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Paxton threatens county clerks over vote by mail instructions

Seems to me this should get a bit more attention.

Best mugshot ever

Attorney General Ken Paxton informed county judges and election officials Friday that if they advise voters who normally aren’t eligible to apply for mail-in ballots due to a fear of contracting COVID-19, they could be subject to criminal sanctions.

His warning came in a letter to local officials Friday and two weeks after a state district judge had issued a temporary injunction allowing eligible voters who are fearful of contracting COVID-19 by voting in-person to cast their ballots by mail.

In order to qualify to vote by mail under state law, Texans must submit an application and be either 65 years or older, disabled, out of the county on election day and during early voting, or be eligible to vote but confined in jail.

During a hearing last month, the Texas Democratic Party argued that Texans following stay-at-home orders and exercising social distancing fall under the Texas Elections Code’s definition of a disability, which is “a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health.”

In Friday’s letter, Paxton said that while a person ill with COVID-19 would qualify under the state’s definition of “a sickness,” a fear of contracting the virus is simply “a normal emotional reaction to the current pandemic and does not, by itself, amount to a ‘sickness’” that would meet the eligibility requirements to vote-by-mail.

Therefore, officials and “third parties” should not advise voters to apply for mail-in ballots for those “who lack a qualifying sickness or physical condition to vote by mail in response to COVID-19,” the letter reads.

Chad Dunn, the general counsel for the Texas Democratic Party, which is one of the plaintiffs in the lawsuit, said in a statement Friday that the court has already overruled Paxton’s arguments.

“Paxton can keep on stating his opinion over and over again for as long as he wants but the bottom line is he needs to get a court to agree with him,” Dunn said. “We all have opinions. In our constitutional system, what courts say is what matters.”

In his letter, Paxton also said the lawsuit “does not change or suspend these requirements” due to his appeal of the judge’s ruling.

“Accordingly, pursuant to Texas law, the District Court’s order is stayed and has no effect during the appeal,” Paxton wrote. “Moreover, even if the order were effective, it would not apply to any county clerk or election official outside of Travis County. Those officials must continue to follow Texas law, as described in this letter, concerning eligibility for voting by mail ballot.”

Dunn disagreed with that assertion, and Thomas Buser-Clancy, a senior staff attorney with the ACLU of Texas, which had also joined the lawsuit, said Paxton’s letter misinterprets the law.

“Ken Paxton’s letter — which is not binding — gets the law wrong and serves no other purpose than to attempt to intimidate voters and county officials. The simple fact is that no Texan should have to choose between their health and exercising their fundamental right to vote,” Buser-Clancy said in a statement.

See here for the background. You can see a copy of Paxton’s letter here, and a copy of the ACLU and Texas Civil Rights Project’s responses here. The Austin Chronicle adds more:

The letter, also distributed as a press release, presumably has been sent to officials in all 254 Texas counties. Asked to respond to the Attorney General’s explicit threats of “criminal sanctions” in the letter and his interpretation of state election law, Travis County Clerk Dana DeBeauvoir said, “This is [Paxton’s] opinion and he’s stated it a couple of times previously. We are waiting to hear from the courts.”

State District Court Judge Tim Sulak recently granted a temporary injunction, ruling that the risk of infection by the coronavirus that causes COVID-19 is sufficient to enable all Texas voters to apply for mail ballots for the July 14 elections (Congressional run-offs and a Senate District 14 election in Travis County, other contests elsewhere). Paxton appealed that decision to the Third Court of Appeals, and has adopted the position that while the appeal is pending, “the District Court’s order is stayed and has no effect.”

However, some election officials have said they are planning for a surge in voting by mail. Earlier this week, DeBeauvoir told the Chronicle that Travis County normally receives about two VBM applications a day for an interim election like the July run-off. “Right now they’re running at about 200 a day,” she said.

[…]

An earlier, “advisory” Paxton letter to state Rep. Stephanie Klick – issued prior to the District Court’s official ruling – made the same general argument about the disability provisions of state election law. The latest letter is addressed to County Judges as well as election officials. Travis County Judge Sarah Eckhardt told the Chronicle that Paxton’s invocation of possible “criminal sanctions” is a “threat designed to suppress voter turnout.”

Eckhardt added that Paxton’s argument that the temporary injunction is “stayed” during the Third Court appeal is simply “one lawyer’s opinion, and the higher court may have a different opinion.”

As for the reiteration of Paxton’s earlier advisory letter, DeBeauvoir said, “He wants to make certain his threat is being heard.”

I mean, I know I’m not a lawyer and all, but usually you have to ask for a court order to be stayed pending appeal. If any of that has been done, then all I can say is that it has not been reported in a form that was visible to me. If there hasn’t been a subsequent order to stay Judge Sulak’s ruling pending appeal, either from Judge Sulak himself or from the appellate court, in this case the Third Court of Appeals. For what it’s worth, the official order from Judge Sulak says at the end:

“It is further ORDERED that for this Temporary Injunction Order to be effective under the law, cash bond in the amount of $0 shall be required of the Plaintiffs and filed with the District Clerk of Travis County, Texas. The Clerk of Court shall forthwith issue a write of Temporary Injunction in conformity with the law and terms of this Order. Once effective, this Order shall remain in full force and effect until final Judgment in the trial on this matter.”

Seems pretty clear to me. As for the matter of the claim that even if there’s no stay on the order it only applies to Travis County, there’s nothing in the text of the order that looks to me (again, Not A Lawyer) like it supports that interpretation. The judge does refer to the Intervenor Plaintiffs and the fact that they represent voters “throughout the state of Texas”. I suppose this could be clarified, but the interpretation that it’s a statewide ruling seems just as reasonable to me. I know Ken Paxton is full of bluster, but this seems to me to dance close to the line of blatantly disregarding the judge’s order. Is he gonna send in the Texas Rangers to arrest Diane Trautman? Maybe the plaintiffs need to ask the judge to please remind Ken Paxton where the lines are here.

UPDATE: The Chron now has a story about this, which mostly draws from the Paxton letter and ACLU/TCRP responses.

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12 Comments

  1. Marc Meyer says:

    I checked the docket sheet in the Third Court of Appeals, and there are no orders issued from the Third Court of Appeals, so my reading is that the order that Judge Sulak issued is still in place. And I see no motions filed to stay his order, either.

  2. Doris Murdock says:

    Thank you, Mr. K and thank you for checking Mr. Meyer.

  3. Bill Daniels says:

    This seems complicated. I would agree with Paxton that general fear of the virus isn’t a disability. Having said that, for people who are at extreme risk of dying if they contract the virus, people with preexisting conditions, it seems like a gray area. And adding to that confusion, what about HIPPA? Should you have to disclose private medical information in order to vote by mail? Seems like that would violate federal law. Of course, it would also violate the law to lie if you checked a box saying you had a preexisting condition if you don’t actually have one.

    Perhaps the solution is to just have voting in the grocery stores. You can either go in and cast a ballot in HEB, or cast a drive through ballot in the parking lot, since going to the grocery store has been deemed safe enough for everybody.
    As Kuff likes to quote the kids as saying, “there’s a lot to unpack here.”

  4. Jeff N. says:

    What Bill Daniels said.

  5. Kenneth Fair says:

    Eckhardt’s comment is indeed generous to Paxton. Unless the temporary injunction is stayed by either the trial court or the appellate court, it remains in effect during the pendency of the appeal. To my mind, Paxton’s threat to the county clerks despite the injunction comes pretty close to official oppression under Texas Penal Code § 39.03(a)(2).

    To me, the best solution is to declare unconstitutional the age discrimination that allows voters over 65 to get no-excuse absentee ballots but limits the ability of those under 65 to get them. The 26th Amendment seems clear to me that such discriminatory measures are unconstitutional.

  6. Jules says:

    Bill is a nitwit who was all for people driving other folks to the polls to sign an affidavit stating that the persons being driven really needed curbside assistance. In fact, he was going to drive busloads of disabled vets to the polls and attest to each of their disabilities. Now he’s all but what about HIPPA?

    Maybe we could all get rando drivers to sign a statement that we can’t make it to the polls.

  7. brad says:

    Bill,

    It’s not complicated….

    Just let us know when your senior citizen family member shows up in person to vote and be sure to post the photo so folks won’t believe you to be hypocrite.

  8. brad says:

    Paxton,

    I will be requesting a mail-in ballot.

    Come and get me. I dare you to take me (and the other thousands) to court.

  9. Wolfgang says:

    DIFFERENT SORT’A STAY, APPARENTLY

    I think Paxton is wrong, or is fudging the legal issue of “stay” pending appeal, and what that entails. Here is my take on it:

    Based on the appellate docket sheet in the Austin COA, the State of Texas (Paxton himself is not listed as AG for the State) is appealing the denial of the State’s plea to the jurisdiction (the temporary injunction is not mentioned on the docket and the notice of appeal is not posted, so I can’t check the wording).

    Both would be interlocutory appeals (i.e. appeals from an order issued in a pending case, rather than from a final judgment), but an interlocutory appeal of the denial of a jurisdictional dismissal based on assertion of immunity by a governmental entity results in an automatic stay of all proceedings in the trial court. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(b) (“An interlocutory appeal under Subsection (a)(3), (5), (8), or (12) also stays all other proceedings in the trial court pending resolution of that appeal.”). The relevant subsection here is (8), (“grants or denies a plea to the jurisdiction by a governmental unit …”).

    An appeal from a temporary injunction generally does not have that effect, but here Judge Sulak’s order does two things: Grant temporary injunctive relief AND denies the State’s jurisdictional plea. I can’t tell whether they are also appealing the TO, but they are clearly taking advantage of the stay provision of the latter ruling. Note also, by comparison, that the Stay-in-Jail suit against Abbott resulted in an appeal in the form of a mandamus from a TRO, not a temporary injunction. That’s because a temporary restraining order, unlike a temporary injunction, is not an appealable order.

    So the trial court judge’s hands are now tied until the appeal is resolved. See In re Univ. of the Incarnate Word, 469 S.W.3d 255, 259 (Tex. App.-San Antonio 2015, orig. proceeding) (noting that Section 51.014(b)’s stay of “all other proceedings in the trial court” is violated if the trial court conducts hearings and signs orders while the stay is in effect).

    The statute governing interlocutory appeals does NOT say that the trial court order’s is invalidated, although that that may ultimately be the result, depending on the how the COA rules.

    The COA Docket is here: http://www.search.txcourts.gov/Case.aspx?cn=03-20-00251-CV&coa=coa03

    Case Style: The State of Texas v. Texas Democratic Party and Gilberto Hinojosa, In His Capacity as Chairman of The Texas Democratic Party, Joseph Daniel Cascino and Shanda Marie Sansing, Zachary Price, League of Women Voters of Texas, League of Women Voters of Austin-Area, MOVE Texas Action Fund, Workers Defense Action Fund

  10. […] and SD14 special election. The state lawsuit filed by the TDP, which AG Ken Paxton is currently throwing a hissy fit over, and the federal age discrimination lawsuit filed by a group of young voters, are separate actions. […]

  11. […] here and here for the background, and here for the TDP’s motion. Here I am Not Being A Lawyer again, but it […]

  12. […] here and here for the background. You can see the press release relating to this action here, a copy of […]