In re State

• Decision Date: 27 May 2020
• Docket Number: NO. 20-0394,20-0394
• Citation: 602 S.W.3d 549
• Parties: IN RE STATE of Texas
• Court: Texas Supreme Court

602 S.W.3d 549

IN RE STATE of Texas

NO. 20-0394

Supreme Court of Texas.

Argued May 20, 2020

Opinion delivered: May 27, 2020

Bill Davis, Jeffrey C. Mateer, Austin, Natalie D. Thompson, Lanora Pettit, W. Kenneth Paxton Jr., Atty. Gen., Ryan Lee Bangert, Kyle D. Hawkins, for Relator State of Texas.

Kevin Paul McCary, Jo Anne Bernal, El Paso, for Respondent Lisa Wise, in her official capacity as El Paso County Elections Administrator.

Luis V. Saenz, for Respondent Remi Garza, in his official capacity as Cameron County Elections Administrator.

Russell Roden, for Respondent Toni Pippins-Poole, in her official capacity as Dallas County Elections Administrator.

Cynthia W. Veidt, Sharon Kay Talley, David A. Escamilla, Austin, Andrew M. Williams, Houston, Sherine Elizabeth Thomas, Leslie Wood Dippel, for Respondent Dana DeBeauvoir, in her official capacity as Travis County Clerk.

Nirja Sharma Aiyer, Vincent R. Ryan Jr., Douglas P. Ray, Robert Wayne Soard, Houston, Susan Lea Hays, for Respondent Diane Trautman, in her official capacity as Harris County Clerk.

Gary L. Bledsoe, Austin, Nicole Pedersen, Nickolas Spencer, Houston, Barbara A. Radnofsky, for Amici Curiae Bich-May Nguyen, Doctors for America, Mary L. Brandt, Dona Murphey, Joseph Varon, National Medical Association.

Peter D. Kennedy, Marianne Nitsch, P.M. Schenkkan, Austin, Richard Warren Mithoff, for Amici Curiae Ryan Allen, M.D., Norman Chenven, M.D., Texas Physicians for Social Responsibility.

Sean Joseph McCaffity, Dallas, for Amicus Curiae McCaffity for Congress.

Richard Alan ‘Dicky’ Grigg, Austin, K. Scott Brazil, Martin Golando, Chad Wilson Dunn, for Amicus Curiae Texas Democratic Party.

Robert Earl Henneke, Kerrville, for Amicus Curiae Texas Public Policy Foundation.

Amy L. Saberian, Amanda Garrett Taylor, Michael S. Truesdale, Austin, for Amicus Curiae Healthcare Professionals and Institutions.

Phillip Gordon, Dallin Holt, for Amicus Curiae Honest Elections Project.

Joaquin Gonzalez, Austin, Kevin H. Dubose, Houston, Mimi Marziani, Edgar Saldivar, Andre Segura, Rebecca Stevens, Thomas Buser-Clancy, for Amicus Curiae Zachary Price.

Woot Lervisit, pro se, amicus curiae.

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

Under the Texas Election Code, qualified voters are eligible to vote by mail only in five specific circumstances.¹ One is if the voter has a "disability" as defined by statute.² In this original proceeding, amidst the COVID-19 pandemic, and with elections upcoming in July and November, the parties ask us to determine whether a voter's lack of immunity from the disease and concern about contracting it at a polling place is a "disability" within the meaning of the statute.³ Petitioner, the State of Texas, argues that the answer is no and seeks mandamus relief prohibiting respondents, five county clerks and election administrators (the Clerks),⁴ from misinforming the public to the contrary and improperly approving applications for mail-in ballots. The Clerks deny that they have misinterpreted or misapplied the law, either because the State's position is incorrect or because they have taken no position to the contrary.

Limitations on voting by mail have long been a subject of intense political debate, in this State and throughout the country. We, of course, take no side in that debate, which we leave to legislators and others. The question before us is not whether voting by mail is better policy or worse, but what the Legislature has enacted. It is purely a question of law. Our authority and responsibility are to interpret the statutory text and give effect to the Legislature's intent. We agree with the State that a voter's lack of immunity to COVID-19, without more, is not a "disability" as defined by the Election Code. But the State acknowledges that election officials have no responsibility to question or investigate a ballot application that is valid on its face. The decision to apply to vote by mail based on a disability is the voter's, subject to a correct understanding of the statutory definition of "disability". Because we are confident that the Clerks and all election officials will comply with the law in good faith, we deny the State's petition for writ of mandamus.

I

A

The first week of this year, China reported a novel coronavirus in Wuhan, Hubei Province. The first reported case in the United States of COVID-19, the disease caused by the virus, was on January 20 in the State of Washington, and the first reported case in Texas was on March 4 in Fort Bend County.⁵ To date, the Texas Department of State Health Services reports 56,560 confirmed COVID-19 cases in Texas: 36,375 recoveries, 22,446 active cases, and 1,536 fatalities.⁶ Indications are that people who are over 65 years old or that have pre-existing medical conditions are at a higher risk of being very sick from the disease.⁷ In some cases, symptoms are extremely severe, and a sufferer is hospitalized on a ventilator in an ICU for weeks. In others, symptoms are relatively mild and extend only a few days. A person may carry and spread the virus before exhibiting symptoms of the disease.

On March 13, the Governor declared a state of disaster in response to the immediate threat of a COVID-19 pandemic.⁸ Federal, state, and local government orders and advisories closed businesses and other activities and cautioned against leaving home, ignoring personal distancing, and gathering in large groups. The Governor's March 31 order imposed restrictions "to reduce the spread of COVID-19" in Texas.⁹ On April 27, the Governor announced phase one of a plan to reopen Texas businesses and other activities.¹⁰ On May 18, he announced phase two.¹¹ Many are concerned that the reopening is too fast and too soon; for others it is too slow and not soon enough.

There is much uncertainty about the disease and about the future. There are reports that the disease will weaken in the heat of summer, or not; that there may be a second wave later in the year, or not; and that a vaccine could be available as soon as the fall, or not. Some traditional gatherings have been canceled. The Texas Democratic Party has announced that its convention this year will be online. Others are forging ahead. The Republican Party of Texas still plans an in-person convention mid-July.

B

All of this is occurring in an election year.

On March 7, 2020, the Texas Democratic Party (TDP), its Chairman, and two voters sued the Secretary of State and the Travis County Clerk in Travis County District Court seeking a declaration that § 82.002 of the Election Code allows any voter who believes social distancing is necessary to hinder the spread of the virus to obtain a mail-in ballot. Plaintiffs also sought a mandatory injunction requiring defendants to accept and tabulate ballots from voters who applied to vote by mail under the disability provision by virtue of a belief in the necessity of social distancing. TDP nonsuited the Secretary of State, but the State intervened as a defendant and filed a plea to the jurisdiction. Several advocacy groups¹² and an additional voter also intervened as plaintiffs supporting TDP.

On April 17, after a hearing, the trial court issued a temporary injunction declaring

that the plaintiffs were "reasonable to conclude that voting in person while the virus that causes COVID-19 is still in general circulation presents a likelihood of injuring [a voter's] health, and any voters without established immunity meet the plain language definition of disability thereby entitling them to a mailed ballot under Tex. Elec. Code § 82.002.

The court enjoined Travis County from rejecting ballots that claimed a disability due to the presence of COVID-19. The defendants, including the State, were also enjoined from "issuing guidance or otherwise taking actions that would prevent Counties from accepting and tabulating any mail ballots received from voters who apply to vote by mail based on the disability category of eligibility as a result of the COVID-19 pandemic".

The State immediately appealed. Travis County did not.

The Attorney General published a letter addressed to county judges and county election officials explaining: "Based on the plain language of the relevant statutory text, fear of contracting COVID-19 unaccompanied by a qualifying sickness or physical condition does not constitute a disability under the Texas Election Code for purposes of receiving a ballot by mail."¹³ The letter further prescribed that any "third parties" who advised voters to apply for mail-in ballots due to a fear of COVID-19 could be prosecuted under the Election Code. The letter stated that the Travis County court's order was stayed by virtue of the appeal. The letter was accompanied by a press release, stating: "Several county officials throughout the State, including the Harris County judge and clerk, are misleading the public about their ability to vote by mail, telling citizens that in light of COVID-19, anyone can claim a ‘disability’ that makes them eligible for ballot by mail."¹⁴

Appellees responded by filing an emergency motion in the court of appeals, seeking to enforce the trial court's injunction against the State. On May 14, the court of appeals granted the motion and reinstated the temporary injunction. The State filed an emergency mandamus petition in this Court, and we stayed the court of appeals' order pending review of the mandamus petition. The trial court's order remains superseded.

Parallel to this state-court litigation, on April 7, the TDP and three voters also sued state officials, the Travis County Clerk, and the Bexar County Elections Administrator in the United States District Court for the Western District of Texas. TDP alleged that the State's interpretation of the Election Code (1) violates the Twenty-Sixth Amendment as applied, (2) discriminates on the basis of age and race in violation of the Equal Protection...