Win one, lose one at SCOTX

The win:

Early voting in Texas can begin Oct. 13, following the timeline the governor laid out months ago, the Texas Supreme Court ruled Wednesday, rejecting a request from several top Texas Republicans to limit the timeframe for voters to cast their ballots.

In July, Gov. Greg Abbott ordered that early voting for the general election in Texas begin nearly a week earlier than usual, a response to the coronavirus pandemic. But a number of prominent Republicans, including state party Chair Allen West, Agriculture Commissioner Sid Miller and several members of the Texas Legislature, challenged that timeframe in September, arguing that Abbott defied state election law, which dictates that early voting typically begins on the 17th day before an election — this year, Oct. 19.

Abbott added six days to the early voting period through an executive order, an exercise of the emergency powers he has leaned into during the virus crisis. The Republicans who sued him argued this was an overreach.

The state’s highest civil court, which is entirely held by Republicans, ruled that the GOP officials who sued challenging Abbott’s extension waited until the last minute to do so, when he had already extended early voting in the primary election and announced he would do the same for the general months ago. Chief Justice Nathan Hecht noted also that the election is already underway.

“To disrupt the long-planned election procedures as relators would have us do would threaten voter confusion,” he wrote in the opinion.

See here and here for some background, and here for the opinion. After noting that Abbott has “issued a long series of proclamations invoking the Act as authority to address the impact of the COVID-19 pandemic on a wide range of activities in the State” since his disaster declaration in March, the Court notes that the relators (the fancy legal name for “plaintiffs” in this kind of case) took their sweet time complaining about it:

Relators delayed in challenging the Governor’s July 27 proclamation for more than ten weeks after it was issued. They have not sought relief first in the lower courts that would have allowed a careful, thorough consideration of their arguments regarding the Act’s scope and constitutionality. Those arguments affect not only the impending election process but also implicate the Governor’s authority under the Act for the many other actions he has taken over the past six months. Relators’ delay precludes the consideration their claims require.

The dissent argues that relators acted diligently because they filed their petition in this Court four days after they received an email confirming that the Harris County Clerk intended to comply with the Governor’s July 27 proclamation. But relators’ challenge is to the validity of the proclamation, not the Clerk’s compliance.16 Relators could have asserted their challenge at any time in the past ten weeks. The dissent also argues that the Court has granted relief after similar delays. But none of the cases the dissent cites bears out its argument.17

Moreover, the election is already underway. The Harris County Clerk has represented to the Court that his office would accept mailed-in ballots beginning September 24. To disrupt the long-planned election procedures as relators would have us do would threaten voter confusion.


Mandamus is an “extraordinary” remedy that is “available only in limited circumstances.”20 When the record fails to show that petitioners have acted diligently to protect their rights, relief by mandamus is not available.21 The record here reflects no justification for relators’ lengthy delay.

The “dissent” refers to the dissenting opinion written by Justice John Devine, who was all along the biggest cheerleader for the vote suppressors. I have no particular quibble with this opinion, which seems correct and appropriate to me, but the grounds on which the mandamus is denied are awfully narrow, which gives me some concern. The Court may merely be recognizing the fact that there are several outstanding challenges to Abbott’s authority to use his executive powers in this fashion, relating to mask and shutdown orders as well as election issues, and they may simply want to leave that all undisturbed until the lower courts start to make their rulings. That too is fine and appropriate, but I can’t help but feel a little disquieted at the thought that maybe these guys could have succeeded if the timing (and their lawyering) had been better.

That ruling also settled the question of counties being able to accept mail ballots at dropoff locations during the early voting process – the relators had demanded that mail ballot dropoff be limited to Election Day only. None of this is related to the issue of how many dropoff locations there may be, which is being litigated in multiple other lawsuits, four now as of last report. We are still waiting on action from those cases.

On the negative side, SCOTX put the kibosh on County Clerk Chris Hollins’ plan to send out mail ballot applications to all registered voters in Harris County.

The state’s highest civil court ruled Wednesday that Hollins may not put the applications in the mail. The documents can be accessed online, and are often distributed by political campaigns, parties and other private organizations. But for a government official to proactively send them oversteps his authority, the court ruled.

“We conclude that the Election Code does not authorize the mailing proposed by the Harris County Clerk,” the court wrote in an unsigned per curiam opinion.

The Republican justices sent the case back to a lower court in Harris County to issue an injunction blocking Hollins from sending the mailers.

The county has already distributed the applications to voters who are at least 65, who automatically qualify for absentee ballots, and has also begun sending out the applications to other voters who requested them. An attorney for Hollins estimated last week that the county would send out about 1.7 million more applications if the court allowed.

See here and here for some background, here for a statement from Hollins, and here for the unanimous opinion, which is longer than the one in the first case. The Court goes into the many ways in which the Legislature has expressed its intent that most people should vote in person, and then sums up its view Clerks getting creative:

Hollins’ mass mailing of ballot applications would undercut the Secretary’s statutory duty to “maintain uniformity” in Texas’ elections, the Legislature’s “very deliberate[]” decision to authorize only discrete categories of Texans to vote by mail, and its intent that submission of an application be an action with legal gravity.43

Authority for Hollins’ proposed mass mailing can be implied from the Election Code only if it is necessarily part of an express grant—not simply convenient, but indispensable. Any reasonable doubt must be resolved against an implied grant of authority. Mass-mailing unsolicited ballot applications to voters ineligible to vote by mail cannot be said to be necessary or indispensable to the conduct of early voting. Even if it could be, doubt on the matter is certainly reasonable and must be resolved against recognizing implied authority. We hold that an early voting clerk lacks authority under the Election Code to mass-mail applications to vote by mail. The State has demonstrated success on the merits of its ultra vires claim.

I’ve discussed my views on this before, when the appeals court upheld the original order, and I don’t have anything to add to that. I agree with Michael Hurta that this case will be cited in future litigation that aims to limit what Texas localities can do to innovate, which is what Hollins was doing here. It’s basically another attack on local control, and as I replied to that tweet, it’s another item to the Democrats’ to do list when they are in a position to pass some laws.

I hate this ruling for a lot of reasons, but that right there is at the top of the list. The Court based its ruling in part on the fact that Hollins was doing something no one else had thought to try – “all election officials other than Hollins are discharging this duty in the way that they always have”, they say as part of their reasoning to slap Hollins down” – and while I can see the logic and reason in that, we’re in the middle of a fucking pandemic, and sometimes you have to step outside the box a bit to get things done in a manner that is safe and effective. I get where the Court is coming from, and I admit that allowing County Clerks to experiment and freelance has the potential to cause problems, but it sure would have been nice for the Court to at least recognize that Hollins’ actions, however unorthodox they may have been, did not come out of a vacuum. Clearly, the fact that the arguments in this case were heard via Zoom didn’t sink in with anyone.

On a practical level, I don’t know how many people would have voted via absentee ballot who would not have otherwise participated. Some number, to be sure, but I really don’t think it’s all that much. It’s the principle here, one part making it harder to vote and one part keeping the locals in line, that bothers me. As has been the case so many times, we’re going to have to win more elections and then change the laws if we want some progress. You know what to do. The Chron has more.

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6 Responses to Win one, lose one at SCOTX

  1. Flypusher says:

    The way I see it, the most important court battles to win are: 1) keeping the early voting extension, and 2) defeating Abbott’s restriction of ballot drop boxes. Those will do the most good for this election.

    So when are we going to get something on #2? Time is running out.

  2. Bill Daniels says:

    Oh, lookie here, some voter fraud, right here in Tejas! Who would have ever thought that having hajis in the US would lead to this? It’s the same thing Project Veritas caught Ilhan Omar doing in Minnesota.

    “A candidate for mayor of Carrollton was arrested Wednesday night and charged with voter fraud. Zul Mirza Mohamed faces 25 counts of unlawful possession of an official mail ballot and 84 counts of providing false information on a voting application, according to announcements Thursday from the Denton County sheriff’s office and Attorney General Ken Paxton.

    In a news release, Paxton’s office said that Mohamed allegedly forged at least 84 voting registration applications for Denton County residents and had the resulting registrations sent to a post office box he had obtained with false identification. At the time of his arrest, Mohamed was in the process of stuffing envelopes with mail-in ballot applications for neighboring Dallas County, Paxton’s statement said. The city of Carrollton straddles Denton, Dallas and Collin counties.

    According to the Denton County Sheriff’s Office, investigators began their probe into Mohamed on Sept. 23 after county elections officials alerted them that several absentee ballots were being mailed to the same post office box, which allegedly belonged to a nursing facility.”

    But hey, mail in ballot fraud is just a myth, right y’all?

  3. brad says:

    Nice racism Bill.

    If only back in the day the disingenuous TX GOP had added the requirement to mail-in ballot voting legislation that a copy of identification be added to the submission of the mail-in ballot we wouldn’t have this problem?

    But back then the GOP didn’t want to make it too difficult for the old white biddies to get in their mail votes though after being scared about brown/black people by Fox News.

    Now that brown/black people are voting en masse its a problem. Hmmm, I’m seeing a pattern here.

  4. Bill Daniels says:

    “Now that brown/black people are voting en masse its a problem.”

    The problem isn’t that they are voting, it’s that people like Ilhan and Zul Mohamed are voting FOR them. You really see no problem with the memory care nursing home units nation wide being used as bulk fake vote generators to stuff ballot boxes? What if enterprising Trump supporters were doing that? Still OK, or nah?


    The Hotze-Woodfill team and the aligned GOP petitioners did the judicial Republicans on the SCOTX a favor. They gave them an opportunity to make themselves look moderate and less partisan, by ostensibly ruling against their own party clamoring for tougher restrictions on early voting.

    It’s no coincidence that these multiple rulings in multiple election-related cases (six of them) were handed down on the same day, and no others. And note that Wednesday is not the normal Order & Opinion day. That would be Friday. The mix of dispositions here makes it all look more balanced. And Justice Devine’s dissent reinforces the notion that denouement inflicted on the Democrats by the judicial Republicans could have been worse.

    But there is nothing moderate here.

    In No. 20-0729, denominated State v. Hollins, the judicial branch of the GOP just handed the Attorney General the power to micro-manage the county election clerks, relegating even the Secretary of State to the role of onlooker. The clerks can now manage and conduct the elections only to the extent General Paxton and his Court “allow” it.

    The AG is not going to stop everything they do, of course. The Solicitor General has already allowed at oral argument that it would be okay for Hollins to look after the air conditioning at polling places. Somehow, in the General’s view, that’s the kind of power a lowly local clerk like Hollins can be allowed to manage because A/C is essential; but reaching out to voters and making it easier for them to participate, not mention telling them how to avoid being prosecuted by the AG for dubious claims of disability? — We can’t have that.


    As we have just witnessed, the imperative for Paxton and his minions to meddle becomes paramount when an election clerk takes action are geared at maximize opportunities to vote. There’s gotta be a doctrine to stop that. And if there is none, one must be created for the occasion.

    And so it was.

    What the judicial Republicans on the Texas supreme court have in effect done here is this: They have set up a PRE-CLEARANCE PROCESS to assure the Attorney General and themselves veto power over vote-facilitation and turnout promotion at the local/county level. And that power is, of course, amenable to being invoked and exercised in a selective manner. Remember that the incumbents’ own electoral fortunes are also at stake here.

    The Attorney General will get to use his very own judgment in the form of prosecutorial discretion. Just as he chose to go after County Clerk Hollins to thwart the VBM application mailing program to those under 65 years of age, but not over, he will enjoy prosecutorial flexibility to focus his attention on worthy targets. And that’s additionally okay because he is a member of the political branch and is politically accountable. The AG isn’t technically the tenth justice. He just has the nine (currently 8, given 1 vacancy) at his service.

    Paxton will get to prioritize the resources of his office as he sees fit. The bigger the bang for the buck, the better. And Harris County has the most voters of any county by far, so Harris County obviously makes for the best hunting grounds.

    That Harris County also happens to be a Democratic stronghold may be undisputed, but that wouldn’t be material in the presence of a non-partisan rationale: Such as the proposition that suppression efforts should be focused on an area where the demographic potential for election crimes is the most highly concentrated, compared to 250 or so other counties.


    The AG did not base his asserted authority to sue Clerk Hollins on the limited enforcement role assigned to the AG by the Texas Legislature in the Election Code, but claimed to have authority outside of it. Some sort of “inherent” power of “the State” to make subordinate political units and their officials toe the line and bend to its will: an authority to be invoked by incanting magic words: “ultra vires” and “sovereign injury”.

    Consider that the State, unlike state officials such as Governor Abbott, Secretary of State Hughs, Railroad Commissioner, etc., is an abstract entity and – like any other legal fiction such as a for-profit or non-profit corporation – the State can only speak and act through human agents/officers.

    The State as a party in this lawsuit, however, is in reality indistinct from the attorney that claims to represents the State: the Attorney General himself. The AG isn’t just like any other counsel representing a client. Nor is the State a legal entity like business entities.

    When a corporation is involved in a lawsuit, its board or an executive has to hire counsel, and counsel then represents the corporation’s interests on instructions of the corporate officer(s). When the AG represents the State, however, he does not take orders from anyone else; nor does he need any corporate resolution to authorize any of his actions, or one by the Legislature, for that matter. He gets to decide what the State’s legal position is, and to what ends the State’s powers in litigation are to be used.

    In effect, the Attorney General *IS* the State.

    By promulgating the supremacy of “the State” over a local election official in Cause No. 20-0729, the judicial Republicans in effect installed the Attorney General as an overlord of sorts of the election process. Any time the Attorney General does not like what an election clerk is doing, he can file an “ultra vires” suit, asserting the absence of an express statutory basis for the challenged action, even when he, as Attorney General, does not have any express statutory enforcement power himself.

    In doing so, he can count on his Court – the SCOTX — to rule in his favor whenever needed, as we have just witnessed. There is not a single member of the court from the opposition party to make a stink and raise some hackles about collusion between AG and his co-partisans in the judicial department in a bid to preserve the one-party monopoly of power at the state level of government.

    The AG does not even have to satisfy the temporary injunction proof elements like other litigants. That’s because the Supremes have seen fit to rule that “the State” has ipso facto suffered a “sovereign injury” whenever they agree with the AG that a local official has gone ultra vires.

    Evidence of an irreparable harm is no longer needed for the AG to get an injunction against a local official in the name of the State. Mantra incantation alone will do.

    And next time around, the judicial Republicans will self-referentially cite themselves as binding legal authority, as is their well-honed custom.

    Paxton should be gloating, and no doubt, he is.

    Based on the latest sequel in the “The State Always Wins” saga, Paxton could sue Hollins for handing out “finger-condoms” at in-person polling places, if he felt like it. Since he will already be litigating as the State of Texas, the judicial Republicans could then invite Dr. Steven Hotze — rather than the Solicitor General — to express his views of another set of important stakeholders on the matter.

    And Justice Devine could go to work on a dissenting opinion laying the jurisprudential groundwork for the Supreme Court’s soon-to-be-discovered inherent writ power to impound the finger condoms.

    State v. Hollins, No. 20-0729 (Tex. Oct. 7, 2020)(reversing denial of temporary injunction by trial court)

    In re Steven Hotze et al, No. 20-0739 (Tex. Oct. 7, 2020)(denying mandamus relief)(maj. op. by Hecht, C.J., dissent by Devine, J.)

    For more premonitions of impending ultra-vires litigation to kill off innovation in election administration under virulent conditions, see: Michael Hardy, “Drive-through Voting. 24-Hour Polling Places. Finger Condoms. Welcome to Election 2020 in Harris County.” TEXAS MONTHLY (Sep. 24, 2020).

  6. Bill Daniels says:

    “Paxton will get to prioritize the resources of his office as he sees fit. The bigger the bang for the buck, the better.”

    Sounds a lot like Ronnie Earle on a statewide scale! Say, whatever happened to Rosemary Lehmberg, the angry, sloppy drunk Governor Perry was indicted for forcing to resign?

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