Paxton seeks an appeal end run
Harris County battle over ballots not over
Attorney General Ken Paxton’s office told the Texas Supreme Court late Friday that it intended to seek a review of a Houstonbased appeals court ruling denying his attempt to block Harris County officials from sending mail ballot applications to the county’s 2.4 million registered voters.
The 14th Court of Appeals earlier Friday issued a ruling saying the state had failed to prove Harris County Clerk Christopher Hollins’ plan would cause irreparable injury to voters. The ruling upheld an earlier decision by a state district judge in Houston.
Paxton’s office had argued that by sending mail ballot applications to every registered voter, Hollins would be “abusing voters by misleading them and walking
them into a felony” of casting ballots by mail when they were not eligible to do so. The Harris County Attorney’s office noted that Hollins planned to attach a brochure to each application informing voters of the eligibility requirements for voting by mail.
“The State’s argument is based on mere conjecture; there is, in this record, no proof that voters will intentionally violate the Election Code and no proof that voters will fail to understand the mailer and intentionally commit a felony, or be aided by the election official in doing so,” Justices Charles Spain, Meagan Hassan and Meg Poissant wrote.
The justices also cited an exchange between Hollins’ attorney and Texas Elections Director Keith Ingram, during which Ingram was asked how a voter could knowingly or intentionally cast a fraudulent ballot after reading the information on the clerk’s brochure.
“I don’t know the answer to that question. I mean, for most voters, I agree this is sufficient, but not for all of them,” Ingram said, adding that some voters may “have the attitude, well, I’m not really disabled, but nobody is checking so I’m going to do it.”
The justices cited Ingram’s response in concluding that a voter who “intends to engage in fraud may just as easily do so with an application received from a third-party as it would with an application received from the Harris County Clerk.”
Despite the decision, Hollins remains barred from sending out the applications under a Texas Supreme Court ruling earlier this week. Paxton has sought a writ of mandamus and an injunction from the high court to permanently block the mailout, both of which remained pending Friday.
Paxton’s office told the Texas Supreme Court clerk late Friday that it planned to seek a review of the appeals court ruling. In a letter to the clerk, Solicitor General Kyle Hawkins said the attorney general’s office would file the petition “as soon as practicable, but in any event, no later than noon on Friday, September 25.”
Also late Friday, Hollins filed an emergency motion asking the state Supreme Court to lift its temporarily halt on the mailout or decide the case by Tuesday. Otherwise, Hollins argued, the Supreme Court’s order “could enable the State to win by losing, as further delay may prevent Hollins from timely sending applications to voters.”
In his appellate court filings, Hollins included a copy of a mailer sent by the Texas Republican Party that includes a mail ballot application. Party officials have said they are only sending those mailers to known eligible mail voters.
The fight over mail ballots in Texas has grown increasingly partisan throughout the 2020 election cycle, as Republicans have fought Democrats’ efforts to expand eligibility requirements.
Hollins has won favorable rulings from Democratic
state District Judge R.K. Sandill and the panel of three Democratic justices who issued Friday’s ruling, while the Texas Supreme Court — made up entirely of Republicans — sided with Paxton in blocking Hollins’ planned mailout.
The state Supreme Court ruled in May that fear of the virus alone does not qualify as a disability but could be one of several factors a voter may consider.
The clerk’s office already has mailed applications to voters who are 65 and older, all of whom are eligible to vote by mail under Texas law.
The state election code also allows voters to cast mail ballots if they are disabled, imprisoned or out of their home county during the voting period.