I was set to be super outraged about this, but as you will see it’s not quite as bad as it first looked.
The Texas Supreme Court on Tuesday blocked Harris County from sending mail ballot applications to all registered voters in the county, granting Attorney General Ken Paxton’s request hours earlier for the high court to step in before a different order halting the mailout was set to expire.
Paxton, a Republican, has argued that Harris County Clerk Chris Hollins’ plan to send applications to each of the county’s 2.4 million registered voters would confuse voters and lead to potential fraud. A state district judge rejected that argument Friday, and Paxton swiftly appealed to Texas’ 14th Court of Appeals.
The appellate court denied Paxton’s request for an order blocking the mailout, deciding instead to speed up the trial by ordering Hollins and Paxton to submit arguments by Wednesday afternoon. Under an agreement between the state and county offices, Hollins was barred from sending out mail ballot applications until 11:59 p.m. Wednesday.
Paxton, who noted that the appeals court “offered no assurance” it would issue a ruling by then, argued in a court filing Tuesday afternoon that the Texas Supreme Court should prevent Hollins from sending out applications once the clock strikes midnight Thursday morning. The court granted Paxton’s request, ordering Hollins not to send unsolicited applications “until further order of this court.”
The state Supreme Court already had blocked Hollins from mailing out applications to voters under 65 through a similar lawsuit filed by the Harris County Republican Party and conservative activist Steven Hotze. However, Paxton noted, the court’s stay order will expire before the state and county agreement is up Wednesday evening.
Hollins was not immediately available for comment.
The clerk’s office already has mailed applications to voters who are 65 and older, all of whom are eligible to vote by mail under Texas law. The state election code also allows voters to cast mail ballots if they are disabled, imprisoned or out of their home county during the voting period.
Emphasis mine, and see here and here for the background. You can see the court’s order here, a statement from County Clerk Chris Hollins here, and the filings in the appeal to the 14th Court here. (You might also note that the three judges in the panel are all Dems, which may have influenced Paxton’s actions.) There should be a hearing today, and one presumes a fairly quick ruling, after which point this will go back to SCOTX and they’ll have to rule one way or the other on the actual case, not on what can happen while the case is being appealed. So as Samuel L. Jackson once said, hold onto your butts. The Trib and Reform Austin have more.
Update: In the Houston Court of Appeals briefs have been filed, including amicus briefs (updated version from the ones in the trial court), but no oral argument is being held.
KIBITZER’S TAKE ON SCOTX COLLABORATION WITH AG’S LEAP-FROG GAMBIT:
The Gist (with hat tip to Jen): The Attorney General (proceeding as “The State” through the Solicitor General) and the all-GOP SCOTX will do whatever they want, however contrived procedurally. There is no one to stop or restrain them until the monopoly on judicial power is ended.
In the meantime, there is cause for concern here for several reasons:
1. The SCOTX did not even bother to request a response from Hollins, the target of the action, but enjoined him as a matter of course, and faster even than the AG/Solicitor General thought was necessary, given the forthcoming expiration of the Rule 11 agreement. There is no Justice Ginsburg or Sotomayor on this court to squeal in dissent, so no worries about even the appearance of (lack of) due process and procedural regularity.
2. The SCOTX did not even create an online docket sheet for the case yesterday, but just went ahead and issued an order enjoining Hollins. The case docket with the filings didn’t come online until the next day. — So much for respect for the media covering the story, and the public’s right to know what’s going on with the planning for THEIR forthcoming elections.
3. The AG filed the State’s petition for writ of mandamus against the 14th Court of Appeals (without naming justices), which makes that appellate court the Respondent in the original proceeding in the SCOTX (as now shown on docket http://search.txcourts.gov/Case.aspx?cn=20-0715&coa=cossup), but the Supreme Court issued an order against the Real Party in Interest (Hollins) instead of the Court of Appeals (or the three Democrats on the panel more specifically).
4. To the extent the Supremes’ partisan knee-jerk order can be characterized as an injunction, it would have to be against Hollins as Respondent in the AG’s alternative writ-of-injunction request rather than a Real-Party-in Interest in the mandamus proceeding against the 14th COA. But why bother make such technical distinction when the all-GOP court has free reign and can do whatever without so much as having to anticipate a pesky dissent to disturb the group consensus on how this should be handled?
5. The SCOTX appears to justify the issuance of an order against Hollins to preserve ITS jurisdiction, but the case is pending in the Fourteenth Court of Appeals and statutory interlocutory jurisdiction is currently vested there. That Court hasn’t even ruled yet on the AG’s pending emergency motion (unlike in the appeal from the Sulak order in the prior VBM imbroglio, in which the Supremes imposed a stay by mandamus), but has suspended the TRAPs to decide the case within days. Now the SCOTX has already pre-empted the Fourteenth COA before they have made a decision on the merits, by enjoining Hollins and thereby preventing the forthcoming ruling of the 14thCOA from having any practical effect if goes against the State, ie the AG. This act by the Supremes in effect “reverses” the trial court’s denial of the temporary injunction even though that order was immediately appealed to the intermediate court of appeals. It’s another instance of the AG by-passing the regular appellate process and leap-frogging his special pleadings into the highest court, yammering that the lower court won’t give him what he want when he wants it. And that he is entitled to have his way because he is “the State”.
6. To the extent the AG is pursuing a direct writ of injunction against Hollins, the AG did not first file such an original proceedings petition in the Court of Appeals (at least not properly), as noted by that court in a footnote in the scheduling order dated Monday (posted only Tuesday morning). The general rule is that you have to go to the court of appeals before you head to the Supremes. It should also be pointed out that the issue in this case is not of state-wide reach because the proposed mailing of application to all voters by Hollins only affects Harris County (and is quite expensive so as to require Commissioner Court approval). But why should the AG be held to the general rule? The State, after all, is always entitled to special treatment.
7. The SCOTX purports to have issued a stay order, but it’s not clear what is being stayed, unless this is a euphemism for ordering Hollings to stop. Note that the trial court order at issue merely denied the State the relief it sought by way of interlocutory temporary order. It’s not a final adjudication on the merits; nor did it grant any affirmative relief to Hollins, who had not filed a counterclaim, not to mention a competing application for a temporary injunction or motion for summary declaratory judgment. In other words, there is nothing to stay here because relief was denied, not granted. This aspect of the case distinguishes it from the earlier fights over vote-by-mail eligibility where the plaintiffs (TDP, LVW, etc, and individual voters) had won trial court injunctions in their favor against the State. Here, the State brought suit and was, at least at the temporary injunction stage, unsuccessful. There is no final resolution of the statutory construction issue regarding the scope of authority of early election clerks, nor is there a final judgment. But the SCOTX does just want to have the final say as the court of law resort. The now-eight judicial Republicans want to take control up front and quash efforts to prepare for safe and smooth voter participation in the November elections immediately. – Let them also take the heat for it.
Here is the ruling verbatim:
Order Issued: “On petition of relator, the State of Texas, for writ of mandamus and writ of injunction to preserve its ability to seek relief on interlocutory appeal to the Court of Appeals for the Fourteenth District, and to seek review by any party from this Court, real party in interest Chris Hollins, County Clerk of Harris County, is ordered not to send or cause to be sent any unsolicited mail-in ballot applications pending disposition of the State’s appeal to the Court of Appeals and any proceedings in this Court, and until further order of this Court. The petition for writ of mandamus and for writ of injunction remains pending before this Court.”
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