Fifth Circuit bats aside Gohmert appeal

One Response to Fifth Circuit bats aside Gohmert appeal

1. SCOTX Critic at Large says:

   January 3, 2021 at 3:39 pm

   STANDING AND JURISPRUDENTIAL OPPORTUNISM, LONE-STAR STYLE

   The Gohmert v. Pence dismissal for lack of standing provides an intriguing opportunity to engage in a little compare & contrast with the how election challenges are handled in the state court system. As with other doctrines, the Texas Supremes use them – or don’t – as suits them.

   Lets first look at the matter of instanter mandates, and then their handling of standing.

   IMMEDIATE MANDATE IN ELECTION LITIGATION

   When the Third Court of Appeals in Austin recently issued the mandate immediately in an unsuccessful appeal by the Attorney General of a temporary injunction against Governor Abbott (No. 03-20-00498-CV), what happened?

   Paxton appealed it, of course. But that’s not all. He also filed a mandamus action against the Third Court of Appeals under a separate cause number, and the SCOTX duly obliged by immediately blocking the mandate from going into effect.

   NOTA BENE: the SCOTX issued the order (1) without waiting for the response from the opposing parties, and (2) without offering any explanation. See docket in Tex. No. 20-0847. In short, they knew immediately what “needed” to be done, given the adverse rulings below, so the formalities of due appellate process shouldn’t stand in the way.

   In the Fifth Circuit, the motions panels at least write opinions when granting Texas state officials their AG-requested stays of preliminary injunctions against them, and thus expose themselves to scrutiny. That happened in Texas Democratic Party v. Abbott, No. 20-50407, 961 F.3d 389 (5th Cir. June 4, 2020) (TDP I)(eligibility to vote by mail during the pandemic), and in Texas LULAC v. Hughs, No. 20-50867, 978 F.3d 136 (5th Cir. Oct. 12, 2020)(challenge to Abbott’s order reducing mail ballot drop-off locations).

   But there is some hard-ball logic to it: When you have absolute control, as the judicial Republican do on the Texas high court, why bother? You can just dispatch special orders via email and twitter.

   “Relators’ emergency motion for temporary relief, filed October 23, 2020, is granted. The mandate and judgment dated October 23, 2020, in Cause No. 03-20-00498-CV, styled Greg Abbott, in his Official Capacity as the Governor of Texas; and Ruth Hughs, in her Official Capacity as Texas Secretary of State v. The Anti-Defamation League Austin, Southwest, and Texoma Regions; Common Cause Texas; and Robert Knetsch, in the Third Court of Appeals, Travis County, Texas, are stayed. The temporary injunction issued by the district court is not in effect pending further order of this Court.”

   Justice Devine might otherwise dissent in a case challenging Abbott’s use of emergency powers, but not when the case presents an opportunity to suppress votes that presumably favor Democrats.

   And the patterns repeats.

   In the first case of the Year (21-0001) the SCOTX nixed the New Years COVID orders of Austin Mayor and Travis County Judge, again without bothering to explain. This time, they ordered the Third Court to issue a blocking order under TRAP 29, rather visiting upon Mayor Adler and the County Judge the treatment accorded to Chris Hollins. To put Hollins in his place, they had issued a restraining order directly as real party in interest. See Tex. No. 20-0729.

   SCOTX SMACKDOWN 1: HOLLINS (HARRIS COUNTY)

   “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.”

   SCOTX SMACK-DOWN 2: ADLER ET AL (CITY OF AUSTIN/TRAVIS COUNTY)

   “Without hearing oral argument, and having considered “Defendants Travis County and City of Austin’s Joint Response in Opposition to Plaintiff’s Application for Temporary Injunction,” we conditionally grant the petition for writ of mandamus and direct the court of appeals to issue relief under Texas Rule of Appellate Procedure 29.3, instanter, enjoining enforcement of Travis County’s County Judge Order 2020-24 and the Mayor of the City of Austin’s Order No. 20201229-24 pending final resolution of the appeal. Our writ will issue only if the court of appeals does not comply.”

   As of 1/3/2020, Adler’s response is not on the court’s docket for No. 21-0001. To their credit, the Texas Tribune went to the trouble finding out — and reporting — what the respondents had to say. The Supremes apparently deem it sufficient to reassure the public that a response was considered. No need to let the public see what the respondents have to say, and that they take the position that the local order is not inconsistent with Abbott’s order. — Just trust us! We couldn’t possibly be wrong.

   STANDING AND LACK-OF JURISDICTION DISMISSALS

   Note how questionable federal election cases get nixed on lack-of-standing grounds, including the federal suit by Steven Hotze through which he sought to invalidate the drive-thru ballots in Harris County, and Ken Paxton’s personally signed petition in the SCOTUS seeking to overturn the verdict of the voters of four other states in which Biden won (Georgia, Pennsylvania, Michigan and Wisconsin).

   The Texas Supreme Court, however, never ruled that voter/political activist Steven Hotze lacked standing to bring his multifarious election challenges. Only one member could bring himself to say so in a concurrence. In re Hotze, ___ S.W.3d ___, No. 20-0739, 2020 WL 5919726 (Tex. 2020) (orig. proceeding) (mandamus relief denied in original proceeding on laches grounds)(Concur by Blacklock, addressing multiple jurisdictional defects)(Dissent by Justice Devine, who disagreed with “the Court’s decision to dismiss [sic] this mandamus as untimely.”). Contrary to Devine’s characterization, Hotze’s petition for a writ of mandamus was denied, not dismissed. And in the state-side version of Hotze’s drive-thru voting challenge, the SCOTX likewise denied Hotze’s emergency petition, rather than dismissing it for lack of standing, leaving that task to U.S. District Judge Hanen a day later in the parallel action by the same bevy of plaintiffs in federal court.

   And there is some hard-nosed logic to that too.

   The judicial Republicans on the SCOTX found it useful to assume (pretend, if you will) that Steven Hotze had standing to sue. Why so? Because that would give them an excuse to stop Harris County Clerk Chris Hollins from mailing ballot applications to all Harris County voters immediately in the mandamus case filed by Hotze.

   They weren’t yet in a position to reverse Judge Sandill because the Attorney General’s interlocutory appeal was still pending in the Fourteenth Court of Appeal at the time.

   Following an evidentiary hearing held via Zoom, in which both Director of Elections at the SOS and Hollins testified, Judge Sandill had *denied* the AG’s application for a temporary injunction, through which Paxton had sought to prevent Hollins from going forward with the mailing of absentee ballot applications.– Applications — mind you — not actual ballots, as incorrectly implied by the Texas Monthly in an otherwise great article. See here: https://www.texasmonthly.com/features/the-best-things-in-texas-2021-lina-hidalgo-chris-hollins/

   HOTZE PROVES USEFUL

   So, on September 2, 2020 the SCOTX obliged serial GOP litigant Hotze with the equivalent of a restraining order in his mandamus case against Hollins without first addressing any standing issue. See 9/2/2020 Order in Tex No. 20-0671 styled IN RE STEVEN HOTZE, M.D., HARRIS COUNTY REPUBLICAN PARTY, AND SHARON HEMPHILL. (“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.”).

   STANDING/NO STANDING, AS THE DESIRED RESULTS MAY COUNSEL

   That’s not to say that the lack-of-standing reasoning doesn’t come in handy on other occasions. Example in point: the Harris County misdemeanor judges’ challenge to Abbott’s meddling with their authority to grant noncash bail (Executive Order GA-13, the “Keep-em-locked-up” Order issued pursuant to the Texas Disaster Act). Tex. No. 20-0261.

   In that case, the SCOTX rushed out an opinion backing Abbott’s and Paxton’s foray into kicking around criminal court judges they deemed too soft on crime. They did so just one day before the TRO granted by an Austin trial court judge in the case was going to expire by its own terms. Paxton had actually threatened the misdemeanor judges with prosecution for following the Criminal Code, rather than Abbott’s emergency order, in which he asserting the power to alter bail and jail-release practices during the pandemic.

   Law Professor Ron Beal howled in vain. See amicus letter here:

   http://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=d5397a4f-1130-4e57-9857-35e4d96722b2&coa=cossup&DT=BRIEFS&MediaID=1accd683-55c4-4a1e-a7b5-495ff0611f08

   BOTTOM LINE

   What we see here is the unprincipled use of legal doctrine by a partisan state supreme court for political ends. The problem in Texas is that a single party has complete control of the top echelon of the third branch, and uses its absolute judicial power in full synch with the Attorney General and the Governor for shared purposes.

   And unlike the vigorous dissenting that we have seen on the Houston Court of Appeals, both of which have a partisan mix since January 2019, there is no member from the other camp on the SCOTX to spoil the goes-without-saying groupthink consensus with a stinging dissenting opinions.

   De jure the Texas constitution decentralizes power. It even contains an express separation-of-powers provisions that has no federal counterpart.

   De facto, however, there is no effective separation of powers between the executive and the judicial branch, and since the judicial branch is strictly hierarchical, only the apex court counts. There are no longer checks and balances.
   The latest development is now the strategic use of the combined powers of the two branches to emasculate local governments through the expedient of common-law “ultra-vires” litigation by the Attorney General styling himself as the State of Texas, defending the interests of the GOP officeholders at the state level in maintaining their positions of power and privilege. We witness a further aggrandizement of power at the center and a reengineering of the structure of Texas government without the people having a role through the constitutional amendment referendum process.

   FROM TRUMPIST HAIL-MARY LAWSUITS IN FEDERAL COURTS
   TO HAIL-TO-MASTER-ABBOTT JURISPRUDENCE IN TEXAS

   As Abbott re-appointee Jeff Alley recently reminded the lowly locals and their constituents in State of Texas v. El Paso: Governor Abbott is the master, and we are his serfs. See State v. El Paso County, 08-20-00226-CV, 2020 WL 6737510, at *11 (Tex. App.—El Paso Nov. 13, 2020, no pet. h.) (“Just as a servant cannot have two masters, the public cannot have two sets of rules to live by.”).

   Unsurprisingly, Paxton is relying on Alley’s newly fashioned gubernatorial preemption jurisprudence — fashioned in the absence of a supremacy clause in the Texas constitution analogous to the federal one — to support his bids to intimidate and slap down other local elected leaders of the opposition party to prevent them from doing what they deem best for their constituents.

   In somewhat Orwellian fashion, Governor Abbott has come to wield emergency powers that were delegated to him by the Texas Legislature to *cope* with disaster — powers that he wouldn’t ordinarily have — to *thwart* local efforts to cope with the current disaster.

   And he does so with the full blessing of his Court.

   Setting the tone for things to come, the SCOTX has marked the arrival for the New Year with an order slapping down City of Austin Mayor Steve Adler and Travis County Judge Andy Brown. IN RE STATE OF TEXAS, No. 20-0001 (Tex. Jan. 1, 2021)(writ of mandamus conditionally granted).
   https://www.txcourts.gov/supreme/orders-opinions/2021/january/january-1-2021/

   Stay tuned for further developments in the judicially-enabled progression toward autogolpe, Texas-style.

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