In re Hotze

• Citation: 627 S.W.3d 642
• Decision Date: 07 October 2020
• Docket Number: No. 20-0739,20-0739
• Court: Supreme Court of Texas
• Parties: IN RE Steven HOTZE, M.D., Hon. Allen West, Republican Party of Texas, Hon. Sid Miller, Hon. Mark Henry, Hon. Charles Perry, Hon. Pat Fallon, Hon. Bill Zedler, Hon. Cecil Bell, Jr., Hon. Steve Toth, Hon. Dan Flynn, Hon. Matt Rinaldi, Hon. Rick Green, Hon. Molly White, Harris County Republican Party/hon. Keith Nielsen, Hon. Bryan Slaton, Hon. Robin Armstrong, M.D., Jim Graham, Hon. Cathie Adams, Hon. Joann Fleming, Julie Mccarty, Sharon Hemphill, and Al Hartman, Relators

627 S.W.3d 642

IN RE Steven HOTZE, M.D., Hon. Allen West, Republican Party of Texas, Hon. Sid Miller, Hon. Mark Henry, Hon. Charles Perry, Hon. Pat Fallon, Hon. Bill Zedler, Hon. Cecil Bell, Jr., Hon. Steve Toth, Hon. Dan Flynn, Hon. Matt Rinaldi, Hon. Rick Green, Hon. Molly White, Harris County Republican Party/hon. Keith Nielsen, Hon. Bryan Slaton, Hon. Robin Armstrong, M.D., Jim Graham, Hon. Cathie Adams, Hon. Joann Fleming, Julie Mccarty, Sharon Hemphill, and Al Hartman, Relators

No. 20-0739

Supreme Court of Texas.

Opinion delivered: October 7, 2020

Jared R. Woodfill, for Relators.

Lanora Pettit, Ryan Lee Bangert, Jeffrey C. Mateer, Kyle D. Hawkins, Natalie D. Thompson, Christopher "Beau" Carter, Atty. Gen. W. Kenneth Paxton Jr., for Respondent.

P. M. Schenkkan, Sherine Elizabeth Thomas, Cynthia W. Veidt, David A. Escamilla, Leslie Wood Dippel, Susan Lea Hays, Seth B. Hopkins, Vincent R. Ryan Jr., Justin Pfeiffer, for Amicus Curiae.

Chief Justice Hecht delivered the opinion of the Court, in which Justice Guzman, Justice Lehrmann, Justice Boyd, Justice Blacklock, Justice Busby, and Justice Bland joined.

Nathan L. Hecht, Chief Justice

Governor Abbott issued a proclamation on March 13, 2020,¹ certifying under the Texas Disaster Act of 1975² ("the Act") that the novel coronavirus COVID-19 poses an imminent threat of disaster in all Texas counties.³ On July 27, the Governor issued another proclamation,⁴ again citing the Act, suspending two provisions of the Texas Election Code as they relate to the general election on November 3. One provision states that "early voting by personal appearance begins on the 17th day before election day"⁵ —this year, October 19. The other provision requires that a voter "deliver a marked ballot in person to the early voting clerk's office only while the polls are open on election day."⁶ Under the July 27 proclamation, early voting by personal appearance begins six days earlier, on October 13, and early voting ballots may be delivered to the clerk's office "prior to and including on election day."⁷

On September 23, relators, including the Republican Party of Texas, voters, candidates, and current and former state officials,⁸ initiated an original proceeding in this Court, seeking a writ of mandamus⁹ directing the Texas Secretary of State to conduct the November 3 general election according to the statutory provisions suspended by the Governor's July 27 proclamation. Relators argue that the proclamation was not authorized by the Act, or if it was, that the Act violates Article I, Sections 19¹⁰ and 28 ¹¹ of the Texas Constitution. The State responds that relators have not identified a justiciable interest and therefore lack standing; that the Secretary of State has no power to enforce the two statutory provisions at issue, let alone a ministerial duty that could be compelled by mandamus; that the Act is not unconstitutional; and that relators have delayed too long since the Governor issued the proclamation to seek mandamus relief.

The Governor has repeatedly asserted his authority under the Act to modify election procedures beginning shortly after his March 13 disaster proclamation. On March 18, he suspended sections of the Election Code and Water Code to allow political subdivisions with elections scheduled for May 2 to move them to November 3 and required county election officials to furnish service as requested.¹² Two days later, the Governor suspended sections of the Election Code to postpone the primary runoff election from May 26 to July 14.¹³ On May 11, he suspended provisions of the Election Code to extend the statutory early voting period for the July 14 runoff election from 10 days to 17 days.¹⁴ Later in May, he publicly announced his intention to extend the early voting period for the November election.¹⁵ He followed through by issuing the July 27 proclamation. The same day, in accordance with the Governor's directive, the Secretary of State emailed a copy of the proclamation to election officials, explaining that early voting would begin on October 13 and that voters would be allowed to hand-deliver their marked mail ballots to the early voting clerk's office before election day. All the Governor's actions were widely publicized. And his proclamations have not focused on elections alone. The Governor has issued a long series of proclamations invoking the Act as authority to address the impact of the COVID-19 pandemic on a wide range of activities in the State.

Relators delayed in challenging the Governor's July 27 proclamation for more than ten weeks after it was issued. They have not sought relief first in the lower courts that would have allowed a careful, thorough consideration of their arguments regarding the Act's scope and constitutionality. Those arguments affect not only the impending election process but also implicate the Governor's authority under the Act for the many other actions he has taken over the past six months. Relators' delay precludes the consideration their claims require.

The dissent argues that relators acted diligently because they filed their petition in this Court four days after they received an email confirming that the Harris County Clerk intended to comply with the Governor's July 27 proclamation. But relators' challenge is to the validity of the proclamation, not the Clerk's compliance.¹⁶ Relators could have asserted their challenge at any time in the past ten weeks. The dissent also argues that the Court has granted relief after similar delays. But none of the cases the dissent cites bears out its argument.¹⁷

Moreover, the election is already underway. The Harris County Clerk has represented to the Court that his office would accept mailed-in ballots beginning September 24. To disrupt the long-planned election procedures as relators would have us do would threaten voter confusion.

The United States Supreme Court has repeatedly warned against judicial interference in an election that is imminent or ongoing.¹⁸ "[C]ourt changes of election laws close in time to the election are strongly disfavored."¹⁹

Mandamus is an "extraordinary" remedy that is "available only in limited circumstances."²⁰ When the record fails to show that petitioners have acted diligently to protect their rights, relief by mandamus is not available.²¹ The record here reflects no justification for relators' lengthy delay.

Accordingly, relators' petition for writ of mandamus is denied.

Justice Blacklock filed a concurring opinion, in which Justice Busby joined except as to part I.C.

Justice Devine filed a dissenting opinion.

Justice Blacklock, joined by Justice Busby except as to Part I.C., concurring in the denial of the petition for writ of mandamus.

"Jurisdiction is the power to decide." Martin v. Sheppard , 201 S.W.2d 810, 813 (Tex. 1947). Limitations on this Court's jurisdiction are a "constitutional curb on judicial power" and restrict "our very authority to decide cases in the first place." In re Allcat Claims Serv., L.P. , 356 S.W.3d 455, 474 (Tex. 2011) (Wiled, J., dissenting). The petitioners raise important questions about the constitutionality of government action during the coronavirus crisis, but their petition does not successfully invoke the Court's jurisdiction. This Court can no more decide cases without jurisdiction than it can enact statutes or amend the Constitution.

Without jurisdiction, this Court is prohibited from deciding the petitioners' claims by the very separation-of-powers principles the petitioners invoke. Tex. Ass'n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 444 (Tex. 1993) ("One limit on courts' jurisdiction under both the state and federal constitutions is the separation of powers doctrine."). The petition asks the Court to say whether another branch of government has exceeded its constitutional authority. The irony, of course, is that by answering that question without jurisdiction, we would be exceeding our own constitutional authority. A court that carelessly exceeds the constitutional boundaries on its own power can hardly claim the authority to determine whether another co-equal branch of government has done the same. "Just as other government officials must not exceed their rightful power in extraordinary circumstances, this Court also must not do so." In re Salon a la Mode , ––– S.W.3d ––––, ––––, 2020 WL 2125844 (Tex. 2020) (Blacklock, J., concurring).

I.

The Court lacks jurisdiction for several reasons. To begin with, there are multiple deficiencies in the petitioners' standing. "Standing is a constitutional prerequisite to maintaining suit." Williams v. Lara , 52 S.W.3d 171, 178 (Tex. 2001). It requires "a concrete injury to the plaintiff and a real controversy between the parties that will be resolved by the court." Heckman v. Williamson Cty. , 369 S.W.3d 137, 154 (Tex. 2012). Texas has adopted the federal courts' standing doctrine into our rules for the constitutional jurisdiction of state courts. Id. To maintain standing, petitioners must show: (1) an "injury in fact" that is both "concrete and particularized" and "actual or imminent"; (2) that the injury is "fairly traceable" to the defendant's challenged actions; and (3) that it is " ‘likely,’ as opposed to merely ‘speculative,’ and that the injury will be ‘redressed by a favorable decision.’ " Id. at 154–55 (quoting Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). These elements make up the "irreducible constitutional minimum of standing," and must all be present. Lujan , 504 U.S. at 559, 112 S.Ct. 2130. Because deciding cases without jurisdiction would exceed the judicial branch's authority, the standing inquiry must be especially rigorous where the suit "seek[s] to correct an alleged violation of the separation of powers" by another branch of government. In re Abbott , 601 S.W.3d 802, 809 (Tex. 2020).

A.

First, the petitioners have sued the Secretary of State, but the injury they claim is not "fairly traceable" to her actions. Pet...