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Now we wait on SCOTX

Shouldn’t have to wait too long to get a resolution to the “Harris County Clerk wanting to send out mail ballot applications to all registered voters” question.

Chris Hollins

A day after a court ruled against him, Texas Attorney General Ken Paxton appealed on Saturday an order that allowed mail-in ballot applications to sent to all of Harris County’s 2.4 million registered voters.

Paxton indicated in a press statement that he expects the court should rule by Monday.

“The proposed mass mailing would sow confusion because applications would go to all registered voters, regardless of whether they legally qualify to vote a mail ballot and regardless of whether they even want to vote by mail,” says a news release from Paxton’s office. “Texas law requires the clerk to send applications to voters who specifically request them.”

Harris County Clerk Chris Hollins said Saturday that applications to voters under 65 are in production and will be sent out soon. His office has already sent out vote-by-mail applications to registered voters 65 and older.

“We’re disappointed that the attorney general is fighting so hard to keep information and resources out of the hands of Harris County voters, but, sadly, we aren’t at all surprised,” Hollins said. “The Harris County Clerk’s Office will continue to do everything we can to protect Texans’ right to vote, and we know that the law is on our side.”

See here for the background. Judge Sandill’s ruling very clearly addressed Paxton’s claims, so it’s really just a question of whether the Supremes want to put a thumb on the scale for Paxton or not. I keep coming back to their original ruling in the TDP vote by mail lawsuit, and I don’t know how you get to Paxton’s desired outcome without really warping the meaning of the existing law. Which doesn’t mean that they won’t do it, just that it should be clear what it would mean if they did. I don’t know what else to say.

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12 Comments

  1. Bill Daniels says:

    Sending out millions of mail in ballot applications, when they know up front that most voters will NOT meet the qualifications to actually vote by mail is explicitly encouraging election law crimes. It’s encouraging millions of voters who are NOT eligible to think, well, gee, they sent me an application for a mail in ballot, I must qualify. It’s misleading, and it’s just out in-your-face improper.

    I have confidence the SCOTX will sink this, as they should.

  2. Ross says:

    Bill, none of those reasons are in any of the election laws. The Clerk is doing nothing wrong here. And, only a complete asshole would prosecute someone who voted by mail because they are afraid of getting sick. Of course, Paxton is a complete asshole, so he will probably prosecute someone.

  3. Kibitzer Curiae says:

    Meanwhile, Jarred Woodfill has filed an amended emergency motion in Tex. Case No. 20-0671 to get the Supremes to direct Harris County Pct. 4 Constable Mark Herman to secure and seize any and all applications for ballot by mail and ballots received by Respondent Hollins as a result of applications to vote by mail that were not initially requested by the voter.

    He also wants the Supremes to enjoin businesses involved in the printing: OD’s Printing a/k/a ODS Printing and Arching Oaks Investments, Ltd. d/b/a Reflection Printing.

    COMPEL VS. ENJOIN

    Never mind that the SCOTX has previously ruled that contractual duties cannot be enforced through mandamus relief authorized by the Election Code. See In re Republican Party of Tex., No. 20-0525, 2020 WL 4001050 (Tex. July 13, 2020).

    “Section 1.005(10) defines “law” in the Election Code to mean “a constitution, statute, city charter, or city ordinance.” Id. § 1.005(10). Thus, “duty imposed by law” in Section 273.061 is limited to a duty imposed by a constitution, statute, city charter, or city ordinance. The Party does not assert that Houston First owes it any such duty. The Party argues it has constitutional rights to hold a convention and engage in electoral activities, and that is unquestionably true. But those rights do not allow it to simply commandeer use of the Center. Houston First’s only duty to allow the Party use of the Center for its Convention is under the terms of the parties’ Agreement, not a constitution.”

    An order under the Election Code to prevent businesses from performing a contractual duty adds a whole new angle, or course.

    But the Supreme have already seen fit to grant emergency relief in this latest of a serious of Hotze cases (No. 20-0671) without a readily apparent jurisdictional basis, so who knows what they will extemporize for the occasion: A deus-ex-machina common-law exception to the jurisdictional limitation to statute-based mandamus authority perhaps, and taxpayer- or single-voter standing for Hotze to enforce statutes in addition to an ability to enforce a rule 11 agreement to which he is not a party? Detractors might then dub it the devil-ex-machina solution to the GOP’s no-holds-barred-must-win-whatever-it-takes election strategy.

    Also, Ken Paxton’s litigators collectively have much more litigation prowess than Woodfill, who apparently operates as a solo, so there is probably a good reason why they did not file a direct Election Clerk mandamus in the Supreme Court (like Woodfill did), and why “the State” sued Hollins in Harris County District Court instead. The AG’s lawyers know that most of the district court judges are Democrats and the majorities on the Houston Court of Appeals are also Democrats, while the forum is much friendly in the higher realms of the hierarchy. The problem here is the legal theory for judicial relief against Hollins and the form of relief sought: injunctive, ie using judicial power to block and obstruct the carrying out of election duties, rather than compelling them.

    The Election Code mandamus provision provides for enforcement of a duty imposed by law. Hollins, however, is going above and beyond the duty imposed by law by choosing a method of making VBM applications available to the entire population of eligible voters rather than only those who specifically request one.
    Arguably, Hollins’ way is the only way to NOT favor a particular group over another, and the ONLY way to comply with the Equal Protection clause in a situation where the State has stipulated that mailing applications to those over 65 is not objectionable. That pesky constitutional detail didn’t come up at the temporary injunction hearing, but the Fifth Circuit has since ruled in Texas Democratic Party v. Abbott et al that it’s all about the equal protection (and not the 26th Amendment). TDP v. Abbott, No. 20-50407 (5th Cir. Sep. 10, 2020)(merits panel decision) (“The real issue here is equal protection, and that is not before us. We will remand.”). So, even if there is no “abridgment” of the right to vote based on age that violates the 26th Amendment (as construed in light of the historical-political context of its adoption), that doesn’t mean that the election authorities are free to discriminate based on age. What level scrutiny applies is still not clear, but note that the merits panel has repudiated the motion panel with respect to the rational-basis approach. (“We therefore use our authority as the panel resolving the merits to declare that the holdings in the motions panel opinion as to McDonald are not precedent.”)

  4. C.L. says:

    Remember the good ole days when folks sued because they had previously been harmed in some way ?

  5. Bill Daniels says:

    C.l.

    People get restraining orders all the time to try and PREVENT being harmed in the future. Maybe you’ve heard of those? The victim of Jacob Blake, the underaged girl victim of Jacob Blake got one against Jacob. In fairness, it didn’t help, since Blake was caught red handed violating that restraining order in order to further terrorize her and her family.

    But we can see that the family TRIED to keep their little girl safe. I appreciate that they tried.

  6. C.L. says:

    A restraining order is not a lawsuit, dingbat.

  7. Manny says:

    Bill Daniels you are a persistent racist promoting your hate with lies.

    An adult woman claimed she was sexually assaulted, there had been no trial so just assume he was guilty because he was black. It was not a minor.

    Trump was accused of raping a 13 year old girl, white girl if it makes a difference, is he guilty since he was accused. Trump has many allegations of sexual assaults that have been levied against him by women. Trump is presumed innocent because he is white and a racist? Or just because he white?

    I remember how you argued that Brent Kavanagh was not guilty of sexual assualt? Why, because he is white and a racist?

    Your kind promote hate you are no better than any of the Nazis that followed Hitler, or those that followed Stalin or Mao.

    I don’t have any idea what rocks you all crawl out from, but why not go crawl back there instead of promoting hate with your constant lies.

    If it comes out of Bill’s mouth or typed with Bill’s fingers it has a very high probability of being a lie.

    https://www.reuters.com/article/uk-factcheck-jacob-blake-sex-minor/fact-check-jacob-blake-does-not-have-an-arrest-warrant-for-having-sex-with-a-minor-idUSKBN25N2ZO

  8. Kibitzer Curiae says:

    How does the topic of vote-by-mail and election administration degenerate into a heated exchange over rape? – Indicative of the Zeitgeist? – Sad. … And the unsavory exchange was not even about voters getting screwed.

    NO TRO HERE

    Returning the subject matter at issue, Judge Sandill’s ruling was not even in the nature of a temporary restraining order. The Rule 11 agreement obviated the TRO. Instead, what is being appealed is an order resulting from a full-fledged evidentiary hearing that took several hours on Zoom (with about 80 watchers), and denied the State’s application for a temporary injunction on the merits.

    Hollins’ answer to the State’s lawsuit also challenged the issue of who has authority to bring the action (SOS vs. State/AG) under the rubric of “capacity to sue”, but that was put on the back burner since Hollins, too, has an interest in a clear-cut ruling and legal certainty. (Unlike standing, which is jurisdictional, lack/defect of capacity can be waived, or so the SCOTX has said).

    PAXTON GAMBIT NO. 2

    An order granting or denying a temporary injunction can be appealed immediately per statute. Here, however, the State (AG/Solicitor General) wants not only an accelerated higher-court review of the temporary injunction denial; they also want the higher court to do what the lower court didn’t. They are trying to accomplish this by urging the court of appeals (in an emergency motion comprising 367 pages) to exercise its power to enter temporary orders to “preserve its jurisdiction”. Alternatively, they are asking for a writ of injunction to be issued directly by the court of appeals (which would go beyond a mere reversal or vacature of the order being appealed). Note that in this case it makes little sense to ask for a stay of the trial court order on appeal because the State was the Plaintiff and lost, rather than the State being on the losing side as the defendant (as in the other two VBM cases that were brought by the Democrats as plaintiffs). Even if the Judge Sandill’s TI denial order were “stayed” pending resolution of the appeal, this would not amount to an enforceable court order enjoining Hollins from proceeding with his mailing project.

    MOOTNESS LOOMING?

    The State urges haste because the appeal will be moot once the mailing has gone out as “threatened” (Solicitor General’s characterization of Hollins’ proposed mailing initiative). After all, they argue, the mailer cannot be unmailed, once it has gone out. The damage would be done (though it remains unclear what the damage or harm to the State would be, in concrete terms).

    In the bigger scheme of things, however, the legal issue won’t be moot because whether or not Hollins gets to do his proposed mass-mailing in THIS election does not resolve what is essentially a statutory construction issue: how the scope of election clerk authority under the Election Code is to be interpreted and what powers are implied by the express powers granted to conduct the elections. That question will still remain for future years and future elections, and will ultimately involve an elections administrator, rather than the county clerk, in Harris County.

    Moreover, the pandemic conditions will likely be unique to this election cycle (or at least not permanent), and in the temporary injunction context, such special circumstances can and must be taken into account in the weighing of the asserted interests by the parties that goes into the determination by the trial judge whether equitable injunctive relief should be granted immediately.
    The fact is that under current pandemic conditions, Hollins and other early election clerks are hampered when it comes to their duty to make VBM applications physically available because of the COVID-related logistical impediments, including the closure of county buildings and other facilities where these applications could be furnished. Good election administration would therefore call for alternative distribution channels, especially those that don’t involve person-to-person contact to avoid infection risk. Online distribution of the application form is obviously one suitable approach, but not every voter has easy access to the internet and a printer, so exclusive reliance on the web as an alternative to physical distribution of forms would be inequitable.

    VOTER-SPECIFIC “MASS” MAILING & TECHNICAL IMPLEMENTATION NITTY GRITTY

    Further, in terms of logistics and processing of individualized VBM requests, there are greater delays when the voter has to contact the early election clerk for an application (and figure out the location/address first), and there are higher per-voter transaction costs and complexities when the voter has to take the initiate because each voter-applicant then has to be matched to his/her voter registration record for verification purposes.

    By contrast, the mailers designed by Hollins are already voter-specific (bar-coded) and can be machine processed upon return, obviating manual data entry and associated human or scanning/OCR conversion error in voter-supplied information on the form. Because the source data for the mailout come from the current registration records, Hollins’ mailers will only go to registered voters, not to every household or postal customer in Harris County. In other words, the proposed mailing is not indiscriminate.

  9. Jen says:

    Kibitzer, I love your posts but what is left of my brain has a crick in it from trying to figure out what this all means. Maybe a summary for lay persons? Since Judge Sandhill mentioned that the State is trying to prevent the Clerk from doing what any ordinary person may do, perhaps the Clerk could just give the forms to the League of Women Voters to mail out.

  10. Kibitzer Curiae says:

    To Jen: Thanks for the feedback and the suggestion regarding a generally-comprehensible summary.

    As the Kibitzer sees it, the gist of the story here is that the Attorney General/Solicitor General will do what it takes–in the way of appellate litigation gambits–to get their way.

    They set a deadline for the 14th Court of Appeals to give them a temporary order in their favor by Monday, 5pm, which has passed. The 14th Court of Appeals issued an accelerated scheduling order instead. See here: http://search.txcourts.gov/Docket.aspx?coa=coa14&FullDate=09/14/2020. So their next move it to seek emergency SCOTX intervention.

    Having learned who sits on their panel in No. 14-20-00627-CV (3 Dems), they promptly filed an amicus letter in the Hotze mandamus (In re Hotze, No. 20-0671) to urge the Supreme Court of Texas to grant emergency relief in that case. They urge that the SCOTX extend the temporary order it previously issued based on the Rule 11 agreement between Hollins and the State in the Harris County action before Judge Sandill to preserve the Supreme Court’s jurisdiction, although that jurisdiction (orig. mandamus jurisdiction under the Election Code) is highly dubious in the first place.

    The AG/Solicitor General will likely also file their own petition in the Supreme Court promptly because they don’t trust the Houston COA to rule quickly enough to stop Hollins, or to rule in their favor. The State’s accelerated appeal in the Houston COA is set for submission on Sep. 16, 2020 at 5pm without oral argument.

  11. Jen says:

    Kibitzer, thank you, that is a big help! “Highly dubious” is the correct descriptor for everything the Republicans do and say these days.

  12. Kibitzer Curiae says:

    NOT TOO LONG A WAIT …

    MISCELLANEOUS
    A STAY ORDER IS ISSUED IN THE FOLLOWING CASE:
    20-0715
    IN RE THE STATE OF TEXAS; from Harris County; 14th Court of Appeals District (14-20-00627-CV)

    stay order issued

    On petition of relator, the State of Texas, for writ of mandamus and writ of injunction to preserve its ability to seek relief on interlocutory appeal to the Court of Appeals for the Fourteenth District, and to seek review by any party from this Court, real party in interest Chris Hollins, County Clerk of Harris County, is ordered not to send or cause to be sent any unsolicited mail-in ballot applications pending disposition of the State’s appeal to the Court of Appeals and any proceedings in this Court, and until further order of this Court. This order does not affect the resolution of the interlocutory appeal in the Court of Appeals.

    [Note: The petition for writ of mandamus and for writ of injunction remains pending before this Court.]