in Re Steven Hotze, M.D., Hon. Sid Miller, Gerry Monroe, Randolph Price, Alan Hartman, Alan Vera, and Gregory Blume

Supreme Court of Texas
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No. 21-0893
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In re Steven Hotze, M.D., Hon. Sid Miller, Gerry Monroe,
Randolph Price, Alan Hartman, Alan Vera, and Gregory Blume,
Relators
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On Petition for Writ of Mandamus
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JUSTICE BLACKLOCK, joined by JUSTICE YOUNG, concurring in the
denial of the petition for writ of mandamus.
The dissenting justice would grant the mandamus petition to
reinforce this Court’s precedent, under which “the Election Code does
not authorize an early-voting clerk to send an application to vote by mail
to a voter who has not requested one.” State v. Hollins, 620 S.W.3d 400,
410 (Tex. 2020). After the mandamus petition was filed, however, the
Legislature went further than this Court could ever go toward ensuring
compliance with State v. Hollins. The Legislature made it a felony to
“distribute[] an application to vote by mail to a person who did not
request the application.” TEX. ELEC. CODE § 276.016. Even if the
Legislature’s decisive action left anything more for this Court to say on
the matter, granting this mandamus petition would be an improper way
to say it.
The relators have not even attempted to allege that Harris
County or its officers have violated, or intend to violate, section 276.016.
Nor have the relators alleged the threat of any such violation. Relators’
allegations concern only the November 2021 election, and the relief they
seek has to do with that particular election, which is now in the books.
Relators filed their mandamus petition in this Court on October 13,
2021, in an apparent attempt to secure a speedy ruling regarding the
November 2021 election. They did not, however, file a motion for
expedited relief, which parties seeking this Court’s immediate action
must do. After the November 2021 election passed, Harris County filed
a response to the mandamus petition, in which it argued, quite
plausibly, that the mandamus petition is moot because relief can no
longer be afforded with respect to the November 2021 election.
The relators did not respond to the County’s contention that the
passage of the November 2021 election mooted this case and thereby
deprived this Court of jurisdiction. They had every opportunity to file a
reply brief, in which they might have made some of the (to my mind,
unconvincing) arguments the dissenting justice now makes on their
behalf regarding mootness. They filed no reply brief. They have filed
nothing in this Court since their original mandamus petition on October
13, 2021. In the meantime, the November 2021 election came and went,
and section 276.016 went into effect on December 2, 2021, criminalizing
the very conduct relators ask this Court to order Harris County not to
engage in.
Relators have had over three months to explain to this Court how
their petition is not moot. They have not done so. They have had every
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opportunity to explain how they could be entitled to the extraordinary
remedy of mandamus relief absent any allegation that Harris County
threatens to violate the newly enacted section 276.016.1 They have not
done so. They have not made any of the arguments the dissent makes
for why this case remains viable. Most importantly, they have not even
tried to explain how it could be that this Court continues to have
jurisdiction over a mandamus petition about a past election. The
dissenting justice’s interest in addressing the issues raised by this
petition is evident, but the relators themselves have demonstrated no
interest in continuing to pursue this Court’s review of a question the
Legislature has already decisively addressed.
If the dissenting justice’s concern that Harris County might
violate the law in the future is realized, other lawsuits will surely follow.
As for this mandamus petition, not even the relators dispute that events
1 Even if Harris County were to make such an ill-considered threat, the
advisable course for a plaintiff seeking an injunction against this or any other
illegal government action is a lawsuit filed in district court, not an original
mandamus petition filed directly in the Supreme Court. Plaintiffs facing
imminent injury are entitled to insist on expedited consideration in the lower
courts, and lower courts that refuse to act quickly when circumstances warrant
may find the decision taken out of their hands by a court of appeals or this
Court, whether in an expedited appeal or on mandamus. The Election Code
does authorize this Court to consider original mandamus petitions concerning
elections, TEX. ELEC. CODE § 273.061, and in rare cases we may need to do so.
But section 273.061 is not an automatic free pass to the Supreme Court for
litigants who would rather not bother with lower court litigation. Even in
emergency situations, this Court is much better situated to decide expedited
appeals or mandamus petitions arising out of litigation in lower courts than it
is to decide original actions filed directly in this Court with no evidentiary
record by parties who have not even attempted to traverse the normal pathway
through the lower courts.
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have overtaken it. The Court’s decision to deny this petition is
ineluctably correct.
I respectfully concur in the denial of the petition for writ of
mandamus.
James D. Blacklock
Justice
OPINION DELIVERED: March 18, 2022
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