SCOTx ponders the questions the Fifth Circuit asked it about SB1

Seems like there’s not that much in dispute, but there’s always something.

Texas Supreme Court justices questioned during oral argument if they should answer certified questions from a federal appeals court about challenges to an election law that created penalties for soliciting voters to use mail-in ballots.

The case, Paxton v. Longoria, concerns a First-Amendment issue over how provisions in Senate Bill 1, a 2021 law, could lead to civil penalties and or criminal prosecution of county election administrators and volunteer deputy registrars.

During a Wednesday hearing before the court, the foremost issue that appeared to concern the justices was whether they should provide an advisory opinion to the U.S. Fifth Circuit Court of Appeals at all.

Since the case has progressed from federal district court to the Fifth Circuit and on to the state Supreme Court, the parties positions have changed and the justices find themselves in the unusual position of being asked to answer three questions where there is very little if any disagreement between the parties.

The Fifth Circuit asks the justice to answer whether a volunteer deputy registrar, or VDR, is a public official under the Texas Election Code; whether speech the plaintiffs intend to use constitutes “solicitation” within the context of the state code; and whether the Texas Attorney General has the power to enforce that code.

The plaintiffs are Harris County Elections Administrator Isabel Longoria and Cathy Morgan, a volunteer deputy registrar who assists people with mail-in ballots in Travis and Williamson counties.

The state, represented by Lanora Pettit, a principal deputy solicitor general with the Office of Attorney General, acknowledged in her brief that volunteer deputy registrars are not public officials subject to prosecution; the term “solicit” does not include merely providing information but instead requires “strongly urging” a voter to fill out an application that was not requested; and the Attorney General is not a proper official to seek civil penalties.

Sean Morales-Doyle of the Brennan Center for Justice at New York University School of Law submitted a brief that was in line with Pettit on the first and third questions, but had a nuanced distinction on the question of solicitation’s meaning.

Justice Jeff Boyd asked Morales-Doyle, “I’m just not sure why the dispute matters. If everybody agrees that the VDR is not a public official, so therefore has no standing, everybody agrees that Ms. Longoria has not … indicated any intent to violate in Williamson County, and everybody agrees the attorney general has no enforcement authority , where’s the case or controversy?”

Morales-Doyle said that Morgan began the case with a reasonable fear of prosecution and while the state has indicated a disinclination to prosecute she does not know the position of the Travis County district attorney, nor what future district attorneys would do.

If the questions are not answered, she would therefore still need to have the temporary injunction in place, he said.

On defining solicitation, because a felony criminal prosecution is possible, Justice Jane Bland asked if the state should limit its meaning to the penal code’s definition, which would restrict the term to situations where a public official induces someone to commit a criminal act.

Morales-Doyle supported that approach, noting that every criminal solicitation statute that he is aware of applies only to solicitation of criminal conduct.

“What is troubling everybody—and apparently troubling the attorney general who wants to give a definition of solicitation that I’m not aware existing in any criminal code—is the absurd result that someone could be held criminally liable for encouraging their fellow citizen to vote,” Morales-Doyle said.

On rebuttal, Pettit argued that sanctionable solicitation is not limited to criminal inducement. She cited the example of barratry, where lawyers unlawfully solicit clients for profit.

See here for the background. The bottom line is that the plaintiffs have asked for a temporary injunction against the provision of that law that makes it a crime for election officials and election workers to encourage voters to vote by mail, whether or not those voters are eligible under Texas law to do so. The motion was granted by a district court judge and then put on hold by the Fifth Circuit. I think the Fifth Circuit is evaluating whether to put the injunction back in place while the rest of the initial lawsuit is litigated, but we are in the weeds here and I don’t have certainty about that. Let’s see what SCOTx says first and maybe that will clue me in. (Any lawyers out there that want to help, by all means please do.)

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One Response to SCOTx ponders the questions the Fifth Circuit asked it about SB1

  1. Kibitzer Curiae says:


    As of today, 5/15/2022, the oral argument has not yet been posted on the docket for Tex. No. 22-0224. With that caveat stated, the proposition that there is no case or controversy – and therefore no jurisdiction – would, let’s say, appear rather intriguing.

    First, the SCOTX has already GRANTED the certified question, so they would either have to “ungrant” it (or part of it, since there are several components, in effect, several certified questions), or declare one or more question(s) moot based on the representations/concurring positions of the parties before it. But even if the one District Attorney in the case agrees that there is no viable basis or willingness for prosecuting the volunteer voting registrar, what about the 200+ DAs in the other Texas counties and other volunteers in those counties? They are not before the court (and have not stated a position on the matter), so it would certainly be desirable to have clarity in the election law statewide through a precedent-setting merits opinion from the court of last resort. And how else can provide it. The Fifth Circuit has already made it clear that it would be a guessing game, and that guidance is needed.

    So, the SCOTX should rule on the certified question as to plaintiff Cathy Morgan, rather than avoid doing so for technical threshold reasons. Perhaps the other DAs should be considered necessary parties to the resolution of the issue or deemed represented “virtually” by the one DA that was actually sued (Shawn Dick, DA of Williamson County). The Harris County DA previously stipulated that she won’t prosecute.

    Second, the question of trial court jurisdiction (and the plaintiffs’ standing as part of it) is pegged to the time the underlying suit is filed, and the relevant const. challenge here was filed in federal court, which is governed by Article III and the relevant SCOTUS caselaw (Lujan and progeny). It would be odd indeed for the Texas High Court to get to determine whether or not a federal district court possessed Article III jurisdiction. This is a federal question, not a state-law question. The Fifth Circuit asked the SCOTX to answer questions of state law that are *relevant to* its own jurisdictional analysis; they didn’t farm out the Article III inquiry to them in toto. In other words, the SCOTX shouldn’t get to pass directly on whether the federal district judge in San Antonio had jurisdiction at the outset of that litigation even if its resolution of the certified question(s) would ultimately be determinative of that threshold question.


    Additionally, the standing analysis under Texas law is not necessarily identical to the federal one because Texas district courts are not Article III courts, but courts of general jurisdiction that operate pursuant to the state constitution and statutory law, and state supreme court precedents. Federal courts, by contrast, are courts of limited jurisdiction.

    SCOTX often follows the U.S. Supreme Court landmark Lujan case on questions of standing in state courts, but is not obligated to do so. Moreover, the Texas Legislature can create state-law causes of action and remedies that don’t require an injury as a predicate for standing and assertion of the statutory claim in question in state courts. In federal courts, by contrast, an actual or impending injury is indispensable. See TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021).


    A civil action for barratry (invoked by SG Pettit in this case for other reasons, namely in connection to “solicitation”) is a good example of the state-federal difference in regard to who has standing to sue.

    Under Texas law, a person who was illegally solicited by a Texas attorney may actually have benefitted from the representation (i.e., won or favorably settled a personal injury lawsuit in question), but is entitled to sue for barratry nonetheless to seek forfeiture of the attorney’s contingent-fee interest in the recovery if the retainer contract is illegal under the barratry statute (minus the value of the services performed by the attorney under the theory of quantum meruit). And the statutory penalty a barratry plaintiff may collect from the attorney who has committed barratry is $10,000 irrespective of any actual damages/harm suffered. Even non-clients are authorized to sue for the statutory penalty if they were merely solicited (though there would obviously be no atty-client representation agreement to void in that context).


    Government Code section 82.065 has provisions that deal with the voidability of legal services contracts when barratry is involved. Government Code section 82.0651 creates civil liability with substantial monetary penalties for lawyers who engage in barratry.

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