Greg Abbott, in His Official Capacity as Governor of Texas And Ruth Hughs, in Her Official Capacity as Texas Secretary of State v. the Anti-Defamation League Austin, Southwest, and Texoma Regions Common Cause Texas And Robert Knetsch ( 2020 )

IN THE SUPREME COURT OF TEXAS
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No. 20-0846
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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
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
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JUSTICE BLACKLOCK, concurring.
A balance must be struck between maximizing the options available to voters and
guaranteeing the integrity of the vote. This case asks which branch of Texas government gets to
strike that balance.
The most obvious answer, of course, is the Texas Legislature. See U.S. CONST. art. I, § 4
(“The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be
prescribed in each State by the Legislature thereof.”).1 In an ideal world, we would look no further
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See also TEX. CONST. art. VI, § 4 (“In all elections by the people, the vote shall be by ballot, and the
Legislature shall provide for the numbering of tickets and make such other regulations as may be necessary to detect
and punish fraud and preserve the purity of the ballot box; and the Legislature shall provide by law for the registration
of all voters.”).
than the Election Code. As recent events vividly demonstrate, however, we do not live in an ideal
world. In response to the coronavirus, the Governor has asserted the authority, pursuant to Chapter
418 of the Government Code, to suspend provisions of the Election Code when, in his view, “strict
compliance with the provisions . . . would in any way prevent, hinder, or delay necessary action in
coping with [the virus.]”2
The validity of the Governor’s asserted authority to temporarily alter election laws in
response to the virus is not at issue here. Both sides in this case agree that the Governor can
suspend election laws using his Chapter 418 authority. Neither side argues for a return to the rules
dictated by the Legislature. Thus, the question before the Court is whether the Governor or a
district court will decide how to balance the often-competing values of voter access and ballot
integrity. The choice is binary. Either the balance will be struck by the Governor of the State
acting pursuant to a legislative grant of authority, or it will be struck by a district court acting on
the advice of plaintiffs who disagree with the Governor’s judgment.
The correct answer is clear. Although the plaintiffs, their witnesses, and many observers
may disagree with the Governor’s decisions, they were not elected by the people of Texas and
charged by statute with balancing competing policy goals during a pandemic. The judiciary is not
empowered to second-guess the policy judgments of the other branches of government under the
guise of constitutional law.
By affording little deference to the Governor’s policy judgments and instead soliciting the
opposing views of the plaintiffs’ expert witnesses, the proceedings below improperly elevated
2
The Governor of the State of Texas, Proclamation No. 41-3752, 45 Tex. Reg. 5449, 5457 (2020); see also
TEX. GOV’T CODE § 418.016(a).
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judicial “factfinding” above the democratic process. The People elect legislative and executive
branch officials—not judges or “experts”—to make judgments about the costs and benefits of
government action and to balance competing policy goals in light of those judgments.3 If the
Governor believes a slight pullback on his prior expansion of voters’ options is necessary to ensure
the integrity of the election, it makes no difference whether the plaintiffs’ expert witnesses, the
trial court, or the court of appeals disagree with him. The judicial branch’s only role here is to
require compliance with the Constitution, and not even the plaintiffs contend they have a
constitutional right to hand-deliver a mail-in ballot to one of many drop-off locations in each
county. “[J]udges do not possess special expertise or competence about how best to balance the
costs and benefits of potential policy responses to the pandemic, including with respect to
elections.” Dem. Nat'l Comm. v. Wis. State Leg., No. 20A66, 2020 WL 6275871, at *4 (U.S. Oct.
26, 2020) (Kavanaugh, J., concurring in denial of application to vacate stay). “When state and
local officials ‘undertake[] to act in areas fraught with medical and scientific uncertainties, their
latitude must be especially broad.’” Id. (quoting Andino v. Middleton, No. 20A55, 2020 WL
5887393, at *1 (U.S. Oct. 5, 2020) (Kavanaugh, J. concurring in grant of application for stay)).
The plaintiffs contend that their constitutional rights have been “burdened.” But again,
they do not argue that the Texas Constitution requires the Governor to allow multiple mail-in ballot
drop-off locations in each county prior to election day. Instead, they contend that the Governor’s
decision to limit drop-off locations—which still represents an overall expansion of voters’ options
relative to the rules established by the Legislature—must be subjected to a constitutional
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In Texas, of course, judges are also elected. But they are elected to exercise “the judicial power,” TEX.
CONST. art. V, § 1, which does not include the power to make policy for the State or to second-guess the policy choices
of elected officials in the other branches.
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“balancing test” derived from federal case law. See generally Anderson v. Celebrezze, 460 U.S.
780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992).4 This balancing test, the plaintiffs contend,
requires the trial court to take testimony and to find “facts,” such as whether the fraud the Governor
fears will actually come to pass, or whether the Governor’s order will actually promote ballot
integrity. The appellate court, presumably, would be expected to defer to the trial court’s
“factfindings” about whether the Governor’s order will achieve its objectives or whether other
courses of action would make more sense in a pandemic.
This is not how the judiciary should operate unless we are ready to throw in the towel on
the separation of powers and accede to judicial supremacy. The “facts” at issue in this case are
not typical adjudicative facts. They are not the “Who did what and when?” of this case. All agree
on those facts. Instead, many of the “facts” at issue here involve predictive judgments about the
consequences of various possible courses of government action. Such questions are “intractable
to typical judicial processes of decisionmaking.” United States v. Windsor, 570 U.S. 744, 815 n.7
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The plaintiffs’ claims arise under the Texas Constitution. “In interpreting [the Texas] constitution, this
state’s courts should be neither unduly active nor deferential; rather, . . . Texas should borrow from well-reasoned
and persuasive federal procedural and substantive precedent when this is deemed helpful, but should never feel
compelled to parrot the federal judiciary.” Davenport v. Garcia, 834 S.W.2d 4, 20 (Tex. 1992). Although this Court
is under no obligation to apply federal case law to voting rights claims raised under the Texas Constitution, I do not
object to the Court’s doing so here because neither party argued otherwise. The parties no doubt felt compelled by
this Court’s precedent, which identifies a “right to vote” in Texas’s equal protection clause, art. I, § 3, and applies
federal voting-rights case law to voting-rights claims raised under the Texas Constitution. See State v. Hodges, 92
S.W.3d 489, 496, 501–02 (Tex. 2002). There is little need, however, to search for a right to vote in Texas’s equal
protection clause when our Constitution explicitly recognizes a right to vote: “Every person subject to none of the
disqualifications provided by Section 1 of this article or by a law enacted under that section who is a citizen of the
United States and who is a resident of this State shall be deemed a qualified voter.” TEX. CONST. art. VI, § 2(a).
Another provision of the Texas Constitution, which neither party raises, seems especially pertinent to this case: “In
all elections by the people, the vote shall be by ballot, and the Legislature shall . . . make such other regulations
as may be necessary to detect and punish fraud and preserve the purity of the ballot box.” Id. § 4 (emphasis
added). The Texas Constitution thus has plenty to say about voting rights, and I see little reason to default to federal
judicial standards when resolving voting-rights claims raised under the state constitution. Perhaps future cases will
afford the opportunity to apply the actual words of the Texas Constitution to voting-rights claims, instead of applying
federal case law derived from federal constitutional text that does not appear in our state constitution.
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(2013) (Alito, J., dissenting). Answering questions like these is the essence of policymaking,
and—unless constitutional rights have been denied—it is the exclusive purview of the other
branches of government, not the proper subject of courtroom factfinding. Only if strict scrutiny
applies, under which courts presume government action invalid because it violates constitutional
rights, do courts have any business subjecting the judgments of the other branches to an evidentiary
trial.
Perhaps much of the blame lies with this Court’s previous adoption of the Anderson-
Burdick “flexible standard” for deciding voting-rights claims, borrowed from the U.S. Supreme
Court. Burdick, 504 U.S. at 434. Such “balancing tests” often invite courts to engage in open-
ended cost-benefit analysis with no objective guideposts, which is a quintessentially legislative
way of making decisions. See McDonald v. City of Chi., 561 U.S. 742, 795 (2010) (Scalia, J.,
concurring) (“The ability of omnidirectional guideposts to constrain is inversely proportional to
their number.”). Justice Scalia warned as much over three decades ago: “A government of laws
means a government of rules,” the antithesis of which is “the ‘totality of the circumstances’ mode
of analysis” that characterizes tests like Anderson-Burdick balancing. Morrison v. Olson, 487 U.S.
654, 733 (1988) (dissenting opinion). A judge applying such a test can become indistinguishable
from a policymaker, for nothing in the test “stop[s] [him] from arriving at any conclusion he sets
out to reach.” McDonald, 561 U.S. at 795 (Scalia, J., concurring).
The judiciary should strive to avoid casting itself in this role. Ours is only “[t]he judicial
power of this State.” TEX. CONST. art. II, § 1 (emphasis added). The executive and legislative
powers belong to others. Those who disagree with the policy judgments of the other branches
generally have their recourse in politics, not lawsuits.
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I join the Court’s opinion and respectfully concur.
____________________________________
James D. Blacklock
Justice
OPINION DELIVERED: October 27, 2020
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