Greg Abbott, in His Official Capacity as the 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 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-20-00498-CV
Greg Abbott, in his Official Capacity as the Governor of Texas; and Ruth Hughs, in her
Official Capacity as Texas Secretary of State, Appellants
v.
The Anti-Defamation League Austin, Southwest, and Texoma Regions; Common Cause
Texas; and Robert Knetsch, Appellees
FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-20-005550, THE HONORABLE TIM SULAK, JUDGE PRESIDING
MEMORANDUM OPINION
PER CURIAM
In this accelerated appeal, Greg Abbott, in his official capacity as the Governor of
Texas, and Ruth Hughs, in her official capacity as the Texas Secretary of State, (collectively the
State Officials) appeal the trial court’s interlocutory order that denied their respective pleas to the
jurisdiction and granted temporary injunctive relief. For the following reasons, we affirm the
trial court’s order.1
1
On October 19, the notice of appeal was filed, and appellees filed an unopposed motion
for expedited consideration. In response, we requested an expedited schedule for briefing, and
the appeal has proceeded in an expedited manner. See Tex. R. App. P. 2 (authorizing appellate
court to suspend rule’s operation to expedite decision or for other good cause).
BACKGROUND
“The secretary of state is the chief election officer of the state.” Tex. Elec. Code
§ 31.001; see, e.g., id. § 31.004(a) (“The secretary of state shall assist and advise all election
authorities with regard to the application, operation, and interpretation of this code and of the
election laws outside this code.”). Local election officials, however, are designated as the
officials “in charge of and responsible for the management and conduct of the election” in the
election precinct that they serve. Id. § 32.071 (“The presiding judge is in charge of and
responsible for the management and conduct of the election at the polling place of the election
precinct that the judge serves.”); see id. § 32.031(a) (requiring presiding judge for each election
precinct to appoint election clerks to assist in conducting election). And the early voting clerks,
who are the county clerks for general elections, are the officials who are responsible for
managing and conducting early voting. Id. §§ 83.001(c) (stating that early voting clerk generally
“has the same duties and authority with respect to early voting as a presiding election judge has
with respect to regular voting”), .002(1) (stating that county clerk is early voting clerk for county
in general election).
To vote early by mail, a registered voter must meet specific eligibility
requirements, see id. §§ 82.001–.004 (providing eligibility requirements), and comply with other
provisions, such as applying for the ballot, see id. § 84.001, and returning the marked ballot to
the early voting clerk in the official carrier envelope, see id. § 86.006(a). Among the voter’s
options for returning the ballot to the early voting clerk is delivering it “in person to the early
voting clerk’s office [but] only while the polls are open on election day.” Id. § 86.006(a-1). The
parties agree that when the early voting clerk is the county clerk, the “early voting clerk’s office”
2
includes the clerk’s main and satellite offices. See Tex. Gov’t Code § 311.012(b) (stating that
singular includes plural).
On March 13, 2020, the Governor issued a proclamation certifying that
“COVID-19 poses an imminent threat of disaster” in this state and declaring “a state of disaster
for all counties in Texas.” See id. § 418.014(a) (“The governor by executive order or
proclamation may declare a state of disaster if the governor finds a disaster has occurred.”). He
has renewed the disaster declaration monthly, see id. § 418.014(c) (requiring governor to renew
state of disaster every thirty days), and issued subsequent proclamations addressing the disaster.
On July 27, the Governor issued a proclamation because of the COVID-19 pandemic to “ensure
that elections proceed efficiently and safely when Texans go to the polls.” Relevant here, the
Governor “suspend[ed] Section 86.006(a-1) of the Texas Election Code, for any election ordered
or authorized to occur on November 3, 2020, to the extent necessary to allow a voter to deliver a
marked mail ballot in person to the early voting clerk’s office prior to and including on election
day.” As support for the partial suspension of this statutory provision, the Governor cited his
powers under the Texas Disaster Act of 1975, expressly citing sections 418.014 and 418.016, see
id. §§ 418.014, .016(a) (“The governor may 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.”); see also id. § 418.011 (stating that governor is
responsible for meeting dangers to state and people presented by disaster). The Governor also
found, in “consultation” with the Secretary, that for the November 3 election, “strict compliance
with the statutory requirements” in section 86.006(a-1) “would prevent, hinder, or delay
necessary action in coping with the COVID-19 disaster.”
3
The Governor’s July 27 Proclamation was challenged by a petition for writ of
mandamus filed directly with the Texas Supreme Court on September 23. See generally In re
Hotze, __ S.W.3d __, No. 20-0739, 2020 Tex. LEXIS 927 (Tex. Oct. 7, 2020) (orig. proceeding).
The Texas Supreme Court denied the petition, explaining that the relators’ delay in bringing the
challenge precluded consideration of their claims. Id. at *4. The Court observed that “the
election [was] already underway,” that the “Harris County Clerk has represented to the Court
that his office would accept mailed-in ballots beginning September 24,” and that “[t]o disrupt the
long-planned election procedures as relators would have us do would threaten voter confusion.”
Id. Neither party in this case has challenged the July 27 Proclamation. Thus, for purposes of this
appeal, it has “the force and effect of law.” See Tex. Gov’t Code § 418.012 (authorizing
governor to issue proclamations that have “the force and effect of law”).
After several Texas counties, including Harris and Travis, announced their
intentions to have multiple ballot return locations in their counties, and shortly before the Texas
Supreme Court’s disposition of the In re Hotze original proceeding declining to overturn the July
27 Proclamation, see 2020 Tex. LEXIS 927, at *4, the Governor issued a proclamation on
October 1 that amended the July 27 Proclamation to require the early voting clerk to designate a
single location for returning a mail ballot beginning on October 2, as follows:
I further suspend Section 86.006(a-1) of the Texas Election Code, for any election
ordered or authorized to occur on November 3, 2020, to the extent necessary to
allow a voter to deliver a marked mail ballot in person to the early voting clerk’s
office prior to and including on election day; provided, however, that beginning
on October 2, 2020, this suspension applies only when:
4
(1) the voter delivers the marked mail ballot at a single early voting clerk’s office
location that is publicly designated by the early voting clerk for the return of
marked mail ballots under Section 86.006(a-1) and this suspension . . . .2
Included in this amendment, the Governor declared that “an amendment to the suspension of the
limitation on the in-person delivery of marked mail ballots, as made in the July 27 proclamation,
is appropriate to add ballot security protocols for when a voter returns a marked mail ballot to the
early voting clerk’s office” and also cited provisions of the Texas Disaster Act, including
sections 418.011, 418.012, 418.016 and 418.018(c). See Tex. Gov’t Code §§ 418.011, .012,
.016(a), .018(c) (“The governor may control ingress and egress to and from a disaster area and
the movement of persons and the occupancy of premises in the area.”); see also id. § 418.012
(authorizing governor to amend proclamations issued under chapter).
On October 5, the Anti-Defamation League Austin, Southwest, and Texoma
Regions; Common Cause Texas; and Robert Knetsch sued the Governor, seeking declaratory and
injunctive relief from the October 1 Proclamation.3 They sought declarations that “Texas law,
including Texas Election Code § 86.006(a-1), does not limit the number or locations of early
voting drop-off sites that the statutory Early Voting Clerks may provide to the voters of their
respective counties” and that the October 1 Proclamation was “an unconstitutional infringement
of equal protection and voting rights as protected by Article 1, Section 3 of the Texas
Constitution.” They further sought temporary and permanent injunctive relief to enjoin “the
2
The October 1 Proclamation also requires the early voting clerk to allow “poll watchers
the opportunity to observe any activity conducted at the early voting clerk’s office location
related to the in-person delivery of a marked mail ballot,” but this requirement has not
been challenged.
3
The amendment in the October 1 Proclamation at issue here also has been challenged in
the federal courts. See generally Texas League of United Latin Am. Citizens v. Hughs,
No. 20-50867, 2020 U.S. App. LEXIS 32211 (5th Cir. Oct. 12, 2020).
5
enforcement of [the Governor]’s proclamation forcing the statutory Early Voting Clerks to
operate only one drop-off location for vote-by-mail ballots.” Appellees attached exhibits to their
petition, including the Attorney General’s September 30 letter with attachments that was filed
with the Texas Supreme Court in In re Hotze. In that letter, the Attorney General represented to
the Texas Supreme Court that “office,” as used in section 86.006(a-1) of the Election Code,
includes its plural, “offices,” and that “the Secretary of State has advised local officials that the
Legislature has permitted ballots to be returned to any early-voting clerk office.” One of the
attachments to the letter was an August 26 email sent from the Secretary of State’s office that
confirmed: “Because the hand-delivery process can occur at the early voting clerk’s office, this
may include satellite offices of the early voting clerk.”
The Governor answered and filed a plea to the jurisdiction, and appellees filed an
amended petition that added the Secretary as a defendant. On October 13, the trial court held a
remote hearing on appellees’ request for temporary injunctive relief and the State Officials’ pleas
to the jurisdiction. The Secretary waived service during the hearing and subsequently filed her
plea to the jurisdiction. Appellees’ witnesses during the hearing were the Executive Director of
Common Cause Texas; one of Common Cause Texas’s members; a Vice President of the
Anti-Defamation League’s Central Division; Knetsch, a registered voter in Harris County over
the age of 65; Thomas Randall Smith, a registered voter in Harris County over the age of 65 with
compromised health; and experts Edgardo Cortés, Dr. Krutika Kuppalli, Stephen Vladeck, and
Dr. Daniel Chatman. The exhibits included the experts’ respective reports. The State Officials’
sole witness was Keith Ingram, the Director of the Elections Division for the Secretary.
Cortés testified about ballot security, describing the security measures in place at
the early voting clerks’ offices, the necessity of providing additional methods for voters to return
6
mail ballots in person in light of the COVID-19 pandemic, and the reasons behind his opinion
that the security measures in place in Travis and Harris Counties were adequate to protect the
integrity of the electoral process at their return locations for mail ballots. He explained that the
mail ballots are logged and placed in secured and sealed ballot containers by a bipartisan team.
He further testified that limiting the return of the mail ballots to one drop-off location would be a
“barrier” to voting and explained his reasoning for his opinion.4
Kuppalli, an assistant professor in the field of infectious disease, testified that
COVID-19 is a concern in Texas and that increased concentrations of people that leads them to
be closer together facilitates the transmission of COVID-19 and will exacerbate the COVID-19
crisis. She testified: “We know that decreasing the number of individuals that have to stand in
line and the density of individuals congregating in general reduces the risk of COVID-19
transmission.” In her report, she further stated: “Changing the rules for voting one month prior
to election day serves to not only disenfranchise voters but will cause individuals to
unnecessarily place themselves at risk for COVID-19.” Vladeck, a law professor, testified as an
expert on the Texas Disaster Act and its relation to the Model Emergency Health Powers Act
4
He testified to the reasons behind his opinion as follows:
The—the geographical size of the counties in Texas is pretty substantial. And so,
for a voter to reach one of—if there’s only a single location, it may be quite
extraordinary effort on the part of the voter to figure out a means to get
transportation to the site to drop off. In addition to that, if you are funneling
voters into one just location for in-person drop-off, because of the way the
processes and procedures work, especially with the logging and provision of
photo I.D., you could have a situation where you then are creating a line at the
singular drop-off location; and so people will have to wait in line in close
proximity to others, which, in many cases in this pandemic situation, is a main
driver for people that are eligible to vote absentee, so as not to have that level
of exposure.
The State Officials did not offer contradicting evidence.
7
(MEHPA). He was not aware of another example where ballot security was offered as the
specific reason for a measure tied to a state disaster act that is “largely derived” from the
MEHPA. In his opinion, section 418.016 requires a relationship between the underlying
emergency and the suspension and the challenged portion of the October 1 Proclamation
“lack[ed] such a connection to the underlying disaster.”
Chatman provided analysis concerning the increased travel burden and length of
lines at the ballot return locations that are permitted under the October 1 Proclamation. It was
his opinion that the reduction of return locations had a disparate impact on minority
communities.5 Smith also testified about his specific travel and health problems and that the
October 1 Proclamation had made it harder for him to vote. His travel time increased from five
minutes to drop off his ballot to having to drive for forty-five minutes, and he testified that he
“can’t drive for 45 minutes.”
5
For example, based on his study, Chatman determined that there was a 90-minute travel
burden for some absentee eligible voters and that this burden on a statewide basis had a disparate
impact among African Americans and Hispanics. He testified:
I looked at the major race ethnicity groups in the state to determine whether or not
there was a disparate impact among African Americans and Hispanics. And what
I found was that, indeed, African Americans, due to the fact that they were less
likely to have auto access in the household, were also twice as likely as whites,
who are also eligible for an absentee ballot, to have a roundtrip exceeding 90
minutes. So there was around 14 and a half percent for African Americans
compared to around 7 percent for whites. The multiplier for Hispanics was not
quite as stark, but it was 24 percent higher than whites.
He further testified that it varied by counties, providing specific examples, such as in Harris
County, “African Americans are 1.5 times as likely to have a travel burden exceeding
90 minutes; whereas, Hispanics are 90 percent as likely, so probably within statistical bounds of
being roughly the same as whites.” The State Officials did not offer contradicting evidence.
8
On behalf of the State Officials, Ingram testified that the October 1 Proclamation
did not affect election day; that “[i]n the July 14th primary runoff, Harris County used its annex
offices as hand-delivery locations on election day”; that this use was “within the language of the
statute”; and that, on the general election day, “early voting clerk’s office” as used in section
86.006(a-1) includes the county clerks’ satellite offices and that mail ballots returned to the
satellite offices on election day “should be” counted. He explained that they “have continued
with our interpretation that Early Voting Clerk’s office includes offices of the County Clerk in
the county.” He also agreed from his perspective that “security was capable of being covered at
the satellite offices” during the early voting period because, among other reasons, poll watchers
were allowed to observe the process at each location under the October 1 Proclamation. The
State Officials, however, did not present evidence to contradict appellees’ evidence about the
COVID-19 pandemic.
On October 15, the trial court signed the order denying the State Officials’
respective pleas to the jurisdiction and granting temporary injunctive relief as follows:
Plaintiffs’ Application for Temporary Injunction is GRANTED, enjoining
Defendants, their officers, agents, servants, employees, attorneys, and those
inactive concert or participation with them from implementing or enforcing the
following paragraph on page 3 of Defendant Abbott’s October 1, 2020
Proclamation:
“(1) the voter delivers the marked mail ballot at a single early voting clerk’s office
location that is publicly designated by the early voting clerk for the return of
marked mail ballots under Section 88.006(a-1) and this suspension,”
The 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.
9
The State Officials filed their notice of interlocutory appeal on October 19.
ANALYSIS
In three issues, the State Officials challenge the trial court’s jurisdiction and the
temporary injunction. We begin with their jurisdictional issues that challenge the trial court’s
denial of their pleas to the jurisdiction.
Plea to the Jurisdiction
“A plea to the jurisdiction challenges the court’s authority to decide a case.”
Heckman v. Williamson County, 369 S.W.3d 137, 149 (Tex. 2012). We review a plea
questioning the trial court’s subject matter jurisdiction de novo. See Texas Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226–28 (Tex. 2004). We focus first on the plaintiff’s
petition to determine whether the facts that were pled affirmatively demonstrate that subject
matter jurisdiction exists. Id. at 226. We construe the pleadings liberally in favor of the
plaintiff. Id.
If a plea to the jurisdiction challenges the existence of jurisdictional facts, the trial
court may consider evidence and must do so when necessary to resolve the jurisdictional issues
raised. Id. at 227; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). When
evidence is submitted that implicates the merits of the case, our standard of review generally
mirrors the summary judgment standard under Texas Rule of Civil Procedure 166a(c). Miranda,
133 S.W.3d at 228; see also Tex. R. Civ. P. 166a(c). The burden is on the defendant to present
evidence to support its plea. Miranda, 133 S.W.3d at 228. If the defendant meets this burden,
the burden shifts to the plaintiff to show that a disputed material fact exists regarding the
jurisdictional issue. Id. We take as true all evidence that is favorable to the plaintiff and indulge
10
every reasonable inference and resolve any doubts in the plaintiff’s favor. Id. If the evidence
creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea
to the jurisdiction, and the fact question will be resolved by the fact finder. Id. at 227–28. If the
relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue,
however, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228.
Sovereign immunity from suit deprives a court of subject matter jurisdiction and
is therefore properly asserted in a plea to the jurisdiction. Harris County v. Sykes, 136 S.W.3d 635,
638 (Tex. 2004); Miranda, 133 S.W.3d at 225–26. While sovereign immunity bars actions
against the state absent a legislative waiver, Sykes, 136 S.W.3d at 638, requests for declaratory
relief that do not attempt to control state action do not implicate governmental immunity, City of
El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). Suits against governmental officials
alleging that they “acted without legal authority” and seeking to compel the officials “to comply
with statutory or constitutional provisions” fall within the “ultra vires” exception to
governmental immunity because they “do not attempt to exert control over the state—they
attempt to reassert the control of the state.” Id.; see Houston Belt & Terminal Ry. v. City of
Houston, 487 S.W.3d 154, 158, 161–64 (Tex. 2016) (discussing ultra vires standard).
Standing
In their first issue, the State Officials argue that appellees lack standing. “In
Texas, the standing doctrine requires that there be: (1) ‘a real controversy between the parties,’
that (2) ‘will be actually determined by the judicial declaration sought.’” Austin Nursing Ctr.,
Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005) (quoting Nootsie, Ltd. v. Williamson Cnty.
Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996)). A plaintiff must therefore be “personally
11
aggrieved” by the defendant’s action. Id. (quoting Nootsie, 925 S.W.2d at 661). The State
Officials challenge whether appellees have shown that they were “personally aggrieved.” They
contend that appellees do not have an actual or imminent injury-in-fact that is fairly traceable to
the Governor or the Secretary given that the July 27 and October 1 Proclamations read together
expand voting rights and that neither of the State Officials has the authority to enforce the
October 1 Proclamation.
The State Officials also challenge the Anti-Defamation League’s and Common
Cause Texas’s organizational or representative standing to bring claims on behalf of their
members. We, however, need not analyze the standing of Anti-Defamation League and
Common Cause Texas because Knetsch seeks the same injunctive and declaratory relief,
and we conclude that he has established his standing. See Patel v. Texas Dep’t of Licensing &
Reg., 469 S.W.3d 69, 77–78 (Tex. 2015) (explaining reasons behind requirement that only one
plaintiff needs to have standing when multiple plaintiffs seek the same injunctive or declaratory
relief); Andrade v. NAACP of Austin, 345 S.W.3d 1, 6 (Tex. 2011) (“Because the voters seek
only declaratory and injunctive relief, and because each voter seeks the same relief, only one
plaintiff with standing is required.”).
Concerning Knetsch’s standing, he is a registered voter in Harris County who is
eligible to vote by mail because he is over 65, and he testified at trial about the adverse effect on
him of the reduced number of mail ballot return locations under the October 1 Proclamation. At
the time of the temporary injunction hearing, he had received his ballot to vote by mail, but he
had not decided how he was going to vote. He testified that he had identified one of the Harris
County Clerk’s return locations to deliver his mail ballot, but the location was no longer
available because of the October 1 Proclamation. He also testified about his concerns with
12
mailing his ballot and traveling to the only return location that remains available after the
October 1 Proclamation because of the COVID-19 pandemic. He was concerned about
“potential congestion at one drop-off location” and his “health risks that [he]’ll be having to
expose [himself] to.” He explained that his “objective [was] to minimize contact with other
people in the process of casting [his] ballot” and, when explaining the burden to him from the
proclamation, he testified that he “want[ed] to minimize [his] exposure to other people whether it
be voters or poll workers.” We conclude that this evidence satisfied the “personally aggrieved”
component of standing. See Lovato, 171 S.W.3d at 849.
The State Officials also argue that appellees do not have standing because the
State Officials are not the parties who are responsible for enforcing the proclamation and
therefore are the wrong defendants for this suit. Here, however, appellees are not complaining
about the threat of enforcement for non-compliance with the proclamation but the proclamation
itself, and the proclamation has the force of law. See Tex. Gov’t Code § 418.012 (stating
proclamation has “force and effect of law”). Appellees alleged in their pleadings that the
proclamation is unconstitutional and the Governor exceeded his authority in issuing it to the
extent it does not allow the County Clerks’ multiple return locations under section 86.006(a-1)
because, among other grounds, having fewer locations burdens eligible voters’ right to vote
during the global COVID-19 pandemic and it is early voting clerks who are the designated
officials for managing and conducting early voting.
In this context, we conclude that appellees’ claims, including ultra vires claims of
exceeded authority, have been properly asserted against the Governor, who is the state official
who issued the October 1 Proclamation and has the authority to amend it, and the Secretary, who
is the chief election officer of the state with enforcement authority. See id. § 418.012 (stating
13
that governor may amend proclamation issued under chapter); Tex. Elec. Code §§ 31.001
(designating secretary of state as chief election officer), .003 (“The secretary of state shall obtain
and maintain uniformity in the application, operation, and interpretation of this code and of the
election laws outside this code.”), .005(b) (authorizing secretary to order person to correct
offending conduct and seek enforcement of order); Heinrich, 284 S.W.3d at 373 (explaining that
proper party to ultra vires suit is “state actors in their official capacity” who exceeded authority).
Viewing the evidence under our standard of review, we overrule the State
Officials’ first issue challenging the trial court’s jurisdiction based on the standing doctrine. See
Andrade, 345 S.W.3d at 10 (“It is not necessary to decide whether the voters’ claims will,
ultimately, entitle them to relief, in order to hold that they have standing to seek it.”).
Sovereign Immunity
In their second issue, the State Officials argue that they are entitled to sovereign
immunity because appellees do not state a “viable” ultra vires claim. See id. at 11 (explaining
that government official “retains immunity from suit unless the voters have pleaded a viable
claim”). Appellees, however, pleaded facts and presented evidence that support their claims
challenging the constitutionality of the October 1 Proclamation to the extent it limits the early
voting clerks’ statutory authority to accept mail ballots at multiple return locations. Based on our
review of the evidence as stated below and our standard of review, we conclude that appellees
have stated “viable” ultra vires constitutional claims. See id.; see also Patel, 469 S.W.3d at 77
(“Andrade stands for the unremarkable principle that claims against state officials—like all
claims—must be properly pleaded in order to be maintained, not that such claims must be viable
on their merits to negate immunity.”); see, e.g., City of Elsa v. M.A.L., 226 S.W.3d 390, 392
14
(Tex. 2007) (per curiam) (concluding “that the court of appeals did not err by refusing to dismiss
the plaintiffs’ claims [against the city] for injunctive relief based on alleged constitutional
violations”); City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995) (determining that
plaintiff whose constitutional rights have been violated may sue state for equitable relief). We
overrule the State Officials’ second issue.
Temporary Injunction
In their third issue, the State Officials challenge the trial court’s temporary
injunction. They argue that appellees did not demonstrate a probable right to the relief sought,
nor a probable, imminent, and irreparable injury; that the public interest is disserved by the
injunction sought; and that the trial court’s chosen remedy is improper.
Standard of Review and Applicable Law
“A temporary injunction is an extraordinary remedy and does not issue as a matter
of right.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (citing Walling
v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993)). When considering a request for temporary
injunctive relief, the question before the trial court is whether the applicant is entitled to preserve
the status quo of the litigation’s subject matter pending a trial on the merits. Id.; see State
v. Southwestern Bell Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975) (defining status quo as “last,
actual, peaceable, non-contested status that preceded the pending controversy”); Tom James of
Dall., Inc. v. Cobb, 109 S.W.3d 877, 882 (Tex. App.—Dallas 2003, no pet.) (noting that
underlying merits of controversy are not legal issues before trial court during temporary
injunction hearing). “To obtain a temporary injunction, the applicant must plead and prove three
specific elements: (1) a cause of action against the defendant; (2) a probable right to the relief
15
sought; and (3) a probable, imminent, and irreparable injury in the interim.” Butnaru, 84 S.W.3d
at 204; see Southwestern Bell Tel. Co., 526 S.W.2d at 528 (explaining that applicant seeking
temporary injunction is not required to establish that it will ultimately prevail in litigation).
We review a trial court’s order granting temporary injunctive relief under an
abuse-of-discretion standard. See Butnaru, 84 S.W.3d at 204 (citing Walling, 863 S.W.2d at 58;
State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984)). A trial court abuses its discretion when it
acts unreasonably or in an arbitrary manner or without reference to any guiding rules and
principles. See id. at 211. We will not disturb the trial court’s decision to grant injunctive relief
absent a clear abuse of discretion. Reagan Nat’l Advert. v. Vanderhoof Fam. Tr., 82 S.W.3d 366,
370 (Tex. App.—Austin 2002, no pet.) (citing Universal Health Servs., Inc. v. Thompson,
24 S.W.3d 570, 576 (Tex. App.—Austin 2000, no pet.)). The scope of review is limited to the
validity of the order granting or denying temporary injunctive relief. See id. (citing Walling,
863 S.W.2d at 58; Thompson, 24 S.W.3d at 576). When reviewing such an order, we view the
evidence in the light most favorable to the order, indulging every reasonable inference in its
favor, and “determine whether the order was so arbitrary that it exceeds the bounds of reasonable
discretion.” Fox v. Tropical Warehouses, Inc., 121 S.W.3d 853, 857 (Tex. App.—Fort Worth
2003, no pet.); see Thompson, 24 S.W.3d at 576. “The trial court does not abuse its discretion if
some evidence reasonably supports the trial court’s decision.” Butnaru, 84 S.W.3d at 211; see
Fox, 121 S.W.3d at 857 (“A trial court does not abuse its discretion if it bases its decision on
conflicting evidence and evidence in the record reasonably supports the trial court’s decision.”).
Further, our decision today is only a review of “the validity of the temporary
injunction order; we do not review the merits of the underlying case.” See Stewart Beach Condo.
Homeowners Ass’n v. Gili N. Prop. Invs., LLC, 481 S.W.3d 336, 343 (Tex. App.—Houston [1st
16
Dist.] 2015, no pet.); see also Davis v. Huey, 571 S.W.2d 859, 861 (Tex. 1978) (noting that
“review of the entire case on its merits” “far exceed[s] the proper scope of appellate review of a
temporary injunction” and “the merits of the underlying case are not presented for appellate
review”). With these standards in mind, we turn to the State Officials’ challenges to the
temporary injunction.
Trial Court’s Temporary Injunction
In its order, the trial court’s stated reason for enjoining the October 1
Proclamation’s amendment limiting the number of locations to return mail ballots to one per
county is as follows:
The 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.
See Tex. R. Civ. P. 683 (requiring order granting injunction to “set forth the reasons for its
issuance”). We turn then to whether appellees showed a probable right to recover on a claim that
would support the trial court’s stated reasons for granting injunctive relief and a “probable,
imminent, and irreparable injury in the interim.” Butnaru, 84 S.W.3d at 204; see Fox,
121 S.W.3d at 857.
“The right to vote is fundamental, as it preserves all other rights.” Andrade,
345 S.W.3d at 12 (citing Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)); see also Tex. Const.
art. I, § 3 (providing equal rights). But that does not prevent states from regulating the franchise.
Andrade, 345 S.W.3d at 12 (citing Burdick v. Takushi, 504 U.S. 428, 433 (1992)). The Texas
Supreme Court has applied the federal Anderson-Burdick balancing test to evaluate whether an
17
election regulation impinges a fundamental right, considering “‘the character and magnitude of
the asserted injury’” to the plaintiffs’ fundamental right against “‘the precise interests put
forward by the State as justifications for the burden imposed by its rule,’ taking into
consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s
rights.’” State v. Hodges, 92 S.W.3d 489, 496 (Tex. 2002) (quoting Burdick, 504 U.S. at 434).
The State Officials argue that the challenged portion of the October 1
Proclamation “does not encroach on the right to vote whatsoever,” that it “survives any
Anderson-Burdick review because any burden is miniscule,” and that any barriers to voting
created by this portion of the proclamation are “incidental.” They focus on the multiple options
for voting in the upcoming election, the overall impact of the July 27 and October 1
Proclamations that expanded the early voting period and the ability to return marked ballots prior
to election day, the State’s interests in clarifying the law and ensuring “uniformity in election
administration” among early voting clerks, and the lack of a “freestanding right to vote in
whatever manner [appellees] deem most convenient.” The October 1 Proclamation, however,
did not clarify the law by explaining the meaning of “early voting clerk’s office” but changed the
law to limit the meaning of that phrase to only the singular, contrary to the Attorney General’s
September 30 representation to the Texas Supreme Court. And the stated reasons in the
October 1 Proclamation for amending the July 27 Proclamation were not so expansive; rather,
they were “to add ballot security protocols”6 and to “control ingress and egress to and from a
6
To support their rationale for “ballot security,” the State Officials rely heavily on the
opinion in Texas League of United Latin American Citizens. See generally 2020 U.S. App.
LEXIS 32211. Our review here, however, is limited to the evidence before us in the
interlocutory appeal, applying the applicable standard of review. Whatever the evidence that may
have been admitted in that case is not before us and, in this case, the evidence supported a
18
disaster area and the movement of persons and the occupancy of premises in the area.” See Tex.
Gov’t Code § 418.018(c).
In reaching its decision to grant the temporary injunctive relief, the trial court
reasonably could have credited the evidence that appellees presented, including expert testimony,
that supported findings that: (i) the challenged portion of the proclamation was unnecessary for
ballot security7; (ii) the “ingress and egress” provision of the Texas Disaster Act supported more,
not fewer, locations for returning ballots; (iii) the impact from the challenged portion of the
proclamation was immediate and irreparable because of the ongoing COVID-19 pandemic,
(iv) the general understanding among the parties that the term “early voting clerk’s office” in
section 86.006(a-1) includes a county clerk’s main and satellite offices when the county clerk is
the early voting clerk, and (v) the State Officials’ position that the October 1 Proclamation does
not prohibit local election officials from operating multiple return locations for mail ballots on
election day.
The trial court could have credited the evidence that decreasing the number of
return locations leading up to election day would significantly increase congestion and wait
times at the single designated location in some counties, which in turn would increase the risk of
the voters utilizing this method of contracting COVID-19. The trial court also could have
finding that increased return locations for mail ballots did not correlate with increased ballot
security concerns.
7
For example, in his report, Cortés concluded that “[f]rom both a security and public
perception standpoint,” it “does not provide any benefit to limit in-person early voting drop off
locations to just one per county.” He further concluded: “Limiting drop off locations in the
manner described in the Governor’s declaration serves no valid election administration or
election security purpose.” In his report and testimony, he also identified the statutory security
measures that were required at each early voting clerk’s location.
19
reasonably inferred from the evidence that the practical impact of the challenged portion of the
October 1 Proclamation would be to reduce the number of cast ballots from voters,8 particularly
voters at high risk of serious health concerns, including death, if they contracted COVID-19, and
voters from minority communities. Given the COVID-19 pandemic, it is reasonable to assume
that voting in person is not a reasonable option for many of the voters who are eligible to vote by
mail. See Tex. Elec. Code §§ 82.001–.004.
The State Officials focus on the timing of the trial court’s temporary injunction
“after voting has started.” The trial court, however, could have considered the timing of the
October 1 Proclamation that was issued after the return of mail ballots at early voting clerk’s
offices “was already underway.” See In re Hotze, 2020 Tex. LEXIS 927, at *4 (noting that
Harris County Clerk represented that his office would accept mailed-in ballots beginning
September 24 and “election [was] already underway”). Additionally, the trial court could have
considered that the October 1 Proclamation gave only one day’s notice of when it went into
effect on October 2 and that some counties had already announced the return locations, for
example, Harris County announced the return locations in July. See id. Some of the same
reasons that the judiciary should be reluctant to interfere in an election that is imminent or
ongoing apply equally to the executive branch. See id. (observing that “court changes of election
laws close in time to the election are strongly disfavored” and explaining in context of denying
mandamus relief concerning July 27 Proclamation that it would “disrupt the long-planned
election procedures” and “threaten voter confusion”); see, e.g., Texas League of United Latin
Am. Citizens v. Hughs, No. 20-50867, 2020 U.S. App. LEXIS 32211, at *36–38 (Ho, J.,
8
For example, Chatman testified that “tens of thousands” of eligible voters by mail
would forgo casting their ballots because of “long lines” and “waiting times” on election day.
20
concurring) (addressing concerns with unilateral changes to election law by single elected
official and observing good reasons for vesting control over election laws in state legislatures).
These concerns are particularly valid in this case where the legislature has
designated the early voting clerks as the officials in charge of managing and conducting early
voting. See Tex. Elec. Code §§ 83.001(c) (stating that early voting clerk generally “has the same
duties and authority with respect to early voting as a presiding election judge has with respect to
regular voting”), .002(1); see also id. § 32.071 (“The presiding judge is in charge of and
responsible for the management and conduct of the election at the polling place of the election
precinct that the judge serves.”). And the State Officials affirmatively represent that when the
early voting clerk is the county clerk, the “early voting clerk’s office” includes the clerk’s main
and satellite offices and that, on election day, the county clerks may accept mail ballots at their
satellite offices. See Tex. Gov’t Code § 311.012(b) (stating that singular includes plural).
Finally, the State Officials argue that the appropriate remedy would have been to
enforce the statute, not eliminate the suspension of the statute. But neither party challenged the
July 27 Proclamation before the trial court and, in that context, enjoining the challenged portion
of the October 1 Proclamation effectively reinstated the July 27 Proclamation concerning
authorized return locations for mail ballots and preserved the status quo of the subject matter of
this litigation pending a trial on the merits. See Southwestern Bell Tel. Co., 526 S.W.2d at 528
(defining status quo as “last, actual, peaceable, non-contested status that preceded the pending
controversy”); see also Huey, 571 S.W.2d at 861 (noting that “review of the entire case on its
merits” “far exceed[s] the proper scope of appellate review of a temporary injunction” and “the
merits of the underlying case are not presented for appellate review”).
21
Viewing the evidence in the light most favorable to the trial court’s temporary
injunction, we cannot conclude that the trial court abused its discretion. See Fox, 121 S.W.3d at
857. We overrule the State Officials’ third issue.
CONCLUSION
For these reasons, we affirm the trial court’s order.9
Before Justices Goodwin, Kelly, and Smith
Affirmed
Filed: October 23, 2020
9
Because the general election is eleven days from today, we direct this Court’s clerk to
issue the mandate with the release of this Court’s opinion and judgment, and we will not
consider motions for rehearing. See Tex. R. App. P. 2 (authorizing appellate court to suspend
rule’s operation in particular case to expedite decision or for good cause), 18.6 (authorizing
appellate court to issue mandate with judgment in accelerated appeals).
22