Texas AG Issues Guidance to Officials Who Sought to Push Local Election to 2021

Texas Attorney General Ken Paxton has warned officials who already postponed a local election once due to the ongoing coronavirus outbreak, they would be violating the law if they attempted to move the election again, this time to next year.

Round Rock, Texas Mayor Craig Morgan and members of his city council originally moved the local contest from May 2 to Nov 3. But after the recent surge in coronavirus cases in Texas, they reconsidered their decision, invoking a provision of the city charter that requires elections to be held annually in May.

The new date of the local election would have been May 2, 2021.

But in a letter sent to city officials on July 30, Paxton declared the postponement unlawful as it would exceed the legal deadline established by Texas Gov. Greg Abbot on March 18.

In that proclamation, Abbott said local municipalities could move their elections from May to November out of public health concerns.

“The governor’s proclamation allowed local elections that were scheduled to be held on May 2, 2020 to be moved to November 3, 2020,” Paxton wrote. “It was the Round Rock City Council’s decision to move its local election to November, not the governor’s. 

“Because the law does not allow the City Council to move its election a second time in these circumstances, the city must hold its election in November, as it said it would,” he continued.

The Round Rock city attorney Steve Sheets claimed in a legal opinion that while the governor could exercise his emergency authority to amend the state’s Election Code and allow for local elections to be held in November, his powers under these circumstances do not include suspending city charters for the sake of elections. 

In his letter, Paxton points out the governor’s proclamation does not suspend local city charters, rather “it [Abbot’s proclamation] suspends a state-law deadline to allow political subdivisions to move local elections to the November uniform election date.” 

Continuing further, Paxton states, “In reality, the Governor’s proclamation simply provided the Round Rock city council with an alternative option. So it was the council’s decision to make.” 

Ultimately, Paxton says that the Round Rock City Council’s vote to move its May 2, 2020 election to November 3, 2020 whether “intentionally or unintentionally” invoked Texas’ subsection 41.0052(c) of the state’s Election Code, which was not part of the governor’s March proclamation. 

The subsection allows municipalities to adopt resolutions aimed at changing electoral dates, and 41.0052(c) specifically states that changes made to said resolutions “supersedes a city charter provision that requires a different general election date.”

In other words, the Round Rock city council’s vote of moving the May election to November supersedes the precedent of the city charter’s annual May election date. 

Paxton emphasized the importance of upholding the November election by stating, “Under the Election Code enacted by our Legislature, elections must be held properly on the correct date, or the election is void. The right to vote is fundamental in nature, because it is the mechanism through which all other rights are secured. 

“Infringing the right to vote undermines the basic concept of a republic. We must all work together to ensure that our democratic process is followed properly, freely, and fairly.” he said.