Harris County Won’t Have To Throw Out Mail-In Ballots From Voters 65 And Older Who Received Unsolicited Applications

Conservative activist Steve Hotze and Texas Agriculture Commissioner Sid Miller were among those who tried to block the mailings, which they said flouted state law.


David J. Phillip / AP Photo
Harris County election worker Romanique Tillman prepares mail-in ballots to be sent out to voters Tuesday, Sept. 29, 2020, in Houston.

Harris County will not have to throw out potentially thousands of ballots from people 65 and older who received unsolicited mail-in voting applications, after the Texas Supreme Court denied a petition from a conservative activist and others on Friday.

Activist Steven Hotze, Texas Agriculture Commissioner Sid Miller, Houston ISD trustee candidate Gerry Munroe and a group of Harris County voters filed the petition earlier this month in an effort to keep Harris County Elections Administrator Isabel Longoria from sending more applications before the November election.

Court documents show scans of applications the voters allegedly received in recent months without requesting them.

The petition also asked the court to order Longoria’s office not to count any votes from people who received ballot applications without requesting one.

“If the Legislature had wanted to require the clerk to send the application to vote early to all registered voters sixty-five or older, they could have done so,” the petitioners wrote. “Additionally, if they wanted the clerk to have this option, they could have provided it in the language of the statute. Instead, the Legislature limited the mandate to provide the application only to those who request it.”

In a brief filed Monday, Harris County Attorney Christian Menefee said the group lacked standing to sue because they failed to show any harm from the mailings, and that throwing out the ballots would disenfranchise thousands of elderly voters. The brief also argued the petitioners improperly skipped the appeals process by heading straight to the Supreme Court.

The high court denied the petition without issuing an opinion. Justice John Phillip Devine dissented.

“We're very happy with the result,” read a statement from Menefee. “This lawsuit was the latest attempt by partisan activists seeking to use the Courts to disenfranchise Texans. The Supreme Court of Texas has correctly and swiftly rejected these efforts.”

The petitioners’ attorney, Jared Woodfill, said he planned to refile the case in the either the First or 14th Court of Appeals in Houston.

Woodfill would not confirm if he would again ask for potential ballots to be thrown out, but said at the very least he wanted the people who received unsolicited applications to be informed.

“There's something wrong with an elections administrator who decides that she is just going to take the law into her hand, and create the law as she wishes it to be, not as it is,” Woodfill said. “And that's what we have in Isabel Longoria."

Harris County sent out 467,971 ballot applications to voters 65 and older in August, and plans to send out 76,736 ballots starting next week, according to Longoria's office.

In a statement, Longoria noted that when Senate Bill 1 goes into effect on Dec. 2, she will be unable to send more applications without a request. SB 1 is a Texas election law that places new restrictions on voting and bans things like drive-thru and 24-hour voting. The law also bans sending unsolicited vote-by-mail applications.

Longoria has joined several people and groups in a lawsuit against the state attempting to block SB 1 from going into effect.

"Voting by mail is not simply another method to vote – for many, it’s their only option to vote," Longoria said. "SB1 effectively makes it impossible to fulfill my sworn duty as Elections Administrator moving forward which is why I have joined a lawsuit challenging the SB1 provision regarding mail-in ballot applications."

The high court previously ruled in October that Harris County could not mail out ballot applications to every single voter. Texas sued to block then-County Clerk Chris Hollins from mailing out the applications to everyone, which he argued was an effort to increase voter participation during the pandemic.

While lower courts sided with Hollins, the Supreme Court justices ultimately agreed with Texas’ argument that it exceeded Hollins’ legal authority.

About a month later, a federal judge in Houston rejected an attempt by Hotze and others to have 127,000 ballots cast by drive-thru voters thrown out.

Correction: An earlier version of this story incorrectly stated that Harris County is sending out more ballot applications starting next week. The county is sending out 76,736 ballots starting next week, and has finished sending out applications.