In a written opinion (PDF), Atty. Gen. Ken Paxton (R) determined that Gov. Greg Abbott (R) could call an emergency special election to fill the unexpired term of former U.S. Rep. Blake Farenthold (R-Corpus Christi), who resigned earlier this month.
Citing the region’s ongoing recovery for Hurricane Harvey and the fact that every county within CD27 remains under disaster declaration, Paxton determined that Section 418.016(a), Government Code authorizes Abbott to suspend provisions of the Election Code that would require a special election be held in November.
Section 204.021, Election Code provides that a U.S. House vacancy “may be filled only by a special election in the same manner” as for a vacancy in the Legislature, “except that Section 203.013 does not apply.” That section authorizes an “expedited election,” which requires a vacancy occurring while the Legislature is in session, or within 60 days of it going into “any session,” be filled within 45 days of the election being ordered. Thus, it would appear that the Legislature intended congressional vacancies be filled only by special elections held on uniform election dates.
However, Section 41.0011, Election Code permits the governor to call an “emergency election,” even on behalf of a political subdivision, as Abbott did in December for the city of Alice, if the governor “determines that an emergency warrants holding a special election before the appropriate uniform election date.”.
Other statutory requirements, such as those prescribing the filing period and the federal requirement to ensure voters stationed overseas may cast ballots, place additional limits on how quickly an election could be called. Paxton determines the earliest an emergency election could occur to comply with these requirements is July 3 assuming the election were ordered today (Monday).
That’s were Section 418.016(a), Government Code, comes in. That section provides that “the governor may suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business … if strict compliance … would in any way prevent, hinder or delay necessary action in coping with a disaster.” Paxton notes that the federal requirements for a federal election can be waived under certain circumstances, “but none of those circumstances appear to apply here.” The state could seek a waiver, but that timeline is even longer than complying fully with the federal law.
Without explicitly saying it, the best way for Abbott to shorten the time CD27 is without representation is to call an emergency election under Section 41.0011, Election Code, and waive Section 201.054, Election Code, which establishes the filing period for a special election. The governor could establish a revised filing schedule, given that primary elections have whittled down the field of prospective candidates, and it stands to reason that only one of those candidates would be elected to an unexpired term.
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