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Law360 (October 7, 2020, 5:16 PM EDT ) The Texas Supreme Court on Wednesday said Harris County can't send unsolicited applications for mail-in ballots to every voter in the county, holding that the move is out of step with what clerks statewide are doing and "threatens to undermine" the uniform operation of election laws.
The ruling is a win for the Texas government, which was fighting to overturn two lower court rulings allowing Harris County Clerk Chris Hollins to mail out the applications. Texas argued that Hollins was acting outside the scope of specified powers under the Texas Election Code by sending mail-in ballot applications to voters who didn't request them.
The state's high court heard oral arguments in the case on Sept. 30, and agreed with Texas on Wednesday that there's no authority — express or implied — in the Election Code that authorizes Hollins to go forward with the plan, and that allowing the mass mailing would result in "irreparable injury to the state."
"Hollins argues that this duty to send an application on request does not preclude him from sending applications unrequested. But that argument misses the mark," the court held. "The question is what authority can be necessarily and fairly implied from the Election Code's provisions that is indispensable, and not merely convenient, for an election official to discharge his responsibilities."
The court also noted that while the election is occurring in the middle of the COVID-19 pandemic, Hollins didn't explain why that public health crisis "has rendered inadequate the usual distribution of ballot applications on request, much less made mass mailings of unsolicited ballot applications necessary or indispensable to voting by mail."
"As the trial court recognized, this case turns only on the powers granted by the Legislature, not COVID-19," the court wrote.
The court explained that Texas lawmakers have allowed five categories of people to vote by mail: those out of the county during the voting period, those with a disability, those over age 65, those in jail and crime victims whose addresses are by law confidential. The court wrote that Hollins' plan would send applications to all registered voters even though "only a small percentage" would be allowed to vote by mail under the Election Code.
A trial court refused to stop Hollins from mailing out the applications in the county, holding no statute forbids the mass mailing. 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.
Susan Hays of Law Office of Susan Hays PC, who represents Hollins, told Law360 on Wednesday that she was surprised the decision was unanimous, but not that it was issued per curiam, pointing to the "politically sensitive" nature of the issue.
"This allows the state to shut down local efforts to make it easy to vote," Hays said. "The state can now run in anytime it wants and put a stop to things under this decision."
Texas Attorney General Ken Paxton praised the ruling in a statement Wednesday and vowed to "continue to fight for safe and fair elections across the state."
"I thank the Texas Supreme Court for recognizing that Texas election law prohibits county clerks from sending out unsolicited mail-in ballot applications en masse," he said. "Doing so would do nothing but jeopardize the security and integrity of our democratic process."
During the week the case was pending with the Texas Supreme Court ahead of oral arguments, it drew significant amicus attention supporting Hollins but none supporting the state.
The Texas State Conference of the NAACP and the Anti-Defamation League Southwest Region filed a joint brief, as did former Galveston, Texas, mayor Joseph S. Jaworski. Dallas County Clerk John F. Warren, Fort Bend County and the city of Houston also backed Hollins.
The League of Women Voters of Texas, the District of Columbia and 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.
For a reprint of this article, please contact reprints@law360.com.
