Last January, Harris County Elections Administrator Isabel Longoria, along with Williamson County volunteer deputy voter registrar Cathy Morgan, filed a pre-enforcement challenge in federal court to a provision of Senate Bill (SB) 1 that prohibits certain officials from soliciting mail ballot applications from those who did not request them.
Filed against state Attorney General Ken Paxton and Williamson County District Attorney Shawn Dick, Longoria and Morgan argued that the “solicitation” provision infringed on their constitutional right to free speech under the First Amendment, noting they could be subject to six months or more of imprisonment, up to $10,000 in fines, and other “potential civil penalties” if they were found in violation.
Furthermore, Longoria claimed that the prohibition included in Sec. 276.016 of the Election Code against “solicitation” of the mail ballot applications was broad enough to prevent her from performing elections duties such as informing the public that mail-in ballots might be an option.
Harris County Attorney Christian Menefee, who has been representing Longoria, asserts that SB 1 is unconstitutional and prevents election officials from encouraging people to vote by mail.
In February, the Fifth Circuit Court overturned a lower court’s injunction against enforcement of the solicitation provision. Last month, they asked the state Supreme Court to provide certified answers to three questions, including whether certain types of speech constitute “solicitation” under SB 1.
In an opinion authored by Justice Rebecca Huddle, the Texas Supreme Court rejected arguments from plaintiffs claiming the prohibition only prevented officials from soliciting mail ballot applications from those who were ineligible to use them.
“We must reject this interpretation, however, because it is inconsistent with the statute’s plain text…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.”
While the court stopped short of fully defining solicitation, the justices also rejected the plaintiff’s arguments that elections officials were not allowed to provide “general information about voting by mail, the process, or the timelines associated with voting,” since those categories are expressly stated as permissible.
State Sen. Paul Bettencourt (R-Houston), the former voter registrar for Harris County, said it was correct for the Supreme Court to reject what he called a “preposterous claim.”
“The law does not prevent Longoria or any other election official from doing their job, but there needs to be guide rails on what an official may do.”
Under Texas election code, “absentee” or mail-in ballots are only allowed for voters who will be out of the county during an election, are age 65 or older, or may be ill or incapacitated.
During the 2020 elections, officials in Harris County sought to expand the use of the mail-in ballots and planned to send unsolicited mail ballot applications to all 2.4 million registered voters in the county, regardless of eligibility. However, the Supreme Court of Texas ruled in October of 2020 that the Harris County clerk did not have the authority to innovate in such an unprecedented way.
Rep. Briscoe Cain (R-Deer Park), chair of the Texas House Elections Committee, also applauded the Supreme Court’s opinion Friday for upholding SB 1.
“The Court’s opinion makes clear the legislature’s intent that Sec. 276.016 was narrowly drawn to protect the state’s legitimate governmental interest in preventing election fraud,” Cain told The Texan.
The state Supreme Court also responded to another question that Morgan, as a volunteer deputy registrar, was not a public official, an opinion that will likely result in the appeals court dismissing Morgan as a plaintiff.
Additionally, Supreme Court justices answered “no” to the question of whether Paxton had the authority to enforce civil penalties against Longoria, but clarified that was only because the parties had agreed on this matter, adding, “our response shall have no effect beyond this case.”
The case will now return to the Fifth Circuit Court of Appeals for further consideration, but Cain believes Texas’ election law will be upheld.
“I am optimistic that the Fifth Circuit will agree with our state’s highest court of civil appeals,” he said.
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Holly Hansen is a freelance writer living in Harris County. Her former column, “All In Perspective” ran in The Georgetown Advocate, Jarrell Star Ledger, and The Hill Country News, and she has contributed to a variety of Texas digital media outlets. She graduated summa cum laude from the University of Central Florida with a degree in History, and in addition to writing about politics and policy, also writes about faith and culture.