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May 14

May 14, 2020 TML Coronavirus Update #44

Posted on May 14, 2020 at 5:30 PM by TML Staff

Urgent Updates


Have additional Texas cities been sued based on their enforcement of the governor’s orders?


Yes. In two separate federal court lawsuits, a “strip club” and a softball/volleyball complex sued the City of Houston for enforcement of the governor’s order. You read that right: A city is being sued for locally enforcing the governor’s (not the city’s) order. 


The judge in the sports complex case granted the owner's temporary restraining order, which prevents the city from enforcing the governor’s order. The court will hold a hearing on the preliminary injunction on June 26th.


In the other case, the strip club claimed to be operating as a restaurant that provides “additional entertainment (i.e., dancers confined to stages throughout the establishment).” The court denied the club’s request for an injunction because, in spite of also serving food, the strip club was still operating as a “sexually-oriented business” in violation of the governor’s orders. In the denial, the judge stated:


“The series of orders issued by the Governor, together with the fact that his top law enforcement officer unethically rebuked some of those orders, has caused a state of confusion that rests clearly on the Governor’s doorstep. The orders of the Governor raise serious First Amendment and equal protection issues, however, the Plaintiff has chosen in this action to raise only First Amendment, Fourth Amendment, and due process claims related to the City of Houston’s enforcement of those various orders. The Court will accordingly only address the Plaintiff’s claims against the City of Houston…


[T]he Court feels compelled to point out the constitutional problems raised by the Governor’s various orders. The fact that the Governor has now apparently decided that jail time is too harsh a penalty for a violation of his orders is little comfort, as even that action seems to have been motivated by the impact of his order on a single violator, Dallas salon owner Shelley Luther, leaving many business owners unsure, even now, if the orders would be equally applied to them. This uncertainty is exacerbated by the fact that Texas Lt. Governor Dan Patrick has now chosen to pay the fine owed by Shelley Luther.”


The League will monitor and report on the cases as information becomes available.


What’s the latest update regarding voting by mail during the Coronavirus epidemic?


The attorney general issued the following press release yesterday (May 13):


AG Paxton Asks Texas Supreme Court to Order Election Officials Who Urged Voters to Submit Unlawful Mail-in Ballot Applications to Follow Texas Law:  


Attorney General Ken Paxton?today?filed a petition with the Texas Supreme Court, requesting that the court compel the early-voting clerks for Dallas, Cameron, El Paso, Harris and Travis Counties to follow Texas law on mail-in ballots. Texas law generally requires in-person voting, and allows mail balloting for certain limited groups, including those who are disabled. In violation of that requirement, officials in those counties are encouraging voters without actual disabilities to claim “disability” on their mail-in ballot applications. 


‘Each misapplication of Texas election law damages the integrity of our elections and increases the risk of voter fraud. In-person voting is the surest way to prevent voter fraud and guarantee that every voter is who they claim to be and has a fair opportunity to cast their vote,’ said Attorney General Paxton. ‘It is unfortunate that certain county election officials have refused to perform their duties and have instead unlawfully gone beyond the Legislature’s determination of who is eligible to vote by mail. My office will continue to defend the integrity of Texas’s election laws.’ 


‘Disability,’ as that term is used in the Texas Election Code’s provisions allowing voting by mail, means a ‘sickness or physical condition’ that prevents a voter from voting in person on election day without a likelihood of needing personal assistance or of injuring the voter’s health. A voter ill with COVID-19 and who meets those requirements may apply for a ballot by mail. Fear of contracting COVID-19, however, is a non-physical reaction to the current pandemic and does not amount to a sickness or physical condition that qualifies a voter to receive a ballot by mail.”


The above is reprinted verbatim from the attorney general’s press release, and it isn’t necessarily a statement of the law as confirmed by an appellate court. Here’s how we got to this point:    


-A district court judge ordered a temporary injunction preventing the Travis County clerk from rejecting any mail ballot applications received from registered voters who use the disability category of eligibility as a result of the COVID-19 pandemic as the justification for submitting the application.

-The attorney general immediately appealed the judge’s order, in addition to issuing a memo to county election officials emphasizing that the order has no effect during the appeal.

-The case was subsequently transferred from the Austin court of appeals to the 14th Court of Appeals in Houston, and the attorney general filed a brief with the court of appeals arguing that the judge’s order represented an unlawful expansion of mail-in voting.

-In addition to the state lawsuits above, the Texas Democratic Party filed a lawsuit in federal court last April arguing that interpreting existing state statute to limit voting by mail violates federal law and the United States Constitution.

-Also, a group of voters and civil rights groups filed a new lawsuit in federal district court in San Antonio. -The plaintiffs’ complaint for injunctive relief alleges that certain existing state statutes governing the procedure for voting by mail are unconstitutional.

-The governor issued a proclamation that doubled the length of the early voting period for the upcoming July 14 primary runoff election, which is the first statewide election to be conducted during the pandemic.


That brings us to yesterday and to the new attorney general lawsuit, filed directly with the Texas Supreme Court to bypass the typical judicial process, which is the subject of the press release above.


The League will continue to report on these developing cases. (Please note that the state court systems’ website was hacked and is currently unavailable, which means finding court filings is difficult and some links may be temporarily disabled.)


Further Updates


Where can I find archived issues of the TML Coronavirus Updates?


TML Coronavirus Updates are archived by date here and by subject here.