Can the Texas Governor suspend election laws and call an early special election during a disaster?

Plain-English summary

When U.S. Representative Blake Farenthold resigned in April 2018, his seat in Congressional District 27 became vacant, and under Texas law that kind of vacancy can be filled only by a special election. Governor Greg Abbott wanted to hold that election as soon as legally possible, but several state and federal laws set minimum timing requirements that, stacked together, ruled out a quick election. The counties in District 27 were also still under a disaster declaration from Hurricane Harvey. The Governor asked the AG whether his emergency powers let him suspend the relevant election laws and order an expedited special election.

The AG first walked through the timing rules. The Election Code generally sets special elections on the next uniform election date (here, November 6, 2018). The Legislature allowed an earlier, nonuniform "emergency" date in some cases, with an election to fill a vacancy held between the 36th and 50th day after it is ordered. But the candidate filing periods and the federal Uniformed and Overseas Citizens Absentee Voting Act (which requires absentee ballots to go to military and overseas voters at least 45 days before a federal election) pushed the earliest workable date past that 36-to-50-day window. So the ordinary statutes blocked a fast election.

On the emergency-powers question, the AG pointed to Government Code section 418.016(a), which lets the Governor suspend regulatory statutes prescribing procedures for the conduct of state business if strict compliance would prevent, hinder, or delay necessary action in coping with a disaster. The election-timing statutes are such regulatory procedures, so to the extent they hindered necessary action in coping with Harvey, the AG concluded the Governor could suspend them. The AG added that Election Code section 41.0011 separately authorizes the Governor to call a special election on a nonuniform date when an emergency warrants it, so if the Governor found the District 27 vacancy to be such an emergency, a court would likely uphold an expedited special election.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Governor (who requested the opinion): The opinion told the Governor that his disaster authority under Government Code section 418.016(a) reached the Election Code's special-election timing provisions, so he could suspend them to the extent strict compliance would prevent, hinder, or delay necessary disaster response. It also told him that section 41.0011 of the Election Code, on its own terms, let him call an emergency special election on a nonuniform date if he determined the vacancy was an emergency, and that a court would likely uphold that determination.

Election administrators (as the opinion described them): The opinion laid out the layered timing constraints the administrators worked under: the uniform-date rule, the 36-to-50-day emergency window, the candidate filing periods, and the federal 45-day absentee-ballot requirement for military and overseas voters. It noted that whether the printing and mailing of ballots could be done in the available days was a practical question for the officials performing those functions, not one the AG resolved.

Voters of Congressional District 27 (as the opinion described them): The opinion framed the question as one about how quickly the district could regain representation. It noted that even once a special election was called, a runoff could be required if no candidate won a majority, so the seat might not be filled immediately.

Common questions

Can a Texas Governor suspend election laws after a disaster?
The AG concluded that, under Government Code section 418.016(a), the Governor may suspend regulatory statutes that set procedures for state business, including Election Code timing rules, to the extent strict compliance would prevent, hinder, or delay necessary action in coping with a disaster.

Why couldn't the Governor just call a fast special election under the ordinary rules?
Because the timing statutes stack. The emergency window for a vacancy election is the 36th to 50th day after it is ordered, but the candidate filing periods and the federal requirement to mail absentee ballots to military and overseas voters at least 45 days out pushed the earliest workable date past that window.

What does Election Code section 41.0011 allow?
It lets the Governor call a special election on a nonuniform date when he determines an emergency warrants holding the election before the next uniform date. The proclamation must state the nature of the emergency.

Would a quick special election immediately fill the seat?
Not necessarily. The AG noted that to be elected for an unexpired term a candidate must win a majority of all votes cast for that term, so a runoff could be needed depending on the number of candidates.

Background and statutory framework

A vacancy in the office of United States representative may be filled only by a special election (Tex. Elec. Code § 204.021), and the procedures track Chapter 203 of the Election Code. A special election generally falls on the first uniform election date on or after the 36th day after it is ordered (§ 203.004(a); see also §§ 201.052, 41.001(a)(3)). For emergencies, the Governor may call an election on an earlier nonuniform date (§ 41.0011(a)), with a vacancy election held between the 36th and 50th day after it is ordered (§ 203.004(b)); the proclamation must identify the nature of the emergency (§ 41.0011(c)). The candidate filing periods in § 201.054(a) (62nd day before election day for elections ordered at least 70 days out, or 40th day before for elections ordered at least 46 days out) prevent calling an election sooner than 46 days from the order.

Federal law adds the Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. §§ 20301-20311, which generally requires transmitting a requested absentee ballot to a uniformed-services or overseas voter at least 45 days before a federal election (§ 20302(a)(8)(A); see Tex. Elec. Code § 114.007(a)); the limited hardship waiver (§ 20302(g)(2)(B), (g)(3)(A)) did not apply. The AG cited United States v. Alabama, 778 F.3d 926, 928 (11th Cir. 2015), for the Act's purpose of ending disenfranchisement of military voters overseas. Because ballots cannot be printed until the filing period closes and the candidates are known, these requirements together pushed the earliest workable election past the vacancy-election window.

On emergency authority, the AG relied on Government Code section 418.016(a), which permits suspending regulatory statutes prescribing procedures for the conduct of state business when strict compliance would prevent, hinder, or delay necessary action in coping with a disaster, against the backdrop of the Governor's disaster declaration for the Harvey counties (Tex. Gov't Code § 418.014(a); Tex. Att'y Gen. Op. No. MW-140 (1980)). The AG distinguished Salmon v. Lamb, 616 S.W.2d 296, 298 (Tex. Civ. App.-Houston [1st Dist.] 1981, no writ), which predated section 41.0011 and limited the Governor to the next available statutory date, because the later-enacted section 41.0011 expressly authorizes a nonuniform emergency election date. The AG also noted (§ 203.003) that a winner must receive a majority of all votes cast for the unexpired term, so a runoff could be required.

Citations

Cases:

• United States v. Alabama, 778 F.3d 926, 928 (11th Cir. 2015)
• Salmon v. Lamb, 616 S.W.2d 296, 298 (Tex. Civ. App.-Houston [1st Dist.] 1981, no writ)

Prior AG opinion:

• Tex. Att'y Gen. Op. No. MW-140 (1980)

Statutes:

• Tex. Elec. Code §§ 41.001(a)(3), 41.0011(a), (c), 114.007(a), 201.052, 201.054(a), 203.003, 203.004(a), (b), 204.021
• Tex. Gov't Code §§ 418.014(a), 418.016(a)
• 52 U.S.C. §§ 20301-20311, 20302(a)(8)(A), 20302(g)(2)(B), (g)(3)(A)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0191
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2018/kp0191.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

April 23, 2018

The Honorable Greg Abbott Opinion No. KP-0191
Governor of Texas
Post Office Box 12428 Re: Whether the emergency powers under
Austin, Texas 78711-2428 section 418.016 of the Government Code
authorize the Governor to suspend relevant state
election laws and order an emergency special
election (RQ-0223-KP)

Dear Governor Abbott:

     You request an opinion regarding whether the Governor's emergency powers authorize you to suspend relevant state election laws and call an expedited special election to fill the vacancy in Congressional District 27, which occurred due to former-Representative Blake Farenthold's recent resignation. [1] Under Texas law, an "unexpired term in the office of United States representative may be filled only by a special election." TEX. ELEC. CODE § 204.021. Representative Farenthold was elected for the 2017-2018 term, but you tell us he notified you of his resignation on April 8, 2018, leaving a vacancy in that office either until filled by special election or until the new term begins in January 2019. Request Letter at 1. Important to your request, all counties within Congressional District 27 remain under a disaster declaration as they continue to recover from Hurricane Harvey. While you desire "to call a special election as soon as is legally possible" to ensure federal representation for the constituents of that district, multiple state and federal laws restrict the timing of a special election to fill a vacancy for that office. Id. at 1.

    I.       State and Federal Laws Addressing the Timing of a Special Election for Congressional District 27

     The Election Code generally provides that "a special election shall be held on the first uniform election date occurring on or after the 36th day after the date the election is ordered." TEX. ELEC. CODE § 203.004(a); see also id. §§ 204.021 (explaining that the procedures for a special election to fill a vacancy for a United States representative are the same "as provided by Chapter 203 for the legislature"), 201.052 (establishing the general date of election for a special election to fill a vacancy as the first authorized uniform election date). Under this provision, the first uniform election date available for the special election is November 6, 2018. See id. § 41.001(a)(3) (listing the uniform election dates for general or special elections, which includes "the first Tuesday after the first Monday in November").

    Recognizing some special elections may need to occur before the next uniform election date, the Legislature authorized the Governor to call a special election earlier in certain circumstances. Id. § 41.0011(a). When the Governor "determines that an emergency warrants holding a special election before the appropriate uniform election date, the election may be held on an earlier nonuniform date." [2] Id. Section 203.004 provides that an emergency election to fill a vacancy "shall be held on a Tuesday or Saturday occurring on or after the 36th day and before the 50th day after the date the election is ordered." Id. § 203.004(b). Read in isolation, this provision suggests that the Governor could call a special election as early as Tuesday, May 29, 2018, thirty-six days from today; however, other laws prevent the Governor from calling an election so early.

   The date for a special election must also account for the statutorily-required filing period for candidates to apply for a place on the ballot. Section 201.054 of the Election Code authorizes two separate candidate filing periods, the first for an election ordered at least 70 days in advance, and the second for an election ordered at least 46 days in advance:

             [A] candidate's application for a place on a special election ballot must be filed not later than:

              (1) 5 p.m. of the 62nd day before election day, if election day is on or after the 70th day after the date the election is ordered; or

              (2) 5 p.m. of the 40th day before election day, if election day is on or after the 46th day and before the 70th day after the date the election is ordered.

Id. § 201.054(a). Thus, this section prevents the Governor from calling a special election earlier than 46 days from the day the election is called.

    Furthermore, the special election date must comply with federal election law, including the Uniformed and Overseas Citizens Absentee Voting Act ("Act"). See generally 52 U.S.C. § 20301-20311. That Act, "aimed at ending the widespread disenfranchisement of military voters stationed overseas," requires states to adopt certain measures when administering federal elections to accommodate military voters and other citizens residing overseas. United States v. Alabama, 778 F.3d 926, 928 (11th Cir. 2015). Relevant to your question, states must generally "transmit a validly requested absentee ballot to an absent uniformed services voter or overseas voter" at least 45 days before an election for federal office. [3] 52 U.S.C. § 20302(a)(8)(A); see also TEX. ELEC. CODE § 114.007(a) (requiring that ballots be mailed to certain United States citizens dwelling outside the United States "as provided by" the Act). Before a state can transmit the absentee ballots, it must print them. And before it can print them, it must know which candidates to include on the ballots, meaning it could not print ballots until after the end of the filing period. Considering the statutorily-required filing period discussed above alongside the Act, if an election were called today, the Governor could not set a date for that election before Tuesday, July 3, 2018, at the earliest. [4] That date does not fall between the 36th and 50th day window required under section 203.004(b) to call a special election to fill a vacancy in Congress. See TEX. ELEC. CODE § 203.004(b). Thus, when read together, these federal and state election laws pose significant obstacles to holding an expeditious emergency election to fill the current vacancy in Congressional District 27. [5]

     II.      The Governor's Emergency Authority to Suspend Certain State Laws to Manage a Disaster

    Given these significant legal restrictions on the dates for calling a special election, you ask whether you may utilize your emergency authority "to suspend relevant state election laws and order an emergency special election." Request Letter at 2. As Governor, you possess "extremely broad powers to declare disaster emergencies and to deal with them." Tex. Att'y Gen. Op. No. MW-140 (1980) at 1. Pursuant to this authority, you issued a disaster proclamation in August of last year for the counties impacted by Hurricane Harvey. [6] Recognizing that "due to the catastrophic damage caused by Hurricane Harvey, a state of disaster continues to exist in those same counties," your disaster declaration remains and continues to cover those counties. [7] That disaster declaration embraces each of the counties located in Congressional District 27. [8]

    In managing a disaster, you possess express authority 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." TEX. GOV'T CODE § 418.016(a). The state statutes discussed above prescribe deadlines and timing requirements for calling a special election and are therefore regulatory statutes that prescribe "the procedures for conduct of state business." Id. To the extent that the procedures in those portions of the Election Code "prevent, hinder, or delay necessary action" in coping with the damage caused by Hurricane Harvey, the Legislature authorized you to temporarily suspend those provisions. Id.

   The Legislature also provided you express authority to call a special election on a nonuniform election date when an emergency so warrants. TEX. ELEC. CODE § 41.0011(a). [9] You acknowledge that many of the residents of Congressional District 27 "are still recovering from the ravages of Hurricane Harvey." Request Letter at 1. And you explain that because "so many of the hurricane relief efforts depend on action at the federal level, it is all the more important that the voters of District 27" have congressional representation as soon as possible. Id. If you determine the situation in Congressional District 27 constitutes an emergency that warrants holding a special election before November 6, 2018, a court would likely conclude that section 41.0011 authorizes calling an expedited special election to fill the vacancy in that district.

                                  SUMMARY

                  To the extent that the special election procedures established in the Election Code prevent, hinder, or delay necessary action in coping with the damage caused by Hurricane Harvey, section 418.016(a) of the Government Code authorizes the Governor to suspend those provisions.

                  If the Governor determines the situation in Congressional District 27 constitutes an emergency warranting a special election before November 6, 2018, a court would likely conclude that section 41.0011 of the Election Code authorizes calling an expedited special election to fill the vacancy in that district.

                                        Very truly yours,

                                        KEN PAXTON
                                        Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

[1] See Letter from Honorable Greg Abbott, Governor of Tex., to Honorable Ken Paxton, Tex. Att'y Gen. at 1-2 (Apr. 19, 2018), https://texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] "The proclamation or order for an emergency election under this section must include a statement identifying the nature of the emergency." TEX. ELEC. CODE § 41.0011(c).

[3] A hardship exemption exists to waive this 45-day requirement in certain circumstances, but none of those circumstances appear to apply here. See 52 U.S.C. § 20302(g)(2)(B). Even if the exemption were available, a state must request the waiver "not later than 90 days before the election for Federal office," making the waiver impractical in this situation. Id. § 20302(g)(3)(A).

[4] A special election on this date would provide 17 days for the printing and mailing of absentee ballots between the end of the candidate filing period and the time at which absentee ballots must be mailed, 45 days before the election. We have no information to determine whether 17 days provides sufficient time to perform these functions, and the authorities performing those functions are in the best position to advise on the actual time required.

[5] As you also note, at whichever date the initial special election is called to fill this vacancy, it may not result in immediate representation for the district. See Request Letter at 1. "To be elected in a special election for an unexpired term, a candidate must receive a majority of the total number of votes received by all candidates for the unexpired term." TEX. ELEC. CODE § 203.003. Thus, depending on the number of candidates, a runoff election could be necessary to fill the office.

[6] On August 23, 2017, you issued a disaster proclamation for 30 counties in anticipation of the storm damage from Tropical Depression Harvey. On August 27, 2017, you added other counties to that proclamation. See also TEX. GOV'T CODE § 418.014(a) (authorizing the Governor to declare a disaster).

[7] See https://gov.texas.gov/news/post/governor-greg-abbott-again-declares-disaster-proclamation-extension-for-texas-counties-impacted-by-hurricane-Harvey.

[8] Congressional District 27 includes Aransas, Calhoun, Jackson, Lavaca, Matagorda, Nueces, Refugio, Victoria, and Wharton counties and some parts of Bastrop, Caldwell, Gonzales, and San Patricio counties. See http://www.tlc.state.tx.us/redist/pdf/congress/map.pdf.

[9] The Legislature enacted section 41.0011 in 1991. Act of May 27, 1991, 72d Leg., R.S., ch. 389, § 2, 1991 Tex. Gen. Laws 1472, 1473. Prior to that enactment, one intermediate court addressed the Governor's authority to use his emergency powers to postpone a special election. See Salmon v. Lamb, 616 S.W.2d 296, 298 (Tex. Civ. App.-Houston [1st Dist.] 1981, no writ). While affirming that authority, the court held that the Governor was limited to postponing only to the next available date prescribed in the Election Code. Id. (voiding an election held on a date other than the mandatory dates on which special elections of the type in issue must be held). Because the subsequently enacted section 41.0011 authorizes the Governor to call an emergency special election on a nonuniform election date, a court would likely distinguish that case from the situation here.