Texas v. Hollins
Docket Watch 2020
By Cory Liu
In Texas v. Hollins, the Supreme Court of Texas unanimously enjoined the Harris County Clerk from mailing unsolicited applications for mail-in ballots to every registered voter in the county, regardless of whether the voter was legally eligible to vote by mail.
Texas has more than 16 million registered voters, roughly 2.4 million of whom reside in Harris County.[1] Under Texas law, there are five categories of voters who are eligible to vote by mail: (1) those who expect to be absent from the county during the voting period;[2] (2) those with a disability;[3] (3) those who will be 65 or older on election day;[4] (4) those confined to jail at the time their application is submitted;[5] and (5) crime victims whose addresses are confidential by law.[6]
On August 25, 2020, the official Twitter account of the Harris County Clerk’s Office wrote: “Update: our office will be mailing every registered voter an application to vote by mail.” Two days later, the Texas Secretary of State’s Director of Elections, Keith Ingram, sent a letter to the Harris County Clerk demanding that he “immediately halt” this plan.[7] The letter asserted that the plan was contrary to the Secretary of State’s guidance, would confuse voters about their eligibility to vote by mail, and could clog up the vote-by-mail infrastructure with millions of applications from persons who are not legally eligible to vote by mail.[8] The letter gave the Harris County Clerk until noon on August 31 to announce the retraction of his plan.[9] The Clerk informed Ingram that he would not comply, so the State of Texas went to court.[10]
The question presented to the Supreme Court was whether the district court abused its discretion by denying the State a temporary injunction.[11] In a unanimous per curiam opinion, the Supreme Court held that the State was entitled to a temporary injunction.
To obtain a temporary injunction, the State had to establish: “(1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim.”[12] The Harris County Clerk did not dispute that the State had a cause of action, so the court’s analysis focused on the second and third factors.[13]
The court’s analysis began with a discussion of background principles for interpreting the scope of the Harris County Clerk’s powers. In Texas, political subdivisions such as counties, municipalities, and school districts are creations of the State and may exercise only powers granted to them by state law.[14] As the court explained nearly a century ago in Foster v. City of Waco, a political subdivision has only three categories of powers: (1) those that are granted to it in “express words”; (2) those that are “necessarily or fairly implied in” an express grant of power; and (3) those that are “indispensable” to the accomplishment of its objectives.[15] Subsequent caselaw has “clarified” that powers “necessarily or fairly implied” must also be “indispensable.”[16] Foster also articulated a canon of interpretation requiring ambiguities about a political subdivision’s powers to be resolved against the political subdivision: “Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the [political subdivision], and the power is denied.”[17]
Turning to the question of whether the State had a right to relief, the court observed: “The Election Code does not expressly authorize [the Harris County Clerk] Hollins’ proposed mass mailing, and he does not argue to the contrary. Thus the question is whether the authority is implied.”[18] The Harris County Clerk argued that his duties to “conduct the early voting in each election,”[19] to manage polling locations,[20] and to “make printed forms . . . readily and timely available,[21] authorized his plan to mail unsolicited applications to vote by mail to all voters.
The court rejected these arguments for several reasons. First, the Harris County Clerk’s plan was not “necessary” and “indispensable” to the carrying out of these duties, as evidenced by every other Texas county’s decision to abide by the usual practice of mailing applications to only those who request them.[22] Second, numerous provisions of the Election Code contemplate that applications to vote by mail are to be requested by voters.[23] Third, the Election Code requires the Secretary of State to ensure uniformity throughout the State in the implementation of the election laws.[24] Finally, the Election Code demonstrates a general “expectation that most Texans will vote in person,” with voting by mail being “the exception, rather than the rule,” as evidenced by the strict legal requirements for applying to vote by mail.[25] For these reasons, the court concluded that the Harris County Clerk’s plan was unlawful and that the State had established a probable right to relief.
The court went on to conclude that in a lawsuit by the State to enjoin an unlawful action by a political subdivision, “a showing of likelihood of success on the merits is sufficient to satisfy the irreparable-injury requirement for a temporary injunction.”[26] Because the State satisfied all the requirements for a temporary injunction, the court reversed the court of appeals and directed the entry of a temporary injunction prohibiting the Harris County Clerk from mailing unsolicited applications to vote by mail.[27]
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[1] Texas v. Hollins, No. 20-0729, slip. op. at 3 (Tex. Oct. 7, 2020) (per curiam).
[2] Tex. Elec. Code § 82.001.
[3] Id. § 82.002.
[4] Id. § 82.003.
[5] Id. § 82.004.
[7] Texas v. Hollins, No. 20-0729, slip. op. at 4 (Tex. Oct. 7, 2020) (per curiam).
[8] Id.
[9] Id. at 4–5.
[10] Id. at 5.
[11] Id. at 6.
[12] Id. (quoting Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002)).
[13] Id.
[14] Id. at 6–7.
[15] Id. at 7. (quoting Foster v. City of Waco, 255 S.W. 1104, 1105–06 (Tex. 1923)).
[16] Id. (citing Tri-City Fresh Water Supply Dist. No. 2 of Harris Cty. v. Mann, 142 S.W.2d 945, 947 (Tex. 1940)).
[17] Foster, 255 S.W. at 1106.
[18] Texas v. Hollins, No. 20-0729, slip. op. at 8 (Tex. Oct. 7, 2020) (per curiam).
[19] Tex. Elec. Code § 83.001(a).
[20] Id. § 83.001(c) (giving the clerk the same duties as a presiding election judge, which are set forth in § 32.071, for early voting).
[21] Id. § 1.010(a).
[22] Texas v. Hollins, No. 20-0729, slip. op. at 8–9, 13 (Tex. Oct. 7, 2020) (per curiam).
[23] Id. at 9–11 (citing Tex. Elec. Code §§ 1.010(b)–(c), 84.012, 84.013).
[24] Id. at 11.
[25] Id. at 11–12.
[26] Id. at 14.
[27] Id.