In oral arguments as Texas tries to stop Harris County Clerk Chris Hollins from mass mailing the ballot applications, all eight sitting justices fired off questions — an unusual occurrence — and the questions were numerous enough that attorneys for both sides wound up answering many after their time for argument had expired.
The arguments come just eight days after Texas petitioned the court to review a trial court's refusal to stop Hollins from mailing out the applications in the county that includes Houston, saying the court wrongly determined no statute forbids that kind of mass mailing.
The state's top appellate lawyer, solicitor general Kyle Hawkins, contended that while the Texas Election Code gives Hollins the authority to manage and conduct early voting, the clerk must "point to a statute" that authorizes any action he undertakes in doing so. Justice Jeff Boyd asked whether there's anything the clerk can do to carry out that duty not explicitly spelled out in the statute.
Hawkins offered as an example that the clerk has the power to make sure the air conditioning is set to an acceptable level at polling places, because "that's indispensable to carrying out that duty."
"Our point here is that, what he seeks to do in this election — sending out unsolicited applications to vote by mail — the statutes all involve the word 'request,'" Hawkins said. "They're telling the clerks what to do in the event they receive a request."
Texas has taken the position that Hollins is acting outside the scope of his specified powers under the Texas Election Code by sending out mail-in ballot applications to voters who didn't request them.
Justice Jane Bland followed up by pointing to a provision that gives clerks authority to make mail-in ballot applications "readily and timely available," and asked how that jibes with the argument that the clerk can't send them out. Hawkins said a "fair reading" of that statute "does not encompass an unsolicited sending out of materials."
"If I tell my boss I'm available this afternoon, that doesn't mean I'm going to go to his office and check in on him," Hawkins argued. "The clerk has to make it such that the voter can avail himself of these forms. That puts the onus on the voter to do something, and here, the voter is doing nothing whatsoever."
As soon as he had answered that question, Justice Debra Lehrmann asked whether the state would object to the clerk making those applications available online. Hawkins said the clerk would have to "point to a statute that allows him to do that." Justice Brett Busby then questioned whether the statute raised by Justice Bland would allow for that move.
Hawkins said "making available" under the statute means keeping them in an office, not mailing them out unsolicited.
"But I want to stress, the court doesn't have to decide these close questions … because the action he intends to undertake is really not a close call," Hawkins said.
Justice Lerhmann asked Susan Hays of Law Office of Susan Hays PC, who represents Hollins, to respond to the argument that while the clerk could control the air conditioning or other details of that nature that are not spelled out in the statute, other things are outside the clerk's authority. Hays called the argument an "unworkable analysis of the election code."
"How do you put on an event as detailed, and regulated and massive as conducting an election in Harris County without the authority … to do everything you can to make voting accessible?" she said. "I think it's perverse for the state to come in and say you can keep the room comfortable, but you can't send people applications to vote by mail … so they can vote and vote safely in this election."
Hays told the justices that the state's ultra vires argument "has no application in the election code."
Justice Lehrmann asked if Hays was arguing there was nothing a clerk can do that would be considered ultra vires, or beyond the clerk's power. Hays clarified that the law allows the Texas Secretary of State, in the event that an abuse of power or the impeding of voting rights comes to light, to ask the clerk to stop the behavior, and if that fails, the law allows the secretary to ask the state attorney general to file a lawsuit to stop the conduct.
Justice Eva Guzman questioned how exactly the "blanket" mailing of applications could constitute management of early voting. Hays said that, particularly in the context of a global pandemic, the election officials have a job to ensure the election is conducted safely.
The Fourteenth Court of Appeals in Houston on Sept. 18 affirmed the trial court's ruling, holding that the state didn't show it would suffer irreparable harm if the applications were mailed out.
During the week the case was pending with the Texas Supreme Court ahead of oral arguments, it drew significant amicus attention supporting Hollis, but none supporting the state.
The Texas State Conference of the NAACP and the Anti-Defamation League Southwest Region filed a joint brief in support of Hollins, as did attorney and former Galveston, Texas, mayor Joseph S. Jaworski. Dallas County Clerk John F. Warren also filed a brief in support of Hollins, as did Fort Bend County and the City of Houston.
The League of Women Voters of Texas, the District of Columbia and the states of California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Rhode Island, Vermont and Virginia also filed a brief in support of Hollins.
Hollins is represented by Susan Hays of Law Office of Susan Hays PC and Douglas Ray, Cameron A. Hatzel and Vince Ryan of the Harris County Attorney's Office.
Texas is represented by its solicitor general Kyle D. Hawkins and associate solicitors general Lanora C. Pettit and Natalie D. Thompson.
The case is Texas v. Chris Hollins in his official capacity as Harris County Clerk, case number 20-0729, in the Texas Supreme Court.
--Editing by Nicole Bleier.
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