646 S.W.3d 532
Tex.2022Background
- In 2021 the Texas Legislature enacted SB1, which added Election Code §276.016(a)(1) making it an offense for a "public official or election official" acting in an official capacity to knowingly solicit submission of a mail‑in ballot application from a person who did not request one; §276.016(e)(1) exempts providing general information about voting by mail.
- The Act also added civil‑penalty authority under §31.129, exposing "election officials" (a narrower category) to penalties, including termination, for violating the Election Code.
- Isabel Longoria (Harris County Elections Administrator) and Cathy Morgan (volunteer deputy registrar) brought a pre‑enforcement First and Fourteenth Amendment challenge in federal court seeking declaratory and injunctive relief against enforcement of §276.016(a)(1); Longoria also sought to enjoin civil penalties under §31.129.
- The district court granted a preliminary injunction, holding Morgan likely qualified as a "public official" and that Longoria showed Paxton could be connected to civil enforcement; Paxton and Williamson County DA appealed.
- The Fifth Circuit certified three state‑law questions to the Texas Supreme Court: (1) whether volunteer deputy registrars are "public officials" under §276.016(a)(1); (2) the scope of the term "solicits" in §276.016(a)(1); and (3) whether the Texas Attorney General may enforce §31.129.
- On certification, the parties agreed Morgan is not a "public official" and that the Attorney General lacks authority to enforce §31.129; the Court answered those two questions "no" based on the parties' agreement (answers limited to this case). On the second question the Court held: solicitation is not limited to solicitations of ineligible voters, is not limited to categorical "demands," but does not cover mere informational statements telling voters they may apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether volunteer deputy registrars (VDRs) are "public officials" under §276.016(a)(1) | Morgan: VDRs qualify as public officials subject to the statute | Paxton/Dick: VDRs are unpaid volunteers and not "public officials"; lack of standing and immunity defenses | No — Court answered “no” based on parties’ agreement; holding limited to this case and not broadly precedential |
| Whether §276.016(a)(1) is limited to soliciting applications from persons ineligible to vote by mail | Plaintiffs: read statute narrowly to reach only solicitation of violative/ineligible mail‑in ballot applications (constitutional‑avoidance reading) | Defendants: term should have its ordinary breadth; statute reaches solicitations from anyone who "did not request an application" | Rejected narrow/ineligibility‑only reading: text covers solicitation from any person who "did not request an application"; constitutional‑avoidance cannot rewrite unambiguous text |
| Whether "solicits" is limited to demanding submission of an application (versus softer encouragement) | Plaintiffs: "solicits" should be confined to more forceful demands; ordinary meaning uncertain | Paxton: "solicits" should exclude mere encouragement; requires importuning/strong urging; but even polite requests ("please fill out this application") are solicitation | Court: "solicits" is not limited to demands; it can include polite or non‑forceful requests (e.g., "please fill out this application"); precise outer boundaries left for another case |
| Whether telling voters they have the opportunity to apply for mail‑in ballots is "solicitation" | Plaintiffs: some informational encouragement might be covered | Defendants: mere information is excluded by statute | Held: such general informational statements are excluded by §276.016(e)(1); informing voters they may apply is not solicitation under §276.016(a)(1) |
| Whether the Attorney General may enforce §31.129 civil penalties against Longoria | Longoria: AG may enforce or at least uncertainty sufficed to allege threat of enforcement | Paxton: AG lacks authority to seek civil penalties under §31.129 as to these parties | No — Court answered “no” based on parties’ agreement; answer limited to this case |
Key Cases Cited
- Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941) (Pullman abstention doctrine)
- Quick v. City of Austin, 7 S.W.3d 109 (Tex. 1998) (canon of constitutional avoidance applies only when statute is ambiguous)
- Iancu v. Brunetti, 139 S. Ct. 2294 (2019) (statutory ambiguity requirement for avoidance canon)
- Richards v. State Farm Lloyds, 597 S.W.3d 492 (Tex. 2020) (answering certified questions described as advisory in state context)
- In re Abbott, 628 S.W.3d 288 (Tex. 2021) (importance of adversarial testing in judicial decisionmaking)
- State Farm Fire & Cas. Co. v. Gandy, 925 S.W.2d 696 (Tex. 1996) (agreed judgments without full adversarial testing have limited precedential effect)
- Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (government‑speech doctrine noted but not decided here)