Paxton opposes Hotze mandamus to curb early voting

From Reform Austin:

In a brief filed with the Texas Supreme Court, Texas Attorney General Ken Paxton argues that the GOP group suing Gov. Greg Abbott to prevent him from extending early voting for the November election has no standing and has failed to prove any harm.

Conservative activist Steve Hotze and a long list of high-profile Texas Republicans claim Abbott is violating Texas election law and overstepping his authority without first consulting with the Texas Legislature.

Paxton counters that delegation of powers is both necessary and proper in certain circumstances.

“The Legislature properly exercised its delegation power when it enacted the Disaster Act because it contains adequate standards to guide its exercise,” Paxton’s brief reads. “It sets parameters for what constitutes a disaster, provides a standard for how the governor is to declare one, places limits on his emergency powers, and specifies when the disaster ends.”

See here for the background. A copy of the Paxton brief is here. The introduction is worth a read:

To the Honorable Supreme Court of Texas:

Relators direct their petition at the Secretary of State, even though they do not allege that she has undertaken or threatened to undertake any unlawful action. Neither the Governor’s July 27 proclamation (“the Proclamation”) nor the Election Code imposes any ministerial duty on the Secretary. And the provisions of the Election Code concerning early voting are administered by county election officials, not the Secretary of State. Although the Election Code designates the Secretary as Texas’s “chief election officer,” this Court has long held that does not give her generalized enforcement power over every provision of the Election Code. Moreover, the Proclamation independently binds each county’s early-voting clerk, so any mandamus issued against the Secretary would not remedy Relators’ grievances. Indeed, granting the relief Relators seek would have no impact at all—which makes this petition nothing more than a request for an advisory opinion.

Relators’ merits arguments are similarly misguided. They raise multiple constitutional challenges to the Disaster Act, but none is properly before this Court because the Disaster Act delegates no power to the Secretary. And in any event, the Governor’s discretion and authority under the Disaster Act are cabined by reasonable standards, so it is a lawful delegation of legislative power, and the July 27 Proclamation is a proper exercise of that delegated power.

Relators waited two months to file this mandamus petition, yet they ask this Court to “alter the election rules on the eve of an election.” Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020). They are not entitled to relief.

Well, now we know where Ken Paxton’s line in the sand is: He’ll value the Governor’s executive power over a challenge to voting rights. Well, he’ll value this Governor’s executive power over a challenge to this Governor’s use of that executive power to enhance voting rights. Good enough for these purposes, I suppose.

Other court documents related to this writ are here. There are now documents available relating to the latest Harris County writ as well, which you can find here. Responses to that are due today at 4 PM. Have I mentioned lately that I will be happy to ease up on all the legal blogging? Please get me past this election, that’s all I ask.

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6 Responses to Paxton opposes Hotze mandamus to curb early voting

  1. mollusk says:

    Blind pig, meet acorn.

  2. Kibitzer Curiae says:


    A zoom-bound state supreme court this morning heard exclamations of “sovereign injury” from the Solicitor General donning the mantle of “The State” on behalf of AG Ken Paxton, and had occasion to ponder the weighty matter of putting Harris County Clerk Chris Hollins in his place.

    Uppity advocate for voters and bona-fide virus fighter goes on trial — virtually — on ultra vires charges.


    Solicitor General Kyle Hawkins had argued in briefing that Chris Hollins wasn’t free to do the job of early voting clerk as he saw fit, but allowed orally today that Hollins could look after the air conditioning at polling stations and buy stamps. He deems those to be suitable tasks for the servant of a subservient unit of the state.

    Justice Busby went above and beyond the call of duty soliciting input on the ramifications of the forthcoming ultra-vires holding, wondering how it could be constricted to just cover Hollins and his mailing program. — So that other useful customer services provided by county clerks would not be killed off too (a prospect raised by other counties as amici) based on the theory that they lacked an explicit statutory authorization likewise.


    This much became clear: the instant appeal calls for shackles forged to fit the offender.

    More than once, Justice Devine inquired about the status of Hollins’ print job. Not so much because of the substantial costs borne by Harris County, but to ascertain whether the mailers are ready to be impounded with the Supreme Court’ blessings. Whatever it takes, the SG assured him.

    And Chief Justice Hecht perceptively intimated that there might be a partisan dimension to it all. Indeed, Harris and surrounding counties had recently denied re-election to two appellate justices who now sit on the Texas Supreme Court thanks to Governor Abbott graces, and need all the votes they can get (and suppress) statewide to keep their jobs. And there happens to be a disproportionate number of them in the state’s largest county, demographically and undeniably to the point of judicialnoticeability. — So much for county-to-county (non)uniformity. Did these electorally affected Honors recuse themselves like Chief Hecht did in the Meachum mandamus (No. 20-0630)? – Of course not. That would be conceding the point. — Even though these incumbent candidate would have more legal standing that Doctor Hotze of serial supreme court election writ fame.

    What then can we expect, assuming continuing good-faith efforts to do what needs to be done?

    Likely a tailor-made statutory construction ruling, rather than a broadly preclusive holding to the effect that anything a county clerk does must have an express legislated basis or be covered by necessary implication. A custom ruling — as a pure matter of law only — that will narrowly focus on the statutory provision that mandates that the early voting clerk mail VBM applications upon request, but is silent on unsolicited mailings.

    Forget about the exigencies of COVID and the sui generis nature of the current election season. Those aren’t questions of law. They would complicate the matter of expedient election-season jurisprudence because they implicate the temporary injunction elements and the pertinent evidence. And that evidence does not help the Attorney General here.

    Hence also the need for a more esoteric “sovereign injury” of the state that is nevertheless concrete and immediate because it is inherent. Only the Lords and Ladies of the Law know what that is. And they can avail themselves of sundry abstractions as a matter of law, so-called common law that’s conveniently incomprehensible to the commoners. It’s like the invisible hand. The proof of its existence rests in the fact that you can’t see it. That simple, you-all.


    And perhaps, as bonus content in the impending opinion sealing the fate of Hollins’ pro-voter initiative, a high court recognition that the modern justification for centralized control is that uppity clerks in metropolitan conurbations pose a clear and present danger to the status quo, given that they are radical enough to actually want to serve the people of their locality rather than kowtow to “The State” (with lexical hat tip to Justice Devine).

    In the vernacular: We don’t need no stinkin’ people-centric innovation.

    No precedent. No authority. No legal.

    In short: No good. No go.

    WORKING TITLE: Texas Supreme Court showcases use of statutory construction to thwart voter-centric innovation in local election administration.

  3. Wow, Paxton had to put Hotze down. Democracy loves crooked conservatives fighting.

  4. Mainstream says:

    Hotze put out a robocall asking for Republican activists to telephone Paxton to change his legal position and stop fighting his lawsuit.

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