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SCOTX hears mail ballot case arguments

Here we are.

Harris County Clerk Christopher Hollins’ plan to send mail ballot applications to all 2.4 million registered voters in the county far exceeds what the state Election Code allows, the attorney general’s office argued before the Texas Supreme Court Wednesday.

In oral arguments before the high court, Texas Solicitor General Kyle Hawkins said the part of the Election Code requiring clerks to send applications to any registered voters who request them means the distribution of applications is limited to those voters. Harris County Clerk Christopher Hollins, he warned, cannot claim powers the Election Code has not expressly granted him.

“If Hollins’s actions are allowed to proceed, it will fundamentally upset the balance of power between states and counties,” Hawkins said. “That conception of power has existed for a century.”

[…]

Susan Hays, a private attorney representing Harris County, said the purpose of the Election Code is to make voting safe and accessible to all registered Texans. Requiring applications to be sent to voters who request them is a minimum requirement, she argued, not a limit.

“A statute that says we have to give an application to someone if they ask doesn’t prohibit implicitly giving it to people because we think it’s a good management practice and we think it will make this election safe,” Hays said.

The eight justices in attendance peppered both attorneys with questions during their 20-minute arguments.

Responding to a question about whether the county’s plan would be out of step with how other parts of the state are handling mail ballots, Hays said all 254 counties should send mail ballot applications to registered voters. In an amicus brief, the Dallas County clerk argued the same.

Justice Eva Guzman asked Hays if Harris County’s plan would create more opportunities for voter fraud. Hays said it would not, noting that each ballot is reviewed by a bipartisan committee to ensure the signatures on the ballot and application match.

Justice Brett Busby asked Hawkins if the state’s position that clerks only have power explicitly granted by state law would bar them from developing new, innovative ways of providing services to customers.

“This is going to have ramifcations outside this case,” Busby said. “How do we tread that line to ensure clerks can continue to do, as they see it, good customer service?”

Hawkins said clerks would be fine so long as they are able to connect every action to a “specific grant of power” from the Legislature.

See here for the previous update. I don’t have any new insights, I still think the state’s arguments are crap, but it’s not up to me. All I ask at this point is a quick decision.

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5 Comments

  1. BillK says:

    with regards to mail in ballots. Harris county has a new web site:

    https://www.harrisvotes.com/tracking

    where you can track the progress of your mail in ballot from being sent to you to it being received back and counted.

  2. voter_worker says:

    I’ve used this and sent it to friends. A very good tool; one friend reported issues using it on an I-Pad. I just read that the Governor has issued a directive limiting Texas counties to one physical drop off point for mail ballots. Fine. Mine will arrive tommorow and be in the mail on Saturday.

  3. brad says:

    1 physical drop off per county?? Harris County is 1,777 square miles.

    Governor Abbott is an unpatriotic asshole who has done nothing to strengthen our democracy with any attempts to increase voting of our state’s citizens.

  4. Kibitzer Curiae says:

    CLERK HOLLINS’ LOOMING DOOM ON ZOOM

    Within 24 hours, almost 600 netizens have viewed the YouTube recording of remotely conducted orals in Ken Paxton a/k/a The State of Texas v. Hollins, No. 20-0729. You can do so too.

    Lively it was and animated they were, the High Court Zoomsters. Lots of questions and interjections from all centers and corners of the screen, from jurists whose live virtual visages — albeit in varying degree of resolution if not resoluteness — were set against the backdrop of uniform cyberized courtroom tapestry; – the better to foster the illusion of courtly togetherness while safely plying the craft of statutory construction wisely socially distanced.

    Lots of clues were dropped in the course of the medley of verbal interchanges about the ins and outs of curbing that certain clerk, and achieving election loss prophylaxis by other means.

    SG Hawkins, deferentially referred to as “General” by Chief “Exactly Right” Nathan Hecht, had even trimmed down the bearded fullness of his stately visage from the standard set by the likes of Karl Marx and Charles Darwin, with which he had regaled spectators in the first round of the early voting clerk-hoisting tournament.

    You can be a spectator too. For your personal on-demand Round II re-run look here: https://www.youtube.com/channel/UC0gZPfa2qBYO7oJvt6TKixg

    Round I Case Citation: In Re Something is Rotten in the State of Texas, 602 S.W.3d 549 (May 27, 2020).

    The What-the-Hecht (WTH) Opinion and the three collegial co-issuances have been amalgamated by Google Scholar into a single more reader-friendly webpage and can be located by searching for No. 20-0394 using the Texas cases search setting. The cite is 2020 WL 2759629 (Tex. May 27, 2020) on Westlaw. IN RE STATE won’t do the trick. There’s too many of them.

  5. Kibitzer Curiae says:

    No decision yet in State v. Hollins in this morning’s release of SCOTX orders.

    A slew of denials, including a noteworthy one: Justice Jane Bland did recuse herself after all from the Apache v. Davis case, in which she was the one who signed the company’s petition for review shortly before ascending to the Court. Tex. No. 19-0410, APACHE CORPORATION v. CATHRYN C. DAVIS; from Harris County; 14th Court of Appeals District (14-17-00306-CV, 573 SW3d 475, 04-23-19) (Justice Busby and Justice Bland not participating).

    Here is the Kibitzer’s take on the STOP-HOLLINS case based on oral arguments:

    WHAT’S AFOOT? — LOCKSTEP UNIFORMITY UNDER GENERALS HAWKINS AND PAXTON?

    By the time oral arguments are held, a case will have been worked up thoroughly by the justices and their legion of law clerks, so if you spot a new issue that wasn’t addressed by the parties’ briefing (or even an amicus, of which there are several in No. 20-0729) it may give a hint not only about *how* the case will be decided, but the *rationale* that will be expounded upon to justify the disposition. Such a clue surfaced here: Uniformity in election administration across the state. It popped up at least three times in the course of the proceedings:

    (1) Justice Jimmy Blacklock brought it up in a veiled allusion to the amicus brief filed by the District of Columbia and 16 states: Are there any states that you are aware of where the decision whether to do that is up the discretion of local officials? He was clearly looking for a NO answer, which would buttress the oft-repeated cry that Hollins is doing something that is unprecedented, even on the national stage, because it’s not practiced by local option in other states. Alas, for precedent-bounded legal minds, having no precedent implies that that the conduct is therefore unlawful. It’s an argument that resonates among all those who think like lawyers. Creative policy solutions and innovation are antithetical to the judicial habit of justifying and validating everything being done with reference to what was done before. This clearly does not work well with a novel virus. Which is why appellate courts should stay out of the policymaking fray, especially when the appropriate response to the pandemic is subject to reasonable disagreement and local officials must be allowed flexibility to shape their response to changing facts on the ground. Even some conservative jurist agree. See S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613, 1614 (2020) (Roberts, C.J., concurring in denial of injunctive relief, albeit unrelated to the means and manner of administering elections under pandemic conditions).

    (2) Chief Justice Hecht thought it worth observing that Hollins is doing this in Harris County while it’s not being done in other counties, and intimated that there may be partisan motivations. Harris County, of course, now votes Democratic, so whether Hollins harbors partisan motivations or not (which is solely a matter of attribution of motives, given that Hollins set out to send the mailer to ALL voters, not just a particular segment), any increase in the volume of voting/ballots–all other things being equal–will mean more votes for Democratic candidates in Harris County. That will, in turn, affect the statewide tally in statewide races commensurately. That’s all rather predictable, empirically speaking, based on demographic and demoscopic facts on the ground. In that sense, Chief Hecht is hitting the nail on the head.

    (3) Concluding the rebuttal stage of his ultra-vires presentation, SG Hawkins invoked the specter of “chaos” if every county were allowed to have its own policy, albeit without elaborating what that “chaos” would consist of, and without acknowledging that the ballots in Harris County’s are much longer than is the case in many other counties. This is what makes Harris County different from smaller counties and creates significant logistical problems for in-person voting because it takes voters longer to complete such a ballot, especially now given the end of the straight-ticket voting option. It’s the best argument against treating all counties alike. But the Lords and Ladies of Legalese prefer to parse text and quibble about the finer points of distinguishing “making available” from “furnishing” rather than thinking practically, putting themselves into the position of an election administrator trying to devise the best way possible to assure that all eligible voters can vote and do so safely without chaos: A monumental job in a county as large as Harris.

    So how then about corralling Hollins in the name of statewide uniformity?

    First and foremost, it provides a rationale to stop Hollins from doing something that’s not being done by most (if not all) of his counterparts around the State, and thus cast Hollins as an outlier, if not an outlaw. — What? Mailing unsolicited applications to all voters? Has never been done this before. How dare he do it? Crudely stated, this anti-innovation sentiment may resonate with the relevant constituency but does not qualify as a good legal argument to adopt within a judicial opinion. Which takes us to the need for a proper textual grounding of a suitable “STOP-HOLLINS” decision rule.

    That’s where statewide uniformity comes into play, even though General Hawkins hadn’t briefed it. Statutorily speaking, it’s part of the mandate to the Secretary of State (SOS): to see to uniformity in the administration of elections, and this legislatively established principle therefore supports the assertion of state control over local control. See Elec. Code Sec. 31.003 (“The secretary of state shall obtain and maintain uniformity in the application, operation, and interpretation of this code and of the election laws outside this code.”)

    If they go with the uniformity principle, the supremes can take they high road and claim they are not being partisan because the judicially-decreed proscription of mailing unsolicited VBM applications will apply generally to the entire state and all counties (even though the real-life effects will be targeted upon Harris County, leaving other counties unaffected). Just like Abbott’s one drop-off location per county scheme.

    As a bonus, the STOP-HOLLINS IN THE NAME UNIFORMITY will also buttresses the proposition that the Texas Supreme Court is properly exercising jurisdiction even though the State’s appeal involves a temporary injunction (and not even a grant of such, but a denial), and even though the involves only a single county: Harris. The uniformity angle arguably makes the fight Paxton picked with Hollins an issue of statewide jurisprudential importance. And it will — sotto voce — be pleasing to the base: Not only will the uniformity disposition thwart Hollins; if will likewise thwart all others who would follow his lead.

    So, does uniformity provide the perfect jurisprudential stratagem to decide the case?

    – Not so fast.

    One problem here is that any push to have the resolution of the case pivot on the SOS’s role in assuring statewide uniformity does not square with the Attorney General’s agenda of minimizing to role of the SOS, which he pushes in state and federal courts while seeking dismissal of lawsuits against the SOS on improper defendant/sovereign immunity ground. And it would also undermine his bid to maximize his own power and control in the domain of elections.

    THE AG’S QUEST FOR ABSOLUTE POWER TO KICK AROUND AND MICRO-MANAGE THE LOCALS

    At oral argument, SG Hawkins again disavowed any reliance on the Election Code provision that gives the SOS formal (but limited) authority over local election officials and authority to make referrals to the AG for enforcement. Why so? One reason is that the AG wants independent/inherent power to micro-manage local official and use the state’s courts – if need be, the SCOTX — to bend them to his will by invoking ultra-vires doctrine to rein them in any time they do something that is not to his linking. He does not content himself with the limited role assigned to the Attorney General by the Legislature in the Election Code. Much rather, like Louis XIV, Ken Paxton wants to be the all-powerful State (l’état, c’est moi) and have his Court at his beck and call to keep the provincials in line.

    That’s the underlying balance-of-powers issue here: An attempted power grab by the Attorney General to hijack the machinery of democratic control of the government, having previously failed to have early elections clerks impressed into service as enforcers of his mail-vote suppression agenda in Tex. No. 20-0394. In Re State of Texas, 602 S.W.3d 549 (May 27, 2020)(denying mandamus relief against election clerks of select Texas counties).

    Tragically, Hollins’ own briefing and oral argument lays out all the Machiavellian reasons why the all-Republican SCOTX would want to rule against him to centralize power in the GOP-controlled State as the metropolitan areas increasingly turn blue. The political imperative of doing so is all the more powerful, given that several of the participants in the oral argument in No. 20-0729 are themselves on the ballot, and the fact that Harris County accounts for a large share of all votes to be cast in statewide races, given its large population: Lots of potential voters available and in need of suppressing. From a what-works-best standpoint as far as voter suppression goes, it makes perfect sense to target Hollins and Harris County. That applies as much to the Attorney General’s bid to tie Hollins’ hands to prevent him from putting VBM applications into the hands of all Harris County voters, as it applies to Governor Abbot closing the county’s annexes as drop-off locations for absentee ballots.

    STATUTORY REFERENCES FOR ROLE OF EARLY VOTING CLERK

    § 84.012. Clerk to Mail Application Form on Request

    The early voting clerk shall mail without charge an appropriate official application form for an early voting ballot to each applicant requesting the clerk to send the applicant an application form.

    STATUTORY REFERENCES FOR ROLES OF SOS AND AG
    TEXAS ELECTION CODE SEC. 31.005. PROTECTION OF VOTING RIGHTS.

    (a) The secretary of state may take appropriate action to protect the voting rights of the citizens of this state from abuse by the authorities administering the state’s electoral processes.

    (b) If the secretary determines that a person performing official functions in the administration of any part of the electoral processes is exercising the powers vested in that person in a manner that impedes the free exercise of a citizen’s voting rights, the secretary may order the person to correct the offending conduct. If the person fails to comply, the secretary may seek enforcement of the order by a temporary restraining order or a writ of injunction or mandamus obtained through the attorney general.

    TEXAS ELECTION CODE SEC. 31.006. REFERRAL OF COMPLAINT TO ATTORNEY GENERAL.

    (a) If, after receiving a complaint alleging criminal conduct in connection with an election, the secretary of state determines that there is reasonable cause to suspect that the alleged criminal conduct occurred, the secretary shall promptly refer the complaint to the attorney general. The secretary shall deliver to the attorney general all pertinent documents in the secretary’s possession.