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Cathy Morgan

SCOTx answers the Fifth Circuit’s questions

Some late-breaking SB1 lawsuit news.

The Texas Supreme Court issued a ruling Friday on the term “solicit” as it pertains to the state’s new election code.

[…]

Of three main issues, one raised several questions pertaining to the definition of “solicit.” The questions arose after the plaintiff, Harris County Elections Administrator Isabel Longoria, argued the vagueness of the term. In one argument, Longoria’s attorneys requested that the term “solicit” be tethered only to vote-by-mail applications sent to those ineligible voters.

State justices rejected that request.

“The statute does not prohibit solicitation merely of those ineligible to vote by mail. Its text leaves no doubt that the prohibition extends more broadly to the larger universe of persons who ‘did not request an application,’” the opinion read.

In a second request, Longoria’s team argued that “solicitation” in its broad definition could include terms that are less forceful in nature, including “encourage” or “request.

The defendant, Texas Attorney General Ken Paxton’s team, said it defined “solicit” as beyond encouragement, but more so “importuning or strongly urging.” Paxton said that stating “please fill out this application to vote by mail” would constitute solicitation.

While justices refrained from defining “solicit,” stating they were not requested to, they agreed with Paxton that “solicit” is not limited to demands that a person submit an application to vote by mail, but includes statements such as “please fill out this application to vote by mail.”

But justices did find that telling potential voters they have the opportunity to apply for mail-in ballots does not constitute solicitation.

“The Legislature intended to distinguish between merely informing Texans of the option to vote by mail and soliciting them to submit an application to vote by mail when they have not requested one,” the opinion read. “Without expressing an opinion as to any particular statement plaintiffs may wish to make, we conclude that (the law) does not include broad statements such as telling potential voters that they have the opportunity to apply for mail-in ballots.”

See here and here for the background, and here for the opinion. As noted in the previous update, by this time both sides had agreed that Volunteer Deputy Registrars (VDRs) were not public officials and (I presume) not covered by SB1, and that the Attorney General did not have enforcement power for SB1 (not clear to me if District Attorneys might, however). I expect this means that the Fifth Circuit will rule that plaintiff Cathy Morgan, who is a VDR, has no standing to sue.

On the three-part question that SCOTx did have to answer, my reading is that under SB1 it would be illegal for a county elections administrator to pre-emptively send a vote by mail application to everyone who is eligible to vote by mail, as Chris Hollins did in 2020. Such applications can only be sent to people who ask for them. Providing general information about the vote by mail process, including how to apply, would not be barred. I still think the whole thing is a ridiculous over-reaction to what Hollins did in 2020, and that we should be making it easier to vote by mail in general, but all things considered, compared to where we were before SB1, this isn’t a major setback.

It should be noted that there’s still a lot of room for future disputes here, which likely will remain the case even after a final ruling in this lawsuit. From the opinion, on the matter of the definition of the word “solicit”:

The Fifth Circuit next asks whether “solicits” is “limited to demanding submission of an application for mail-in ballots (whether or not the applicant qualifies).” 2022 WL 832239, at *6. Plaintiffs suggest that the ordinary meaning of “solicit” includes speech that lacks the insistence normally associated with a demand. According to Plaintiffs, the term’s ordinary meaning includes speech that is far less forceful. Indeed, under their view, solicitation includes all the following: “requesting, urging, encouraging, seeking, imploring, or inducing.”

Paxton argues that the Legislature could not have intended to sweep so broadly. He argues, for example, that “solicits” cannot include mere encouragement of an action because the Legislature has used both “solicits” and “encourages” in many statutes, indicating that they have different meanings. See, e.g., TEX. EDUC. CODE § 37.152(a) (“A person commits an offense if the person . . . solicits, encourages, directs, aids, or attempts to aid another in engaging in hazing . . . .”); TEX. PENAL CODE § 7.02(a)(2) (holding a person criminally responsible for another’s offense if the person “solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense”); cf. TEX. ELEC. CODE § 13.031(a) (stating that the purpose of appointing VDRs is “[t]o encourage voter registration”). Paxton urges us to define “solicits” to exclude mere encouragement and to require “importuning or strongly urging.” But Paxton also concedes that stating “please fill out this application to vote by mail” would constitute solicitation.

Whether a particular statement constitutes solicitation for purposes of Section 276.016(a)(1) will, of course, be informed by the precise words spoken and by surrounding context. We therefore do not endeavor to articulate today a comprehensive definition of “solicits” as the term is used in Section 276.016(a)(1). Nor do we express an opinion as to whether any of the general categories of statements Plaintiffs say they wish to make constitutes solicitation. We will leave for another case, with a more developed record, the task of defining the term’s outer reach. For today, we believe it is sufficient to hold that, for purposes of Section 276.016(a)(1), “solicits” is not limited to demands that a person submit an application to vote by mail. As Paxton acknowledges, “solicits” includes statements that fall short of a demand, such as “please fill out this application to vote by mail.”

So Isabel Longoria is arguing that SB1 is super-restrictive on this point, while Ken Paxton is saying, nah, not really. The Court is saying they don’t want to get involved just yet, better to see what happens in the real world rather than rule on hypotheticals, and work with a more complete set of facts. If the parties’ arguments seem backwards to you, the Court addressed that in a footnote:

In a criminal prosecution (or civil-enforcement action), one ordinarily might expect the government to take a broad view of the statute’s application and the defendant to take a narrow view. But to establish (or defeat) a plaintiff’s standing in a pre-enforcement challenge, the plaintiff has an incentive to argue that the statute does apply to her, while the government has an incentive to argue it does not. The unusual dynamic present here contributes to our reluctance to make wide-ranging proclamations on the issues of state law presented.

In other words, at this point in time before the law has really been applied to anyone, the plaintiffs want the Court to believe that the law is vast and (they claim) over-reaching and must be struck down, while the defense wants the Court to think that the law is more modest and thus not a threat to anyone’s Constitutional liberties. Needless to say, when the law is eventually enforced by someone, those arguments will be reversed.

So it’s now back to the Fifth Circuit. I wish there had been more coverage of this – I grant, the opinion dropped on Friday afternoon and some people have lives – but so far all I’ve seen is this story from a site in Greenville (?) and one from a partisan site; I also found paywalled stories at Law.com and Bloomberg Law, but couldn’t read them. Maybe next week one of the regulars will have something, which I hope will include a bit of analysis from someone with actual law knowledge. Until then, this is what I think I know.

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.)

Fifth Circuit asks SCOTx for help on some SB1 issues

The Twitter summary:

To recap the history here, back in September a group of plaintiffs including Isabel Longoria filed one of many lawsuits against SB1, the voter suppression law from the special sessions. In December, a motion was filed to get 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. A federal district judge granted the motion, which would have applied to the primaries, and I’m willing to bet would have helped ease the confusion that led to all of those rejected mail ballots, but the Fifth Circuit, as is their wont, put a hold on the injunction.

It’s not clear to me where things are procedurally with this litigation – and remember, there are a bunch of other cases as well – but in this matter the Fifth Circuit wanted to get some clarity on state law before doing whatever it has on its docket to do. Let me just show you what that second linked file says:

The case underlying these certified questions is a pre-enforcement challenge to two recently enacted provisions of the Texas Election Code: section 276.016(a) (the anti-solicitation provision) and section 31.129 (the civil-liability provision) as applied to the anti-solicitation provision. The anti-solicitation provision makes it unlawful for a “public official or election official” while “acting in an official capacity” to “knowingly . . . solicit[] the submission of an application to vote by mail from a person who did not request an application.” The civil-liability provision creates a civil penalty for an election official who is employed by or an office of the state and who violates a provision of the election code.

Isabel Longoria, the Harris County Elections Administrator, and Cathy Morgan, a Volunteer Deputy Registrar serving in Williams and Travis counties, sued the Texas Attorney General, Ken Paxton, to enjoin enforcement of the civil liability provision, as applied to the anti-solicitation provision. And in response to the recent Court of Criminal Appeals case holding that the Texas Attorney General has no independent authority to prosecute criminal offenses created in the Election Code, they also sued the Harris, Travis, and Williamson County district attorneys to challenge the criminal penalties imposed by the anti-solicitation provision. The plaintiffs argue that the provisions violate the First and Fourteenth Amendments because the risk of criminal and civil liability chills speech that “encourage[s] voters to lawfully vote by mail.

After an evidentiary hearing, the district court granted the plaintiffs’ motion for a preliminary injunction, enjoining the defendants from enforcing and prosecuting under the provisions. Paxton and one of the district attorneys (Shawn Dick of Williamson County) appealed. Because the Harris and Travis County district attorneys did not appeal, only Longoria’s challenge to the civil penalty permitted by the civil-liability provision and the Volunteer Deputy Registrar’s challenge to the criminal liability imposed under the anti-solicitation provision were at issue in the appeal.

On its own motion, the U.S. Court of Appeals for the Fifth Circuit has certified the following questions to the Court:

(1) Whether Volunteer Deputy Registrars are “public officials” under the Texas Election Code;

(2) Whether the speech Plaintiffs allege that they intend to engage in constitutes “solicitation” within the context of Texas Election Code § 276.016(a)(1). For example, is the definition narrowly limited to seeking application for violative mail-in ballots? Is it limited to demanding submission of an application for mail-in ballots (whether or not the applicant qualifies) or does it broadly cover the kinds of comments Plaintiffs stated that they wish to make: telling those who are elderly or disabled, for example, that they have the opportunity to apply for mail-in ballots?; and

(3) Whether the Texas Attorney General is a proper official to enforce Texas Election Code § 31.129.

The Court accepted the certified questions and set oral argument for May 11, 2022.

You now know everything I know. Let’s see what happens in May.

Of course the Fifth Circuit put a hold on the SB1 injunction

There is nothing more reliable in this world than the Fifth Circuit giving Republicans everything they ask for.

The 5th U.S. Circuit Court of Appeals has put a temporary hold on a preliminary injunction that had blocked enforcement of a rule that keeps local election officials from encouraging voters to request mail-in ballots, according to Harris County officials.

U.S. District Judge Xavier Rodriguez last week halted enforcement of a provision of Senate Bill 1 that made it a crime for election officials to solicit mail-in ballots. The judge said the law likely violates the First Amendment.

[…]

Harris County Attorney Christian D. Menefee on Thursday expressed disappointment in the decision by the 5th Circuit, which has blocked a number of court challenges to conservative policies.

“I am disappointed that the Fifth Circuit has undone the preliminary injunction that protected Administrator (Isabel) Longoria’s First Amendment rights,” Menefee said in a written statement. “As the district court already determined, this law is unconstitutional and prevents election officials from encouraging people to vote by mail, including our seniors, our neighbors with disabilities, and our active-duty service members. One thing that’s clear from the high number of mail-in ballot applications being rejected is that our election officials should be empowered to explain the process and encourage folks to apply to vote by mail if eligible. Today’s decision allows the threat of criminal prosecution to loom over election officials trying to help voters.”

See here and here for the background. This court is a sham and a disgrace, and the only way forward is to pack it with judges that will actually apply the law. Don’t ask me when that is likely to happen.

Because I have nothing better to say, here are a couple of tweets from Harris County Attorney Christian Menefee:

Good luck with that. I wish I felt more optimistic, but it’s not like the Fifth Circuit will care.

Injunction granted in lawsuit over criminal penalties for election officials who encourage voting by mail

That’s a somewhat complicated headline for this.

A new Texas law that keeps local election officials from encouraging voters to request mail-in ballots likely violates the First Amendment, a federal judge ruled late Friday.

Following a testy three-hour hearing earlier in the day, Federal District Judge Xavier Rodriguez temporarily blocked the state from enforcing the rule against Harris County’s election administrator until the rest of a lawsuit plays out. Although the scope of Rodriguez’s preliminary injunction is limited, the judge dealt the first legal blow to new elections restrictions and voting changes Republican lawmakers enacted last year.

The injunction applies to Texas Attorney General Ken Paxton and local county prosecutors in Harris, Travis and Williamson counties.

The state is expected to quickly appeal the ruling. The lawsuit was brought by Harris County election administrator Isabel Longoria and Cathy Morgan, a volunteer deputy registrar who is appointed to help register voters in Travis and Williamson counties.

Feb. 18 is the last day for counties to receive applications for mail-in ballots for the March 1 primary.

Rodriguez previewed his order throughout a Friday morning hearing during which he repeatedly pressed the state’s attorneys — with increasing exasperation — to fill in what he cataloged as ambiguities in the new law. The challenged provision makes it a state jail felony for election officials to “solicit the submission” of an application to vote by mail if the voter did not request it.

Rodriguez took particular issue with the lack of a clear definition for what constitutes soliciting when talking to voters, even those 65 and older who automatically qualify to vote by mail under the state’s strict rules.

“It has a chilling effect,” Rodriguez said while questioning a state attorney Friday morning. “They don’t know when they’re going to run afoul of this vague [law].”

His comments followed testimony from Longoria and Morgan, who said they feared the civil and criminal penalties that could come from violating the broad prohibition.

Longoria said her office was now taking a “passive” approach to voter outreach in regard to voting by mail, with staffers “gingerly” weighing their words while answering voters’ questions about their options.

“When it comes to voting by mail, I have to be very careful with my words,” Longoria said from the witness stand. “I stop mid-sentence sometimes at town halls. … I’m tentative to overreach at the moment.”

Morgan testified that she was concerned the law applied even to volunteers like her, given that her role is formally certified by county election offices. She offered examples of voters she no longer felt she could help navigate the vote-by-mail process. That included an 88-year-old voter whom Morgan would typically call at the start of every year to remind her that she has to reapply for mail-in ballots.

State attorneys said that the law did not apply to volunteers like Morgan and argued the government can prohibit interactions between local election officials and voters without running afoul of the First Amendment.

[…]

And even the state’s witness — Keith Ingram, the Texas secretary of state’s director of elections — indicated the threat of prosecution loomed over election officials. While Ingram was on the stand, Rodriguez presented him with hypothetical interactions between Longoria and voters, asking if she could recommend voting by mail to someone who appeared to qualify.

“I would be very careful about that,” Ingram responded. “You wouldn’t want to recommend” voting by mail as an option “because you’d be worried about prosecution,” he said.

Throughout the hearing, Rodriguez also pressed for the reasoning behind the anti-solicitation provision, interrupting the state’s questioning of Ingram in search of an answer. Ingram said he didn’t know the purpose of the provision.

Eventually, Will Thompson of the Texas attorney general’s office told Rodriguez that the provision was meant to limit “official encouragement” of voting by mail, indicating the state preferred people vote in person even if they qualify to vote by mail.

“We’re not taking the position that the Legislature is opposed to voting by mail,” Thompson said. “That doesn’t mean the Legislature wants resources to be used toward nudging people toward voting by mail.”

See here for the background, and here for a copy of the ruling. The Statesman has a couple of key bits from the ruling:

In his order, Rodriguez rejected Paxton’s argument that the solicitation ban targets government speech, which isn’t protected by the First Amendment because the state is allowed to regulate how public employees perform official duties.

But, the judge noted, Longoria and Morgan do not work for the state. Longoria is employed by Harris County, and Morgan is a volunteer registrar.

Rodriguez also rejected Paxton’s claim that granting the injunction would interfere with the orderly operation of Texas elections. The judge said his order does not affect any voting procedures, change the vote-by-mail process or affect voting deadlines or eligibility.

“Nor does it require that election officials start soliciting applications to vote by mail — it simply prevents the imposition of criminal and civil penalties against officials for encouraging people to vote by mail if they are eligible to do so,” Rodriguez wrote.

None of that will stop the Fifth Circuit from doing what the Republicans ask them to do since that’s what they believe their job is, but at least he tried. For anyone who thinks that it’s hysterical to imagine Longoria or Morgan being prosecuted for these actions, Rob Icsezen and Dana DeBeauvoir would like to have a word with you.

Reporter Edward McKinley and plaintiffs’ attorney Sean Morales-Doyle have good Twitter threads with more details, so go check them out. The main argument was that this provision of SB1 criminalizes speech on the basis of its content and the viewpoint expressed, since Longoria could talk all day about not voting by mail but risked arrest if she said the opposite. This is a preliminary injunction, and whether it survives the Fifth Circuit or not there will be a trial on the merits later this year, and you can bank on it going all the way to SCOTUS. The Supreme Court is occasionally solicitous of the First Amendment, if it approves of the speech in question, so who knows what they might do. In the meantime, we have a small victory, for now, against SB1. There will be a lot more litigation over the rest of that law to come. The Chron has more.

Preliminary injunction sought against mail ballot restrictions

Of interest.

Today in U.S. District Court for the Western District of Texas, the Brennan Center for Justice at NYU Law, Weil, Gotshal & Manges, and the Harris County Attorney’s Office moved for a preliminary injunction in Longoria v. Paxton, their challenge to the provision in Texas’s restrictive voting law (S.B. 1) 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 Brennan Center, Weil, and the Harris County Attorney’s Office are seeking the injunction on behalf of Isabel Longoria, the Election Administrator for Harris County, Texas; and the Brennan Center and Weil are also representing Cathy Morgan, a volunteer election worker in Texas.

The motion filed today requests a preliminary injunction against the S.B. 1 provision no later than February 14, 2022. Texas has a primary election on March 1, 2022. To vote by mail in the primary, Texas voters must request mail ballot applications between January 1, 2022, and February 18, 2022.

“S.B. 1 makes it a crime for me to do a critical part of my job, and it hurts the most vulnerable voters,” said Isabel Longoria, Harris County Election Administrator. “As the highest-ranking election official in Harris County, I’m responsible for enabling the county’s millions of voters to exercise their right to cast a lawful ballot, many of whom face obstacles to voting in person due to illness, disability, or age. S.B. 1 subjects me to criminal prosecution for encouraging eligible voters to vote by mail so they may participate in our democracy –an option they have under Texas law.”

Under S.B. 1, Longoria, Morgan, and other election officials and election workers across Texas can be imprisoned for a minimum of six months and fined up to $10,000 if they encourage a voter to apply for a mail ballot application. As the motion filed today argues, this provision violates the First Amendment and undermines election officials’ and election workers’ ability to perform their duties.

“The right to free speech and the right to vote are vital to democracy, and S.B. 1 takes direct aim at both,” said Sean Morales-Doyle, acting director of the Voting Rights and Elections Program at the Brennan Center for Justice at NYU Law. “Texas should be encouraging election officials to provide voters all the information they need to participate in elections. Instead, the legislature and the Governor have made it a crime to do so.”

Texas law allows voting by mail in certain circumstances, including when a voter is 65 years old or older, sick, or disabled, out of the country on election day, or confined in jail.

“This law was created to combat alleged voter fraud that we know does not exist, and instead hinders the ability to properly encourage seniors and voters with disabilities to exercise their right to vote by mail,” said Christian Menefee, the County Attorney for Harris County, Texas. “This anti-solicitation provision of SB 1 not only makes it harder for these folks vote, but it criminalizes the constitutionally protected free speech of the Harris County Elections Administrator and violates the First Amendment.”

“S.B. 1 makes it a crime for public officials or election officials to encourage voters to request a mail ballot application, even if the person would be eligible to vote by mail. By contrast, under Texas law, it is not a crime for a public official or election official to discourage eligible voters to vote by mail,” said Liz Ryan, partner at Weil, Gotshal & Manges. “There is no valid justification for such a one-sided restriction on speech.”

S.B. 1 went into effect on December 2, 2021. It is an omnibus law, containing the provision challenged in Longoria v. Paxton as well as restrictions on other aspects of voting and elections. The law has drawn multiple lawsuits in addition to Longoria v. Paxton. The Department of Justice has challenged S.B. 1 and, many other entities, including the Brennan Center (in LUPE v. Abbott), have also filed suit against various parts of the law.

The motion for a preliminary injunction in Longoria v. Paxton is here.

The complaint, and more background on Longoria v Paxton, is here.

The first lawsuits filed against SB1 were filed in September, with Isabel Longoria a plaintiff in a complaint filed by MALDEF on behalf of a large group. The Justice Department lawsuit was filed in November, and there were three others filed in between. This one was filed on December 10, and if there was any news coverage of it I am not able to find it. The amended complaint was filed on Monday, December 27. It’s the motion for preliminary injunction, filed on Tuesday the 28th, for which I received a press release from the Harris County Attorney’s office, which in turn led me to find the linked article from the Brennan Center (and this Twitter thread), that is trying to make something happen more quickly.

My read on this – I’ve sent some questions to the Harris County Attorney’s office to get clarification – is that Elections Admin Longoria would like a ruling from the court to settle the question of what exactly she is and is not allowed to do, given that as things stand right now saying the wrong thing could get her arrested. We have the primaries coming up real soon, which means mail ballots are going to be getting requested, and people will have questions about them. Raising this as a First Amendment issue makes sense to me, and maybe it will make sense to the courts as well. Hopefully, we’ll find out soon.

UPDATE: Later in the day I found this Statesman story, which added a few details.

The ban on sending unsolicited mail-voting applications was one of many provisions contained in Senate Bill 1, the sweeping GOP voting law that was passed Sept. 1 during the Legislature’s second special session.

Several other provisions of SB 1 have been challenged in a half-dozen lawsuits by civil rights groups and the Biden administration’s Justice Department, including bans on 24-hour and drive-thru voting, ID requirements for mail-in ballots and protections for partisan poll watchers.

Those challenges are awaiting a summer trial.

Longoria and Morgan, however, told U.S. District Judge Fred Biery of San Antonio that waiting until summer is not an option for a prohibition that will handcuff them in the weeks leading up to the March 1 Texas primaries.

“Longoria has planned to engage in speeches and hold voter-outreach events but has been unable to do so for fear of criminal prosecution and civil penalties,” said Tuesday’s filing, adding that Longoria also halted plans to promote mail-in voting with fliers and on social media.

Similarly, Morgan argued in the filing that her work as a voter registrar — particularly around the University of Texas in Austin — will be hampered if she “can no longer proactively suggest that eligible but unaware voters request an application to vote by mail … as she has in the past.”

They asked Biery to rule no later than Feb. 14, noting that to cast a mail-in ballot in the primaries, voters must fill out and return an application between Jan. 1 and Feb. 18.

Texas Attorney General Ken Paxton has not yet filed a response to the lawsuit, though his office opposes the request for an injunction and will respond to that in the future, as well.

So there you have it. My guess is that the state’s response will be some combination of “you can’t sue us” and “neener neener neener”, secure in the belief that the Fifth Circuit will undo anything Judge Biery does. I will of course keep an eye on it.