Skip to comments.Summary of Texas Supreme Court Opinions in State of Texas v. Hollins and In re Hotze (win in absentee ballot case, loss in extended early-voting case)
Posted on 10/07/2020 11:19:56 AM PDT by The Pack Knight
State of Texas v. Harris County Clerk Chris Hollins from Harris County and the 14th Court of Appeals
¶ For petitioner: Kyle D. Hawkins, Austin
¶ For respondent: Susan Hays, Austin
REVERSED AND REMANDED, per curiam opinion:
The issue is whether the Harris County clerks plans to send mail-in ballot applications to all county voters should be halted as illegal, beyond the clerks specified powers under the Texas Election Code, that will cause irreparable harm if not stopped. In this case the trial court denied the states request for a temporary injunction because it determined the Harris County clerk had authority to send unsolicited mail-in ballot applications because no statute forbids him. The appeals court denied the states interlocutory appeal, holding the state could not demonstrate irreparable harm.
The Supreme Court HOLDS the Election Code does not authorize an early-voting clerk to send an application to vote by mail to a voter who has not requested one and that a clerks doing so results in irreparable injury to the state. Because no other election official in Texas is doing or has ever done what the clerk proposes, his plan threatens to undermine the statutorily required uniform operation of election laws across the state. The state contends that such a mass mailing is not authorized by the Election Code. The Code contains no express authority. The issue is whether authority is implied. Hollins argues that his duty to conduct early voting gives him the implied authority to mass-mail unsolicited ballot applications to registered voters, without regard to whether any particular voter is eligible to vote by mail. But Hollins proposed mailing is unprecedented in Texas elections and thus cannot be said ever to have been considered necessary and indispensable. He does not argue that any other election official has ever proposed to mass-mail applications to ineligible voters. This years election process is occurring during the COVID-19 pandemic, but Hollins has not explained why or how the pandemic has rendered inadequate the usual distribution of ballot applications on request, much less made mass mailings of unsolicited ballot applications necessary or indispensable to voting by mail. As the trial court recognized, this case turns only on the powers granted by the Legislature, not COVID-19. The record reflects that other election officials post ballot applications on their websites or have them available to be picked up. But these do not involve unsolicited delivery to voters. Mass mailings to people ineligible to vote by mail are neither necessary nor indispensable to early voting. Hollins argues that this duty to send an application on request does not preclude him from sending applications unrequested. But that argument misses the mark. The question is what authority can be necessarily and fairly implied from the Election Codes provisions that is indispensable, and not merely convenient, for an election official to discharge his responsibilities. While Election Code section 84.012 does not prohibit mass mailings, it expressly contemplates that ballot applications are to be requested by voters.
In re Steven Hotze, M.D., et al.
MANDAMUS RELIEF DENIED, Chief Justice Hecht opinion:
The issue is whether mandamus relief is proper in this challenge to suspended voting procedures ordered by the governor under his Texas Disaster Act authority. Relators, including the Republican Party of Texas, voters, candidates, and current and former state officials, initially sued in this Court, seeking to order the Texas secretary of state to conduct the November 3 general election according to the statutory provisions the governors July 27 proclamation suspended. They argue that the proclamation was not authorized by the act, or if it was that the act violates the Texas Constitution. The state responds that relators have not identified an interest subject to judicial authority and therefore lack standing; that the secretary of state has no power to enforce the two statutory provisions at issue, let alone a ministerial duty that could be compelled by mandamus; that the Texas Disaster Act is not unconstitutional; and that relators have delayed too long since the governor issued the proclamation to seek mandamus relief. Relators delayed in challenging the governors July 27 proclamation for more than 10 weeks after it was issued. They have not sought relief first in the lower courts that would have allowed a careful, thorough consideration of their arguments regarding the acts scope and constitutionality. Those arguments affect not only the impending election process but also implicate the governors authority under the act for the many other actions he has taken over the past six months. The Supreme Court HOLDS relators delay precludes the consideration their claims require. The election is already underway. To disrupt the long-planned election procedures as relators would have the Court do would threaten voter confusion. Mandamus is an extraordinary remedy available only in limited circumstances. When the record fails to show that petitioners have acted diligently to protect their rights, relief by mandamus is not available. The record here reflects no justification for relators lengthy delay.
Justice Blacklock CONCURRING, joined in part by Justice Busby:
By declining to decide this case and others like it that have not been properly brought before the Court, this Court is by no means abandoning the constitution. Quite the opposite. The Court is refusing to use the current crisis as an excuse to bypass the constitutional restrictions on its power. To borrow from the dissents rhetoric, the true disservice to the citizens of the State of Texas and the Texas Constitution would be to violate the constitutional restrictions on the Courts power in order to decide whether other branches of government have violated the constitutional restrictions on their power.
Justice Devine DISSENTING:
The interests at stake here are of importance and worthy of the Courts consideration. The secretary of state, the respondent, argues that the Election Code imposes no duty on her that would implicate the Courts mandamus authority. In essence, she argues that the secretarys title is simply that, a title, to which no consequent duties attach. Without a ministerial task, she argues she cannot be held responsible for carrying out unconstitutional proclamations. But this argument defies common sense.
ET SIC ULTERIUS
There was some discussion about these cases recently: Basically, State v. Hollins involved the new Harris County Clerk's plan to mail absentee ballot applications to all registered voters in the county, and the Texas AG sued to stop him. The trial court in Harris County and the court of appeals both ruled for the clerk, but the Supreme Court held that the Elections Code requires that voters request the application.
This is an important ruling, because while the Texas Supreme Court held earlier this year that lack of immunity to Covid is not a "disability" making a voter eligible for an absentee ballot, the absentee ballot application does not require the applicant to prove a disability or even state what the disability is.
Conversely, the Supreme Court punted in the Hotze case on jurisdictional grounds (probably correctly so).
Ping re: our recent discussion of these cases.
In re Steven Hotze, M.D., et al.
on petition for writ of mandamus
Justice Devine DISSENTING to the petitions denial:
When the judiciary is called upon to consider whether a branch has overstepped its boundaries, it humbly considers the constitution and laws passed to determine the propriety of a particular branchs action. This is such a case. Relators, who include a candidate for office, question the Harris County clerks authority to extend early voting by a week and to accept hand-delivered mail ballots before election day. Because the county clerks actions are inconsistent with Texas Election Code sections 86.006(a-1) and 85.001, the requested stay should be granted to consider the propriety of those actions.
Thanks. Incroyable. Yet another Dem finagle slips through.
Thank you for the Cliff Notes summary.
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