AUSTIN – In a response written to Gov. Greg Abbott on April 23, Attorney General Ken Paxton said the governor may have authority to suspend state election laws and call an expedited special election to fill the vacancy in Congressional District 27, which occurred due to former-U.S. Rep. Blake Farenthold's resignation.
Abbott had requested an expedited special election to ensure federal representation for the constituents of all counties within Congressional District 27, which remains under a disaster declaration as the counties continue to recover from Hurricane Harvey.
Despite multiple state and federal laws restricting the timing of a special election to fill a vacancy for that office, Paxton said an exception may be made because of the hurricane.
“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,” Paxton said.
If the situation in Congressional District 27 constitutes an emergency that warrants holding a special election before Nov. 6, Paxton said a court "would likely conclude" that the law "authorizes calling an expedited special election to fill the vacancy in that district."
The legislature provides express authority to call a special election on a nonuniform election date when an emergency so warrants, according to Paxton.
“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,’" Paxton said.
Given the legal restrictions on the dates for calling a special election, Paxton said the governor has "'extremely broad powers to declare disaster emergencies and to deal with them.'"
Abbott issued a disaster proclamation in August 2017 for the counties impacted by Hurricane Harvey, according to Paxton.
"'Due to the catastrophic damage caused by Hurricane Harvey, a state of disaster continues to exist in those same counties,'" Paxton said. “Your disaster declaration remains and continues to cover those counties. That disaster declaration embraces each of the counties located in Congressional District 27.”
According to Paxton, 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.'"
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,'" Paxton said.
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," Paxton said.
“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,” Paxton said.