Fifth Circuit upholds Abbott’s mail ballot dropoff limits

Because of course they did. Why would you have expected anything else?

In a ruling issued late Monday night, a federal appeals court upheld Gov. Greg Abbott’s order that limited counties to one mail-in ballot drop-off location.

A three-judge panel of the 5th U.S. Circuit Court of Appeals, all appointed by President Donald Trump, rejected arguments from civil and voting rights groups that claimed Abbott’s order suppressed voting rights by making it harder to cast a ballot, particularly for elderly and disabled voters who are the most likely to use mail-in balloting.

In reality, the judges said, Abbott expanded voting options by suspending a state law that allows mail-in ballots to be hand delivered only on Election Day — a July 27 order that Abbott merely refined on Oct. 1 by closing multiple ballot drop-off sites in Travis and three other large counties, the panel said.

“That effectively gives voters 40 extra days to hand-deliver a marked mail-in ballot to an early voting clerk. And the voter still has the traditional option she has always had for casting a mail-in ballot: mailing it,” Judge Stuart Kyle Duncan wrote for the panel.

The ruling blocked Friday’s injunction from U.S. District Judge Robert Pitman, who said Abbott’s order placed an unacceptable burden on voters who are most vulnerable to COVID-19.


The panel criticized Pitman for vastly overstating the magnitude of the burden on voting rights caused by Abbott’s “partial refinement” of an earlier order that made it easier for eligible Texans to hand deliver a ballot before Nov. 3.

“How this expansion of voting opportunities burdens anyone’s right to vote is a mystery,” Duncan wrote. “Indeed, one strains to see how it burdens voting at all.”

Texans still have “numerous ways” to participate before the Nov. 3 election — by voting early beginning Tuesday because Abbott added six days to the early voting period as a pandemic safety measure, by hand delivering completed mail-in ballots before Election Day, and by dropping their ballot in the mail, Duncan said.

See here and here for the background. Never mind the fact that the state of Texas had previously affirmed that multiple dropoff locations were legal, never mind the fact that Abbott issued this order a week before early voting began and more than two months after Harris County had announced its plan for multiple locations, and of course never mind the global pandemic that has everyone seeking to mitigate their own personal risk. Abbott extended the early voting period, so what are you peasants complaining about?

I mean, look. The Harris County Clerk used legal means to make voting easier and more accessible. The Governor used a false pretext to overrule him, and did so late in the process after people had been led to expect what the Clerk had implemented. The fact that the Governor had indeed taken steps to expand voting access isn’t relevant. The fact that most other counties hadn’t taken similar action as Harris isn’t relevant – they could have and in many cases should have, and if the Governor thought that was unfair to the voters in the slacking counties, he could have used the same authority he exercised here to try to spur those other counties to action. The point is that Harris County stood for making it easier and more convenient to vote, and the state of Texas said no, you can’t do that. In response, the Fifth Circuit said “we don’t see the problem here”. That’s what we’re up against.

I should note that there is still that state lawsuit, which will have a hearing this week. I don’t expect much at this point, but duty compels me to point this out. I presume the other federal lawsuit – as I observed before, this was a combination of two federal lawsuits, but did not include the third – is now moot. As we have seen over and over again, the way forward is going to require winning more elections first.

Related Posts:

This entry was posted in Election 2020, Legal matters and tagged , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

3 Responses to Fifth Circuit upholds Abbott’s mail ballot dropoff limits

  1. brad says:

    The Anti-Democracy party strikes again!

  2. Kibitzer Curiae says:


    The outcome was rather predictable, though the details of the reasoning are always of interest to court watchers, and deserve a closer look on their own.

    So here the State’s appeal went to a panel of three Trump-appointees who then proceeded to devalue the constitutional rights asserted by the voters/plaintiffs and the burden imposed on them (which the trio saw fit to downgrade to “de minimis”) while at the same time upgrading the weightiness of the interests asserted by “the State” to defend Abbott’s last-minute order restricting drop-of locations to only one per county regardless of population size and geographic expanse.

    They just happened to see the matter of balancing the competing citizen-vs-state interests differently (“the district court vastly overstated the “character and magnitude” of the burden allegedly placed on voting rights by the October 1 Proclamation.”) and since they sit on the higher court, their different and more statist views prevail. Which just goes to show how much it matters who specific judges “view” interests and values at stake in litigation.


    Even more disconcertingly, for these life-time judges, incantation of mantras and buzzwords (“election integrity”, “uniformity” “vote confusion”) will do; evidence of actual or impending voter fraud is not needed for fact-free jurisprudence vindicating the interests asserted on behalf of the State. Nor were they impressed with the ample evidence marshalled by the plaintiffs, the election clerks, and the amici in the court below, which was copiously referenced in the district court’s order granting the voters relief against the SOS as chief elections officer of the state.

    Instead, the trio *faulted* the district judge (Robert Pitman) for demanding evidence that would support the State’s position.

    At least, they didn’t denounce him as a rouge judge as happened with Judge Biery in the first round of the vote-by-mail appeal in a motions panel opinion that Judge Ho characterized as “powerful” in his concurrence in that case. See Texas Democratic Party v. Abbott, 961 F.3d 389 (5th Cir. June 4, 2020) (first Fifth Circuit opinion in No. 20-50407)

    Here the panel forwent the venom and bile, and refrained from characterizing the district court’s ruling as “drive-by speculation about the state’s covert motives” even though Judge Pitman had concluded that the State’s proffered justifications for Abbott’s flip-flop on the number of drop-off locations were pretextual.

    “Allowing the State to rely on the pretextual talisman of promoting ballot security in imposing burdensome restrictions on vulnerable voters would render enforcement of voting rights through the Courts illusory,” Pitman wrote in his now-stayed order.

    By the debased standards of propriety and decorum in a Trumpified legal world, the tone of the current Fifth Circuit panel’s ruling against the interests of vulnerable Texas voters looks moderate by comparison.


    While the outcome of the State’s stay motion in LULCA v. HUGHS is hardly surprising, the most remarkable thing here is that Judge James Ho wrote a separate concurring opinion to share his views on the constitutionality of the Governor Abbott’s use of emergency powers, deploring the fact that this more fundamental legal issue was not before the panel to weigh in on.

    “It is surely just as offensive to the Constitution to rewrite Texas election law by executive fiat as it is to do so by judicial fiat. Yet that is what occurred here.” … “Only the district court’s rewriting of Texas law is before us today, however. And that leads us to an unfortunate irony: by setting aside only the district court’s rewriting of Texas law, we must restore the Governor’s rewriting of Texas law.”

    Having thus lashed out at Abbott by way of bonus contribution to the evolving corpus of COVID emergency-powers jurisprudence, Ho approvingly references SCOTX Justice Devine’s lone dissent in the the most recent Hotze mandamus. He also cites Jimmy Blacklock’s concurrence, but fails to mention that Blacklock’s main point was that Hotze et al had not met the jurisdictional requirements (including the need to demonstrate legal standing) in their Texas Supreme Court mandamus filing against the Secretary of State, AND THAT, even more importantly, the judicial branch should not overstep its role in the constitutional system either.

    Blacklock reiterated that “[j]ust as other government officials must not exceed their rightful power in extraordinary circumstances, this Court also must not do so,” quoting language from his concurrence in Shelley Luther’s first supreme court case: In re Salon a la Mode, No. 20-0340 (Tex. May 5, 2020) (Blacklock, J., concurring).

    Ho also used the occasion to agree with Abbott’s critics that the Governor should have called the Texas Legislature into special session.

    “Respected legislators and public leaders called on the Governor to call a special session so that legislators in both parties could consider and debate amendments to the state’s election rules to accommodate voter concerns arising out of the pandemic. But the Governor rejected those calls, and instead issued a series of executive proclamations purporting to unilaterally “suspend” various Texas election laws.”


    What we witness here is one of the three Trump appointees on the motions panel going out of his way – and out of the record of the case — to bolster the right wing in the Republican Party in the current intra-party rift; lending support to what is currently the minority faction in the all-GOP Texas Supreme Court in litigation involving challenges to Governor Abbott’s issuance of emergency orders under the Texas Disaster Act.

    Surely, it won’t be long before the Ho concurrence will the cited as distinguished legal authority in efforts to topple Abbott or at least curtail his use of emergency powers through the judicial system. Serial litigators Hotze and Woodfill, and their fellow-travelers, must be rejoicing.

    CASE CITE: Texas League of Latin American Citizens et al v. Ruth Hughs, Texas Secretary of State, No. 20-50867 (5th Cir. Oct. 12, 2020) (Motions panel’s opinion on grant of stay in favor of the State by Judge Duncan; concurrence by Judge Ho). Tex. League of United Latin American Citizens v. Abbott, No. 1:20-cv-01006-RP (W.D. Tex. Oct. 9, 2020)(order granting preliminary injunction enjoining the implementation or enforcement of Texas Governor’s limitation of drop-off locations for mail ballots to a single site per county).

    RELATED TEXAS SUPREME COURT CASE: In re Hotze, No. 20-0739, 2020 WL 5919726 (Tex. Oct. 7, 2020) (maj. op. by Hecht, C.J.)(denying mandamus relief with reference to lack of diligence in bringing action)(concurring opinion by Blacklock, J., addressing petition’s jurisdictional defects)(dissent by Devine, J, who would have granted relief).

  3. C.L. says:

    There are four TX Supreme Court and three Court of Criminal Appeals ‘places’ up for election this time around. Make you vote count !

Comments are closed.