AUSTIN (Nexstar) — The Supreme Court of Texas heard oral arguments Wednesday morning in a challenge related to Texas’ elections overhaul bill and its provision that prohibits public election officials from promoting mail-in voting.
Justices heard arguments in Paxton v. Longoria — a lawsuit brought by soon-to-be-former Harris County elections administrator, Isabel Longoria, as well as a Williamson County volunteer deputy registrar, Cathy Morgan. Both parties argue the law violates election officials and workers’ First Amendment rights by making it a crime to encourage voters to vote by mail.
It all relates to Senate Bill 1, which Gov. Greg Abbott signed Senate Bill 1 into law in Sept. 2021 to further tighten the state’s voting laws. Republicans proclaimed that their signature bill makes it “easier to vote and harder to cheat.” It’s the same legislation that prompted House Democrats to flee to Washington D.C. to prevent its passage. Democrats have decried it as “voter suppression.”
The lawsuit is currently on appeal in the U.S. 5th Circuit Court of Appeals, but those judges sent the case to the Texas Supreme Court to certify three questions before moving forward. The questions before the Texas justices include:
- Whether volunteer deputy registrars are “public officials” under Texas Election Code
- Whether the speech about mail-in voting Longoria and Morgan say they will use as elections officials is considered as engaging in “solicitation”
- Whether the Texas Attorney General Ken Paxton is a proper official to enforce this aspect of the Texas Election Code
According to Texas Election Code, a public official commits a state jail felony if they knowingly solicit the submission of a mail-in voting application to someone who didn’t request one or distributes the application to someone who didn’t request one.
Justices and attorneys agreed that a volunteer deputy registrar (VDR), such as Morgan, does not fall under the category of “public official” in this context. That prompted justices to question whether the lawsuit is moot.
“If everybody agrees that the VDR is not a public official, therefore has no standing…where’s the case or controversy,” Justice Jeff Boyd asked.
Sean Morales-Doyle, an attorney from the Brennan Center for Justice, represented Longoria and Morgan in court Wednesday. He argued the vagueness of how the law was written leaves his client Morgan to have “reasonable fear of being prosecuted” for violating S.B. 1.
“What seems to be troubling everybody here is not some strange definition of the term solicitation. It is the fact that the type of speech…applies to my clients’ attempts to encourage people to exercise their fundamental, constitutionally-protected right to vote, rather than their attempts to encourage people to engage in criminal conduct,” Morales-Doyle said.
During the hearing, state attorneys representing Paxton argued the law does clearly define “solicit” and would not include speech such as election officials telling voters how to vote by mail.
“In this instance, [it] means to strongly urge or to importune. It certainly means more than to vaguely encourage,” said Lanora Pettit, a lawyer with the Texas Attorney General’s office.
Chief Justice Nathan Hecht did not say when the court will make a decision. Once they certify those three questions for the 5th Circuit Court of Appeals, its judges will ultimately decide whether the lawsuit may proceed or be dismissed altogether.