Gov. Greg Abbott’s most exasperating allies sure chose an awkward time to act up.
In the face of a momentous election, with an array of issues that includes the pandemic, the recession, climate change, racial justice, law enforcement and the next appointment to the U.S. Supreme Court, the chairman of the Texas GOP and a gang of lawmakers and activists have instead picked a fight with Abbott, who isn’t even on the ballot, over his response to the pandemic.
On the surface, they’re asking the courts to tell the governor that adding six more days of early voting to the calendar was outside of his powers. Abbott made the move under emergency powers he has claimed during the pandemic — the same powers he has used at various times to shut down schools, limit crowd sizes and limit how many customers businesses can serve at a time, or in some cases, to close businesses altogether.
The timing is connected to the Nov. 3 general election; even with the arguments over emergency powers, opponents of the governor’s action would be expected to grab for a remedy before early voting starts on Oct. 13. One might say the same about other lawsuits challenging the governor’s orders — that they’re tied not to politics, but to current events. Bar owners want to open their bars, for instance, and are not in the financial condition or the mood to stay closed until after the elections just to make the current set of incumbents look good.
What’s unusual is to see so many prominent Republican names on the top of a lawsuit against the Republican governor of Texas this close to an election.
In a gentler time, that might be called unseemly or distracting. Speaking ill of another Republican was considered out of bounds for a while there. Those days are over. What’s happening in Texas illustrates how the pandemic, the economy and other issues have shaken political norms.
As the story notes, this is also playing out in the SD30 special election, where Shelley Luther – supported by a million dollars from one of the Empower Texans moneybags – is busy calling Abbott a “tyrant”. There’s talk of various potential primary challengers to Abbott in 2022 – see the comments to this post for a couple of names – but I don’t see any serious threat to him as yet. If Dan Patrick decides he wants a promotion, then we’ve got something. Until then, it’s all talk.
But let me float an alternate scenario by you. What if the nihilist billionaires behind Empower Texans decide that Abbott and the Republican Party have totally sold out on them, and instead of finding someone to take Abbott out in a primary, they bankroll a petition drive to put some pet wingnut on the November ballot, as an independent or the nominee of some new party they just invented? It’s crazy and almost certain to hand the Governor’s mansion over to the Democratic nominee, but no one ever said these guys were strategic geniuses. It’s been said that there are three real political parties in Texas – the Democrats, the establishment Republicans, and the far right whackadoo Republicans. This would arguably be an outgrowth of that, and in what we all hope is a post-Trump world, there may be similar splits happening elsewhere.
How likely is this? As I said, it makes no sense in the abstract. It’s nearly impossible to see a path to victory for either Abbott or the appointed anti-Abbott. It’s instructive to compare to 2006, where Carole Keeton Strayhorn and Kinky Friedman were taking votes away from both Rick Perry and Chris Bell. Nobody who considers themselves remotely a Democrat is going to be wooed by whoever Empower Texans could vomit onto the ballot. Maybe they would consider a victory by Julian Castro or whichever Dem to be preferable to another Abbott term, in their own version of “the two parties are the same, we must burn down the duopoly to get everything we want”. Just because it makes no sense doesn’t mean it can’t happen. For now, if I had to bet, my money would be on some token but not completely obscure challenger to Abbott in the primary – think Steve Stockman against John Cornyn in 2014, something like that. But a lot can happen in a year, and if the Dems do well this November, that could add to the pressure against Abbott. Who knows? Just another bubbling plot line to keep an eye on.
TODAY’S OMNIBUS DISPOSITION OF ELECTION DISPUTES
Today’s crucifixion of Chris Hollins hardly comes as a surprise. But we also got a minor spat among the high court Republicans on how to handle the tagalong cases.
The split among them reflects the rift-pattern that emerged earlier in COVID-related supreme court litigation. Justice Devine again parted ways with the majority (as he did in the GOP convention mandamus) and in doing so did them favor: he helped them appear more moderate than they really are.
Today marked the day the judicial branch of the Texas GOP blessed the Attorney General’s consolidation of power under the judge-made “ultra vires” doctrine, and set precedent for the AG’s supreme right to kick around the locals whenever they do something that displeases the “Sovereign” as determined by the AG. For good measure, the Supremes exempted the “Sovereign” from having to meet the temporary injunction criteria as they apply to all other litigations who seek the court’s help to restrain the freedom of others.
As a consequence, the Attorney General, marching into civil court as “the State” will no longer have to put on evidence of an irreparable injury before he gets judicial help to put a straightjacket on a local official by way of temporary injunction. A complaint about “unprecedented” acts at the local level – properly dressed up as an “ultra-vires” claim — should do the trick henceforth. The State is, after all, the State, and entitled to have its way no matter what. Never mind the merits. Sovereign injury is like sovereign immunity. It’s inherent. No evidence needed.
ABBOTT VS. HOTZE
Justice Devine would have granted even more eve-of-election relief than his colleagues were willing to countenance, by overturning Governor Abbott’s COVID-specific modifications of election procedures that he had instituted under the authority of the Texas Disaster Act. Devine, who does not owe his seat on the SCOTX to the Governor, views those exercises of emergency powers by Governor Abbott as illegitimate because the Disaster Act, in his view, is itself unconstitutional under the separation of powers provision of the Texas Constitution.
Although he cited Jimmy Blacklock’s concurrence in an earlier case, Devine again finds himself in the position of a lone dissenter. Indeed, Blacklock, who was in part joined by Busby, chastises Devine (albeit not by name) for his willingness to abandon all measure of judicial restraint:
–quote-begin
In the end, the petition seeks an advisory opinion declaring the Governor’s proclamation invalid. But see Brown, 53 S.W.3d at 303 (“[O]ur separation of powers article, TEX. CONST., art. II, § 1, prohibits courts from issuing advisory opinions that decide abstract questions of law without binding the parties.”). The petition’s approach—and that of the dissent—seems to be that because of the gravity of the legal questions at stake, it does not matter much whether the petitioners’ alleged injuries are traceable to the defendant’s actions, or whether the Court is ordering the proper defendant to perform a duty imposed by law, or whether the performance of that duty will redress the alleged injury.
The Court should overlook the jurisdictional, procedural, and prudential problems with this case and just resolve the merits of a pressing legal dispute. Then, presumably, everyone will be expected to abide by the Court’s improperly solicited opinion of what the law is on a topic of overwhelming public importance.
Any court that took such a cavalier approach to its jurisdiction would have no right to insist that its decisions be followed. By declining to decide this case and others like it that have not been properly brought before us, this Court is by no means “abandon[ing] the constitution at the moment we need it most.” In re Salon a la Mode, ___ S.W.3d at ___ (Blacklock, J., concurring). Quite the opposite. The Court is refusing to use the current crisis as an excuse to bypass the constitutional restrictions on its power. Id.
To borrow from the dissent’s regrettably overheated rhetoric, the true “disservice to the citizens of the State of Texas and the Texas Constitution” would be to violate the constitutional restrictions on our power in order to decide whether other branches of government have violated the constitutional restrictions on their power.
–quote-end
HOW HOTZE WAS HANDLED: WITH CARE
What is noteworthy here is that the majority of the Court did *not* rebuff Steven Hotze and his co-petitioners on account of multiply jurisdictional defects – which are detailed in Blacklock’s concurring opinion — but instead turned them away because they had not brought their attack more promptly. The majority accordingly DENIED their petition, rather than DISMISSING it for lack of jurisdiction, not to mention for being legally baseless and unsupported by evidence. And in contrast to the collective “per curiam” slapping administered upon Chris Hollins in No. 20-0729, Hotze was graced with a signed opinion. By Chief Nathan Hecht, no less.
The chosen mode of disposition in Hotze amounts to an implicit failure to acknowledge that these petitioners — including the Republican Party — had no standing to sue for lack of an injury, and had no case for judicial redress against the Secretary of State, not to mention a case supported by proper evidence.
CASES: In Re Steven Hotze, MD, Republican Party of Texas, et al, No. 20-0739 (Tex. Oct. 7, 2020)(orig. mandamus proceeding brought against Secretary of State based on Texas Election Code); State of Texas v. Chris Hollins, No. 20-0729 (Tex. Oct. 7, 2020)(per curiam)(reversing lower courts’ denial of temporary injunction sought by the Attorney General against Harris County Clerk Chris Hollins, and remanding to trial court of entry of injunction prohibiting mass-mailing of absentee vote application to voters who had not requested them).
SEPARATE EARLIER OPINIONS:
In re Republican Party of Texas, 605 S.W.3d 47 (Tex. 2020) (Devine, J., dissenting). In re Hotze, No. 20-0430, 2020 WL 4046034 (Tex. July 17, 2020) (Devine, J., concurring); In re Salon a La Mode, No. 20-0340, 2020 WL 2125844 (Tex. May 5, 2020) (Blacklock, J., concurring).