Drive-thru and curbside voting programs in Harris County can continue after a state appeals court Wednesday quickly threw out a last-minute lawsuit filed by the Texas Republican Party challenging the county’s efforts to provide more voting options during the coronavirus pandemic. The state GOP had filed suit Monday night asking the court to place limits on curbside voting and halt drive-thru voting.
The appellate judges said the party and a voter who filed the suit did so too late, and did not show how they specifically might be injured by the voting practices. The lawsuit was filed just hours before early voting polls opened and more than a month after the Harris County Clerk announced his plan for drive-thru voting.
“The election is currently in progress and the relators delayed filing this mandamus until over a month after learning of the actions of the Harris County Clerk’s Office,” the panel of three judges on Texas’ 14th Court of Appeals wrote in their ruling dismissing the case.
A Texas Republican Party spokesperson said it plans to appeal Wednesday’s ruling to the Texas Supreme Court “to ensure that no illegal votes would be cast and counted in this election.” In an unrelated recent voting lawsuit, the state’s high court ruled against another voting challenge because it was filed too late, saying changes during an ongoing election could cause voter confusion.
See here for the background, and here for the 14th Court’s ruling. It should be noted that the court dismissed the petition “sua sponte”, which is the fancy Latin phrase for “on its own initiative”. In other words, the court didn’t ask for the defendants to submit a response – the petition didn’t meet the bar for having a claim to be decided. That’s a pretty strong statement.
A bit from the ruing makes it clear what the problem was, and it wasn’t just the timing. The first two issues the court addressed were the standing of the plaintiffs to bring this challenge:
To have standing under section 273.061, a party must demonstrate that it “possesses an interest in a conflict distinct from that of the general public, such that the defendant’s actions have caused the plaintiff some particular injury.” In re Kherkher, 604 S.W.3d 548, 553 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding) (quoting Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001)).The claimant must show a particularized injury beyond that of the general public. Id. “Our decisions have always required a plaintiff to allege some injury distinct from that sustained by the public at large.” Brown v. Todd, 53 S.W.3d 297, 302 (Tex. 2001). “No Texas court has ever recognized that a plaintiff’s status as a voter, without more, confers standing to challenge the lawfulness of governmental acts.” Id. For example, a voter lacks standing to seek the removal of an ineligible candidate from the ballot because the voter has no special interest. See, e.g., Clifton v. Walters, 308 S.W.3d 94, 99 (Tex. App.—Fort Worth 2010, pet. denied); Brimer v. Maxwell, 265 S.W.3d 926, 928 (Tex. App.—Dallas 2008, no pet.).
Standing requires “a concrete injury to the plaintiff and a real controversy between the parties that will be resolved by the court.” Heckman, 369 S.W.3d at 154. Texas has adopted the federal courts’ standing doctrine to determine the constitutional jurisdiction of state courts. Id. To maintain standing, petitioners must show: (1) an “injury in fact” that is both “concrete and particularized” and “actual or imminent”; (2) that the injury is “fairly traceable” to the defendant’s challenged actions; and (3) that it is “‘likely,’ as opposed to merely ‘speculative,’ and that the injury will be ‘redressed by a favorable decision.’” Id. at 154–55 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)).
RELATORS’ FAILURE TO SHOW STANDING
Pichardo argues that he has standing to obtain mandamus relief under Election Code section 273.061 because, unless Hollins is compelled to enforce Election Code sections 64.009, 82.002, and 104.001 with respect to curbside voting, Pichardo is at risk of having his vote canceled out by an ineligible vote. But that alleged harm is true of every member of the general public who is registered to vote. Pichardo lacks standing because he has not shown that he has an interest or a particularized injury that is distinct from that of the general public. See, e.g., Brown, 53 S.W.3d at 302; In re Kherkher, 604 S.W.3d at 553; In re Pichardo, No. 14-20-00685-CV, 2020 WL 5950178, at *2 (Tex. App.—Houston [14th Dist.] Oct. 8, 2020, orig. proceeding) (per curiam) (mem. op.).
The Republican Party of Texas argues that Hollins’s alleged intent to not enforce Election Code sections 64.009, 82.002, and 104.001 with respect to curbside voting will harm its mission and purpose of advancing limited government, lower taxes, less spending, and individual liberty and promoting compliance with state election statutes. The Republican Party of Texas lacks standing because it has not shown that it has an interest or a particularized injury that is distinct from that of the general public. See, e.g., In re Kherkher, 604 S.W.3d at 553. The Republican Party of Texas cites no authority that supports its standing argument.
In other words, neither the voter they dragged up to be a plaintiff, nor the Republican Party of Texas itself, can claim any injury that a court would recognize. Their complaint basically amounts to “but some people might vote in a way we don’t like”, and the court has no time for that. At least, this court had no time for it. I suppose SCOTX could do something different, but that’s always the risk. The fact that voting has in fact already started should also be a barrier to entry, but again, we’ll see.
Three minor points of note: One, the GOP was represented by our old buddy Andy Taylor – just search the archives for that name, and you’ll see why I’m laughing. Two, this ruling also cited the 2008 lawsuit brought by supporters of then-Sen. Kim Brimer in their attempt to knock Wendy Davis off the ballot, before she successfully knocked Brimer out of the Senate. And three, based on that “In re Pichardo” footnote, this particular plaintiff has served that role for whichever Republican group is seeking to stop some form of voting in court before, during this cycle. Put that name on your watch list for the future, these guys get around. The Chron has more.
SCOTX HAS A CUSTOM-EXCEPTION FOR THAT – WHO IS GOING TO STOP THEM?
The rationale for dismissing the mandamus case for want to jurisdiction is unremarkable in light on long-standing precedent regarding legal standing. What’s impressive here is how quickly the Fourteenth Court of Appeals handed down their decision. In Re Pichardo and Republican Party of Texas, No. 14-20-00697-CV (Tex.App.- Houston [14th Dist.] Oct. 14, 2020) (jurisdictional dismissal of petition for writ of mandamus).
IN RE HOTZE STANDING
What should be concerning, though, is something that has largely gone unnoticed in the media coverage of the voting rights litigation saga in times of corona, namely that the Supremes have *NOT* dismissed Steven Hotze’s multiple filings in their court for want of standing. Instead, they honed in on other technical/procedural reasons to deny or dismiss, leaving the core jurisdictional issue unaddressed.
That includes Hotze’s mandamus actions against the Harris County Clerk Chris Hollins and the Secretary of State, Nos. 20-0671, 20-0751, and No. 20-0739, respectively.
Indeed, the Supremes saw fit to grant interim injunctive relief in favor of Steven Hotze in No. 20-0671 by issuing a stay order against Clerk Hollins on September 2, 2020, which the Court did not lift until October 7, 2020; — the day the whole slew of related election-law cases was resolved in a special mid-week issuance.
If the Supreme Court did not have jurisdiction because Hotze et al lacked standing, no relief of any kind should ever have been granted in that case because the lack of jurisdiction would have precluded it.
Which just goes to show what the all-Republican SCOTX is willing to do to pursue and accomplish political objectives, even when the power to take action (i.e., jurisdiction) is seriously in doubt. But who or what is going to stop the court of last resort from doing what they are intent on doing, with no higher court to tell them otherwise?
DID REPUBLICAN CANDIDATES HECHT, BOYD, BLAND, AND BUSBY HAVE STANDING TOO?
This is not to say that a prima-facie argument to support standing of Republican candidates and the Republican Party couldn’t be made, based on an alleged or anticipated disparate impact on their chances of winning their respective races thanks to the challenged aspects of election administration in 2020.
But if an expected adverse impact on the number of votes cast for or against complaining candidates is a valid predicate for standing to bring an election mandamus in the high court, the four justices on the Supreme Court who are themselves candidates on the 2020 general election ballot should have recused themselves from these cases. Obviously, they would then have standing too. Standing, after all, means having a personal stake in the matter. They would not be named parties, but would have an interest overlapping with the interests of the relators (i.e., the petitioners for relief in the form of judicial interference in the election process by the high court).
Stated differently, the four incumbent SCOTX justices who are candidates in 2020 would be deciding a controversy in which they stand in the same shoes as some of the petitioners asking them for relief.
ONLY TWO JUSTICES – BLACKLOCK, AND – IN PART – BUSBY – ACKNOWLEDGED THE JURISDICTIONAL DEFECTS – AND NONE RECUSED THEMSELVES
The Court resolved No. 20-0739 with three separate opinions. Justice Devine routinely sides with Hotze and this case was no exception. So his dissent comes as no surprise. Nor was his second dissent in No. 20-0751, the mandamus case against Hollins.
But the majority, in an opinion by Chief Hecht, did not dismiss No. 20-0739 on the ground that the petitioners had failed to invoke the Court’s jurisdiction. Instead, they chose to deny relief on the ground that the bevy of relators had filed their petition too late. Justice Blacklock wrote separately to address the jurisdictional defects, but only one of his colleagues joined him, and did so only in part.
FROM BLACKLOCK’S CONCURRENCE:
The Court lacks jurisdiction for several reasons.
To begin with, there are multiple deficiencies in the petitioners’ standing. “Standing is a constitutional prerequisite to maintaining suit.” Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001). It requires “a concrete injury to the plaintiff and a real controversy between the parties that will be resolved by the court.” Heckman v. Williamson Cty., 369 S.W.3d 137, 154 (Tex. 2012). Texas has adopted the federal courts’ standing doctrine into our rules for the constitutional jurisdiction of state courts. Id. To maintain standing, petitioners must show: (1) an “injury in fact” that is both “concrete and particularized” and “actual or imminent”; (2) that the injury is “fairly traceable” to the defendant’s challenged actions; and (3) that it is “‘likely,’ as opposed to merely ‘speculative,’ and that the injury will be ‘redressed by a favorable decision.’” Id. at 154–55 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). These elements make up the “irreducible constitutional minimum of standing,” and must all be present. Lujan, 504 U.S. at 559. Because deciding cases without jurisdiction would exceed the judicial branch’s authority, the standing inquiry must be especially rigorous where the suit “seek[s] to correct an alleged violation of the separation of powers” by another branch of government. In re Abbott, 601 S.W.3d 802, 809 (Tex. 2020).
[…]
Third, the petition does not demonstrate that the challenged election activities will inflict a concrete and particularized injury-in-fact on any of the petitioners. Many of the petitioners are citizens who want their government to comply with the law as they see it. That is a commendable motive, but both this Court and the U.S Supreme Court have repeatedly held that an “undifferentiated public interest in executive officers’ compliance with the law” does not confer standing. Lujan, 504 U.S. at 577; see also Brown v. Todd, 53 S.W.3d 297, 302 (Tex. 2001) (“Our decisions have always required a plaintiff to allege some injury distinct from that sustained by the public at large.”). Although all citizens share a general interest in lawful government action, “recognizing standing based on such an undifferentiated injury is fundamentally inconsistent with the exercise of the judicial power.” Protect Our Parks, Inc. v. Chicago Park Dist., 971 F.3d 722, 731 (7th Cir. 2020) (Barrett, J.). To paraphrase Judge Barrett (and the repeated statements of this Court and the U.S. Supreme Court), merely alleging that the government is violating the law does not invoke the courts’ jurisdiction. Instead, the plaintiff must allege, and ultimately prove, that the government’s conduct inflicts a concrete and particular injury on the plaintiff that is distinct from the undifferentiated injury to the public caused by unlawful government action. In re Abbott, 601 S.W.3d at 811.
The petition does not even attempt to meet this burden. It does not allege that the Governor’s proclamation burdens the petitioners’ voting rights or otherwise concretely injures the petitioners as citizens or voters. Some of the petitioners are political organizations, but the petition does not allege that the Governor’s action will harm their preferred candidates’ electoral prospects. Some petitioners are candidates, but the petition does not allege how the challenged adjustments to election procedures injure their candidacies. Some of the petitioners are current legislators, but the petition alleges no particular injury to them. In general, individual legislators lack standing to sue to vindicate the Legislature’s institutional prerogatives against executive-branch encroachment. Raines v. Byrd, 521 U.S. 811, 830 (1997) (holding that individual members of Congress lacked standing to bring constitutional challenge to the Line Item Veto Act). The petition makes no argument for why these petitioner-legislators nevertheless have standing.
COA CASE CITE: IN RE JUAN GERARDO PEREZ PICHARDO AND THE REPUBLICAN PARTY OF TEXAS, No. 14-20-00697-CV (Tex.App.- Houston [14th Dist.] Oct. 14, 2020) (petition for writ of mandamus dismissed for lack of jurisdiction).
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