On May 27, 2020, the Supreme Court of Texas (SCOTX) handed down an opinion on mail-in voting in record time, 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, however, was to curtail voting by mail (VBM) in times of pandemic--rather than expand it--and they did so upon an emergency mandamus petition filed by Attorney General Paxton, the state’s chief legal officer, rather than in a case brought by advocates for voters. In a glaring disconnect, the members of the SCOTX voted remotely from their respective homes to deny all Texans the ability to vote remotely from their home under the absentee voting provisions of the Texas Election Code. In re State of Texas, No. 20-0394, __ S.W.3d ___, 2020 WL 2759629 (Tex. May 27, 2020). In construing the absentee voting provision as urged by the Attorney General, the Court held 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. Part I and II of this article will show how the all-Republican state supreme court went out of its way to interpret the Election Code contrary to the best interest of Texas voters when there was no good reason to do so, and will dispel the notion that the state supreme court was merely giving effect to the Legislature’s will in a nonpartisan fashion. In Part III I will argue that the Texas Supreme Court’s ruling does not have the force of binding precedent because the question of statutory construction was improperly addressed in an unsuccessful mandamus case against election clerks who had done nothing wrong. No writ of mandamus was issued against them. The Court’s interpretation of the “disability” provision to exclude a lack of immunity to COVID-19 as a valid reason to apply for a mail ballot therefore constitutes dictum because it was not essential to the disposition of the case. In Part IV and V I will explore the partisan political dimension of the dispute over absentee voting in Texas, and describe and assess the conduct of the state supreme court and the major players in the legal wrangling over mail-in voting in Texas. Integrating the various strands of analysis, I conclude that the Supreme Court did Texans a disservice by thwarting a remedy for the better management of health risks inherent in election administration under pandemic circumstances; - a remedy that was available within the letter and the spirit of the existing absentee voting provision in the Texas Election Code; that the Court ruled contrariwise for extra-jurisprudential reasons; and that the Court’s disposition of the case leaves voters and others at the risk of being criminally prosecuted for not “correctly” reading and heeding the Supreme Court’s ruling. I also conclude that the proponents of easier access to mail-in voting (most notably, the Texas Democratic Party) pursued a suboptimal litigation strategy, and should not have capitulated to Attorney General Paxton after being bested by him. AG Paxton’s successful gambit consisted of by-passing a pending state-court appeal (in the case in which he had lost at the trial court level and in the first round on appeal) so as to obtain a favorable ruling against the Democrats on an emergency basis in a separate case against different parties; a mandamus case filed directly in the all-GOP Texas Supreme Court while at the same time excluding his political nemesis from that arena. In the wake of the Texas Supreme Court’s ruling, the Texas Democrats abandoned their state-court litigation in favor of their federal strategy centered on an age-discrimination argument under the Twenty-Sixth Amendment. That bid for a federal remedy, however, does not look promising, given the current jurisprudential climate and ideological complexion of the Fifth Circuit and the U.S. Supreme Court. In the first salvo, a panel of the Fifth Circuit ruled against the Democrats on the Texas Solicitor General’s motion for stay, and the SCOTUS declined to get involved on an emergency basis so early in the game. Justice Sotomayor noted that the articulated concerns were weighty, and the arguments seemingly novel, but concurred in the denial of extraordinary relief. Texas Dem. Party v. Abbott, 2020, 961 F.3d 389 (5th Cir. Jun. 4, 2020) (staying preliminary injunction order) (motion to vacate stay denied by Tex. Democratic Party v. Abbott, 140 S. Ct. 2015 (Jun. 26, 2020)).
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Jan 1, 2021
Eric Mcghee 
Open Access