That’s a somewhat complicated headline for this.
A new Texas law that keeps local election officials from encouraging voters to request mail-in ballots likely violates the First Amendment, a federal judge ruled late Friday.
Following a testy three-hour hearing earlier in the day, Federal District Judge Xavier Rodriguez temporarily blocked the state from enforcing the rule against Harris County’s election administrator until the rest of a lawsuit plays out. Although the scope of Rodriguez’s preliminary injunction is limited, the judge dealt the first legal blow to new elections restrictions and voting changes Republican lawmakers enacted last year.
The injunction applies to Texas Attorney General Ken Paxton and local county prosecutors in Harris, Travis and Williamson counties.
The state is expected to quickly appeal the ruling. The lawsuit was brought by Harris County election administrator Isabel Longoria and Cathy Morgan, a volunteer deputy registrar who is appointed to help register voters in Travis and Williamson counties.
Feb. 18 is the last day for counties to receive applications for mail-in ballots for the March 1 primary.
Rodriguez previewed his order throughout a Friday morning hearing during which he repeatedly pressed the state’s attorneys — with increasing exasperation — to fill in what he cataloged as ambiguities in the new law. The challenged provision makes it a state jail felony for election officials to “solicit the submission” of an application to vote by mail if the voter did not request it.
Rodriguez took particular issue with the lack of a clear definition for what constitutes soliciting when talking to voters, even those 65 and older who automatically qualify to vote by mail under the state’s strict rules.
“It has a chilling effect,” Rodriguez said while questioning a state attorney Friday morning. “They don’t know when they’re going to run afoul of this vague [law].”
His comments followed testimony from Longoria and Morgan, who said they feared the civil and criminal penalties that could come from violating the broad prohibition.
Longoria said her office was now taking a “passive” approach to voter outreach in regard to voting by mail, with staffers “gingerly” weighing their words while answering voters’ questions about their options.
“When it comes to voting by mail, I have to be very careful with my words,” Longoria said from the witness stand. “I stop mid-sentence sometimes at town halls. … I’m tentative to overreach at the moment.”
Morgan testified that she was concerned the law applied even to volunteers like her, given that her role is formally certified by county election offices. She offered examples of voters she no longer felt she could help navigate the vote-by-mail process. That included an 88-year-old voter whom Morgan would typically call at the start of every year to remind her that she has to reapply for mail-in ballots.
State attorneys said that the law did not apply to volunteers like Morgan and argued the government can prohibit interactions between local election officials and voters without running afoul of the First Amendment.
And even the state’s witness — Keith Ingram, the Texas secretary of state’s director of elections — indicated the threat of prosecution loomed over election officials. While Ingram was on the stand, Rodriguez presented him with hypothetical interactions between Longoria and voters, asking if she could recommend voting by mail to someone who appeared to qualify.
“I would be very careful about that,” Ingram responded. “You wouldn’t want to recommend” voting by mail as an option “because you’d be worried about prosecution,” he said.
Throughout the hearing, Rodriguez also pressed for the reasoning behind the anti-solicitation provision, interrupting the state’s questioning of Ingram in search of an answer. Ingram said he didn’t know the purpose of the provision.
Eventually, Will Thompson of the Texas attorney general’s office told Rodriguez that the provision was meant to limit “official encouragement” of voting by mail, indicating the state preferred people vote in person even if they qualify to vote by mail.
“We’re not taking the position that the Legislature is opposed to voting by mail,” Thompson said. “That doesn’t mean the Legislature wants resources to be used toward nudging people toward voting by mail.”
In his order, Rodriguez rejected Paxton’s argument that the solicitation ban targets government speech, which isn’t protected by the First Amendment because the state is allowed to regulate how public employees perform official duties.
But, the judge noted, Longoria and Morgan do not work for the state. Longoria is employed by Harris County, and Morgan is a volunteer registrar.
Rodriguez also rejected Paxton’s claim that granting the injunction would interfere with the orderly operation of Texas elections. The judge said his order does not affect any voting procedures, change the vote-by-mail process or affect voting deadlines or eligibility.
“Nor does it require that election officials start soliciting applications to vote by mail — it simply prevents the imposition of criminal and civil penalties against officials for encouraging people to vote by mail if they are eligible to do so,” Rodriguez wrote.
None of that will stop the Fifth Circuit from doing what the Republicans ask them to do since that’s what they believe their job is, but at least he tried. For anyone who thinks that it’s hysterical to imagine Longoria or Morgan being prosecuted for these actions, Rob Icsezen and Dana DeBeauvoir would like to have a word with you.
Reporter Edward McKinley and plaintiffs’ attorney Sean Morales-Doyle have good Twitter threads with more details, so go check them out. The main argument was that this provision of SB1 criminalizes speech on the basis of its content and the viewpoint expressed, since Longoria could talk all day about not voting by mail but risked arrest if she said the opposite. This is a preliminary injunction, and whether it survives the Fifth Circuit or not there will be a trial on the merits later this year, and you can bank on it going all the way to SCOTUS. The Supreme Court is occasionally solicitous of the First Amendment, if it approves of the speech in question, so who knows what they might do. In the meantime, we have a small victory, for now, against SB1. There will be a lot more litigation over the rest of that law to come. The Chron has more.