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)

State of Texas v. Harris County Clerk Chris Hollins from Harris County and the 14th Court of Appeals

The issue is whether the Harris County clerk’s plans to send mail-in ballot applications to all county voters should be halted as illegal, beyond the clerk’s specified powers under the Texas Election Code, that will cause irreparable harm if not stopped. In this case the trial court denied the state’s 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 state’s 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 clerk’s 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 year’s 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 Code’s 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.

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 governor’s 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 governor’s 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 act’s scope and constitutionality. Those arguments affect not only the impending election process but also implicate the governor’s 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.

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 dissent’s 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 Court’s power in order to decide whether other branches of government have violated the constitutional restrictions on their power.

The interests at stake here are of importance and worthy of the Court’s consideration. The secretary of state, the respondent, argues that the Election Code imposes no duty on her that would implicate the Court’s mandamus authority. In essence, she argues that the secretary’s 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.

These summaries are written by Osler McCarthy, the Staff Attorney for Public Information for the Texas Supreme Court. No link, because they are published through an email list.

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).

Here is a supplement McCarthy just sent out, with a dissent from Justice Devine in a separate In re Hotze case. This is actually the In re Hotze case that was discussed earlier on Free Republic. The Supreme Court denied mandamus without an opinion, and Devine dissented.

20-0751

In re Steven Hotze, M.D., et al.

on petition for writ of mandamus

Justice Devine DISSENTING to the petition’s 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 branch’s action. This is such a case. Relators, who include a candidate for office, question the Harris County clerk’s authority to extend early voting by a week and to accept hand-delivered mail ballots before election day. Because the county clerk’s 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.

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