Onward Texas Staff
With the deadline to request mail-in ballots looming, the Texas Supreme Court’s decision in the mail-in ballot appeal could prove to be key to Texas election results.
The Texas Supreme Court hears mail-in ballot appeal arguments between the Texas Attorney General and Harris County regarding mail-in ballot applications today, as the October 23rd deadline for voters to apply for mail-in ballots looms.
Texas Solicitor General Kyle Hawkins said the part of the Election Code requiring clerks to send applications to any registered voters who request them means the distribution of applications is limited to those voters. Meanwhile attorneys for Harris County argued that the statute that requires Harris County Clerk Christopher Hollins, to send mail-in ballot applications when requested, does not prohibit them from mailing out unsolicited applications to registered voters.
A statute that says we have to give an application to someone if they ask doesn’t prohibit implicitly giving it to people because we think it’s a good management practice and we think it will make this election safe.
Susan Hays, Attorney REpresenting Harris County
A state district judge and the 14th Court of Appeals ruled in favor of Hollins. Paxton appealed to the Supreme Court. The Supreme Court then issued a stay preventing Hollins, from mailing any more applications until the mail-in ballot appeal is resolved.
No word on when the Court will rule on the mail-in ballot appeal, which could prove to be crucial to this election.
Read the full Houston Chronicle story below.
Harris County mail ballot application case reaches Texas Supreme Court
Published: September 30, 2020 | Updated: Sep. 30, 2020 5:14 p.m.
Harris County Clerk Christopher Hollins’ plan to send mail ballot applications to all 2.4 million registered voters in the county far exceeds what the state Election Code allows, the attorney general’s office argued before the Texas Supreme Court Wednesday.
In oral arguments before the high court, Texas Solicitor General Kyle Hawkins said the part of the Election Code requiring clerks to send applications to any registered voters who request them means the distribution of applications is limited to those voters. Harris County Clerk Christopher Hollins, he warned, cannot claim powers the Election Code has not expressly granted him.
“If Hollins’s actions are allowed to proceed, it will fundamentally upset the balance of power between states and counties,” Hawkins said. “That conception of power has existed for a century.”
Attorney General Ken Paxton in August sued Hollins, saying he exceeded his authority by planning to send applications to voters under 65 even if they did not ask for them.
Hollins contends residents deserve to be informed that they may be eligible to vote by mail, especially during the COVID-19 pandemic, when some voters may be wary of visiting polling places in person.
At issue is whether the Texas Election Code grants county clerks the power to send unsolicited applications.
Susan Hays, a private attorney representing Harris County, said the purpose of the Election Code is to make voting safe and accessible to all registered Texans. Requiring applications to be sent to voters who request them is a minimum requirement, she argued, not a limit.
“A statute that says we have to give an application to someone if they ask doesn’t prohibit implicitly giving it to people because we think it’s a good management practice and we think it will make this election safe,” Hays said.
The eight justices in attendance peppered both attorneys with questions during their 20-minute arguments.
Responding to a question about whether the county’s plan would be out of step with how other parts of the state are handling mail ballots, Hays said all 254 counties should send mail ballot applications to registered voters. In an amicus brief, the Dallas County clerk argued the same.
Justice Eva Guzman asked Hays if Harris County’s plan would create more opportunities for voter fraud. Hays said it would not, noting that each ballot is reviewed by a bipartisan committee to ensure the signatures on the ballot and application match.
Justice Brett Busby asked Hawkins if the state’s position that clerks only have power explicitly granted by state law would bar them from developing new, innovative ways of providing services to customers.
“This is going to have ramifcations outside this case,” Busby said. “How do we tread that line to ensure clerks can continue to do, as they see it, good customer service?”
Hawkins said clerks would be fine so long as they are able to connect every action to a “specific grant of power” from the Legislature.
Texas is one of a handful of states that requires an excuse for voting by mail. Residents must be at least 65, disabled, out of the county or incarcerated during the voting period.
In a separate case in May, the Supreme Court ruled that fear of COVID-19 alone does not constitute a disability. It can, however, be combined with other health factors to qualify a voter for a mail ballot.
State leaders raised no objection to Hollins sending mail ballot applications to all elderly voters during the July primary runoff. State Elections Director Keith Ingram objected to Hollins sending the applications to all voters, whom he said cannot possibly all be eligible for mail ballots.
Election experts have said nothing in the Texas Election Code bars Hollins from carrying out his plan.
A state district judge and the 14th Court of Appeals ruled in favor of Hollins. Paxton appealed to the Supreme Court.
The Supreme Court issued a stay preventing Hollins from mailing any more applications until the case is resolved. Even if Harris County prevails, the timing of a ruling will be crucial.
The deadline for voters to apply for a mail ballot is Oct. 23, and mailing the remaining 2 million applications would take several weeks, Hays said. The applications also are available online on both the county clerk and the Texas Secretary of State’s websites, readily accessible for any voter to print and mail to their home county.
The justices did not indicate when they would rule on the case.
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