Preliminary Injunction Filed in Challenge to Texas Voting Law

SAN ANTONIO — A request for a preliminary injunction was filed on Tuesday by attorneys at the Brennan Center for Justice at NYU Law, Weil, Gotshal & Manges and the Harris County Attorney’s Office in a case challenging a provision of Texas’ newly enacted voting law that makes it illegal for election officials and volunteers to solicit vote-by-mail applications.

The motion, filed by the attorneys on behalf of the Elections Administrator for Harris County and a volunteer deputy registrar in Williamson and Travis Counties, urges the court to grant the injunction ahead of Texas’ primary elections scheduled for March. The voting law, known as S.B. 1, prohibits sending unsolicited mail-voting applications and makes it punishable by a minimum of six months in jail and a fine of up to $10,000.

The plaintiffs in the case argue that the law infringes on their right to free speech and the rights of voters in the state to participate in elections by discouraging voting by mail. Voters who wish to vote by mail in the upcoming Texas primaries must request their applications for the ballots between Jan. 1 and Feb. 18, 2022.

“S.B. 1 makes it a crime for me to do a critical part of my job, and it hurts the most vulnerable voters,” Isabel Longoria, Harris County election administrator and plaintiff in the case, said in a written statement. “As the highest-ranking election official in Harris County, I’m responsible for enabling the county’s millions of voters to exercise their right to cast a lawful ballot, many of whom face obstacles to voting in person due to illness, disability, or age. S.B. 1 subjects me to criminal prosecution for encouraging eligible voters to vote by mail so they may participate in our democracy—an option they have under Texas law.”

Honing in on vote-by-mail initiatives was a major point of emphasis of Texas lawmakers following a surge of innovative voting initiatives undertaken in Harris County, including the promotion of voting by mail, expansion of early voting hours and the institution of drive-through voting facilities. Texas Gov. Greg Abbott issued a proclamation under the Texas Disaster Act that limited each of the state’s 254 counties to a single drop-off location for mail ballots, which was ultimately upheld by the state Supreme Court following a series of legal challenges.

Voter registration for the 2020 election ended in Texas on Oct. 5 with nearly 2 million more registered voters than in the 2016 elections, according to data from the Texas Secretary of State’s office. Around 66% of the state’s 17 million registered voters cast ballots in the 2020 general election, a turnout greater than the previous presidential election by a margin of around 6.6%.

“This law was created to combat alleged voter fraud that we know does not exist, and instead hinders the ability to properly encourage seniors and voters with disabilities to exercise their right to vote by mail,” Christian Menefee, county attorney for Harris County, said in a written statement. “This anti-solicitation provision of S.B. 1 not only makes it harder for these folks to vote, but it criminalizes the constitutionally protected free speech of the Harris County Elections administrator and violates the First Amendment.”

Despite the hopes that increased turnout would lead to Democrats running the table against Republicans in the solidly red state, only three counties in Texas flipped for Democrats while eight were flipped in Republicans’ favor. Hays, Williamson and Tarrant Counties were flipped blue while Zapata, Reeves, Val Verde, La Salle, Kleberg, Jim Wells, Kenedy and Frio Counties were flipped red.

The Brennan Center and the Harris County Attorney’s Office filed their complaint against the Texas law in the U.S. District Court for the Western District of Texas on Dec. 10. The plaintiffs filed an amended complaint naming the local district attorneys of Harris, Williamson and Travis Counties as defendants in the lawsuit the day prior to the filing of the preliminary injunction, which seeks to enjoin the anti-solicitation provision of the law no later than Feb. 14.

“The right to free speech and the right to vote are vital to democracy, and S.B. 1 takes direct aim at both,” Sean Morales-Doyle, acting director of the Voting Rights and Elections Program at the Brennan Center for Justice at NYU Law, said in a written statement. “Texas should be encouraging election officials to provide voters all the information they need to participate in elections. Instead, the legislature and the governor have made it a crime to do so.” 

Reece can be reached at [email protected].