The supreme court granted mandamus relief in In re: Durnin, No. 21-0170 (March 2, 2021), which challenged the ballot language about an Austin ordinance related to “camping in public spaces, sitting and lying down on public sidewalks, and the aggressive solicitation of money.”

In a majority opinion by Justice Blacklock, the Court observed: “[I]t is not the courts’ job to micromanage the sentence structure of ballot propositions. Our job is to ensure voters are not misled by inaccuracies or material omissions in the proposition while preserving the governing body’s discretion to select ballot language.” That said, it found that the proposition “is inaccurate and misleading in one important respect: “The proposition states that the ordinance creates a criminal offense and a penalty ‘for anyone sitting or lying down on a public sidewalk’ in the downtown or UT-Austin area. Although the ordinance does criminalize some instances of sitting or lying down on a sidewalk, by using the word “anyone,” the proposition gives the impression that the ordinance criminalizes all instances of sitting or lying down on a sidewalk. That is not true.”

Justice Boyd, joined by Justices Devine and Busby, would go further and dissented: “Based on the plain language of the City of Austin’s charter, I would grant relators relief by requiring the city to state the caption contained in the voters’ certified petition as the proposition on the ballot.”

The timeliness of a mandamus petitions is ordinarily determined by equitable principles rather than a set deadline. An exception to that general practice appeared in In re: Texas House Republican Caucus PAC, which presented a claim that certain Libertarian candidates had not paid the proper filing fees for the upcoming election. The Texas Supreme Court found that the applicable part of the Elections Code (relating to candidates selected by convention rather than application) set a hard deadline of August 21, making a mandamus petition filed after that date per se untimely. No. 20-0663 (Sept. 5, 2020) (per curiam) (Justices Hecht & Boyd, not participating).

The Texas Supreme Court declined to enter the fray about the City of Houston’s cancellation of the state Republican Party convention: ‘[Texas Election Code] Section 1.005(10) defines “law” in the Election Code to mean “a constitution, statute, city charter, or city ordinance.”’ Thus, ‘duty imposed by law’ in Section 273.061 is limited to a duty imposed by a constitution, statute, city charter, or city ordinance. The Party does not assert that Houston First owes it any such duty. The Party argues it has constitutional rights to hold a convention and engage in electoral activities, and that is unquestionably true. But those rights do not allow it to simply commandeer use of the Center. Houston First’s only duty to allow the Party use of the Center for its Convention is under the terms of the parties’ Agreement, not a constitution.” In re Republican Party of Texas, No. 20-0525 (Tex. July 13, 2020). A dissent would have taken the case given the importance of the issue.

The Texas Supreme Court’s majority opinion in In re: State of Texas, No. 20-0394 (May 27, 2020), which addresses whether a lack of COVID-19 immunity can be a “disability” under the Election Code provision allowing a mail-in ballot, has these main points:

• Mandamus relief, availability. It may be appropriate when the parties “agree[] . . . that because of imminence of the July elections, filing first in this Court is justified,” and when “th[e] case also presents questions of state-wide importance.”
• Statutory interpretation. A lack of COVID-19 immunity is not a qualifying disability: “[I]f ‘physical condition’ as used in § 82.002(a) meant ‘physical state of being’, it would swallow the other categories of voters eligible for mail-in voting.” (This holding resolves the main legal issue in other cases statewide involving various county clerk’s offices.)
• Mandamus relief, issuance. “The elected officials have placed in the hands of the voter the determination of whether in-person voting will cause a likelihood of injury due to a physical condition. The respondents do not have a ministerial duty, reviewable by mandamus, to look beyond the application to vote by mail.”
• Going forward. “The Clerks have assured us that they will fully discharge their duty to follow the law. We are confident that they will follow the guidance we have provided here.”