Case: 20-50407
Document: 00515441096
Page: 12
Date Filed: 06/04/2020
No. 20-50407
power to “take appropriate action to protect” Texans’ voting rights “from abuse
by the authorities administering the state’s electoral processes.” 19 Based on
that, the state officials have not shown—at least as to the Secretary of State—
that they are likely to establish that the plaintiffs lack standing.
That analysis applies with far less force, however, to Governor Abbott.
OCA-Greater Houston, 867 F.3d at 613, was a suit against only the state of
Texas and its Secretary of State. The Texas Election Code delegates enforcement power for the vote-by-mail provisions to “early voting clerk[s],” subject to
control by the Secretary of State.
See TEX. ELEC. CODE § 86.001(a). Those
rules provide no role for the Governor.
The plaintiffs disagree, pointing to several of the Governor’s actions that
they believe demonstrate his “extensive enforcement with respect to state elections.” 20 But those actions—all of which addressed when an election was to be
held, not how it was to be conducted—were exercises of the Governor’s
emergency powers, not any authority given him by the Texas Election Code.
Because the plaintiffs have pointed to nothing that outlines a relevant enforcement role for Governor Abbott, the plaintiffs’ injuries likely cannot be fairly
traced to him. See Thole, 2020 WL 2814294, at *2.
3.
The state officials aver that they are “likely to show that the preliminary
injunction is barred by sovereign immunity.”
Id. § 31.005(a). That includes the power to issue orders and, if necessary, seek a
temporary restraining order, injunction, or writ of mandamus. Id. § 31.005(b).
19
Those actions include Governor Abbott’s (1) changing the date of the special election
for State Senate District 14, (2) allowing political subdivisions to postpone elections originally
scheduled for May 2, 2020, to November 3, 2020, and (3) postponing the May 26, 2020,
primary runoff to July 14, 2020.
20
12
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