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Judge briefly halts Abbott’s order limiting mail ballot dropoff locations

Late Friday breaking news, which lasted until the early afternoon on Saturday.

A federal judge ruled Friday that Texas counties can have multiple drop-off locations for absentee ballots heading into the Nov. 3 general election, blocking the enforcement of Texas Gov. Greg Abbott’s recent order that sought to limit counties to just one such location.

Saying Abbott’s order confused voters and restricted voter access, U.S. District Judge Robert Pitman granted an injunction late Friday barring its enforcement. With an unprecedented number of Texas voters requesting mail-in ballots during the coronavirus pandemic, and concerns about the reliability of the U.S. Postal Service, some large, Democratic counties had set up numerous locations to accept the ballots before Abbott’s order.

“By limiting ballot return centers to one per county,” Pitman wrote, “older and disabled voters living in Texas’s largest and most populous counties must travel further distances to more crowded ballot return centers where they would be at an increased risk of being infected by the coronavirus in order to exercise their right to vote and have it counted.”

[…]

The Texas Democratic Party called Friday’s ruling a “common sense order [that] followed well-established law and stopped the governor from making up election rules after the election started.”

Before Friday’s ruling, Democrats had denounced Abbott’s order, labeling it voter suppression in a state that has repeatedly been knocked in federal court for intentionally discriminating against voters of color. Voting rights advocates and civic groups quickly sued Abbott in federal court, arguing the order was based on invalid security concerns and places an unconstitutional and unequal burden on the right to vote.

The Texas and national League of United Latin American Citizens, the League of Women Voters of Texas and two Texas voters filed suit the night of Abbott’s order, and another lawsuit was filed the next day by the Texas Alliance for Retired Americans, the get-out-the-vote group Bigtent Creative and a 65-year-old voter.

“Cutting these mail-in voting locations was wrong and done solely to attempt to steal the election from the rising Texas electorate,” said Gilberto Hinojosa, chair of the Texas Democratic Party. “A county, like Harris County, with more than 4.7 million Texans should have more than one hand delivery location. Limiting counties like Harris is a desperate Republican attempt to hold onto power.”

See here for the previous update, and here for a copy of the ruling. Looking at the plaintiffs, it appears that the first lawsuit and the second lawsuit were combined. That leaves one other federal lawsuit, plus the one state lawsuit for which there is a hearing next week.

One presumes this will be appealed, and as we all know the Fifth Circuit is where all good things go to die. I think there’s a strong argument to be made that allowing Abbott’s order, which was made more than two months after counties had begun making plans to have multiple dropoff locations and after the state Solicitor General filed a brief saying that state law allowed for this, is the thing that would improperly disrupt the election at this late date. I also think the Fifth Circuit can rise to the occasion of brushing such an objection aside. Travis County, one of the places that had multiple dropoff locations in place prior to the order, has said it will wait to see what the Fifth Circuit does before reopening them. It’s hard to fault them for that. The Chron and the Statesman have more.

UPDATE: As expected, Paxton has filed an emergency motion for a stay of the judge’s ruling. You can read that here. The smart money always says that he gets what he asks for from this court, so it’s a matter of how quickly they have a hearing and issue a ruling.

UPDATE: Faster than you can say “Anything you want, Kenny”, the Fifth Circuit grants Paxton’s motion. Now we wait for a hearing. See why Travis County decided to wait before reopening any of those dropoff locations? Here’s the Chron story about the granting of the stay.

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3 Comments

  1. voter_worker says:

    In my opinion, anyone who has a ballot in hand and does not want to make the trek to NRG should just mail their ballot at the nearest US Post Office and not wait for a decision. Anyone who waits is getting closer and closer to the deadline, day by day. I mailed mine and it took only 4 days to be recorded as “ballot received by Elections” by the County Clerk.

  2. Flypusher says:

    I’m voting in person on Tuesday, double masked, how ever long it takes.

  3. Kibitzer Curiae says:

    LUCK OF THE DRAW

    The motions panel here consists of three Trump appointees: Duncan, Ho, and Willett.

    Additionally, all three of them worked for the Attorney General’s Office at some point in their career. Judge Ho is a former Texas Solicitor General himself. The current one (Kyle Hawkins) is arguing the case for the Secretary of State.

    Assuming the case doesn’t get reassigned, you can expect these judges to be sympathetic to the Solicitor General’s “statist” arguments. But even leaving aside the composition of the motions panel, the outlook would not be bright in the Fifth in any event.

    However objectionable Governor Abbott’s reduction of the number of drop-off location may be, this decision does not provide fodder for a very strong legal argument, at least not given the current jurisprudential climate on the Fifth Circuit and the SCOTUS. There are multiple independent reasons for this:

    1. What Abbott has done through the superseding proclamation is still better (more voter-friendly) than what is the default arrangement provided by the Election Code. The modification is still in favor of facilitating voting and is grounded in the Disaster Act, which authorizes the Governor to suspend regulatory laws in order to fight the pandemic. Courts generally defer to the executive branch with respect to pandemic mitigation measures. Even Chief Roberts has already concurred on that. Unsurprisingly, the SG argues that the default situation here would be what the Election Code prescribes, namely that mail ballot can ONLY be dropped of on election day. Ergo, if the Governor abused his powers and his latest proclamation is held unenforceable/invalid, we would simply revert to the default under the Election Code, which means strict compliance with the rules stated there. That means no dropping off at all before election day.

    2. But even if Abbott’s original, more liberal, proclamation (allowing for multiple drop-off locations prior to election day) were deemed the proper baseline against which to evaluate the challenged proclamation (providing for only 1 per county), this reduction imposes a burden that is arguably not excessively heavy (“undue burden”) to individuals voters because they can still use the mail. To state it differently: The option to return the mail-in ballot by mail is not affected by the number of locations made available to drop off the marked ballot in person. Unsurprisingly, the SG argues that rational-basis review applies (rather than heightened scrutiny) and that the mantra of “election integrity” provides a sufficient “rationale basis” for the Governor to restrict drop-off to just one location per county. There is, of course, a perfectly sensible argument, that a larger population and a larger area should be served by a larger number of locations, but that alone isn’t generally actionable as a constitutional violation. It’s more in the nature of a policy implementation decision, and the general inclination of conservative courts is to not interfere with such decisions by “politically accountable” officials, and to defer to their judgment, rather than substituting their own (which is frowned upon as judicial “second guessing”).

    3. Then there is the Purcell doctrine/principle espoused by the SCOTUS, which basically says that federal court should not change state election rules shortly before the election happens (not to mention in progress). Unfortunately, that precedent restrains only to the courts (and provides a rationale for reversal/vacatur of district court orders that arguably interfere with the conduct of elections by appellate courts); it does not apply to state officials, here Governor Abbott (though the nominal defendant is the Secretary of State). So, as persuasive as the same rationale would appear when applied to the Governor and other state officials (there shouldn’t be last-minute changes in how the elections are conducted because that’s disruptive and can cause confusion on the part of voters), Abbott is no longer a judge and is not bound by principles of *judicial* restraint. Nor is the secretary of state, or any other official involved in the administration of elections.

    4. And then there is the argument that the state-court lawsuit should be decided first: the Pullman abstention doctrine. Even the most moderate member of the motions panel in Texas Democratic Party v. Abbott (Judge Costa) agreed with that reasoning in his concurrence. Here, we have a repeat scenario of parallel federal and state litigation on a single issue. One of the four pending lawsuits challenging Abbott’s action was filed in state court with a hearing set later in the week. If Abbott’s proclamation were struck down as invalid under state law in that case, the litigation posture of the plaintiffs that are advancing the federal claims to achieve the same result would change. Their claims could become moot even if different plaintiffs are involved in the state court action. Unfortunately, the mere possibility alone that relief might be granted by a state court under state law (however uncertain) would provide grounds for the Fifth Circuit to put the question of whether relief is available under federal law on hold in the interim.

    It may be a forgone conclusion how the Fifth Circuit panel will decide the stay motion (without oral argument, since the issue is the propriety of a stay of the preliminary injunction, pending full merits review). If Don Willett writes the opinion or a concurrence, however, we might be treated to something more elaborate and scholarly.

    CASE INFO: Texas League of United Latin American Citizens (LULAC) et al. v. Ruth Hughs, in her Official Capacity as Secretary of State. No. 20-050867 (5th Cir. 2020)(motion for stay pending); Appeals from the Western District of Texas, USDC Nos. 1:20-CV-1006 and No. 1:20-CV-1015.

    FULL LIST OF PLAINTIFFS (BOTH CASES): Texas League of United Latin American Citizens; National League of United Latin American Citizens; League of Women Voters of Texas; Ralph Edelbach; Barbara Mason; Mexican American Legislative Caucus, Texas House of Representatives; Texas Legislative Black Caucus; Laurie-Jo Straty; Texas Alliance for Retired Americans; Bigtent Creative.