Best mugshot ever
The Democrats on Harris County Commissioners Court on Tuesday rejected an opinion from Texas Attorney General Ken Paxton in which he said they illegally created an independent elections office and hired an administrator.
The move invites a potential lawsuit from the attorney general, which Precinct 1 Commissioner Rodney Ellis said he was confident the county would win.
“This is another example of (Attorney) General Paxton using his office to attack the voting rights of Texans,” Ellis said.
He noted that Paxton sued to prevent counties from installing more than one drop box for mail-in ballots during this fall’s general election. The attorney general also convinced the Texas Supreme Court to block Harris County’s plan to send mail ballot applications to all 2.5 million registered voters. Paxton also had issued an opinion suggesting the county’s drive-thru voting arrangements violated the state election code.
[…]
In a written response to Paxton Tuesday, [County Attorney Vince] Ryan acknowledged that Harris County had not promptly informed the state of those actions. He said, however, that Texas law says the delays do not change their validity.
Harris County joined more than 100 other Texas counties in creating an independent elections office, which combines the election management role of the county clerk with the voter registration duties of the tax assessor-collector.
The three Democrats on Commissioners Court voted in favor of the change, arguing it is more efficient. The two Republicans were opposed, saying it created an administrator who is unaccountable to voters.
The court was similarly divided in Tuesday afternoon’s discussion. Democratic County Judge Lina Hidalgo dismissed Paxton’s threat as a distraction and said Longoria must be able to do her job.
Precinct 4 Commissioner Jack Cagle, a Republican, said Ellis’s criticism of Paxton was unfounded. The attorney general has a duty to ensure the law is followed, he said.
“When Paxton says we didn’t follow the rules, I don’t think there is some evil intent,” Cagle said.
See here for the background, and let’s put aside for the moment the laughable idea that Ken Paxton has any moral authority when it comes to telling people to obey the rules. I dismissed Paxton’s threats as mere bluster, but I’m an Internet smartass. There are no real consequences when I’m wrong about something. I certainly hope Vince Ryan is right about this – and as a side matter, I hope incoming County Attorney Christian Menefee was consulted and is on board with this, because it will be his mess to clean up if Ryan and the rest of us are wrong. I guess we’ll find out soon enough if we’re about to be dragged into a prolonged court battle, or if this was indeed just hot air. The Texas Signal and the Chron’s Erica Greider have more.
DOES ISABEL EXIST IN AN OFFICIAL CAPACITY?
If Paxton sues over this, it will be interesting to see who he goes after in the way of naming a target, i.e. defendant or respondent:
(1) Harris County qua county (a governmental entity that is supposed a be subservient unit of the State, so State suing itself (sort of))
(2) the Commissioners Court as an collective decision-making organ
(3) the Commissioners individually in their official capacities, or perhaps only the 3 Democrats on it.
(4) the Democratic majority or each member thereof
If Mssrs Radack and Cagle get swept up in the intergovernmental legal brawl instigated by Paxton, perhaps they can assert an I-DIDN’T-VOTE-FOR-IT defense.
Meanwhile, the issue could be resolved collaterally in another manner:
The County Attorney — or a private retained attorney — could file a notice of appeal from the final judgment of dismissal in State v. Hollins on behalf of Hollins’ successor in his official capacity.
The court of appeals could then sort out which one – Isabel Longoria or Teneshia Hudspeth will be substituted for Hollins, thereby resolving the issue of whether the Longoria officially exists in the eyes of the law as officially pronounced by a court of competent jurisdiction.
Since the Attorney General already represents the State in State of Texas v. Hollins, he can argue his preferred position on the matter, but counsel for Defendant-Appellant would be in the driver’s seat on behalf of the appellant (which would include the privilege of moving for dismissal voluntarily and unilaterally if warranted).
What would be a basis for appeal?
1. The case was improperly dismissed WITH prejudice based on the Attorney General’s unilateral notice of nonsuit (which should have resulted in a dismissal of the State’s claims without prejudice) since the only order ever signed (other than the recusal/transfer order) was the order denying the AG’s application for a temporary injunction.
2. The dismissal of the entire case was improper (whether with or without prejudice) because the intervenors had not nonsuited their claims for judgment under the Declaratory Judgments Act. Moreover, the Supreme Court’s resolution of the interlocutory appeal of the temporary injunction issue didn’t resolve the merits of the case. Nor did the SCOTX rule on whether the mass mailing program is legal with respect to registered voters aged 65 and up (all of whom are entitled to vote by mail based on their age alone without any other excuse, such as disability or fixing to give birth on election day). See State v. Hollins, ___ S.W.3d ___, No. 20-0729, 2020 WL 5919729, at *1, 2 & nn.15 & 17 (Tex. 2020) (distinguishing a local election official’s efforts to mail unsolicited absentee-ballot applications to voters over age 65, which was unchallenged, from a similar plan to send unsolicited ballot applications to all registered voters regardless of eligibility that was unauthorized by the Election Code and therefore barred).
No relief was ever entered on the declaratory judgments (counter)claim by the intervening parties, who could also amend their pleadings to assert a constitutional claim based on the Fifth Circuit’s merits panel opinion in Tex. Democratic Party v. Abbott, No. 20-50407, 2020 WL 6127049 (5th Cir. Oct. 14, 2020). Nor can it be said that the issue moot with respect to future elections.
STILL TIMELY?
The nonsuit order in State v. Hollins was signed on 11/20/2020, so we are still within 30 days and therefore within plenary power and well within the timeframe to file a notice of appeal without need to resort to the grace period.
Cause No. 2020-52383 – STATE OF TEXAS (BY AND THROUGH ITS ATTORNEY GENERAL) vs. HOLLINS, CHRIS (IN HIS OFFICIAL CAPACITY AS HARRIS CLERK (Court 127)
TRAP SUBSTITUTION RULE FOR SUBSTITUTION OF OFFICIALS IN THEIR OFFICIAL CAPACITY
7.2. Public Officers (a) Automatic Substitution of Officer
Automatic Substitution of Officer. When a
public officer is a party in an official capacity
to an appeal or original proceeding, and if
that person ceases to hold office before the
appeal or original proceeding is finally
disposed of, the public officer’s successor is
automatically substituted as a party if
appropriate.
Proceedings following
substitution are to be in the name of the
substituted party, but any misnomer that does
not affect the substantial rights of the parties
may be disregarded. Substitution may be
ordered at any time, but failure to order
substitution of the successor does not affect
the substitution.
Tex. R. App. P. 7.2.