I suppose this was inevitable.
In a letter dated Aug. 27, Keith Ingram, director of elections for the Texas secretary of state, told Harris County to “immediately halt” its plans to send every registered voter in the county an application for a mail-in ballot for the general election. Ingram demanded the county drop its plan by Monday to avoid legal action by the Texas attorney general.
Sending out the applications “would be contrary to our office’s guidance on this issue and an abuse of voters’ rights under Texas Election Code Section 31.005,” Ingram wrote, citing a provision of state law that gives the secretary of state’s office power to take such action to “protect the voting rights” of Texans from “abuse” by local officials responsible for administering elections.
[…]
“Providing more information and resources to voters is a good thing, not a bad thing,” Harris County Clerk Chris Hollins said in response to the state’s letter. “We have already responded to the Secretary of State’s Office offering to discuss the matter with them.”
[…]
The secretary of state’s office has advised counties seeking to proactively send out applications to limit those mailings to voters who are 65 and older to avoid confusion about eligibility. But there appears to be no state law that specifically prohibits sending out applications to all voters.
On Friday, Harris said the county’s mailing would also include “detailed guidance to inform voters that they may not qualify to vote by mail and to describe who does qualify based on the recent Texas Supreme Court decision.” While the Texas Supreme Court has ruled that a lack of immunity to the new coronavirus alone doesn’t qualify a voter for a mail-in ballot based on disability, a voter can consider it along with their medical history to decide if they meet the requirement. The Texas election code defines disability as a “sickness or physical condition” that prevents a voter from appearing in person without personal assistance or the “likelihood of injuring the voter’s health.”
“Voters will, of course, make their own decisions about if they qualify to vote by mail,” Hollins said.
In his letter, Ingram raises the prospect that sending applications to all voters, including those who do not qualify, may cause confusion among voters and “impede the ability of persons who need to vote by mail to do so” by “clogging up the vote by mail infrastructure” with applications from voters who do not qualify.
In applying for a mail-in ballot, voters must check off which of the state’s eligibility criteria they meet. (The secretary of state allows any voter to request an application for a mail-in ballot through its online portal without asking whether the voter meets the eligibility requirements.)
See here for the background. As the Chron story notes, Ingram’s plan is to get Ken Paxton involved if Hollins doesn’t back down by Monday. The thing is, though, as both stories note, there’s no actual law that says what Hollins did was illegal. Remember what the State Supreme Court opinion said when the original TDP lawsuit that made the claim that the pandemic itself was a condition that qualified voters for the disability provision in the mail ballot law:
We agree with the State that a voter’s lack of immunity to COVID-19, without more, is not a “disability” as defined by the Election Code. But the State acknowledges that election officials have no responsibility to question or investigate a ballot application that is valid on its face. The decision to apply to vote by mail based on a disability is the voter’s, subject to a correct understanding of the statutory definition of “disability”. Because we are confident that the Clerks and all election officials will comply with the law in good faith, we deny the State’s petition for writ of mandamus.
If “the decision to apply to vote by mail based on a disability is the voter’s”, and “election officials have no responsibility to question or investigate a ballot application that is valid on its face”, then what exactly is the problem with an election official giving each voter the explicit opportunity to make that decision for themselves? If you think that the two sentences that wrap around the ones I quoted from make the whole paragraph somewhat contradictory, I understand. Perhaps the lawsuit Paxton is no doubt itching to file would clear that up. The point is, this is not at all clear as the law now stands.
I’ll be honest, it will be all right by me if Hollins does back down, and instead limit himself to sending mail ballot applications to everyone 65 and older, and everyone who applied for a mail ballot in either the March primary or the July runoff. I do think that his effort here has the chance to confuse some folks, and the plethora of voting locations as extended early voting hours goes a long way toward mitigating any concerns about coronavirus risk for in person voting. That said, Hollins has taken a strong stand for making it as easy and convenient to vote as possible for everyone, and it’s shocking how bold that actually is. How is it that such a stand represents so powerful a departure from the way things had always been done? I think from a purely strategic viewpoint, Hollins can walk this back, having made his point and laying down a marker for the next Democratic Legislature in Texas. If he refuses to back down from this very honorable and principled position, everything will be immediately cranked up to 11, and I fear that the distraction will do more harm than good. But whatever Hollins does choose to do next, he has shown us what voting in Harris County, and all of Texas, should look like. Let’s not forget that.
Hollins will likely wait to see how it goes in the Fifth Circuit on Monday.
Oral Argument Day in the Dems 26th Amendment constitutional challenge to age-based restriction of no-excuse voting against Gov. Abbott, AG Paxton, and SOS Hughs, unless that get cancelled for some reason. There is currently inconsistent docket info:
Here is the URL for the scheduled video proceeding for
MONDAY, AUGUST 31, 2020 – COURT CONVENES AT 9:30 A.M.
*No. 18-50981 United States of America v. Juan Francisco Trevino Chavez, aka Kiko,Appellant.
*No. 17-30351 Kuantau Reeder, Appellant v. Darrell Vannoy,Etc.
*No. 20-50407 TX Democratic Party, Et Al. v. Greg Abbott, Etc., Et Al., Appellants.
http://www.ca5.uscourts.gov/docs/default-source/default-document-library/september-oral-argument-streaming-links8465a90547c26210bd33ff0000240338.pdf?sfvrsn=c6a7cb2d_0
Unless I am going blind or something, the other posted schedule does not include this panel for Monday. See here:
http://www.ca5.uscourts.gov/clerk/calendar/int-cal.htm
Go figure … or tell me I have blind spot in my field of vision.
My own opinion (I Am Not a Lawyer) is that CC Hollins should look at the big picture, follow the election code and SOS directives to the best of his ability, and immunize Harris County from schemes to challenge the election results in Harris County based on the voters who normally would not have applied for a mail ballot but who claimed to be qualified because of the pandemic this year in large enough numbers to influence outcomes. The only example we need of lawsuits gumming up the works is the City of Houston Council District B situation.
Biden is going to lose, so gumming up the works in court is going to be Biden’s strategy. He purportedly hired 600 lawyers. Why?
A: For things just like this. I expect Chris Hollins is colluding with others in a national strategy to throw the election into turmoil, to so hopelessly conflict it that NO one on any side will have faith in the results. It’s the only thing that makes sense here.
I mean, he’s going to expand early voting days, expand the number of polling locations, make the Toyota Center on HUGE polling place….he’s going to do all that, and STILL send unsolicited mail in ballots to every single person listed on the voter rolls?
That’s just sowing chaos.
Bill, learn to read. Hollins is not sending a mail ballot to every registered voter, he intends to send an APPLICATION for a mail ballot. Big difference. Of course, Trump voters are universally stupid and moronic, so I shouldn’t be surprised at you =r confusion.
Bill is a known liar, the only question, who lies more, Bill or the orange Russian asset.
I don’t think Bill is stupid, he knows how to push hate and fear and does that every chance he gets.
But I agree that Republicans = stupid and morons. How stupid are they? Texas had issue warning to stop drinking bleach.
Hollins is also not expanding early voting, Greg Abbott did that.
Does it matter whether Bill is stupid or a liar, or a stupid liar? Either way, ignoring the ignorant shit (everything) he says is always the best course of action.
Jules that is what they suggested in 2016, how did that work out. The other side knows what they do and they hope that their remarks are ignored as it may convince a small number of people. A few here a few there and pretty soon it is enough to win the electoral college.
Think of this as war, would they allow a few enemy soldiers, since they don’t seem to pose much of a danger? One has to strike the snake where ever it pops its head.
They have been developing their politics since the 1960s, and know what they do. That is why the Lincoln Project does what it does, they respond immediately.
Republicans have hate and fear to push, nothing else.
I will correct his many stupid factual errors, such as Hollins expanding early voting when it was Greg Abbott, but I will not engage with him otherwise.
Paxton has filed a lawsuit.
TEXAS DEMOCRATIC PARTY v. ABBOTT UPDATE 8/31/2020
The oral argument in the Fifth Circuit took place this morning via Zoom, and the audio is posted on the court’s website. Texas Solicitor General Hawkins argued for the State Defendants, Chad Dunn for the Plaintiffs-Appellees.
This appellate proceeding (on the merits of the State’s preliminary injunction appeal) was limited to the 26th Amendment age-discrimination claim as the Democrats chose not to pursue the other arguments in a bid to have the State’s appeal of the preliminary injunction denied and the currently-stayed order by Judge Biery reinstated. This has the appearance of an all-or-nothing strategy, but the Plaintiffs’ other claims remain pending in the district court for trial on the merits, so this controversy won’t be over if the Dems lose in the Fifth (panel and/or en banc) and/or in the US Supreme Court.
Justice Stewart did most of the grilling and honed in on the textualist analysis of the age discrimination claim. The key point here is that 26th Amendment is phrased like the other amendments that protect the right to vote against discrimination and must implicate a different, more exacting analysis than an equal protection claim under the Fourteenth Amendment (which does not mention age). Otherwise, the constitutional amendment would be superfluous (except for having lowered the voting age, an intentionalist argument that goes beyond the strict textualist approach favored by conservatives on the court).
The focus was on ABRIDGEMENT of the right to vote, rather than outright DENIAL (inapplicable as long as in-person voting remains available), and how that term is to be construed. Since there is very little 26th amendment jurisprudence and no SCOTUS case directly on point, it’s something of an open question. Which cases should courts rely upon for purposes of reasoning by analogy?
The Solicitor General also argued that the question of remedy (i.e., whether the court should level up or down if the challenged Election Code provision is found to be unconstitutional) would be governed by the Texas Code Construction Act, and that the expansion of mail-voting to those under age 65 would be foreclosed. This contention mirrors Judge Ho’s concurrence on the motions panel that issued the stay.
I am not going to offer a prediction of how this will come out. Suffice it to suggest that the forthcoming opinion will be noteworthy because it will add to the very sparse case law on the 26th Amendment, and is likely to have something to say about what analytical method courts should employ in determining whether state statutes (or executive branch actions) that regulate elections pass constitutional muster under the 26th amendment when discrimination on account of age is involved.
In the case at issue here, the age-based classification and disparate treatment is expressly written into the statute passed by the Texas Legislature, so the context of enactment at that time (prior to COVID) may figure into the court’s analysis, as distinguished from the State officials’ conduct with respect to the current pandemic, and the state-interest defense of the statute that they proffer now (prevention of voter fraud).
The Solicitor General unsurprisingly also argued that the more favorable treatment of those over 65 does not offend the constitution because the State has not taken an affirmative/overt action to discriminate against those under 65, and that the Texas Legislature chose to not extend eligibility for mail-in voting to all. Therefore, the court should not “rewrite” the statute. So the standard argument goes among adherents of the Federalist Society approach to judging: Judges should not “legislate” from the bench.
The counter to that is that 26th Amendment expressly prohibits abridgment on account of age (not just complete denial) and must be applied as written. More specifically, when, as here, a state legislature decides to offer the option to vote by mail, it cannot limit that option to a certain age cohort without violating the 26th Amendment. Note that this argument for literal application of the constitutional nondiscrimination guarantee is not dependent on the existence of COVID-19, and on the greater burdens and health risks it creates for voting in person. Those extraordinary circumstances, of course, are the reason why this issue is being litigated now, and wasn’t litigated previously because the in-person voting was the norm.
Those greater burdens (of in-person voting) also come into play when/if the court applies the traditional balancing test as used in the equal protection context, and when the propriety of preliminary injunctive relief is evaluated on appeal (since the relevant criteria include, inter alia, equitable considerations and the public interest).
CASE INFO: Tex. Democratic Party et al. v. Greg Abbott, et al, No. 20-50407 (5th Cir. 2020)
Prior Panel Opinion on State’s Motion for Stay: Texas Democratic Party v. Abbott, 961 F.3d 389 (5th Cir. June 4, 2020) (staying preliminary injunction order). Motion to vacate stay denied by SCOTUS in Tex. Democratic Party v. Abbott, 140 S. Ct. 2015 (Jun. 26, 2020).
In other breaking news, the sun appears to be setting in the west this evening.
Aren’t these the same people who keep bloviating about “lawsuit abuse?”
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Correction: Judge Stewart, not Justice (Carl E. Stewart). – Mea culpa. That’s the Fifth Circuit, not the SCOTX.
Here is the URL for the oral argument audio:
http://www.ca5.uscourts.gov/OralArgRecordings/20/20-50407_8-31-2020.mp3