In a case challenging what Texas mail-in voting restrictions intended by limiting “solicitation” of voters who could get mail-in ballots, the Texas Supreme Court unanimously held Friday:
- that provisions of the Election Integrity Protection Act of 2021 are not narrowly limited to seeking application of mail-in ballots that violate election law;
- that solicitation under the statute is not limited to demands for submission of an application to vote by mail; and
- that the challenged Election Code section does not cover telling voters they have the opportunity to apply for mail-in ballots.
The underlying suit, the court explained, involves a pre-enforcement challenge to a recently enacted Election Code provision that makes it an offense for certain officials to solicit the submission of applications to vote by mail from persons who have not requested such applications.
The Supreme Court undertook to answer three certified questions from the Fifth Circuit U.S. Court of Appeals in a challenge to the voting law initially decided by U.S. District Judge Xavier Rodriguez in San Antonio.
The Supreme Court answered only one of the three questions because the parties, including Texas Attorney General Ken Paxton, agreed on answers to two of the certified questions. That left only this question: whether certain types of speech constitute “solicitation” under that provision.
The plaintiff Isabel Longoria is the county elections administrator for Harris County. Plaintiff Cathy Morgan is an Austin resident who serves as a volunteer deputy registrar in Travis and Williamson counties. Longoria and Morgan sued Paxton and the district attorneys of Harris, Travis and Williamson counties alleging that challenged Election Code section violates the First and 14th amendments both on its face and as applied to “truthful speech encouraging people who are or may be eligible to vote by mail to request applications for such mail ballots.”
Plaintiffs sought a declaration that the solicitation does not prohibit their intended efforts and an injunction against all defendants to prevent them from enforcing Section 276.016(a)(1) penalties.
Paxton sought dismissal for lack of standing and based on sovereign immunity. The U.S. district court granted a preliminary injunction and the defendants appealed to the Fifth Circuit.
“Although the statute does not define what it means to ‘solicit,’” the Supreme Court reasoned, “it is positively clear about whom officials are prohibited from soliciting. The statute does not prohibit solicitation merely of those ineligible to vote by mail.”
“Its text leaves no doubt that the prohibition extends more broadly to the larger universe of persons who ‘did not request an application,’” the court concluded in an opinion written by Justice Rebeca Huddle.
Paxton and other defendants “effectively ask us to rewrite the text to prohibit solicitation of submission of an application to vote by mail from a person who did not request an application [and who is ineligible to vote by mail],” Huddle reasoned. “This reading is contrary to the statute’s plain text, and we therefore must reject it.”
“We will leave for another case, with a more developed record, the task of defining the term’s outer reach,” the court held. “For today, we believe it is sufficient to hold that, for purposes of Election Code Section 276.016(a)(1), ‘solicits’ is not limited to demands that a person submit an application to vote by mail. As Paxton acknowledges, ‘solicits’ includes statements that fall short of a demand, such as ‘please fill out this application to vote by mail.’”
Such speech falls outside the purview of Section 276.016(a)(1) because it qualifies as “general information about voting by mail, the vote by mail process, or the timelines associated with voting,” which, the court said, “is expressly excluded from Section 276.016(a).”
“The Legislature intended to distinguish between merely informing Texans of the option to vote by mail and soliciting them to submit an application to vote by mail when they have not requested one.”
Principal Deputy Solicitor General Lanora C. Pettit and Randy T. Leavitt of Leavitt Ervin in Austin argued for Paxton and Dick. Sean Morales-Doyle of the Brennan Center for Justice at New York University School of Law argued for Longoria and Morgan.