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And now the state has sued to stop the Clerk’s mail ballot application program

Such a busy day in court.

Acting at the request of the secretary of state, the Texas attorney general on Monday sued Harris County after it refused to drop plans to send applications for mail-in ballots for the November general election to more than 2 million registered voters.

Attorney General Ken Paxton is asking a state district court to bar Harris County Clerk Chris Hollins from proactively providing the applications to every registered voter in the county, alleging Hollins does not have the authority under state law to carry out the plan.

[…]

There is no state law that specifically prohibits election officials from sending out mail-in ballot applications to all voters. Instead, Paxton argues that county clerks are only “expressly empowered” by the Texas Election Code to send out applications to voters who request them, “but there is no statute empowering County Clerks to send applications to vote by mail to voters who have not requested such an application.”

“And Hollins’s plan to send vote-by-mail applications to every registered voter, regardless of whether the application was requested or whether the recipient is qualified to vote a mail ballot, is not an exercise of power that is necessarily implied to perform his duties,” Paxton wrote.

The legal action was sought by the secretary of state’s office, which last week demanded the county retract its plan by Monday at noon. The secretary of state’s office has advised counties seeking to proactively send out applications to limit those mailings to voters who are 65 and older — the only predetermined qualification for a mail-in ballot in Texas — to avoid confusion about eligibility.

The secretary of state’s office claimed that Harris County’s endeavor would amount to “abuse of voters’ rights,” raising the prospect that sending applications to all voters, including those who do not qualify, may cause confusion among voters and “impede the ability of persons who need to vote by mail to do so” by “clogging up the vote by mail infrastructure” with applications from voters who do not qualify.

But Harris County refused to back down from its plan, with Hollins noting that the county’s mailing would also include “detailed guidance to inform voters that they may not qualify to vote by mail.” The county has also previously indicated it is planning to purchase more mail-sorting equipment and hire hundreds of temporary workers who will focuse on processing voting-by-mail applications and ballots.

“They have taken the position that somehow sending the form that would make it easier for someone to vote is somehow impeding a person’s ability to vote,” said Douglas Ray, a special assistant county attorney in Harris County. “The lack of logic in that assertion is beyond me.”

See here and here for the background. A copy of the AG’s filing is here. There are two main differences between this action and the Hotze filing. One is that this is a lawsuit filed in Harris County district court, for which the AG will seek a temporary restraining order, while the Hotze action is a writ of mandamus to the Supreme Court. The other is that this one seems to make a narrower claim about the law in question, which is that the Lege didn’t give the Clerk this power and so the Clerk does not have it. It’s not as problematic or nonsensical as the Hotze argument, but it still fails my “plain reading” test and still invites the question of why anyone else would be empowered to do this if the Clerk is forbidden. You can read the other post, I’m not going to repeat myself. I will also confess that I didn’t read the AG’s filing, mostly because it was later in the day when this story hit and I was tired. I expect it’s less ridiculous than the Hotze filing, but that is a very low bar to clear. As of this moment, I have no idea what the schedule for this may be, but for obvious reasons there should be some action quickly. The Chron and the Texas Signal have more.

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10 Comments

  1. Wolfgang says:

    Re: Status of Cause No. 2020-52383; STATE OF TEXAS (BY AND THROUGH ITS ATTORNEY GENERAL vs. HOLLINS, CHRIS (IN HIS OFFICIAL CAPACITY AS HARRIS COUNTY CLERK (Court 061) (Presiding Judge: Fredericka Phillips)

    No hearing is currently set as of 9/1/2020 10am

    The docket reflects cancellation of the TRO hearing on 8/31 by agreement and contains a Rule 11 Agreement to preserve the status quo until a temporary injunction hearing and ruling thereon. But this letter-form filing has only typed e-signatures on it, and the same assistant attorney general “signed” for both parties.

    So, we have to trust them to have done so with authority (“by permission”), which kind’a defeats the whole purpose of Rule 11, which is in the nature of a statute of frauds. If there is a question as to whether the agreement was in fact made (and agreed-to as to all the particulars), you would need extrinsic evidence (sworn testimony or the trail of email exchanges) to prove the authenticity and validity of one side’s attorney also signing for opposing counsel by typing the other attorney’s name after the signature denotation /s/.

    Faxing a pre-signed proposed Rule 11 back, and then filing the return copy (with both fax metadata lines and the image of real signatures on it) was a better approach in earlier days.

    Anyhow, here are the Terms of the Rule 11 Agreement:

    -quote

    This letter serves as an agreement under Rule 11 of the Texas Rules of Civil Procedure that (1) the Harris County Clerk will not send applications to vote by mail to registered voters under the age of 65 who have not requested them until five days after a ruling on our application for a temporary injunction, (2) the parties will request a temporary injunction hearing at a mutually agreeable time no later than September 9, (3) the Office of the Attorney General will not seek a temporary restraining order, and (4) representatives from the Harris County Clerk and the Secretary of State will discuss this matter today at a mutually agreeable time after 4:00 p.m. CT.

    If you agree, please sign and return this letter to me, or email me your agreement. Thank you for your attention.

    Sincerely,

    /s/ Charles K. Eldred
    Charles K. Eldred
    Assistant Attorney General
    Attorney for Plaintiff

    /s/ Seth Hopkins by Charles K. Eldred by permission
    Seth Hopkins
    Assistant County Attorney
    Attorney for Defendant

    -unquote

    The Rule 11 Agreement was filed: 8/31/2020 6:00 PM, with no indication as to whether the conference took place. There is no attorney appearance on behalf of Defendant Chris Hollins yet. Nor does the docket list an attorney for him.

    Here is a proposed Bar Exam question: Does the e-signature ascribed to an Assistant County Attorney on a purported rule 11 agreement efiled by that Assistant AG for the State as Plaintiff “with permission” constitute an appearance by the defendant County Clerk, and does it effect a waiver of service of citation?

    Not that it’s a big deal here, but this could come in other cases with private litigants, in cases that don’t attract media attention.

  2. Jules says:

    Hollins is only going to send applications to those 65 or over for now

  3. voter_worker says:

    Not discussed in anything I’ve read about this is the fact that an election mailout to all Harris County active voters is going to result in a return of many, many thousands of undeliverables that are going to automatically put those voters into the Suspense category. That alone should be enough to dissuade the CC from doing this. Look up the stats on the most recent comparable mailout, the new certificates mailed in January 2020 for the 2020-21 election cycle if you doubt that it could be a significant number. This is a trigger for status change from “active” to “suspense” mandated by the Election Code. I might add that this whole conversation has ignored the Voter Registrar Ann Harris Bennet and whether her office will be able to handle all the normal work before this extra amount would land in her office. The EA office can’t get here soon enough.

  4. Wolfgang says:

    RE: “thousands of undeliverables” and “This is a trigger for status change from “active” to “suspense” mandated by the Election Code.”

    If the address is in fact bad, why wouldn’t it be a good thing to have the mailer returned with the notation “UNDELIVERABLE AS ADDRESSED” or “MOVED” or “NOT AT THIS ADDRESS”, with resultant suspension of the registration? Wouldn’t that improve the quality of the voter rolls (or database) and provide an effective argument against those who argue voter fraud is a big problem due phantom addresses or graveyard residents. If a forwarding address is on file with the Postmaster, it could also be used to inform the intended recipient of the need to change his/her registration to the new address.

    Having accurate/up-to-date voter registration records with current addresses is also a key element of making universal vote by mail successful, and to minimize the number of actual ballots that go to bad addresses (assuming that might be contemplated for Texas at a future point in time).

    Am I missing something?

  5. voter_worker says:

    I might have worded it differently. If someone has moved the USPS will return the item to the County. I presume it’s marked in some form or fashion indicating that the addressee (voter) no longer resides at that address. This isn’t ironclad especially if you’re gone but family still resides there. This is the basis for the biennial voter certificate mail out.

  6. Bill Daniels says:

    Voter,

    If a change of address has been filed, wouldn’t the first class mail from the Harris County registrar be forwarded to the new address? Maybe we need a postal employee to weigh in here. On the plus side, it would be a reminder for people who have moved to update their voter registration with their new address and new county, if applicable. And as for mail with no forwarding address with USPS, I have occasionally gotten random mail with my address and names I have never heard of listed. It just gets delivered to my address. So I don’t see how mail from the County Clerk gets returned at all, unless the address no longer exists for some reason.

    Having said that, I have known folks who have both moved permanently and temporarily had their mail forwarded that still had important mail get delivered to the old address. Usually whoever is getting the mail at that address is good enough to write “forward to xxxx address” on the mail, but that’s not something I would always count on, especially for apartment dwellers.

  7. Jules says:

    Voter registration cards are Return Service Requested, so are not supposed to be forwarded, but returned to sender.

    Don’t know about ballot applications or ballots, as I have not been mailed either of those.

  8. voter_worker says:

    Bill, if the Voter Registrar has reason to believe a registered voter has moved, they are instructed to send that voter a Confirmation Notice by forwardable mail. The Election Code lists other sources of information that are involved in changing a voter’s status but the County Clerk does not seem to be among them. This is pretty arcane so I will leave it at that. https://texas.public.law/statutes/tex._election_code_section_15.022

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