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Plaintiffs move for dismissal of state lawsuit over mail ballots

Not a surprise.

The fight over expanding voting by mail in Texas during the coronavirus pandemic appears to be coming to an end in state courts, but a lawsuit continues at the federal level.

Following a Texas Supreme Court ruling that closed the door to expanded mail-in voting, the individual voters, state Democrats and civic organizations that sued to expand voting by mail based on a lack of immunity to the new coronavirus asked a state appeals court on Tuesday evening to dismiss their case.

[…]

Legal challenges to the state’s voting by mail rules continue in federal courts though a panel of the U.S. 5th Circuit Court of Appeals last week extended its order blocking a lower court’s sweeping ruling that would have allowed all Texas voters to qualify to vote by mail during the coronavirus pandemic. The panel cited in part the proximity of the upcoming July primary runoffs. It’s possible the issue will end up before the U.S. Supreme Court after the runoffs.

This was more or less expected after that State Supreme Court ruling, which directly addressed the question of what the state law on “disability” meant in this context. At the federal level there remains the age discrimination lawsuit and the undue burdens lawsuit, neither of which has had a hearing yet, as well as the TDP/LULAC lawsuit for which there is a block of the lower court’s ruling in the plaintiffs’ favor. (This Daily Kos elections lawsuit tracker may be useful for you.) If there’s going to be any change in the status quo, it will be for the November election, though at this point I’m dubious even if the age discrimination claims have merit. Ultimately, the sure path forward is winning enough elections to change the state law. We’re talking 2023 at the earliest for that, so in the meantime this is where the fight is. It’s all up to the federal courts now.

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  1. ON GENERALIZED FEAR OF COVID AND MORE SPECIFIC FEAR OF GENERAL PAXTON

    Call me a lone wolf in the wilderness of the partisan legal landscape if you will, but I, for one, was startled when the Dems chickened out of the fight with the Attorney General in the Fourteenth Court of Appeals.

    WHAT WERE THEY AFRAID OF?

    Even assuming that Dems and Women Voters were doomed outcome-wise, what did they have to lose? (No, Trump does not own that phrase).

    The worst would have been an appellate opinion that says that “we are bound to follow the ‘guidance’ the supreme court provided in In re State, — S.W.3d —, 2020 WL 2759629 (Tex. May 27, 2020),” perhaps even with some favorable DICTUM thrown in regarding the unfairness of how the AG gamed the appellate system to obtain an arguably ADVISORY OPINION in a separate proceeding from which his opponents in the Travis County court case, and in the resulting appeal pending in the 14thCOA, were deliberately excluded. Does that not smack of a due process violation? — Adjudicating issues against nonparties in a case brought against stand-in parties?

    Perhaps at least one panel member would have followed the example of Justice Guzman in urging the legislature to do something about a problem they don’t have the power to fix (having collaterally been thwarted by the higher court in the case sub judice). See Mo-Vac Service Co., Inc. v. Escobedo, No. 18-0852 (Tex. June 12, 2020) (Guzman, concurring, but calling on the Lege to amend statute to make lives matter equally on the worker-death front, and to assure better deterrence of egregious employer conduct).

    THIS WAS NO DEFEAT WITH HONOR

    With the NONSUIT in the trial court, and the MOTION TO DISMISS in the appellate court, the narrative now is that the DEMOCRATS themselves have admitted that they are LOSERS. Attorney General Paxton is gloating not only about having been vindicated by [his fellow Republicans on] the Texas Supreme Court and by the Fifth Circuit [actually only by the stay-motion panel, so far, and only tentatively], but also that the Democrats have recognized that their bid to expand vote-by-mail through litigation has failed. – Talk about rubbing it in. More salt for the self-inflicted wound.

    CONFUSION ENDED, CONFUSION STILL REIGNING

    The AG also asserts that the question of COVID-19 and “disability” under the vote-by-mail section of the Election Code has been settled “definitively”, and the Fifth Circuit panel appears to agree, but the media is still puzzled. If the professional watchers for all things political still bewail the confusion, how can it be said that the voters have clarity about eligibility to vote by mail without threat of going to jail? The lawyers may be in accord, but the populace at large is still lost.

    Will I be prosecuted, will I be not? That is the question that continues to bedevil those who followed the coverage of the VBM ping-pong season where each side seemingly had its own umpires. But that attentive audience is only a subset of the entire electorate. What about those who don’t watch or read the news on a regular basis, but reasonably fear COVID-19, and apply for an absentee ballot, unaware of the criminal implications? What if they write “COVID” on the application in what the lawyers would call good faith? Under the supremes’ holding, that faith is no longer good. And the applicant may yet be in for an ugly surprise.

    And why would Paxton issue another “guidance” letter to the county judges and election clerks (on June 12) if things are already so settled, not to mention that the SCOTX went out of its way to express confidence that the election clerks will be following the law as read to them?

    The members of the SCOTX trust that voters too will do the right thing and follow the “correct” reading of the Election Code. Gee. What lofty realm do they populate? Do they really think millions of registered voters will do like the county attorneys and read the four concurring opinions, or even just the majority opinion by Chief Hecht, and be able to distill them down to an actionable gist?

    – Should I apply? Should I not?

    THE OUTLOOK IN THE FOURTEENTH COA WAS GOOD

    Things were going quite well for the Dems and the LWV in the Fourteenth Court of Appeals in Houston. The panel to which the AG’s interlocutory appeal was assigned (after the transfer from the Third Court of Appeals) had already revealed where each member stood in no uncertain terms: 2 decided to invoke inherent appellate power to revive Judge Sulak’s temporary injunction pending resolution on the merits, while 1 dissented. The breakdown was partisan, but so what?

    The majority on the panel was sympathetic to the plaintiffs’ clamoring for relief, and not so sympathetic to the Attorney General’s position that the Sulak order was automatically suspended because the State is always entitled to special treatment as a matter of right. You can infer that the panel majority felt otherwise because the grant of interim injunctive relief on appeal is discretionary. No rule of law required it. The panel majority granted extraordinary relief on motion of the plaintiffs/appellees, and did so promptly. It is this order that the supreme court stayed, not the pending appeal itself, which was not only an accelerated interlocutory appeal by statute, but was accelerated even further through a case-specific briefing order issued by the panel.

    Much of the media did not appreciate the nature of the SCOTX stay order in this case because it was not posted on the Court’s gone-dark website (which has since only been restored in part). Despite the procedural stay on the ancillary matter – whether the Sulak order should remain in effect pending resolution of the appeal — the case remained on track for merits briefing. But the nonsuit in the trial court now kills it (though there is a possibility that the COA may deny immediate dismissal for technical reasons, such as the failure of the appellees to file their briefs as ordered after having been granted an extension).

    LEGAL ISSUE(S) NOT ALL MOOT

    The supreme court’s decision in the by-pass mandamus case against the election clerks was obviously a game changer to the pending appeal of the Dem’s Travis County suit in Houston (and the parallel suit in the federal courts), but it didn’t render the appeal moot, even if the ruling on the statutory construction issue (that 8 of 9 concurred on) is deemed binding precedent (rather than dictum, which is what I would argue). There is still ground for disagreement about what to make of it. There is still room to dispute its effect. Permit me to run the risk of making myself eligible to be prosecuted for explaining why.

    COVID-19 IS NEITHER A LEGAL TERM, NOR DOES IT REFER TO A LEGAL CONCEPT

    Since the word COVID-19 is a neologism, and since it identifies a disease caused by a virus that is itself novel, any court must necessarily rely on information/evidence that only the scientists who named and studied the novel virus can supply. The Texas Supreme Court instead chose to resort to dictionaries that do not contain any entry for COVID-19. Nor could the Election Code expressly address that which is entirely novel, i.e., never seen. The Election Code covers likelihood of injury to health in a general, categorical fashion. No mention of pandemic or any specific diseases.

    APPLICATION OF EXISTING LAW TO NOVEL FACTS, NOT PURE STATUTORY CONSTRUCTION

    Because the legal question presented in the litigation concerns COVID-19, a specific pandemic disease, the scientific knowledge, imperfect as it may be, must necessarily form an integral part of the analysis of whether COVID-19 is a covered “disability” under the definition contained in the Election Code. But the SCOTX members pretended otherwise, falsely framed the issue as a pure matter of law (statutory construction, rather than application of existing statutory text to a novel fact scenario), and proceeded to stick their heads into dictionaries instead of consulting the literature on the pathogenesis of COVID-19.

    As a result, there two “correct” accounts of what COVID-19 is, and they are diametrically opposed and irreconcilable. There is the scientific understanding that lack of immunity is a physical condition that puts humans at risk, and then there is the truth that the Texas Supreme Court has ruled that lack of immunity is NOT a physical condition. The later formulation purports to be “the law” that everybody is now bound by.

    DISAGREE WITH THE SUPREMES, BE ELIGIBLE TO GO TO JAIL

    Should people who prefer to put their trust and confidence in the science now go to jail for a crime under the Election Code?

    The Texas Supreme Court apparently thinks so because everybody has been instructed to think in the “correct” way and comport themselves accordingly. And thanks to well-settled conventions of judicial law-making, the general rule is that when the high court “finds” what the law “is”, the finding is—unlike a statutory enactment–retroactive.

    So here the judicial pretense is that the restrictive interpretation of “disability” as excluding lack of immunity to COVID-19 was the correct reading all along, meaning that the Supremes’ issuance of the VBM opinion has only now formally recognized many of those who wrote or spoke about VBM eligibility for what they were all along: bona-fide criminals. Ignoramuses that they are, they did not know it at the time, but they should have. Round them up!

    Not to mention our unfortunate contemporaries who wrote “COVID” of “CORONAVIRUS” on their vote-by-mail applications. Those exemplars of felonious applications are already on file with the election clerks, and ready for General Paxton’s fraud squad to harvest and make hay of. With diligence and fervor, the phantom of election fraud might materialize after all.

    Never mind the constitutional proscription on ex-post facto laws. Never mind that the Texas Supreme Court does not even have jurisdiction over criminal matters. Surely the AG, and his litigation stable, can offer elegant solutions for those trifling constitutionality issues.

    Suffice it to point out that this sort of thing is what George Orwell warned us against in 1984: A Ministry of Truth making it all up as they see fit. Untethered from facts and science and unrestrained by reality. New alternative “truth” being created, written or rewritten with retroactive effect.

    Lack of immunity to COVID-19 was never a qualifying physical disability for vote-by-mail purposes and if you were ever brazen enough to say so, you are a criminal. Take that, Judge Sulak! And you, too, Judge Biery!

    EMPIRICALLY ASCERTAINABLE REALITY VS. SUPREME SURREALITY

    In their disposition of IN RE STATE OF TEXAS, eight of the nine members of the Texas Supreme Court offered a “holding” that contradicts science and reality, and creates a contrary legal reality by judicial fiat to the effect that lack of immunity is not a physical condition that puts people at risk to health in the absence of immunity.

    You would think that people should not be hauled off to jail for pointing fingers at reality-negating anti-sense emanating from high places in the interest of enlightened public debate.

    But the Attorney General is now threatening prosecution once more–referring to the judicially pronounced legal surreality as “fact”. In a positivist view, he is right: The Texas Supreme Court has verifiably said what it said and snuffed out the voice of science and reason with custom-concocted doctrine.

    NOT A FEAR OF FEAR ITSELF

    It should also be pointed out that the notion of “fear or concern, without more” (often conflated with the lack of immunity) is not even a meaningful mental construct for analytical purposes. This is because the particular fear at issue here is fear of a virus that does indeed pose a health threat and therefore cannot be meaningfully said to exist in isolation.

    The issue in this fight over mail-in voting is not an irrational fear of the cookie monster or a daytime nightmare of being trampled by a horde of chupacabras. Much rather, the fear of contagion at the polling places is reality-based (and therefor rational). It cannot be divorced from the objective RISK of contagion as long as there is no immunity that would allow us to conclude that the risk has been eliminated. The latter is of course also a factual question, not a question of construing words with the aid of dictionaries that have nothing to say about coronaviruses generally, or COVID-19 specifically.

    THE FEAR-STRUCK POPULATION IS A SUBSET OF THE AT-RISK POPULATION

    Under current conditions (a matter that requires the taking of evidence or at least judicial notice of materials produced by researchers, medical professionals, and public health experts), anybody and everybody who has a FEAR of catching COVID-19 is indeed also a person AT RISK based on a “physical condition”, as distinguished from mental and emotional states, such as fear or anxiety, which may arise in the absence of a real threat or risk. And the Election Code does not quantify or qualify the risk, but instead defines the criterion governing eligibility negatively as the absence of a likelihood of injury to the voter’s health. The operative word to effect the exclusion of physical conditions that do not qualify the voter to vote by mail under the “disability” category is the word WITHOUT (“without a likelihood of needing personal assistance or of injuring the voter’s health.”). Texas Election Code § 82.002(a). So, as long as there is a “likelihood”, the eligibility criterion is satisfied. Although likelihood is a statistical/probabilistic concept, the legislature has not a likelihood or risk level either numerically or in words such as “high” or “substantial”. Much rather, the chosen formulation is dichotomous: presence or absence of “a” likelihood of injury.

    A SECOND OPINION IS PREFERABLE TO UNCONDITIONAL SURRENDER

    An opinion by the Fourteenth Court of Appeals in No. 14-20-00358-CV could have made the above points, and a few others. At the minimum, a dissent could have done so. And the responsibility for an adverse outcome would have been unmistakably placed where it belongs: at the Texas Supreme Court, whose members voted remotely and safely from the comfort of home to deny all Texans the right to vote remotely and safely from the comfort of home.

    —–
    Author’s Note: As mentioned previously, I am in the process of creating an academic article on this topic (genre-appropriate, in toned-down scholarly diction). Feedback on the arguments sketched here (and on my numerous posts on Trib. Stories on this topic) is welcome, as are complaints about error, if any. My email address is available from my SSRN Author Page.