on partial birth abortion will now require a definition of birth as when any portion of the baby exits the birth canal or some sort of other similar reasoning.

This is an artificial demarcation that has no basis in science or reason.  Under the draft decision liberal states can, and will, pass legislation that allows an abortion to occur during active labor but before the baby has exited the birth canal.  The radical left has already changed their mantra from “safe, legal, and rare” to “abortion on demand at anytime at taxpayer expense with no apologies.”  Where will the line be drawn?

Rational Relationship and Difficulty Initiating a Challenge

Any proposed legislation allowing abortion on demand at taxpayer expense will be difficult-to-impossible to successfully challenge.  As an initial matter standing to initiate a challenge will be difficult.  Fathers do not have rights regarding their unborn child so they will not have standing to challenge any legislation.  The Religious Freedom Restoration Act and Hobby Lobby line of reasoning is not going to offer an effective vehicle for challenging legislation.  At best that could create a cut-out with a workaround for entities with deeply held religious beliefs.  Finding someone or some legal entity with standing to file a challenge to permissive abortion legislation is going to be an exceptionally difficult task.

Even assuming someone could successfully initiate a challenge and survive a standing challenge the standard of review is going to be difficult to overcome.  The decision adopts the rational relationship test for reviewing abortion related legislation.  This standard of review requires the government to have a legitimate interest, and the proposed legislation to have a rational relationship to the interest.

Remember the both sides present compelling arguments statement in the decision?  That’s acknowledging that the government has a legitimate interest in promoting abortion.  As long as permissive abortion policies are rationally related to the interest the policy passes constitutional muster.  The Court essentially is giving the blueprint to pass permissive abortion legislation in the decision.

Be Careful What you Wish For

The old adage “be careful what you wish for, you just might get it” seems to aptly describe the draft decision.  With the Supreme Court specifically stating, “Our decision is not based on any view when a State should regard pre- natal life as having rights or legally cognizable interests” the unborn are left without protection in liberal areas where the states will pass permissive legislation. In effect, this eliminates any legal barrier to abortion.  The only barrier becomes one of logistics – how does the mother get to a location where abortion is permissible?

We should not be celebrating. This is a disaster in the making.

Disney, Hypocrisy and Thought Policing

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Walt Disney World currently has stirred controversy regarding a performance by the Port Neches-Groves ISD (PNG) drill team (the Indianettes) performing a routine involving the school fight song and the refrain I-N-D-I-A-N-S Scalp ‘em Indians Scalp ‘em.  I grew up in the area, and PNG has a long, proud tradition. They will not yield to cancel culture regarding the school mascot. This is a battle cancel culture will not win.  Looking at the history of PNG, and their history with the Cherokee Nation, shows how this is a contrived outrage and yet another example of cancel culture and thought policing.

PNG History

The district’s history can be found here. A brief summary of the history shows they have used the Indian mascot for almost a century.  Until recent times this was uncontroversial.  In 1979 the Cherokee Nation sent PNG a certificate naming the school district ambassadors of goodwill.  PNG is a district steeped in tradition.  The school fight song and routine has been the same since 1979.  Society and societal views have changed; not the district.

Thought Policing

Disney is exercising selective outrage over the Indianette routine last week.  One need look no farther then the Disney portrayal of Tiger Lily from Peter Pan or Pocahontas to see the nature of the selective outrage. (See the trivia section at the bottom.)  The selective outrage is cancel culture trying to engage in thought policing.  This is something we will experience on an increasing basis as the general election cycle heats up.  This tactic is frequently used by the left to try and silence opposition when the merits of their position are weak or unsupported.  The pitfall conservatives walk into time and time again is to engage with the liberals on their terms.  Rather than engaging on the grounds the liberals want we need to point out the thought policing that occurs.

Most people don’t want to be told what to think.  Rather than engaging on the arguments liberals are making we need to be pointing out the thought policing and refusing to engage on the liberals chosen battlefield.  This is going to be very important in the upcoming general election cycle.  On a national level the liberals already see the dire situation the progressives have created and are trying to back track their positions such as defunding the police.

Locally, this isn’t happening nearly as much.  We have clearly defined issues that will decide this election, and the opportunity to offer a message of hope.  That’s a bad confluence of events for the democrat candidates since it leaves the with few tools available to argue their position.  Judge Hidalgo and Commissioner’s Court aren’t trying to walk back their positions on crime.  Instead, they are trying to deflect blame on others.  When that doesn’t work they will engage in thought policing since that’s the only tool they will have readily available to try and oppose messaging that their policies are leading to worsening crime.

Consistently pointing out their attempts to thought police and casting their attempts as further arrogance serves to remove this tool from their toolbox.  A person’s mind is their own domain, and no one likes being told what to think.  Going on the offensive against thought policing when and only when the democrats start to engage in the activity both yields political gain this cycle as well as erodes the underpinnings for cancel culture.

Happiness and Hope in November

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With the exception of a few runoffs the election now turns to November, and messaging changes out of necessity.  Sometimes election cycles are characterized by dueling issue sets.  That’s not the case this cycle.  We have very distinct issues that are going to establish the election.  Rather than look at the issues and how they are impacting people directly we are better served by seeing how the issues resonate within the context of happiness and hope.

Preexisting Conditions

The closest we have to preexisting conditions are the 2018 and 2020 Senate races compared to the HISD runoff election.  I’m limiting this to HISD Position Six since it was the only competitive race and likely the only race that reflects the current political conditions rather than a candidate set which was a fairly certain outcome that could have modified voter turnout in the runoff election.  Looking at the election results we see a bit of a change from 2018 and 2020.

In HISD Precinct Six precincts the 2018 and 2020 aggregate election results were strikingly similar for the two Senate elections.  Excluding third party candidates, Republicans saw a 1.2% increase in the vote in 2020 compared to 2018 levels.  In the HISD Runoff election Republicans saw another 9.0% increase in the vote total.  This nine percent is composed some degree of a change in underlying political sentiment and some degree of increased GOTV efforts by HCRP for the race.

We have one other data point of interest.  The 2018 and 2020 general election percentage of vote compared to the primary percentage of vote.   That, too, is remarkably consistent with a 0.1% change in the split between the two years.  With the splits remarkably similar we have no reason to doubt the change in the 2021 HISD runoff election is a genuine change in the overall political sentiment.

Who is Happy?

While the academics argue the why, polling shows conservatives are happier than liberals.  Rather than look at why political belief blocks have a difference in happiness we can see opportunity if we look at what the disparity in happiness means for party affiliation.  If a person is unhappy, all things being equal, they will gravitate to what brings them hope.  Doesn’t matter if it’s the poor playing the lottery in a disproportionate amount or the forlorn going to church for comfort.  They bring hope and comfort to the unhappy.

Fear and Hope

Fear is a strong motivating factor and pushes people off a position.  This is different than hope which is a draw.  Simply being afraid enough to be pushed into being open to a different voting path doesn’t help Republicans if we don’t have a corresponding message of hope to draw the disenchanted and scared voter to us.  Harris County has an opportunity where prudent messaging engages both fear and hope at the same time giving the possibility for a significant shift in voting this cycle.  Inflation and crime are out of control in the County, and that message is resonating in the overall political climate.  This is an opportunity to have a unified message all the way down the ballot.  The message needs to be one of hope though.

Crime

Bail isn’t supposed to be an instrument of oppression, but the current lax bail policies are making us horribly less safe.  Once a week I hear gunshots either at the office or at home.  It wasn’t like that even a year ago.  This is a message of both fear and hope.  From a County Judge and Commissioner’s Court position the argument can be crime is out of control, and we are going to do what we can in order to make sure the situation becomes controlled.  This will happen both from the standpoint of making sure that our law enforcement entities are fully funded, recite how the democrat majority tried to reduce funding to law enforcement, and then point out that the Commissioner’s Court can use the power of the purse strings to make sure the District Attorney’s office is making full use of the Texas Code of Criminal Procedure to act as a check and balance against the current permissive bond judges.

Texas Code of Criminal Procedure

Art. 16.16. IF INSUFFICIENT BAIL HAS BEEN TAKEN. Where it is made to appear by affidavit to a judge of the Court of Criminal Appeals, a justice of a court of appeals, or to a judge of the district or county court, that the bail taken in any case is insufficient in amount, or that the sureties are not good for the amount, or that the bond is for any reason defective or insufficient, such judge shall issue a warrant of arrest, and require of the defendant sufficient bond and security, according to the nature of the case.

This message carries through all the way down ballot.  While the Court of Appeals judges can’t indicate how they will rule on the issues they can indicate they would be open to considering such a request from the District Attorney’s office.  The County Judge and Commissioner’s Court candidates can discuss applying pressure to have the District Attorney’s office make such requests if they believe bond is insufficient to protect public safety. The criminal court judge candidates can talk about how they will give due consideration to the public safety prong of the bond assessment factors.  Repeating public safety over and over taps into the fear of out of control crime in the county and provides the hope of solving the problem by making sure the public safety factors are given due consideration.

Inflation and Social Services

Inflation is at a 40+ year high and we all suffer because of the extra cost it imposes.  A message of hope and solution for inflation helps bring candidates to our side in November.  Again, this has to be a message of hope not one of fear.  Just as with crime, this can be a unifying message all the way down ballot.  Change the focus from flooding and social issues to one of this isn’t the time for new taxes from taxing entities – like the upcoming HISD bond rumblings – and focus on how we can spend Covid and flood relief funds for measures that help every day needs.

Instead of using Covid funds to pay for abortion like Judge Hidalgo wants use Covid funds to increase WIC allowances.  That directly contrasts our vision of appropriate social spending to that of the democrats on Commissioner’s Court as well as belies the Democrat’s message that Republicans don’t care about babies after they are born.  We become the party of hope rather than special interest, and not only gain from the message of hope but also move the public sentiment against any new taxation measures that may be raised.  We benefit by bringing hope to answer the fear caused by inflation.

Resist Conservative Primary Messaging Issues

This isn’t the time to be talking in terms of conservative focused messaging that plays well in the primaries.  If we focus on Critical Race Theory we lose.  That’s a message of fear and is counterproductive to the opportunity we have before us.   Focusing on property tax reform – while a good idea – is a bad message this cycle.  The transition from a property tax to a consumption tax just heightens the fear of the struggling middle of the road voter who is more concerned about inflation and meeting their family’s immediate needs.

Solving crime, redirecting spending to core services and prudent social relief efforts, and no new taxes either in the form of sales tax or governmental bonds is where we move hearts and minds this cycle.  Social program spending should ebb and flow, and right now it needs to flow in the form of more targeted spending.  By contrasting socially constructive spending to the Democrat’s social engineering and pet priorities we draw a contrast between our value system and their value system.  We look like problem solvers while they look ever more extreme.

By intentionally choosing to be unifying and giving people hope we have a chance to win. Not only the criminal courts, but on any proposed bonds and the County Judge/Commissioner’s Court seats.  The time is ours, but are we wise enough to see the opportunity and seize it?