Coronavirus Election Jurismalprudence

Abstract

Judicial Branch of the Texas GOP Showcases Use of Judicial Power to Make Elections Hazardous to Both Liberty and Health Election Law Guru Richard Hasen recently laid out three pathologies in the American way of practicing electoral democracy. Not only is Texas afflicted by all three of them, the Lone Star State merits an in-depth clinical case study of its own to explore the etiology of how democracy itself can suffer a bad health outcome under partisan judicial leadership in times of a raging pandemic. Not only has official voter suppression been given the imprimatur of judicial approval in Texas; the highest court for all matters civil has gone so far as to criminalize voting by mail, leaving the precise definition of the contours of the crime to the prosecutorial discretion of the Republican Attorney General, along with the ability to select absentee voters for prosecution after the fact for wrongful voting. See, relatedly, Mason v. State, No. 02-18-00138-CR, 598 S.W.3d 755 (Tex.App. – Fort Worth, Mar. 19, 2020, motion for reh’g denied Aug. 27, 2020) (holding that State did not have to prove mens rea to obtain conviction for second-degree felony illegal voting involving the casting of a provisional ballot, Tex. Elec. Code Ann. § 64.012(a)(1), (b)). The Supreme Court of Texas (SCOTX) -- composed solely of Republicans -- set the new low in partisan jurisprudence in an opinion handed down on May 27, 2020, only seven days after oral argument (held via Zoom) and only 14 days after the case arrived in its inbox. The High Court’s haste wasn’t motivated by the exigencies of the COVID-19 crisis. The perceived imperative was instead to curtail voting by mail (VBM) in times of pandemic. The supreme jurists did so at the behest of fellow-Republican Attorney General Ken Paxton in an original proceeding brought for the purposes of securing a favorable ruling, rather than in a declaratory judgment case brought by advocates for voters that was making its way through the regular appeals process. Under the motto SAFETY FOR ME, BUT NOT FOR THEE, the nine Supreme Court Republicans voted remotely from their respective homes to deny all Texas citizens the ability to vote remotely from their homes under the absentee voting provisions of the Texas Election Code. In re State of Texas, No. 20-0394, 2020 WL 2759629, 602 S.W.3d 549 (Tex. May 27, 2020). Construing the absentee voting provision of the Texas Election Code as urged by the Attorney General, the High Court proclaimed that lack of immunity to COVID-19 does not, without more, constitute a physical condition that entitles the voter to vote absentee to avoid the risk of infection at the polling place. This paper recounts the course of the litigation, and presents a critique of the actors and the outcome.