From Chuck Lindell on Twitter, on Saturday afternoon:
We have a 2nd federal lawsuit against Gov. Abbott’s order limiting counties to 1 drop-off location for mail-in ballots, this one from the Texas Alliance for Retired Americans.
Petition: https://democracydocket.com/wp-content/uploads/sites/45/2020/10/Straty-v.-Abbott.pdf
Background:— Chuck Lindell (@chucklindell) 11:18 AM – 03 October 2020
See here for the background, and here for more on the first lawsuit. This one is a Democracy Docket suit, and you can read the complaint here. As of when I drafted this on Saturday afternoon, there wasn’t any news coverage that I could find – this CNN story mentions the second lawsuit, but it’s primarily about the first one, and doesn’t tell me anything I didn’t already know. Marc Elias of Democracy Docket summarizes what the complaint is about:
Here is what we are seeking in our lawsuit against Texas.
— Marc Elias (@marceelias) 12:12 AM – 03 October 2020
Monday ought to be a busy day at the federal courthouse. I feel like there may be cause to file a complaint in state court as well, on the grounds that Abbott’s action violates the Disaster Act since it does not conform with the goal of mitigating the disaster and thus isn’t an appropriate use of his emergency powers, but I Am Not A Lawyer so I probably don’t know what I’m talking about. I’ll update this when I see a link to news story about this second lawsuit.
Re: “on the grounds that Abbott’s action violates the Disaster Act since it does not conform with the goal of mitigating the disaster and thus isn’t an appropriate use of his emergency powers.”
Excellent state-law argument, but not a sure winner.
Alas, this issue was previously brought up in the BREED-COVID-IN-JAIL mandamus and was ignored by the SCOTX. In that case, the AG filed a mandamus in the Texas Supreme to challenge a temporary restraining order in favor of Harris County misdemeanor judges that restrained Abbott and Paxton from enforcing Executive (Emergency) Order 13, which was blatantly based on general crime/public safety concerns, not COVID-19 containment concerns, and would actually result in aggravation of the hotspot situation in the Harris County Jail. The SCOTX granted mandamus and nixed the TRO in an opinion rushed out just one day before the TRO was due to expire. See In re Greg Abbot and Ken Paxton, No. 20-0291, 601 S.W.3d 802 (April 23, 2020).
The disposition of that mandamus hinged on lack-of-standing grounds (no standing by the judges to sue, as the Supremes saw it), but it did not bode well for the merits of the argument either; – the argument that Abbott exceeded his delegated emergency powers. The supremes found a way to rule in Abbott’s and Paxton’s favor. Leaving aside the soundness of the legal argument regarding the proper scope of emergency powers, it does not bode well in light of how other COVID & election-related cases are being handled in the SCOTX.
Lets just say that the political exigencies loom large.
ULTRA VIRES ENCORE?
That doesn’t mean it wouldn’t be worth trying in state court — as an ultra vires action presumably, albeit by those affected, rather than the AG marching into court as “The State” — and might even result in a temporary injunction at the trial court level, quickly to be challenged in the Texas Supreme Court, no doubt.
However, the pendency of such action in state court might provide grounds for the federal court (5th Cir.) to abstain from quickly deciding the matter on the ground that the state court system should have its say first, which might make it unnecessary for the federal constitutional complaint to go forward, because the state-court action could — if successful — provide all the relief being sought by invalidating the Governor’s act as a matter statutory construction of the Texas Disaster Act. (Recall that this was also a procedural/timing issue in the federal litigation over expansion of vote-by-mail eligibility to all voters under pandemic conditions. The motion panel chided Judge Biery for rushing to grant the plaintiffs relief.)
WHAT IS THE STATUS-QUO (ANTE)?
On the merits, the ultra-vires argument against the Governor does have some weaknesses, though. While the Governor’s amended order (technically “proclamation”) eliminates the additional drop-off locations, and thereby clearly imposes a more onerous burden on voters eligible to vote by mail compared to the situation just a day before it went into effect, the original order/proclamation did constitute a valid use of emergency powers as intended by the Disaster Act (in that the public-health rationale is explicitly stated). Hotze et al may not agree (because they claim the Disaster Act is itself unconstitutional), but AG/SG so far is siding with the Governor on the more fundamental issue of law.
So, expect the AG/SG to argue that the order providing for (just) one drop-off box is still a valid exercise of emergency powers under the Disaster Act (rather than an abuse of voters) in that it suspends the statutory rule (in the Election Code) that absentee ballots can only be dropped off on election day. It thereby facilitates voting, rather than suppressing it, even if only rather moderately.
The counter-argument to this would be that the reduction of drop-off locations increases the COVID exposure risk by forcing all who use the option through the same facility (higher congregation/voter volume ergo higher risk of superspreading event), but that argument would require a court to second-guess the wisdom of the Governor’s action, which federal courts may be loath to do, although it also supports the argument in the Governor’s act (in amending the order to limit the drop-off locations to one) is pretextual while the same cannot be said of the original order.
PURCELL DOES NOT APPLY TO THE EXECUTIVE BRANCH
As for the constitutional challenge, expect the AG/SG to argue that the principle that changes in election rules should not be made at the last minute (or on the “eve” of elections, which term is not used literally in the relevant caselaw) only applies to federal courts, not — as here — to state officials. In other words, federal courts should not interfere, and should leave matters of policy/implementation to the politically accountable branches.
The so-called Purcell principle has intuitive appeal here, but does not look promising as a legal decision rule because the challenged action was taken by the guy that exercises emergency powers as delegated by the Texas Legislature through the Disaster Act, rather than a judge.
Leading case re: judicial noninterference in election process close to election: Purcell v. Gonzalez, 549 U.S. 1 (2006).
Disaster fighting powers: S. Bay United Pentecostal Church v. Newsome, 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J., concurring) (stating that, when state officials “undertake to act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad,” and that, where the broad limits of authority are not exceeded, the restrictions imposed by state officials in response to a pandemic or health emergency should not be subject to “second guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to people”)
Another problem is
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