By: Sarah Depew

On March 13, 2020, Texas Governor Greg Abbott issued a proclamation declaring a state of disaster due to the COVID-19 pandemic, triggering gubernatorial emergency powers authorized in the Texas Disaster Act of 1975. The Texas Disaster Act gives the Governor the authority to “suspend the provisions of any regulatory statute. . . . if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster.” Using this authority, Gov. Abbott issued a proclamation on July 27, 2020, to expand early voting and suspend portions of the Texas Election Code to allow voters to deliver a marked ballot in person to the early voting clerk’s office before or on Election Day. An “early voting clerk’s office” is understood in both the Texas Election Code and the July Proclamation to include more than the voting clerk’s main office, but also, any satellite offices or locations. For example, Harris County’s Election Administration has ten offices serving 4.7 million residents across 1,777 square miles.

The July Proclamation was not controversial. The order stated that strict compliance with statute governing the return of marked ballots would hinder the state’s coping with COVID—an objective that is indisputably permissible under the Texas Disaster Act.

The wrinkle came on October 1, 2020, when Gov. Abbott issued another proclamation to amend the July Proclamation to restrict the return of marked ballots to a single early voting clerk’s office “to add ballot security protocols”—an action and objective that does not relate to the state’s ability to respond to the pandemic. By the next day, organizations had filed suit challenging the order as outside the scope of the Governor’s authority under the Texas Disaster Act (as well as challenging it as a violation of right to vote as guaranteed under the Texas Constitution and for having a disparate impact on minority communities). The Texas Supreme Court heard Abbott v. Anti-Defamation League Austin, Southwest, & Texoma Regions and held that the October Proclamation was not outside the scope of the Governor’s authority.

The Court agreed that the Governor may not use his emergency powers for actions unrelated to the emergency and the Court agreed that the October Proclamation does not do this—even noting the trial court’s finding that the October Proclamation unnecessarily exposed voters to the risk of spreading COVID. However, the Court held that it was permissible because the October Proclamation should be understood to be connected to the July Proclamation. The Court’s opinion talked about the “net result” of the two proclamations creating more opportunities for voters than the Texas Election Code and repeatedly tied the permissibility of the October Proclamation to the July Proclamation. The Court also did not accept the argument that the Governor is limited in his authority to change an order that is fully enforceable under the law only for the purposes of mitigating the emergency he derives his emergency powers from. The Court stated, “[i]f the plaintiffs were correct that each order issued by the Governor during a disaster must be motivated by a desire to alleviate the threat of the pandemic, then the Governor would be powerless to amend or rescind his orders based on other important goals, such as promoting economic welfare, protecting constitutional rights, or ensuring the integrity of elections.”

This is striking for two reasons. For one, it opens the possibility for executive orders to be analyzed not only as independent actions that are enforceable, but as actions that can be grouped, analyzed, and enforced together. An executive order that is not grounded in constitutional or statutory authority on its own can gain that authority through association with a separate executive order, based on the Court’s reasoning in Abbott v. Anti-Defamation League. The second reason this decision striking is because it opens the possibility for executive orders made under the Texas Disaster Act, or more specifically, executive orders made to amend executive orders under the Texas Disaster Act, to be actions disconnected from the objective of mitigating the present disaster.

An alternative the Court might have considered that would balance the Court’s concern for the Governor’s ability to adjust proclamations based on policy objectives with the plain language of the Texas Disaster Act limiting the Governor to actions related to the disaster, would be for the Governor to rescind executive orders that he wishes to alter, as the statute already permits him to do, and to issue a new proclamation that addresses the needs of the state to mitigate the disaster in a way that is tailored to legitimate policy objectives. As Texas continues to prepare for elections with the state of disaster due to COVID being renewed monthly for the foreseeable future and the declaration of other disasters occurring regularly, it will be important to have clarity on the parameters in which the Governor of Texas may or may not suspend election law using his emergency powers.

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