Those who keep up with the legal and political issues involving same-sex marriages will recall that several years ago San Francisco city and county officials issued some 4,000 marriage licenses to same-sex couples. Challenges to these actions eventually reached the California Supreme Court, which ruled in 2004 that the officials had no authority to issue the marriage licenses “in the absence of a judicial determination that the California statutes limiting marriage to a union between a man and a woman are unconstitutional.” Today’s opinion notes that the validity of the California marriage statutes was not before the Court in the previous case, but in the current case(s), consolidated as “The Marriage Cases,” the substantive question is squarely before the Court.

The controversy here is almost entirely symbolic. The California Legislature has enacted domestic-partnership legislation allowing same-sex couples to enter into a legal relationship that the Court says “affords the couple virtually all of the same substantive legal benefits and privileges, and imposes upon the couple virtually all of the same legal obligations and duties, that California law affords to and imposes upon a married couple.” So the only real question in the case is “whether the difference in the official names of the relationships violates the California Constitution.”

This seems like a rather small quibble in the grand scheme of things, particularly when it takes the majority some 121 pages to reach its conclusion, plus three more signed opinions. However, aside from the emotional satisfaction of being able to say that you are married, there is another consideration. If there are two different legal relationships, marriage and domestic partnerships, eventually two separate bodies of case law will evolve, and it is conceivable that the rights of the parties under the two arrangements could diverge.

Defending the constitutionality of separate designations, the attorney general of California argued that even if the California constitution is read to allow same-sex couples the right to marry, “[T]his right should not be understood as requiring the Legislature to designate a couple’s official family relationship by the term “marriage.” Fundamental constitutional rights, the AG maintained, are defined by substance rather than form; so long as the state allows a couple all of the substantive incidents of marriage, it is free to describe that relationship by a different name.

The Court did not agree. “[T]he state has not revised the name of the official family relationship for all couples, but rather has drawn a distinction between the name for the official family relationship of opposite-sex couples (marriage) and that for same-sex couples (domestic partnerships). One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple’s right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families….” Furthermore, the Court finds that the statutes providing differential treatment discriminate on the basis of sexual orientation–”a constitutionally suspect basis upon which to impose differential treatment….” In order to pass constitutional scrutiny, the Court said, a compelling state interest must be served by the differential treatment, and the differential treatment must be necessary to serve that interest. An interest in retaining the traditional definition of marriage “cannot properly be viewed as a compelling state interest for purposes of the equal protection clase, or as necessary to serve such an interest.” (The emphasis reflects the text.)

The argument seems a bit circular to me: There is so little substantive difference between “marriage” and “domestic partnership,” the Court is saying, that there is no possible compelling state interest to have two different names, except to discriminate; therefore, the different names must be unconstitutional.

All of this is achieved in 11 1/2 pages. The remaining 110 or so pages of the opinion investigate in great detail the California laws relating to marriage and domestic partnerships as well as applicable constitutional provisions. I am going to skip them (this is why my law school grades weren’t so good), except to note that the definition of marriage in California as being between a man and a woman was added in 2000 by initiative (a 61% vote of the people), and go to the three separate opinions: one concurring and two others concurring in part and dissenting in part.

The concurring opinion notes the peculiarity that “[w]hat this court determined to be unlawful in Lockyer (the 2004 case), and ordered city officials to immediately stop doing, is the same action that must now, by virtue of this court’s decision, be recommenced–issuing marriage licenses to couples consisting of either two men or two women.” However, what the concurring judge really does is scold his colleagues for not agreeing with his position in Lockyer (the 2004 case) that the Court should not have voided the 4,000 marriages for same-sex couples and laments that “[b]ecause of Lockyer, however, those marriage ceremonies, performed  with great joy and celebration, must remain “empty and meaningless…in the eyes of the law.”

However one feels about the issue of gay marriage, I think that it’s clear that the people who entered into those unions did so with full knowledge that their marriages were not sanctioned by California law. A judge of the state’s highest court should not castigate his colleagues for nullifying them.

Corrigan, J, lists a few areas in which he agrees with the majority but then cuts to the chase:

“The question presented by this case is simple and stark. It comes down to this: Even though California’s progressive laws, recently adopted through the Democratic process, have pioneered the rights of same-sex partners to enter legal unions with all the substantive benefits of opposite-sex legal unions, do these laws nonetheless violate the California constitution because, in deference to long and universal tradition, by a convincing popular vote, and in accord with express national policy, they reserve the label “marriage” for opposite-sex legal unions?”

“… [L]eft to its own devices, the ordinary democratic process might well produce, ere long, a consensus among most Californians that the term “marriage” should…include the legal unions of same-sex partners. But a bare majority of this Court, not satisfied with the pace of democratic change, now abruptly forestalls this process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves.”

Most of the argument to this point is mere rhetoric. But then the judge puts his finger on the problem I was trying to identify above, when I wrote: 

The argument seems a bit circular to me: There is so little substantive difference between “marriage” and “domestic partnership” that there is no possible compelling state interest to have two different names, except to discriminate; therefore, the different names must be unconstitutional.

Baxter, J, sees the issue more clearly than I did:

“[T]he majority holds, in effect, that the Legislature has done indirectly what the constitution prohibits it from doing directly….[T]hat body cannot unilaterally repeal an initiative statute unless the initiative measure itself so provides. Yet the majority suggests that, by enacting other statutes which do provides substantial rights to gays and lesbians–including domestic partnership rights which the Legislature could not call “marriage”–the Legislature has given “explicit official recognition to a California right of equal treatment, which, because it includes the right to marriage, thereby invalidates [the initiative measure].

Yes, that is what I meant to say above. It is not legitimate legal reasoning to say, By passing a statute that eliminated discrimination, the Legislature created discrimination. 

One more dissent to go. Corrigan, J, writes, “In my view, Californians should allow our gay and lesbian neighbors to call their unions marriages. But I, and this Court, must acknowledge that a majority of Californians hold a different view, and have explicitly said so by their vote.” 

I have not seen the opinion, just a press release that says, “… [T]he California Supreme Court has ruled that existing state statute barring same-sex couples from marriage is a violation of the California Constitution because it discriminates based on sexual orientation and sex and violates the fundamental right to marry, which are [sic] protected by the California Constitution’s guarantees of privacy, intimate association, and due process.

More to come after I read the opinion.

Three items to report today:

* Republicans lost their third special election to fill a vacant GOP seat, this one in Mississippi. Conservative Democrat Travis Childers defeated Republican Greg Davis, by 54% to 46%, in Mississippi’s first congressional district, which covers all of the Tennessee border counties and much of northeast Mississippi. The seat became vacant when Republican incumbent Roger Wicker was named to the U.S. Senate seat formerly held by Trent Lott. George W. Bush carried the district with 62% in 2004. Childers was a pro-gun rights, anti-abortion candidate. Davis, a small-town mayor, tried unsuccessfully to tie his opponent to Barack Obama. The loss of the seat is symbolically important, because it dropped the Republicans below 200 seats in the House of Representatives.

The Washington Post story cites a divisive GOP primary as one of the factors in Davis’s defeat. The Jackson Clarion-Ledger had this report on the Republican primary: Glen McCullough [who began the primary as the favorite] ran an ad stating that Davis “doesn’t know where he stands,” charging that Davis “refused to run as a Republican” in the past, increased spending, and altogether, is not a true conservative. “Now Davis says he’ll be conservative? Come on,” the voice-over charged in the commercial. Davis responded with his own ad labeling McCullough’s “attacks” as “shameful.” But Davis hit out at McCullough in the same ad, aligning him with Democrats by noting that President Bill Clinton first appointed McCullough to serve on the [Tennessee Valley Authority board]. Davis accused McCullough of living lavishly while in his TVA post while laying off workers and increasing electric costs. “Glen McCullough should be ashamed,” the ad concluded.

Texans will recognize the “not a true conservative” refrain. Meanwhile, as the Post noted, the Democratic Congressional Campaign Committee spent $1.8 million to elect a candidate whose position on social issues is not in the mainstream of his party. It amazes me that Republicans continue to fight among themselves over ideology when the enemy is storming the gates. The DCCC has raised $44 million for the fall elections, their Republican counterparts just $7 million.

* Rasmussen’s party ID poll shows Democrats with the largest lead over Republicans in the six-year history of the poll. Here are the end-of-April numbers (based on 15,000 phone calls per month), followed by the writeup:

Percent identifying themselves as Democrats: 41.4

Percent identifying themselves as Republicans: 31.4

Percent identifying themselves as Independents: 27.2

In April 07, the Democrats’ advantage was 36.5%-31.0%.

The widening gender gap is also significant.

Percent of women identifying themselves as Democrats: 45

Percent of women identifying themselves as Republicans: 30

In December the D vs. R ratio for women was 40:33.

I don’t believe for one minute that Texas is exempt from these trends.

* And the president’s approval rating of 32% is the lowest in the history of the poll.

This is what I keep hearing from well connected folks in Houston: White will go wherever Kay Bailey Hutchison doesn’t. If she runs for governor, he runs for the Senate (in a special election to complete Hutchison’s term); if she stays in the Senate, he runs for governor. Makes sense to me. Two years is forever in politics, but at least as things stand today, I don’t think White could beat Hutchison (I’m assuming that she beats Perry, if he runs), but he would have a good shot at winning a Senate seat.

Attorney General Abbott’s opinion killing the proposed needle exchange pilot program for Bexar County could have gone either way. This would never have become an issue had not Bexar County DA Susan Reed announced that she would prosecute participants in the program for violating the Texas Controlled Substances Act. Why a DA would want to eviscerate a program that would save lives and taxpayers’ money (because HIV and hepatitis are transmitted by nonsterile needles) is beyond me. What public interest was served by Reed’s decision other than her own political interest?

San Antonio state senator Jeff Wentworth, who requested the opinion, argued, reasonably enough, that the pilot program created an exception to the Texas Controlled Substances Act (TCSA). Abbott disagreed. “[W]e find several instances in which the Legislature has adopted express exceptions to the [TCSA],” the opinion says (for example, the use of peyote by a member of the Native American Church),…. “The presence of these express exceptions to the [TCSA] indicates that the Legislature knows how to create such an exception when it wishes to do so. It did not, however, choose to create an exception here.”

The language of the AG’s opinion concedes that this is a close decision. “One interpretation is to conclude that, because the Legislature did not exempt participants in the needle and syringe component of the program from the possibility of prosecution … they are subject to the possibility of such prosecution. The alternative is to conclude that, because the Legislature should not be presumed to have authorized the establishing of a portion of a disease-prevention program that is effectively illegal under the Texas Controlled Substances Act, the statute creates a special exception from the possibility of prosecution under the [TCSA].”

To my way of thinking, it is so much more logical to conclude that the Legislature did not intend to establish a program that subjects anonymous drug users and county health officials to prosecution. The whole idea of the program is to save lives. As Wentworth said to me, “Clearly, the Legislature did not intend to create criminals by having this program in Bexar County.” Instead, Abbott chose to cloak his decision in the eccentricities of the principles of statutory construction. People will die and medical costs will rise as a result.

Howell Raines, the defrocked NY Times editor, writes in portfolio.com about “the poisoned symbiosis between old politics and old media” in which media types lament hardball politics while at the same time secretly admiring its most extreme practitioners, like Karl Rove, who is a major character in the piece. Raines is among those who believe that Obama’s candidacy has transformed politics: “You wouldn’t know it from the campaign so far, but we may be living at the end of the age of smashmouth media coverage,” he writes. I am among those who believe Obama has not transformed anything. My skepticism is not because of Obama; rather, it is because of politics. The imperatives of democratic politics have not changed since Athens engaged in the first experiment of its kind. The best politicians understand this; the rest wish that the world were different.

Click here for the link.

Maybe this should be a daily feature. Hardly a day goes by that the leading national political web sites don’t have gloomy news for R’s:

* Elizabeth Dole, whose North Carolina Senate seat was thought to be safe, now appears to be in a tight, or at least tightening race with state senator Kay Hagan. A Public Policy Polling survey shows Dole leading, 48-43 (616 registered voters, 4% margin of error). Congressional Quarterly rates the race as “Republican favored,” adding that Hagan’s prospects hinge upon her ability to stay close to Dole in fundraising. That little bit of news could have repercussions in Texas, because Democratic senatorial campaign money will be allocated to the states where D’s have a chance of picking up a Senate seat, and so to some extent Rick Noriega and Hagan are competing for cash. Noriega’s race, at the moment, is a tick closer at four points (44-48, 43-47, in two recent polls) than Hagan’s is.

* The Los Angeles Times‘ political blog, Top of the Ticket, is reporting that Ron Paul is not going away quietly. Paul still has a $5 million warchest and hopes to have a speaking role at the convention:

Largely under the radar of most people, the forces of Rep. Ron Paul have been organizing across the country to stage an embarrassing public revolt against Sen. John McCain when Republicans gather for their national convention in Minnesota at the beginning of September.

Paul’s presidential candidacy has been correctly dismissed all along in terms of winning the nomination. He was even excluded as irrelevant by Fox News from a nationally-televised GOP debate in New Hampshire.

But what’s been largely overlooked is Paul’s candidacy as a reflection of a powerful lingering dissatisfaction with the Arizona senator among the party’s most conservative conservatives. [T]hat situation could be exacerbated by today’s expected announcement from former Republican Rep. Bob Barr of Georgia for the Libertarian Party’s presidential nod, a slot held by Paul in 1988.

* The president’s numbers continue to sink: 82% of Americans now say the country is on the wrong track, up 10 points in the last year, according to politicalwire.com. And there’s this: “Bush now has gone 40 months without majority approval, beating Truman’s record (also during economic discontent and an unpopular war) of 38 consecutive months from 1949-52.”

I overlooked a press release from Senator Dan Patrick in April that is worth a comment. Patrick hailed the Florida House of Representatives for passing a bill that would require abortion providers to perform an ultrasound procedure prior to performing an abortion. He had proposed similar legislation in the 2007 session, which passed the Senate but died in the House. The law gave the patient the option of viewing the image before terminating the pregnancy.

There is no end to the obstacles that the pro-life movement can dream up to place in the way of women seeking an abortion: parental notification, parental consent, counseling, waiting periods, and the availability of reading material, including the those that make the discredited claim of a link between abortions/miscarriages and breast cancer. Over the years, the pro-choice community has tended to oppose all of these proposals as undermining a woman’s right to choose.

I believe that this approach has been a mistake and that it has cost pro-choice advocates dearly. Politically, it would have been far wiser not to oppose these efforts. If counseling can persuade a woman not to have an abortion, that ought to be viewed as a good result, instead of a bad one. The same goes for ultrasound treatment. I know what the response will be: These restrictions are not imposed in good faith. They are designed to get women to change their minds. Well, if that is the result, that should be viewed as a good outcome, not a bad one. (I would lift all restrictions in cases of rape, incest, or health of the mother.)

By adopting a militant stance that the public sees as not only pro-choice but also pro-abortion, the pro-choice movement lost the PR battle in the 80’s and 90’s. I think that generational change is on the pro-choice side. They shouldn’t blow it by focusing on ancillary issues.

Another scandal: NY Republican congressman Vito Fossella has admitted an affair that included fathering a child out of wedlock (this on top of a drunk-driving accident) and is under pressure to resign. This was considered a safe Republican seat; now CQ (Congressional Quarterly) rates it as “no clear favorite.” A poll showed Fossella with the support of 61% of his district, but politicalwire.com says national R’s want him out, now.

A new Gallup poll has President Bush’s approval rating holding steady at 28% — well, maybe “steady” is not the right word choice. As bad as that is, even worse is the poll’s finding that Bush’s support among R’s has eroded to 60%.

Ideological opposition to tax increases is standing in the way of getting transportation in this state on a sound financial basis. Several commenters to my recent post, “Delisi Appears to Rule Out Gasoline Tax Increase,” dismiss the likelihood of an increase in the gasoline tax. What people are missing is that “tax” is a misnomer in the case of gasoline. It is a pure user fee. You pay for the mileage that you drive–nothing more, nothing less. If your car gets around 20 miles to the gallon, you are paying roughly 2 cents a mile to drive. Property taxes and income taxes are altogether different. In those cases, the government taxes value (in the case of property) and productivity (in the case of income). They pick your pocket and redistribute the property tax dollars to local government functions (schools, water and wastewater, streets, and the like) and the income tax dollars to Medicare, Medicaid, and social security recipients. Most taxpayers who do not quality for these entitlement programs will not see any benefit. Gasoline taxes are used to maintain and improve the roads that you drive on. The tax dollars stay in transportation–or they would, were it not for diversions into public schools and the Department of Public Safety and pork barrel projects.

Those who oppose raising taxes are fond of pointing out that as fuel efficiency improves, gasoline “tax” revenue declines, because cars can go farther on a tank of gasoline than they used to. This is true. But other factors make up for this lost revenue. Texas’s population is growing rapidly, and more people means more cars and more cars means more gasoline sales, and more gasoline sales means more revenue. There is plenty of life left in the gasoline user fee.

The overriding political question is, How are we going to pay for roads? No one disputes that Texas needs a better road system and revenue to pay for it. At least five alternatives exist: (1) put more general revenue into highways; (2) issue bonds to borrow the money to build roads; (3) impose tolls; (4) sell concessions and privatize roads; (5) raise the gasoline tax and index it to inflation. Of these, (5) raising the gasoline tax, is the most logical and the least intrusive. Is it a “tax” increase? Only if you redefine a user fee as a tax. If a gasoline “tax” is a tax increase, then so are (3) tolls. They are the same thing: a payment you must make in order to use the roads.

Any solution that relies on requires general revenue is a bad idea, because it puts highways in competition with schools, health care, and law enforcement. Issuing bonds is no panacea, because the bondholders have to be paid, and what else are you going to pay them with other than general revenue?

TxDOT’s favored source of revenue has been concession payments. There may be situations in which concession payments are appropriate, but not in a case where control of the roads is surrendered to foreign corporations, far into the future, so that what we are really doing is shifting the tax burden to our children and grandchildren. Finally, we ought to question whether TxDOT should demand concession payments from local toll authorities in Houston the Metroplex, rather than having the revenue remain in a region subject to local control.

The place to start is by acknowledging that the gasoline tax is really a user fee. Then, maybe, we can actually have a discussion about how to solve our transportation problems without getting caught up in political sloganeering and ideology.

I confess that I seldom vote in local elections. The main reason for this is that I can’t stand the Austin city council. Not just this particular city council, but I mean every city council I can recall. They are lifestyle nuts. The restriping of Shoal Creek Boulevard for bike lanes was a classic. Hundreds of thousands of dollars to stripe it and hundreds of thousands to undo it because it was such a mess. They hate cars and love bicycles. They build a rail line that doesn’t make sense. The Statesman doesn’t know how to cover local politics; you have to read the free distribution Austin Chronicle. I’ve given up. The school board is no better. School board members only do two things. They rubber stamp the superintendent or they fire the superintendent. Oh, yes, they also approve bond issues that favor one part of the district over another (I remember that from my time as PTA president, and from what I hear, it hasn’t changed). What’s the use of voting? Don’t tell me that if you don’t vote, you can’t complain. Oh yes I can.

Tomorrow I’m going to make an exception. Harrison Keller, Tom Craddick’s education staffer, is running for the Austin Community College board of trustees. I have had the opportunity to work with Harrison on stories over the years, and I have found him to be intelligent, informed, and public-spirited. I don’t agree with him about everything, but he has always been up-front and square with me. He’s the kind of person who I would vote for without hestitation. I didn’t even know he was running until I got a robocall this afternoon. I will vote, and I hope he wins.

Deirdre Delisi, the new chair of the Texas Transportation Commission, has an op-ed piece in today’s Statesman in which she writes about her new job. It could pass for one of the late Ric Williamson’s speeches: Our transportation infrastructure is quickly becoming overwhelmed … a thousand people move to Texas every day … it is imperative that we have as many tools as possible to get the job done … no one-size-fits-all solution … local and regional solutions will be the key … together we can meet the challenge.

You get the idea. Absolutely nothing in this piece reached out to the public or its legislative critics to acknowledge TxDOT’s deficiencies–its lack of candor, its loss of credibility, its resistance to accountability, its air of arrogance, not to mention the widespread opposition to its determination to privatize highways.

I’m not going to prejudge Ms. Delisi (tempting as it may be). She has the intelligence and the knowledge to serve with distinction. The state needs for her to be successful. But the op-ed piece was not a good start. TxDOT has few friends in the Legislature and fewer still among the public at large. It has even alienated transportation interests in the Houston and Dallas-Fort Worth areas, which ought to be its strongest allies. The rule for judging the pronouncements of people whose job is to make policy is, “Don’t look at what they say, look at what they don’t say.” The failure to mend fences was a missed opportunity. It’s a characteristic of Perry’s inner circle. They don’t give an inch.

This propensity was evident from the text of the article. “[I]t is imperative that we have as many tools as possible to get the job done,” Delisi wrote, but later she added, “Our state must find new money to pay for roads and mass transit. It is difficult to imagine that the answer to our state’s transportation problems will be found in higher gas taxes….”

To repeat: Not a good start.

If you have been watching the cable networks tonight, you know that Lake County, Indiana, holds the key to the Indiana Democratic primary. Lake County includes the city of Gary, a place that is the poster child for the Rust Belt. Its population has fallen with the fortunes of the steel industry, from 178,000 in 1960 to 102,000 in 2000. It is the largest city in the country that is not a county seat. For many years Gary was high on the list of the most dangerous cities, and while its ranking has improved, it still managed to post a 40% increase in homicides in 2007. The population is 84% black, and statistically it has all the problems you might expect of a city: poor schools with low test scores; high crime rates; high unemployment. It is, in other words, a place where Barack Obama ought to run very well.

And apparently he is doing just that. I found this late-breaking report from the Washington Post online, posted at 10:50 EDT:

Gary Mayor Predicts Possible Indiana Shocker

Updated 11:12 p.m.

By Alec MacGillis
As the fate of a nailbiter Indiana primary — and possibly the course of the Democratic race — hung on his city, Gary Mayor Rudy Clay said just now that it might take a while yet to finish counting the vote in Lake County, which includes Gary, and said tonight his city had turned out so overwhelmingly for Barack Obama that it might just be enough to close the gap with Hillary Rodham Clinton.

“Let me tell you, when all the votes are counted, when Gary comes in, I think you’re looking at something for the world to see,” Clay, an Obama supporter, said in a telephone interview from Obama’s Gary headquarters. “I don’t know what the numbers are yet, but Gary has absolutely produced in large numbers for Obama here.”

Clay said the results were late coming in from Lake County because of the large numbers of absentee ballots that had to be counted — about 11,000. Under local practice, all of the cartridges from voting machines in Gary and nearby East Chicago are first collected at the local airport before being driven to the county headquarters to be tallied with the results from the rest of the county, he said. He said there were no major technical problems holding up the count.

“It takes a little time. We want to be sure that every vote is counted fair and right,” he said. “I just talked to the director out there and they are working like junkyard dogs to get that done as soon as possible. They are taking some time but I told them to do it right. That’s what taking the time.”

Gary, a predominantly African-American, post-industrial city, is considered a major stronghold for the Illinois senator, whose South Side Chicago home is just a short drive across the border. Smaller towns within Lake County are expected to break in a more balanced way between Obama and Clinton. In 2004, 188,000 voters turned out in Lake County, with 61 percent voting for John Kerry. Clay predicted that Clinton would win other towns in the county by narrow margins but that Obama would rack up huge totals in Gary, where he said some precincts reported only a handful of votes for Clinton. So closely was he following the local vote counting that he did not even know how close the statewide vote had gotten — a four percentage difference at 10:30.

In March, Clay predicted the race would come down to Gary, telling the Northwest Indiana and Illinois Times that tonight on CNN, “They are going to point at Indiana and say Hillary Clinton is leading by one point but Gary ain’t come in yet.”

Clay himself was deeply involved in get out the vote efforts this afternoon, going door to door to drum up anyone who hadn’t yet voted, he said. A volunteer in the Obama office in Gary said that canvassers who went out today found that in some neighborhoods almost everyone reported having already cast an absentee ballot.

“It was one of the biggest get out the vote campaigns I’ve seen,” Clay said. “It was the biggest get out the vote campaign ever in Gary for a presidential election.”

At this moment, 11:50 p.m., Clinton is clinging to a 17,000 vote lead over Obama with 99% of the vote in and Gary holding the balance. This is pretty scary stuff. Gary is, for all practical purposes, an extension of Chicago, and those Chicago boys know how to steal elections. Mayor Richard Daley may have stolen the 1960 election in Illinois from Richard Nixon on behalf of John F. Kennedy.

If Obama can pull out a win in Indiana in the wee hours, the Democratic presidential race is over.

Cornyn 47%
Noriega 43%

Rasmussen Reports released this poll on Monday morning. After the numbers, the next line was, “It’s time to add United States Senator John Cornyn to the list of potentially vulnerable Republican incumbents in Election 2008.”

Can this poll be on the money? My first reaction was skepticism, for two reasons. One is that the last poll I heard about, soon after the Texas primary, had Cornyn up by something like 52-36. The other is a widespread perception, at least among self-annointed savants, that Noriega hasn’t got his act together. He hasn’t found a top-drawer person to handle his fundraising; he doesn’t have an effective campaign organization; he is a soporific speaker; he doesn’t see the big picture. He presents himself to audiences as Lieutenant Colonel Rick Noriega–that was the sign he used to identify himself in the Democratic primary debate back in February–and talks about the war and his efforts to help veterans. I wrote a column about his experience in Afghanistan, and the effect it had on him, so I am not devaluing the service he gave to his country. But this isn’t what people want to hear. They have made up their minds about the war, one way or another. People are worried about the economy, about health care, about what kind of future their children will have. I heard him speak at a legislative conference in New Braunfels, and he just put the audience to sleep. There was no fire, no broad themes, nothing that would move a person to vote for him. He has been running for the Senate for almost half a year now, and I haven’t heard any favorable buzz about him at all. All the talk has been about how he is underperforming.

To be fair, it is a huge leap from state representative to United States Senator. As a legislator, Noriega knew how to operate in floor debate. Tom Craddick regarded him as a bully, and that was a measure of grudging respect. But a state rep in the minority party is relegated to a few moments of action spread out over 140 days. It is hard to grow into a leader, and, in fact, Noriega didn’t do it. He was more of a designated hitter who went up to bat when his team needed him. Noriega was a leader in the military, but politics is a different situation. Nobody has to follow you.

Even so, I think that the poll is credible. Early polls often reflect not the loyalties of voters to candidates but the loyalty of voters to parties. Is it possible that the spread between the parties in Texas has narrowed to four or five points? I think it is. Republican numbers-crunchers continue to describe the spread as being in the neighborhood of 9%, but, as I wrote in Texas Monthly after the primary, I think that some realignment is taking place, both in Texas and nationally. I don’t think that Republicans are becoming Democrats overnight, but I do think that they are becoming more independent, if not yet ready to call themselves independents. Texas is not immune from national trends, and the wind is definitely blowing in the Democrats’ direction. Note the victories by Democrats in two special elections for congressional seats, those vacated by former House speaker Dennis Hastert (Illinois) and, last week, twenty-year GOP incumbent Richard Baker (Louisiana).

And let’s not forget those primary turnout numbers, when Democrats outvoted Republicans even in counties that have traditionally been rock-solid for the GOP. Overall the Democratic primary vote was twice that of Republicans. It is true that the D’s had a hot presidential race while the R’s did not, and it is also true that Democratic turnout was somewhat inflated, in the range of 7-8%, by Republicans crossing over to vote in the Democratic primary. Nevertheless, the Democratic turnout in Republican stronghold counties like Collin, Denton, Fort Bend, and Williamson was eye-opening. If Democrats can continue to be motivated into the fall, yes, I can see Noriega being very competitive in this race.

The big question for Democrats is always whether the Hispanic vote will finally reach the tipping point. Cornyn’s record on immigration and the border wall gives Noriega an opportunity to mobilize that vote. In recent years, though, it has been Republicans who have exceeded expectations; Bush won at least 40% of the Hispanic vote nationally in 2004, and an even bigger slice of the pie in Texas (thought to be around 44%). Noriega needs to push his share into the 70% range. His problem is that he is pro-choice, and this will cost him votes among Hispanic Catholics and evangelicals.

At the moment, the main importance of the poll is that Democratic strategists in Washington know that Noriega is mathematically competitive–and they know it early enough to be able to do something about it in terms of providing money and expertise and candidate training for his campaign. There is a lot of room for improvement.

Delisi Appointment maintains Status Quo at TxDOT

Sunset Advisory Commission Vice Chair says he is a “NO” vote on Delisi

The following commentary about Governor Perry’s appointment of Deirdre Delisi as chair of the Texas Transportation Commission was just received from Senator Glenn Hegar’s office. The e-mail describes the piece as an “Op-Ed,” although it is not currently scheduled for publication, according to Hegar’s office.

Austin, Texas—On Wednesday, Texas Governor Rick Perry announced he had appointed Deirdre Delisi, his former Chief of Staff, as the new Chairman of the Texas Transportation Commission, which oversees the Texas Department of Transportation (TxDOT). As of today, I will not vote to confirm her appointment in the next Legislative session.

Ask almost any Texan, especially those who have the need to travel frequently on US Interstate Highway 35, about our Texas transportation system and they will tell you that many of our roads have extreme congestion, while other construction projects have experienced significant cost overruns. Last year, TxDOT notified the public that they had experienced a billion dollar accounting error, spent millions of dollars in an effort to persuade Texans that we need to pursue the proposed Tran-Texas Corridor even though the Legislature had just passed a two-year moratorium on public-private agreements.

Next legislative session will be a critical time as we work to ensure that TxDOT can once again gain the trust of Texans and to overcome the low opinion of what was once the most respected highway department in the nation.

In the Legislature, relations with TxDOT are also at an all-time low. Lawmaker’s questions and concerns about the Trans-Texas Corridor, the agency’s policies, funding schemes, budget, and construction priorities have oftentimes been met with contempt and disdain by TxDOT officials. The result is that many legislators, including myself, have lost confidence that TxDOT and its past policies are working in the best interests of Texas taxpayers.

That is why I had high hopes that Governor Rick Perry would use the vacancy created by the untimely passing of former Transportation Chair Ric Williamson as an opportunity to appoint someone to lead the commission who would work to change the status quo, reach out to lawmakers, and work cooperatively with the legislature to address the concerns of the citizens we represent. I view Ms. Delisi’s appointment as a squandered opportunity. It appears that rather than choose someone to head the commission who will reach out to lawmakers and work cooperatively with legislators, the governor instead has chosen a political “yes man” with little or no practical experience involving transportation issues other than carrying out the Governor’s myopic vision that relies solely on building more toll roads and selling our highway infrastructure to the highest bidder, usually a foreign owned company.

I currently serve as the Vice Chairman of the Texas Sunset Advisory Commission. In 1977, the Legislature created the Commission to identify and eliminate waste, duplication, and inefficiency in government agencies. The 12-member Commission is a legislative body that reviews the policies and programs of more than 150 government agencies every 12 years. The Commission questions the need for each agency, looks for potential duplication of other public services or programs, and considers new and innovative changes to improve each agency’s operations and activities. Currently, the Texas Department of Transportation is undergoing its 12-year Sunset review.

I also serve as a member of the Senate Nominations Committee, the committee who will have to vote to confirm Ms. Delisi’s appointment when the legislature reconvenes in January 2009. One might expect that the Governor and Ms. Delisi would have contacted all members of these key committees to discuss their plans to reform TxDOT in the Sunset process and to ask for our vote in the upcoming Nomination process. Unfortunately, like most of my colleagues, I learned about the appointment from the news media.

The Governor can certainly appoint anyone whom he sees fit, but as a State Senator who takes his constitutional “advise and consent” responsibilities seriously, I would have hoped Governor Perry would have sought out the advice of legislators before asking for our consent at this critical juncture in Texas history.

The Texas Department of Transportation’s vision statement says that the agency will work to: “Promote a higher quality of life through partnerships with the citizens of Texas and all branches of government by being receptive, responsible and cooperative.”

The Governor’s and Ms. Delisi’s recent actions with regard to this appointment are certainly not in keeping with that vision statement, but instead reflect a vision of non-cooperation and non-responsiveness to both lawmakers and the constituents they serve.

I certainly hope that Ms. Delisi will prove me wrong.

Likewise, I hope that between now and her Senate confirmation hearing next January she will attempt to change my perception that she will not be an agent of the status quo at TxDOT. If so, she may still have an opportunity to earn both my confidence and my vote, and the taxpayers of our state and those who use and depend on our vast transportation system will be well served.