In RE THE TRAVIS COUNTY REPUBLICAN PARTY AND MATT MACKOWIAK, CHAIR OF THE TRAVIS COUNTY REPUBLICAN PARTY v. the State of Texas

Supreme Court of Texas
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No. 24-0915
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In re Travis County Republican Party and Matt Mackowiak,
Chair of the Travis County Republican Party,
Relators

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On Petition for Writ of Mandamus
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JUSTICE BLACKLOCK, joined by Justice Devine and Justice Young,
concurring in part in the denial of the petition for writ of mandamus and
motion for expedited relief.

I would order the Respondents to comply with the Election Code,
as interpreted below, to the greatest extent practicable in the limited
time available. Beyond that, I concur in the Court’s disposition of the
petition.
The Election Code requires county officials to appoint election
judges and alternate election judges in a way that gives both major
political parties a representative at each precinct on election day, if
possible. See TEX. ELEC. CODE § 32.002(c). The partisan affiliation of
the “presiding judge” depends on the results of recent elections in the
jurisdiction. Id. The “alternate presiding judge” must come from a
different political party, which in nearly every case will be the major
party not represented by the presiding judge. Id. In this way, as long
as the county chairs of the political parties have submitted lists
containing a sufficient number of eligible volunteers, the Election Code
requires that precincts with a Democrat presiding judge must have a
Republican alternate presiding judge, and vice versa. Id.
This partisan-affiliation rule for presiding judges and alternate
presiding judges applies to counties, like Travis County, that use
“countywide polling places established under Section 43.007.” Id.
§ 32.002(c-1). The partisan-affiliation rule appears in Section 32.002(c).
Although Travis County operates under the alternative scheme
described by Section 32.002(c-1), that scheme requires the appointments
to be made “in compliance with Subsection (c)” except with respect to a
list of matters that does not include partisan affiliation. Subsection (c-1)
goes on to reinforce the partisan-affiliation rule by providing that the
rule cannot be departed from even when there is a “need for services” at
a polling location: “Other than a judge’s party affiliation, nothing in this
subsection precludes a county clerk from placing an election officer at a
countywide polling place based on the need for services at that location.”
Id.
The Election Code contains a similar provision for “election
clerks,” who assist the election judges at the polling place. These clerks
“shall be selected from different political parties if possible.” Id.
§ 32.034(a).
None of the foregoing statutory rules is optional, and their
legitimate aim is obvious—to assure voters of all political parties that
their local polling place is not dominated by partisans of one party or
another.

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This mandamus petition, filed four days before election day on
November 1 by the Travis County Republican Party (TCRP), complains
that the Travis County Clerk has not complied with her statutory duties
regarding the appointment of election judges, alternate election judges,
and election clerks. In at least one respect, it appears based on the
limited information before this Court that the TCRP is probably right.
Although the evidence before this Court is not entirely clear, it seems
that the County Clerk has not made much effort, if any, to place
Republican alternate election judges at polling places with Democrat
election judges, as the Election Code contemplates. If that is what has
happened, a serious violation of the law has occurred. The Election
Code’s rules for the partisan alignment of polling-place officials are not
suggestions, and they cannot be ignored by a county clerk who finds
them burdensome, bothersome, or ill-advised. Nor should county
officials be permitted to hide behind technicalities or require a political
party’s county chair to jump through elaborate hoops before the county
agrees to vindicate the Election Code’s promise that those who work the
polls will come from multiple political parties, if at all possible.
As problematic as the county’s actions may be, these allegations
were not brought to this Court’s attention until less than four days
before the start of voting on election day, despite the TCRP’s knowledge
of them at least two weeks prior. This Court has said again and again
that we cannot grant election-eve mandamus relief that could disrupt
the voting process unless we know with certainty how our action will
affect an impending election. In re Khanoyan, 637 S.W.3d 762, 764 (Tex.
2022) (“[A]s the risk of judicial interference with an election rises, so

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does the duty of the party invoking judicial power to explain with
precision how any relief will affect that election . . . .”). The party seeking
our intervention naturally bears the burden to demonstrate that the
relief it seeks will not cause disruption or confusion on election day. Id.
at 764–65. The same party likewise bears a related burden to seek
mandamus relief as quickly as it possibly can, so that the courts have as
much time as possible to assess the allegations and to determine what
impact the requested relief will have on the election. See id. at 765.
The TCRP has not complied with either burden in this case. It
knew of the clerk’s actions on October 16, and the evidentiary record it
has provided to this Court lacks the degree of clarity and specificity that
would allow this Court to know with certainty what exactly has
transpired and what practical effect this kind of last-minute judicial
intervention would have for election day in Travis County. The spotty
record before us certainly lacks the kind of crystal clarity that would put
this Court in a position to dictate new precinct-by-precinct
appointments, as the petition suggests should happen. Had this petition
been filed as soon as it could have been, the courts would have had some
time to sort through the factual details and perhaps issue effective relief
if the County Clerk has indeed violated its statutory duties, as may in
fact have happened. At this eleventh hour, however, we must deal with
what we have—an incomplete and unclear factual record combined with
only the most cursory understanding of the practical impact that
granting the requested relief would have on Travis County polling places
this Tuesday.

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Thus, despite the distinct possibility that the County Clerk has
not fully complied with the Election Code, it would be neither practicable
nor prudent—not to mention a clear departure from this Court’s
precedent regarding last-minute election cases—for this Court, on this
record, to attempt to dictate which election workers will work the polls
at each of Travis County’s 176 election-day polling places mere hours
from now. To cite just one example of the lack of clarity in the
information before the Court, we have no way of knowing whether the
alternate election judges proposed by the TCRP meet the other,
non-political qualifications to serve in that position, and we have no way
of ascertaining such information on a moment’s notice. It is therefore
impossible for us to order that any of the TCRP’s proposed alternate
judges be appointed, as is asked of us. Had this petition been filed
earlier, it is conceivable that this and other factual and practical
questions could have been adequately explored. That has not happened,
and there is now no time for it.
The most we can responsibly do under these circumstances is to
order the Travis County Clerk to comply to the greatest extent
practicable, in the time remaining before the election, with the Election
Code’s mandatory requirements regarding the partisan affiliation of
alternate election judges and election clerks. 1 These requirements are

1 With respect to election clerks, the county suggests that it need not

concern itself with the statutory requirement that election clerks come from
“different political parties if possible” because it is the duty of election judges,
not the county clerk, to select election clerks. If, however, county officials have
taken it upon themselves as a practical matter to assign election clerks, as the
TCRP alleges, then county officials must do so in compliance with the statute’s
partisan-affiliation requirement. Section 32.034(a) states a general rule that

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not optional, and they are not insignificant. But given the late filing of
the mandamus petition and the uncertain state of the record, more
specific relief cannot be afforded in the time allowed.
Going forward, other remedies may be available if the county’s
alleged violations of law can be established through a judicial process
that is not hampered by the time constraints and practical
considerations that limit this Court’s options on the eve of the election.
I would order the Respondents to comply with the Election Code
as interpreted herein, to the greatest extent practicable. Beyond that, I
concur in the Court’s disposition of the petition.

James D. Blacklock
Justice

OPINION FILED: November 4, 2024

election clerks “shall be selected from different political parties if possible.”
That rule is obviously intended to be generally applicable to the selection and
assignment of election clerks, no matter who is doing the selecting and
assigning. The record does not clearly indicate how election clerks are selected
and assigned in Travis County.

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