Did Texas Governor Greg Abbott Defy the Texas Legislature’s Election Rules?Andrew Hyman

The U.S. Constitution says, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors....”  A number of pundits have incorrectly suggested that Governor Abbott of Texas violated this Electors Clause by changing or violating that state’s election statutes, and so his support of an election lawsuit against other states was somewhat hypocritical.  I disagree.

 

It’s true that Abbott did extend early voting in November.  But his proclamation said he possessed statutory power to do so:

 

WHEREAS, pursuant to Section 418.016 of the Texas Government Code, the legislature has expressly authorized the Governor to suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster....

 

Indeed, Section 418.016 says this:

 

The governor may suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster.

 

So, it appears that Abbott did not violate the Electors Clause of the U.S. Constitution at all, assuming that Section 418.016 delegates power in a way that is constitutional generally, or at least constitutional as applied (I am talking here about both the Texas and U.S. constitutions).  During the ongoing coronavirus pandemic that originated in Wuhan, many U.S. governors have been using state laws analogous to those of Texas to shut down businesses and restrict individual liberty, and those governors have overstretched such laws from time to time.  Moreover, common sense suggests that if an emergency has been going on for a while, then a state legislature would have time to convene and reclaim its power to decide these matters.  In the mean time, everyone knows that executive officials often have to fill in statutory gaps so long as they don't violate the statutes.  In Texas, this whole matter is affected by Section 28 of the Texas Bill of Rights, which says that "No power of suspending laws in this State shall be exercised except by the Legislature."  There have been interesting discussions about whether this clause of Texas's constitution conflicts with 418.016, and I doubt there is any conflict given that 418.016 was carefully written so that it affects "conduct of state business" rather than conduct of private business.  In other words, Abbott's extension of early voting was authorized by the Texas legislature in keeping with the Texas Constitution, and reasonably filled in a statutory gap created by an emergency, so that Abbott's action was consistent with the Electors Clause of the U.S. Constitution.  There is no need to consider hypotheticals here (e.g. the Texas Constitution purports to give the Governor carte blanche to regulate elections so the Governor makes up all the election rules himself).

 

Another interesting question, of course, is whether Texas had standing to sue other states for defying their own respective state legislatures.  Texas likely has no standing to attack other states’ election laws, but Texas would not be doing that by merely claiming that those election laws of other states have been violated.

 

For example (speaking of hypotheticals), if the Governor of Massachusetts were to unilaterally appoint 150 electors to the Electoral College, contrary to instructions from the Massachusetts legislature to appoint only eleven electors, then I would not see any standing problem if Texas sues Massachusetts, because the Massachusetts Governor’s action not only violated his own state laws but also diluted the electoral votes of Texas.  Note that SCOTUS has held that “[d]istinct from but related to the general well being of its residents, the state has an interest in securing observance of the terms under which it participates in the federal system.”  I do not believe that "interest" extends to attacking the terms of other states’ election laws, e.g. a Massachusetts law purporting to authorize appointment of 150 electors, but that "interest" does seem to extend to the far less intrusive goal of securing observance of other states' election statutes pursuant to the federal Electors Clause.

 

Anyway, whether Texas has standing or not (SCOTUS says not), I don’t think Texas was necessarily being hypocritical in trying to get other states to comply with the Electors Clause of the U.S. Constitution.

 

One last thing.  The Electors Clause says, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors....”  One might have reason to question whether it’s okay for a state legislature to delegate that power to the state’s electorate, except that Section 2 of the Fourteenth Amendment clearly legitimizes that practice, and in fact imposed a penalty if that right to elect electors is abridged.