The latest chapter in the Texas battle over whether voting should be simple or harder is a federal judge blocking a new law making it a jail-time crime for election officials to send vote-by-mail applications to voters who haven’t asked for them.
U.S. District Judge Xavier Rodriguez of San Antonio said that part of Senate Bill 1, passed last year by the Republican-dominated Legislature, violates First Amendment protections of free speech.
“The State of Texas has no power to restrict expression because of its message, its ideas, its subject matter or its content,” Rodriguez wrote.
He ordered a temporary injunction Feb. 11 against enforcing the law’s prescription of jail time for election officials who send voters unrequested applications to vote by mail.
The judicial blockage came in a suit filed in December by Isabel Longoria, the Harris County administrator of elections, and Cathy Morgan, a volunteer deputy registrar in Travis and Williamson Counties, to prevent criminalizing their efforts to help voters request a mail-in ballot.
That provision of the law, effective Dec. 2, could carry a jail sentence of six months to two years, and a fine of up to $10,000.
Officials also could be subject to civil penalties by Texas Atty. Gen. Ken Paxton, including being fired and losing employment benefits.
Rodriguez wrote that as the law stands, “speech encouraging or requesting the submission of an application to vote by mail is a crime. Discouraging the submission of an application to vote by mail, on the other hand, is not.”
The law does not prohibit political parties, candidates, or campaigns from sending voters vote-by-mail applications.
The challengers had asked the judge at the hearing Friday, Feb. 11, to rule quickly, because those wanting to vote by mail had to fill out and return their application by Friday, Feb. 18. Rodriguez filed his injunction that night.
Paxton had managed in 2020 to block Harris County’s then-County Clerk Chris Hollins, a Democrat, from mailing out vote-by-mail applications to more than 2 million registered voters.
Paxton, a Republican, had won a judgment from the all-Republican Texas Supreme Court that state law did not give the clerk the authority to mass-mail the applications.
Court battles over election laws are going on in states across the country, as this is the redistricting year that follows the federal census every 10 years. Legislative and congressional districts are adjusted to account for population shifts.
But Democrats think Republican-led states are gerrymandering the new redistricting maps, or have already, to maximize their power, and minimize the Democrats’.
In previous redistricting years, that was largely precluded by Section 5 of the 1965 federal Voting Rights Act.
It required election-law changes, including redistricting, in states with a history of discrimination, to be “pre-cleared” by the Department of Justice, or a three-judge federal court in Washington, D.C., before they could take effect.
However, that provision was stripped from the law by the U.S. Supreme Court in 2013, in a 5-4 decision called Shelby County v. Holder.
The late Supreme Court Justice Ruth Bader Ginsburg wrote this in her dissent:
“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Turns out she was right.
So, Democrats are filing suits about Republican gerrymandering in courts in many states — including Texas, which has already been sued over its new congressional district map by the federal Department of Justice.
It is going to be a long, long year on election laws.