Abbott v. The Anti-Defamation League Austin, Southwest, and Texoma Regions, 102720 TXSC, 20-0846

Docket Nº20-0846
Opinion JudgePER CURIAM
Party NameGREG ABBOTT, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF TEXAS; AND RUTH HUGHS, IN HER OFFICIAL CAPACITY AS TEXAS SECRETARY OF STATE, PETITIONERS, v. THE ANTI-DEFAMATION LEAGUE AUSTIN, SOUTHWEST, AND TEXOMA REGIONS; COMMON CAUSE TEXAS; AND ROBERT KNETSCH, RESPONDENTS
Judge PanelJustice Guzman, joined by Justice Lehrmann, concurring. Justice Blacklock, concurring.
Case DateOctober 27, 2020
CourtSupreme Court of Texas

GREG ABBOTT, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF TEXAS; AND RUTH HUGHS, IN HER OFFICIAL CAPACITY AS TEXAS SECRETARY OF STATE, PETITIONERS,

v.

THE ANTI-DEFAMATION LEAGUE AUSTIN, SOUTHWEST, AND TEXOMA REGIONS; COMMON CAUSE TEXAS; AND ROBERT KNETSCH, RESPONDENTS

No. 20-0846

Supreme Court of Texas

October 27, 2020

ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS

PER CURIAM

I.

On March 13, 2020, the Governor issued a proclamation under the Texas Disaster Act1certifying that "COVID-19 poses an imminent threat of disaster."2 This triggered several statutory gubernatorial powers, including the power to "suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster."3 Tex. Gov't Code § 418.016(a). Since then, the Governor has issued several proclamations affecting the conduct of the 2020 election. The plaintiffs challenge one such proclamation, by which the Governor altered the statutory requirements for hand-delivery of a mail-in ballot.

By statute, "[a] voter may deliver a marked ballot in person to the early voting clerk's office only while the polls are open on election day." Tex. Elec. Code § 86.006(a-1). On July 27, pursuant to his statutory disaster authority, the Governor issued a proclamation eliminating the statutory restriction on in-person delivery of mail-in ballots prior to election day.4 The July Proclamation also directed that early voting begin on October 13, affording voters six additional days to cast their ballots. Texas law allows only certain voters to apply for a mail-in ballot.5 The July Proclamation gives these voters the option to deliver their mail-in ballots "to the early voting clerk's office." The parties agree that "the early voting clerk's office," as used in the statute, includes not only the main office but satellite offices regularly used in the ordinary course of the early voting clerk's operations.

On October 1, the Governor issued a proclamation restricting delivery of mail-in ballots prior to election day to "a single early voting clerk's office location that is publicly designated by the early voting clerk for the return of marked mail ballots."6 The October Proclamation prohibited county officials from designating multiple mail-in ballot delivery sites prior to election day. It left in place the county officials' ability to offer multiple drop-off sites on election day. The Governor determined that the October Proclamation was "appropriate to add ballot security protocols for when a voter returns a marked mail ballot to the early voting clerk's office."

On October 2, several individuals and organizations challenged the October Proclamation in federal court as impermissibly burdening the right to vote. The United States Court of Appeals for the Fifth Circuit rejected the challenge: After all, the proclamation is part of the Governor's expansion of opportunities to cast an absentee ballot in Texas well beyond the stricter confines of the Election Code. [Under the Code, ] mail ballots could be hand-delivered to the early voting clerk only on Election Day. The Governor's July 27 Proclamation effectively extended that hand-delivery option by forty days, and the impact of the October 1 Proclamation can be measured only against that baseline. To be sure, the proclamation requires a single designated drop-off location per county during the expanded forty-day period. But that represents merely a partial refinement of the bounds of a still-existing expansion of absentee voting opportunities. . . . The July 27 and October 1 Proclamations-which must be read together to make sense-are beyond any doubt measures that make it easier for eligible Texans to vote absentee. How this expansion of voting opportunities burdens anyone's right to vote is a mystery.

Tex. League of United Latin Ams. Citizens v. Hughs, ___ F.3d___, ___, No. 20-50867, 2020 WL 6023310, at *5 (5th Cir. Oct. 12, 2020) (citations and internal quotation marks omitted) (emphasis in original) (hereinafter "LULAC").

On October 5, the plaintiffs7 in this case brought a similar state-court lawsuit seeking to block enforcement of the October Proclamation. The plaintiffs raise three grounds for relief. First, they claim the October Proclamation was an ultra vires act because it exceeds the Governor's authority under the Disaster Act. Second, they claim it infringes the right to vote in violation of Article I, section 3 of the Texas Constitution. Third, they claim it violates Article I, section 3 by disparately burdening voters in large counties. Notably, however, the plaintiffs do not contend the July Proclamation exceeds the Governor's Disaster Act authority; to the contrary, their entire case depends on that proclamation's legal enforceability.

On October 13, the trial court held an evidentiary hearing on the plaintiffs' request for a temporary injunction. On October 15, the court temporarily enjoined the Governor and Secretary of State from "implementing or enforcing" the October Proclamation. The court determined that "[t]he limitation to a single drop-off location for mail ballots would likely needlessly and unreasonably increase risks of exposure to COVID-19 infections, and needlessly and unreasonably substantially burden potential voters' constitutionally protected rights to vote, as a consequence of increased travel and delays, among other things." On October 23, the court of appeals affirmed. No. 03-20-00498-CV, ___ S.W.3d___, 2020 WL 6265526 (Tex. App.-Austin, Oct. 23, 2020, pet. granted) (mem. op.) (per curiam). The same day, the Governor and the Secretary of State filed a petition for review. Given the immediacy of resolving this dispute, we requested an expedited response. We stayed any effect of the court of appeals' judgment. The October Proclamation has remained in effect since the time it issued.

II.

"A temporary injunction is an extraordinary remedy and does not issue as a matter of right." Walling v. Metcalf, 863 S.W.2d 56, 57 (Tex. 1993) (per curiam). The party applying for a temporary injunction "must plead and prove three specific elements: (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." Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). The applicant must establish each element. We employ an abuse of discretion standard to review the trial court's order granting a temporary injunction. Walling, 863 S.W.2d at 58. In resolving evidentiary matters, a trial court does not abuse its discretion "if some evidence reasonably supports the court's ruling." Henry v. Cox, 520 S.W.3d 28, 34 (Tex. 2017). But the court has no "discretion" to incorrectly analyze or apply the law. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (noting "a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion").

Because it is dispositive of this appeal, we consider first whether the plaintiffs have established a probable right to relief. The State also argues that the plaintiffs lack standing. "Because lack of standing deprives the court of subject-matter jurisdiction," we would normally "address the issue first" before resolving the merits of the plaintiffs' claims. BP Am. Prod. Co. v. Laddex, Ltd., 513 S.W.3d 476, 479 (Tex. 2017). When reviewing a temporary injunction, however, we need not resolve the ultimate merits of the plaintiffs' claims in order to determine whether they established a probable right to relief. At this preliminary stage, the plaintiffs must demonstrate both standing to bring their claims and that the claims will probably succeed on the merits in order to establish a probable right to relief. The failure of either showing means a probable right to relief is lacking and a temporary injunction is unavailable. Because we conclude the plaintiffs' claims are likely to fail on their merits, we need not consider at the temporary-injunction stage whether the plaintiffs have standing. Cf. Tex. Alliance for Retired Ams. v. Hughs, No. 20-40645, ___ F.3d___, ___, 2020 WL 5816887, at *2 (5th Cir. Sept. 30, 2020) ("The Secretary's arguments as to standing . . . [and] sovereign immunity . . . are harder to decide on our necessarily expedited review, but we need not reach them because the Secretary has made a strong showing that she is likely to succeed on the merits . . . .").

III.

As an initial matter, we agree with the Fifth Circuit that the July and October Proclamations expand the options otherwise available to voters. The proclamations cannot conceivably be read as more restrictive than the baseline established by the Election Code. The plaintiffs' complaint is that the latter proclamation is more restrictive than the former. But the plaintiffs do not contend the Governor has a constitutional or statutory obligation to expand voting opportunities at all. They argue only that the limitation on a prior expansion of voting options was itself unconstitutionally burdensome. As the Fifth Circuit observed, however, "[t]he July 27 and October 1 Proclamations-which must be read together to make sense-are beyond any doubt measures that make it easier for eligible Texans to vote absentee." LULAC, F.3d at, 2020 WL 6023310, at *5 (internal quotations omitted).

No party contends that voters have a constitutional right to multiple locations at which to hand-deliver their mail-in ballots prior to election day. And no party disputes that the Governor's October Proclamation increases the...

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