This story doesn’t quite say what it seems to say, as we will see.
The Texas Supreme Court has temporarily blocked Harris County from sending mail-in ballot applications to all its voters for the November election.
The decision Wednesday came in response to a lawsuit filed days ago by Republicans in the state’s largest county. Attorney General Ken Paxton has since launched his own legal challenge to the plan.
Harris County Clerk Chris Hollins announced last month that the county would send applications to its more than 2.4 million registered voters, an effort to make it easier to participate in the election due to the coronavirus pandemic. After being sued by Paxton, Hollins said he would only send applications to voters 65 and older, who are eligible to vote by mail under state law, pending the litigation.
The Harris County GOP lawsuit alleges that Hollins is a “rogue clerk who is abusing the application to vote by mail process and compromising the integrity of elections in Harris County.” The lawsuit was brought by the county party, conservative activist Steve Hotze and judicial candidate Sharon Hemphill.
See here and here for the background. Before we go on, let’s look at the actual order released by SCOTX:
The Emergency Motion for Temporary Relief is GRANTED in part. In conformance with the Rule 11 agreement in State of Texas v. Hollins (No. 2020-52383, 61st Judicial District Court, Harris County), Real Party in Interest Hollins is ordered to refrain from sending applications to vote by mail to registered voters under the age of 65 who have not requested them until five days after a temporary injunction ruling in State of Texas v. Hollins. The Real Party in Interest should inform the Court of any developments in State of Texas v. Hollins that may affect this order.
[Note: The petition for writ of mandamus remains pending before this Court.]
Emphasis mine. This is of course what Hollins had agreed to do, so functionally there are no changes since yesterday. The reason for this stay is that it came from the Hotze mandamus action, whereas Hollins’ agreement to suspend any mailings to under 65 voters came from the state lawsuit. Note also that this does not in any way affect the mandamus itself – as the Court says, that’s still pending. There should be a hearing on the state lawsuit early next week, which corresponds with the timeline for this order as well. Bottom line, nothing has changed here.
One more thing:
Amid the latest legal chapter Wednesday, Democrats called Republicans hypocrites for apparently sending out their own mail-in ballot applications while fighting Harris County’s plan in court. Hollins tweeted pictures from a mailer, paid for by the Texas GOP, that says President Donald Trump “is counting on you” and urges recipients to fill out an attached mail-in ballot application after confirming they are eligible.
“Much like Trump, Texas Republicans have been exposed as hypocrites to the highest degree,” state Democratic Party spokesperson Abhi Rahman said in a statement. “Voting by mail is safe, secure, and convenient.”
Remember how much the Republicans whined about straight-ticket voting in 2018, even as they were exhorting their own voters to vote a straight Republican ticket? It’s like that. Pay no attention to the noise machine.
Rule 11 is the rule of civil procedure under which written agreements between the parties concerning something having to do with the case and which are filed with the court are fully enforceable. They are common in TRO and temporary injunction cases to keep things as they are pending a full ruling by the court.
Re: “Rule 11 is the rule of civil procedure under which written agreements between the parties”
Well said, but …..
What some observers might find “intriguing” here are a few details that depart from the garden variety Rule 11:
NOTA BENE: BETWEEN PARTIES
(1) Steven Hotze is not a signatory or party to the Rule 11 agreement between the State of Texas and Harris County Clerk Chris Hollins in his official capacity in Cause No. 2020-52383. Nor is the GOP candidate that is running to replace Judge Larry Weiman on the 80th district court bench. The GOP is a political party alright, but not a party in the State v. Hollins case in Houston (unless they have since intervened). What is there basis for any claim of standing to enforce the Rule 11?
(2) The Supremes (minus John Devine who dissented, and Jeff Boyd who abstained) ruled in In re Republican Party, No. 20-0525 (Tex. July 13, 2020) that Election Code mandamus jurisdiction was not properly invoked to enforce a contract because the performance to be compelled through such a writ must arise from (public) law, not contractual obligations. Rule 11 is also contractual, i.e. voluntarily entered into by parties/attorneys-in-charge, rather than ordered by the court. So this looks rather inconsistent, as far as jurisdictional statutory construction goes. (Not that Justice Devine didn’t have a plausible argument in favor of Election Code Mandamus jurisdiction given the enmeshment of the contractual rights/obligations of Houston First Corp. with the holding of the convention by the Republican Party, but he remained a loner on that ground).
(3) Neither Hotze nor the Republican Party is an identified third-party beneficiary in the Rule 11 between the State and Chris Hollins, esigned by their respective attorneys. How can Hotze et al have standing to seek enforcement of the Rule 11 agreement of another set of parties? Nor did they even petition for this form of relief in the SCOTX. Instead they rely on Section 273.061 of the Election Code, which gives appellate courts jurisdiction to “issue a writ of mandamus to compel the performance of any duty imposed by law in connection with the holding of an election or a political party convention, regardless of whether the person responsible for performing the duty is a public officer.” TEX. ELEC. CODE § 273.061.
(4) So now we have the SCOTX rely on Election Code mandamus authority to convert the term of a Rule 11 agreement between a different set of parties in a different lawsuit (with different claims) pending in a different court into a Supreme-Court order that is presumably enforceable by contempt by the Supreme Court itself. It’s like the highest court rendering judgment on a contractual Rule 11 agreement as if it were an MSA with one party absent. Where is the legal authority for that? – Remarkable! And also redundant, since Hollins is not going to violate the Rule 11 he has already agreed to (regardless of whether he did so in an effort to render Hotze’s SCOTX petition moot or unripe).
(5) The mandamus authority bestowed by Election Code 273.061 is limited to relief in the form of orders (mandamus relief) to compel performance of a duty imposed by law (see supra). What we have here, however, is an order in the nature of a prohibitory injunction. So, even on the premise that the SCOTX emergency grant of relief in favor of Hotze et al only happens to be coterminous with the terms of the State-Hollins Rule 11 Agreement (rather than amounting to a conversion thereof into a court order), how does it constitute enforcement of an affirmative duty imposed by law? Nonfeasance is not the issue here. By its terms, the SCOTX order prohibits the Clerk from doing something on which the Election Code is silent rather then requiring him to do something he has an official obligation to do.
Perhaps election clerks and administrators around the state are supposed to clairvoyantly anticipate that the Supreme Court will fill in the details later and engraft upon the Election Code a prohibition to mail absentee ballot applications (as distinguished from just posting the form online for the remainder of world-wide humanity –enfranchised or otherwise — to view and download at will).
There is precedent for this sort of thing already: (1) The Texas Supreme Court’s creation of an express COVID-19 exclusion engrafted upon the absentee voting provision in the Texas Election Code to facilitate criminal prosecution of absentee voters by the Attorney General in In re State of Texas, No. 20-0394 (Tex 2020), and (2) the affirmance of the felony conviction of Chrystal Mason for unwittingly casting a provisional ballot that the Fort Worth Court of Appeals later said was equivalent to voting illegally. Good bye to basic precepts of justice: prior notice of what the law is, and mens rea for felony convictions no less. Mason v. State of Texas, No. 02-18-00138-CR, 598 S.W.3d 755 (Tex.App. – Fort Worth, Mar. 19, 2020, motion for en banc review denied Aug. 27, 2020, with two dissents but no separate opinions). And never mind that the “election crimes” aren’t even located in the Penal Code, and are supposed to be construed leniently in favor of defendants. Just let the League of Women Voters preach and wail about it.
(6) Finally, the SCOTX equivocates as to the status of Hollins, the target of Hotze’s and GOP’s voter-suppression campaign. Their file-first-in-the-friendly-high-court petition is supposed to be a direct mandamus based on Elec. Code 273.061 (with no prior trial court proceeding), with Hollins being the sole respondent. But instead they enjoin him as a real party in interest.
To wit: “Real Party in Interest Hollins is ordered to refrain from sending applications to vote by mail to registered voters under the age of 65 who have not requested them until five days after a temporary injunction ruling in State of Texas v. Hollins.”
BOTTOM LINE: The Judicial Department’s quickie ruling for their fellow-Republicans seems rather unprecedented and contrived for the highly-partisan occasion. But this latest chapter in the Vote-by-Mail, Go-to-Jail saga may very well be worth of a serious scholarly article, what with all the twists and jurisprudential novelties.
POSTSCRIPT: Judge Fredericka Phillips (61st DC) has recused herself. State v. Hollins is now in Judge Sandill’s Court (127th DC).
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