A Texas appeals court on Friday upheld a district court ruling that denied Attorney General Ken Paxton’s request to block Harris County officials from sending mail ballot applications to the county’s 2.4 million registered voters.
Despite the decision, Harris County Clerk Chris Hollins remains barred from sending out the applications under a Texas Supreme Court ruling earlier this week. Paxton has sought a writ of mandamus and an injunction from the high court to permanently block the mailout, both of which remained pending Friday.
In the appellate ruling, 14th Court of Appeals Justices Charles Spain, Meagan Hassan and Meg Poissant wrote that the state failed to prove Hollins’ plan would cause irreparable injury to voters. State officials have argued that by sending mail ballot applications to every registered voter, Hollins would be “abusing voters by misleading them and walking them into a felony.” County attorneys noted that Hollins planned to attach a brochure to each application informing voters of the eligibility requirements to vote by mail.
“The State’s argument is based on mere conjecture; there is, in this record, no proof that voters will intentionally violate the Election Code and no proof that voters will fail to understand the mailer and intentionally commit a felony, or be aided by the election official in doing so,” the justices wrote.
The justices also cited an exchange between Hollins’ attorney and Texas Elections Director Keith Ingram, during which Ingram was asked how a voter could knowingly or intentionally cast a fraudulent ballot after reading the information on the clerk’s brochure.
“I don’t know the answer to that question. I mean, for most voters, I agree this is sufficient, but not for all of them,” Ingram said, adding that some voters may “have the attitude, well, I’m not really disabled, but nobody is checking so I’m going to do it.”
The justices cited Ingram’s response in concluding that a voter who “intends to engage in fraud may just as easily do so with an application received from a third-party as it would with an application received from the Harris County Clerk.”
See here, here, and here for the background. The 14th Court’s opinion is here, but you can just read the excerpt in Jasper Scherer’s tweet to get the main idea. Basically, the court said that the state needed more evidence than just Keith Ingram’s claims of mass hysteria if Hollins sent out the applications. It’s not a whole lot deeper than that.
So now it goes to the Supreme Court, and as noted in the story, the previously granted order preventing Hollins from moving forward with the sendout of applications to the not-over-65 voters is still in effect, until such time as SCOTX rules on the appeal (we know it will be appealed, because of course it will). This provides them an opportunity to play politics without necessarily appearing to play politics. Hollins had intended to begin sending out the applications by now, because as we all know, people are going to want and need to get and return their mail ballots early in order to ensure that they get counted. As such, a ruling from SCOTX on, say, September 25 is a lot more meaningful than the same ruling on October 25. Will they take the weasel’s way out and slow-walk this to a resolution, or will they dispose of it in a timely manner? Only one way to find out. The Trib has more.
COMMENT ON AG PAXTON AKA THE STATE V. CHRIS HOLLINS: ROUND TWO (OR IS IT ROUND III ?)
A very reasonable and persuasive appellate opinion this is, but it’s not going to lay the matter to rest, since the intermediate appellate court decision – quick as it came — has already been preempted by the Attorney General’s gimmie-a-writ filing in the Texas Supreme Court. See Tex. Docket No. 20-0715. The latter resulted in what appears to be the functional equivalent of an ex parte temporary restraining order in the disguise of a “stay” against Hollins that isn’t even time-limited. A regular TRO entered by a trial court expires automatically, and requires a definite date for a hearing. See Texas Rules of Civil Procedure 680 for details. No such due process considerations here. Instead: We’ll rule when we are ready.
DIFFERENT SORT’A STAY
Also note that the notation “stay” on the SCOTX docket is a misnomer. There was no trial court order to stay (unlike in the case of the temporary injunction granted by Judge Sulak or the preliminary injunction issued by US District Judge Fred Biery) because the lower court here didn’t expressly grant affirmative relief to either party. It merely denied the State’s application for a temporary injunction. To the extent there was an express or implied ruling on the ultra vires claim (under the rubric of likely success on the merits as a TI element), such ruling is not final. Instead of staying a trial court order, the SCOTX issued its own order directly restraining Defendant Hollins. To wit: “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 Supremes thus in effect overruled the trial court judge collaterally (in a different case), and supplanted their own temporary injunctive order for the one Judge Sandill declined to issue after an evidentiary hearing that lasted several hours.
Judge Sandill gave the Attorney General’s lawyers several hours to make their master’s case, and received evidence from both sides along with much legal argument before he took the matter under advisement and ruled against him the day after. The SCOTX, by contrast, gave Paxton what he wanted at the push of a button, as it were, and did not even bother to request a response from Hollins.
WHY NOT EN BANC?
Irrespective of merits of the per curiam opinion of the Houston Court of Appeals in State v. Chris Hollins (No. 14-20-00627-CV), a major extra-jurisprudential problem here is that the opinion was issued by a three-judge panel consisting entirely of Democrats (Justice Spain, Justice Hassan, Justice Poissant). That makes it vulnerable in a highly polarized political environment. Judge Sandill is also a Democrat and has already received hate mail, copies of which have been placed in the trial court’s electronic file.
A better procedure would have been for the case to be referred to the Court as a whole (en banc), and for any Republicans on the Fourteenth Court of Appeals to either join or file dissents. Chief Kem Frost would probably have done the honors, what with her distinguished track record as the Lone Star State’s leading dissenter.
That’s not established practice in the Houston COAs however, although Justice Spain indicated just a few days ago in a footnote to his dissent on a motion for rehearing (in Case No. 14-17-00732-CV) that a sua sponte en banc review could be done under the TRAPs prior to issuance of a panel opinion. (“See Texas Rule of Appellate Procedure 41.2 for a similar procedure in which a majority of the en banc court can “vote” to hear or rehear the case en banc before the court’s panel decision is released to the public.”). The Dallas Court of Appeals has previously employed this approach of hearing a case en banc in the first instance. But it would be a departure from the normal procedure. Nornally, a party dissatisfied with a panel’s work files a motion for rehearing, whether just by the original panel or the court as a whole, or both. A regular post-judgment en banc motion is unlikely here because the AG expects the Supreme Court to give him what he wants.
IS THE MANDAMUS AGAINST THE 14TH COURT OF APPEALS NOW MOOT?
The issuance of the panel opinion, and the denial of the AG’s emergency rule 29.3 motion for temporary relief on appeal (which was rendered moot by the almost-instant decision on the merits of the State’s interlocutory appeal), should ALSO MOOT the Paxton’s petition for a writ of mandamus against the Fourteenth Court of Appeals. That’s because the intermediate appellate court has finished its job, and the AG can now attack the result with a petition for review (PFR). In other words, there is now an adequate remedy in the form of a regular appeal in the same court in which he previously filed the mandamus petition, in which he complained that the Fourteenth Court of Appeals wasn’t giving him relief fast enough.
But that may not bother the all-Republicans SCOTX, since their obvious priority is to stop Hollins, and a STOP order is already in place that does not have an expiration date.
KILLING THE HARRIS COUNTY CLERK’S INITIATIVE SLOWLY THROUGH DELAY?
AG Ken Paxton has already announced that he will take the appeal to the next level. But he could be taking his time since the SCOTX has already accommodated him by entering that instanter injunction against Chris Hollins in his separate jump-the-gun filing (once more styled “In re State of Texas”).
Meanwhile, Hollins’ appellate lawyer is crying foul and has asked that the order against Hollins be lifted. But why should the judicial branch of the GOP care? There is nothing and no one to stop them or make them do anything differently, or do anything at all.
Such are the blessings of judicial supremacy.
CASE INFO: The State of Texas v. Chris Hollins, No. 14-20-00627-CV (Tex.App.- Houston [14th Dist.] Sep. 18, 2020, no pet. h.); on interlocutory appeal from Order denying State’s Application for Temporary Injunction, state District Court Cause No. 2020-52383, pending in the 127th District Court, Harris County, Texas; Hon. Ravi K. Sandill presiding.