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Paxton tries a Supreme shortcut

They sure are keeping busy.

In a bit of judicial leapfrog, Texas Attorney General Ken Paxton is asking the Texas Supreme Court to weigh in on his interpretation of how voters can qualify for absentee ballots during the coronavirus pandemic.

Various lawsuits are pending over whether eligibility for mail-in ballots can be expanded to voters who risk contracting the virus by voting in person. Paxton believes it can’t, and Wednesday asked the state’s highest civil court to issue a relatively rare writ of mandamus preventing local election officials from doing so.

In a motion filed Wednesday, the Republican attorney general asked the Texas Supreme Court to order election officials in some of the biggest, largely Democratic counties in the state to follow his reading of existing eligibility requirements for absentee voting, arguing the court must step in quickly because those county officials intend to apply an “incorrect reading” of state law.


The election officials Paxton is targeting — county clerks or election administrators in Harris, Dallas, Travis, El Paso and Cameron counties — have generally indicated they will process mail-in ballots that cite a disability in accordance with the law and court rulings.

In his filing, Paxton argued that county election officials are refusing “to discharge” their duty to reject applications to vote by mail from voters who don’t qualify under the state’s existing eligibility criteria.

“They have instead determined that the coronavirus pandemic allows them to unilaterally expand the Legislature’s determination of who is eligible to vote by mail,” Paxton wrote. “To the local election officials of Travis, Harris, Cameron, Dallas, and El Paso Counties —all Respondents here —a ‘disability’ does not mean a ‘sickness or physical condition.’ Instead, it means a generalized fear common to all voters of contracting disease.”

It’s unclear how election officials would be able to reject applications from voters who use the disability category of eligibility as a result of the coronavirus pandemic.

Voters who cite a disability to receive a mail-in don’t have to provide any information beyond checking a box on the application form. Election officials can reject applications if they know the applicant is ineligible, but they’re unable to require voters to substantiate their disability.

Paxton argued the election officials’ actions were “not only unlawful; they are also unnecessary” because the state is already making changes to the voting process during the pandemic. Earlier this week, Gov. Greg Abbott doubled the early voting period for the July 14 primary runoff.

This is of course in reference to the state lawsuit. As we know, Paxton had previously threatened county election officials who might be accommodating to people requesting mail ballots on the grounds that the original ruling only applied to Travis County and was stayed pending appeal. The TDP, the plaintiffs in the suit, filed a motion with the Third Court of Appeals opposing Paxton’s actions. I should note that this case has been transferred to the 14th Court of Appeals, which includes Harris County. The Trib story about the complaint filed against Paxton in Dallas County contains a reference to this. Here’s a copy of the briefing schedule for the 14th Court of Appeals, which looks to be set for a ruling in mid-June. Assuming the Supreme Court doesn’t take this out of their hands.

This is basically Paxton getting a second bite at the apple. It’s a writ of mandamus – you may remember, the thing that they acted on in 2015 when they ordered the city of Houston to allow the anti-HERO referendum to go forward – and not an appeal, since the appeals court hasn’t been heard from yet. They don’t have to do anything with this, they could just let the appellate court do its job. As the story notes, there’s no way for clerks to vet or verify anyone’s disability claim. I suppose either court could order clerks to shut up and not tell people that they have the right to ask for a mail ballot if they have a disability. I’m not exactly sure how that would work, but the law can be a funny thing. And of course, there are all those federal suits, over which the State Supreme Court has no jurisdiction. So who knows? I don’t know what else to say, we’ll just have to wait and see what they do. The Chron has more.

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    Motion Granted in Part; Order and Dissent to Order filed May 14, 2020.

    In The
    Fourteenth Court of Appeals
    NO. 14-20-00358-CV
    STATE OF TEXAS, Appellant
    On Appeal from the 201st District Court
    Travis County, Texas
    Trial Court Cause No. D-1-GN-20-001610


    On May 5, 2020, appellees Texas Democratic Party, Gilberto Hinojosa, in his capacity as Chairman of the Texas Democratic Party, Joseph Daniel Cascino,
    Shanda Marie Sansing, Zachary Price, League of Women Voters of Texas, League of Women Voters of Austin Area, Workers Defense Action Fund, and MOVE Texas
    Action Fund filed an emergency motion pursuant to Texas Rules of Appellate Procedure 29.3 and 29.4, asking this court to either enforce the trial court’s temporary injunction or to issue an order that the trial court’s injunction remains in effect to preserve the parties’ rights until the disposition of the appeal.

    Texas Rule of Appellate Procedure Rule 29.3 states “When an appeal from an
    interlocutory order is perfected, the appellate court may make any temporary orders necessary to preserve the parties’ rights until disposition of the appeal and may require appropriate security.” Tex. R. App. P. 29.3.

    In Tex. Educ. Agency v. Houston Indep. Sch. Dist., No. 03-20-00025-CV,
    2020 WL 1966314, at *5 (Tex. App.—Austin Apr. 24, 2020, order), the Austin Court of Appeals held that, pursuant to our appellate jurisdiction in an interlocutory appeal,Texas Rule of Appellate Procedure 29.3 provides a mechanism by which we may exercise the scope of our authority over parties, including our inherent power to prevent irreparable harm to parties properly before us. (citing In re Geomet Recycling, LLC, 578 S.W.3d 82, 90 (Tex. 2019) (“We find no reason to doubt that the court of appeals had the authority to make orders protecting EMR against irreparable harm using Rule 29.3.”)).

    We conclude that under the circumstances presented here, where appellees
    allege irreparable harm, under the binding authority of the Austin Court, we must
    exercise our inherent authority under Rule 29.3. 1 We conclude that such a temporary order is necessary in this case to preserve the parties’ rights. Accordingly, we grant appellees’ motion for temporary orders under Rule 29.3 and order that the trial court’s temporary injunction remains in effect until disposition of this appeal. No security is required from appellees because the State has not shown that it will incur monetary damages as a result of the injunction. See Tex. R. App. P. 29.3.

    /s/ Margaret “Meg” Poissant
    Margaret “Meg” Poissant

    Panel consists of Chief Justice Frost and Justices Zimmerer and Poissant (Frost, C.J., dissenting).


    1 The Texas Supreme Court ordered the Third Court of Appeals to transfer this case to our court. Under the Texas Rules of Appellate Procedure, “the court of appeals to which the case is transferred must decide the case in accordance with the precedent of the transferor court under principles of stare decisis if the transferee court’s decision otherwise would have been inconsistent
    with the precedent of the transferor court.” Tex. R. App. P. 41.3.

  2. brad says:

    Just sent in my mail-in ballot request to the County Clerk’s office.

    The State Appeals Court decision wouldn’t have affected my request as I would’ve still submitted it regardless just to show up that weenie Paxton.

    Unfortunately, the court’s decision takes away my opportunity to dress up in camouflage, play army, carry my “Come and Take It” flag, and wave my long squirt gun while babbling about mail-in ballot tyranny. Darn it.

  3. Joel says:

    Sorry, I can’t find the money excerpt in here. Can you translate this for the layperson?

  4. […] here and here for the background. I just want to remind everyone, early voting for the July primary […]