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SCOTX upholds Abbott’s limit on mail ballot dropoff locations

I’m shocked, I tell you, shocked.

In what’s expected to be the final ruling on the matter, the Texas Supreme Court has upheld Gov. Greg Abbott’s order limiting Texas counties to only one drop-off location for voters to hand deliver their absentee ballots during the pandemic.

The ruling, issued Tuesday by the all-Republican court, is the final outcome in one of a handful of lawsuits in state and federal courts that challenged Abbott’s order from early this month. A federal appeals court also sided with the Republican governor in an earlier ruling, overturning a lower court’s decision.

The state lawsuit argued that the governor doesn’t have authority under state law to limit absentee ballot hand-delivery locations, and that his order violates voters’ equal protection rights under the state constitution. The suit was filed in Travis County by a Texas-based Anti-Defamation League, a voting rights advocacy group and a voter.

In their opinion, the justices wrote that Abbott’s order “provides Texas voters more ways to vote in the November 3 election than does the Election Code. It does not disenfranchise anyone.”

See here for the previous update. In a narrow and technical sense, the Supreme Court is correct. Abbott did in fact expand voting options with his original order, which not only added that extra week to early voting but also allowed for mail ballots to be dropped off during the early voting period. State law only allows for that on Election Day, one of many problems that will need a legislative fix in the near future. But we all know that the purpose of his amended order, more than two months after Harris County Clerk Chris Hollins had announced his plan to have dropoff locations at all 12 County Clerk offices, and several days after people began using those locations, was to issue a rebuke to Hollins for having the nerve to innovate like that, and to throw a bone to the howling nihilists in his own party that were attacking him for taking any step to make voting easier. The limit served no legitimate purpose, and was done in haste and with politics in mind. It is what it is at this point, and as with every other ad hoc obstacle thrown in our path, the voters have adjusted. We’ll be coming for you soon, Greg. The Chron has more.

SCOTX reinstates Abbott’s mail ballot dropoff location limit

They can move fast when they want to, that’s for sure.

Gov. Greg Abbott’s controversial order to limit Texas counties to one mail-ballot drop-off site was allowed to remain in effect Saturday by the Texas Supreme Court.

The court blocked a previous appellate court ruling that had briefly struck down Abbott’s order, which was widely decried by voting rights groups as a voter-suppression tactic. The lawsuit to overturn Abbott’s order is still pending.

In Harris County, more than 1 million voters have cast ballots during early voting, shattering previous records. Multiple drop-off sites had been set up for voters until Abbott issued his order, which he said would “stop attempts at illegal voting.”

State District Judge Tim Sulak had previously ruled that Abbott’s order would “needlessly and unreasonably increase risks of exposure to COVID-19 infections” and undermine the constitutionally protected rights of residents to vote, “as a consequence of increased travel and delays, among other things.”

Less than 24 hours after the Third Court of Appeals reinstated the district court ruling that had halted Abbott’s order. Clearly, SCOTX does not have a “we close at 5” mentality. It should be noted that this is not the end of the line. From the Statesman:

Acting soon after receiving an emergency appeal on Gov. Greg Abbott’s behalf, the Texas Supreme Court issued an order Saturday that temporarily barred counties from opening more than one drop-off site for mail-in ballots.

The court order keeps in place Abbott’s 3½-week-old proclamation that barred multiple drop-off locations that had opened in several counties, including Travis County, until the Supreme Court can determine the legality of Abbott’s limit.

With an eye on the fast-approaching Nov. 3 election, the court also set tight deadlines, requiring legal briefs in the case to be filed before 5 p.m. Monday.

A ruling could come as soon as Monday night, though the Supreme Court gave no indication when it might act.

In theory, SCOTX could issue a ruling on the appeal on Tuesday or Wednesday, and we could get a few days of having multiple dropoff locations if the lower court order is upheld. Not great, but better than nothing. I think the odds of that happening are pretty slim, but it’s possible, and this is the best case scenario. At least you know what to hope for.

In practical terms, this means very little at this point. Very few people had ever used mail ballot dropoffs before. Existing law only allows for them to be used on Election Day – Abbott’s executive order extended that to all of early voting, which is an improvement even if his subsequent order limits it to a significant degree. Voting by mail is limited to begin with, and the vast majority of that small universe mailed their ballots in. Allowing people to drop them off at one of twelve locations instead of just one was an innovation, one of many that County Clerk Chris Hollins pioneered, and it was a welcome one in this year of COVID chaos, but losing it is more of an inconvenience than an impediment.

All that said, there is zero justification for Abbott’s order. People who wanted to drop off their mail ballots still had to go to an official County Clerk location, hand their ballot to an election judge, and show ID to have their ballot accepted. Fears of “fraud” and professions of “protecting election integrity” are empty shibboleths, the “thoughts and prayers” of vote suppression. Abbott imposed this limit as a sop to the extremists in his party who were already mad at him for adding an extra week to early voting. Hollins’ innovation made voting easier and more convenient. Abbott’s order made it harder and less convenient. That’s all there is to it.

I’ve said this before, but I firmly believe that a large majority of people like easier and more convenient voting, and support efforts to make it happen. There are lots of things the Democrats should un on in 2022. To me, this needs to be one of the big criticisms of Abbott – and Dan Patrick, and Ken Paxton, and every single member of the Supreme Court – in that election. Being on the side of “easier and more convenient” is the side to be on.

Abbott’s order limiting mail ballot dropoff sites blocked again

But that’s not the end of the story, so hang on.

A Texas appellate court on Friday stepped in to block Gov. Greg Abbott’s order limiting counties to just one mail-ballot dropoff site, but Harris County officials said they will wait until the case is resolved before reopening any additional sites.

A three-judge panel of the Third Court of Appeals in Austin ruled that there was “no reversible error” in a lower court’s ruling that put a hold on Abbott’s Oct. 1 order.

The Attorney General’s office said Friday that it planned to immediately appeal to the Texas Supreme Court.

The Republican governor had taken aim at Harris, Travis, Fort Bend and Dallas counties — all of which had either opened multiple dropoff sites or planned to do so in an effort to make mail-in voting more convenient and safer during the pandemic.

Abbott’s order, which triggered the back-and-forth legal battles, meant Harris County had to shut down 11 additional dropoff sites, adding to crowds at the main site at NRG Arena, just southwest of downtown Houston.

The appellate panel consisted of Republican Justice Melissa Goodwin and Democratic Justices Chari Kelly and Edward Smith; the latter two were elected in 2018 as part of a wave of 19 Democratic judicial wins that flipped the four major state appeals courts.

“We’re gratified that a bipartisan panel of the Third Court of Appeals agrees that Texans should have the right to return their absentee ballots easily and safely,” said Mark Toubin, regional director for the Anti Defamation-League Southwest, one of the groups that brought the suit.

See here for the background. Statesman reporter Chuck Lindell had tweeted yesterday morning that all the briefs had been filed, and a ruling was expected. Here’s more from his story.

The unsigned opinion by three justices on the 3rd Court — Democrats Chari Kelly and Edward Smith and Republican Melissa Goodwin — did not weigh the legality or constitutionality of Abbott’s order.

Instead, the panel determined that Sulak’s injunction should not be struck down because the judge did not abuse his discretion by issuing it.

“The trial court could have credited the evidence that decreasing the number of return locations leading up to election day would significantly increase congestion and wait times … which in turn would increase the risk of the voters utilizing this method of contracting COVID-19,” the panel said.

Friday afternoon, Paxton’s office told the all-Republican Texas Supreme Court to expect an appeal to be filed over the weekend.

You can see the opinion here. This is a nice ruling, and a bipartisan one, but as of today it means little because Harris County will not open any other dropoff locations until and unless the Supreme Court upholds the injunction. In practical terms, if this takes another week, it won’t mean much regardless. But maybe we’ll get a quicker ruling than that, you never know. The Trib has more.

State judge halts Abbott’s mail ballot dropoff limit order

Remember there was a state lawsuit over the executive order that limited counties to one mail ballot dropoff location? That suit had a hearing this week, and the plaintiffs prevailed. For now, at least.

A Travis County state district judge on Thursday ordered a halt to Gov. Greg Abbott’s directive limiting Texas counties to one drop-off location for hand delivery of absentee ballots. The ruling is the latest turn in a handful of lawsuits in state and federal courts challenging Abbott’s Oct. 1 order, which shut down multiple ballot drop-off locations in Harris and Travis counties..

On Monday, a federal appeals court upheld the Republican governor’s order under federal law, overturning a lower court’s ruling. The Travis County decision, however, applies to potential violations of state law.

A Texas-based Anti-Defamation League, voting rights advocacy group and a voter filed the lawsuit in Travis County district court last week arguing that the governor doesn’t have authority under state law to limit absentee ballot delivery locations. The lawsuit also claimed Abbott’s order violates voters’ equal protection rights under the state constitution.

In a short order Thursday, Travis County District Judge Tim Sulak ruled against Abbott and the Texas secretary of state.

“The limitation to a single drop-off location for mail ballots would likely needlessly and unreasonably increase risks of exposure to COVID-19 infections, and needlessly and unreasonably substantially burden potential voters’ constitutionally protected rights to vote, as a consequence of increased travel and delays, among other things,” Sulak wrote.

It’s unclear if and when additional mail-in ballot drop-off locations might be re-opened. Travis County had four drop-off locations before the Oct. 1 order, and Harris County had a dozen in place. But the decision is expected to quickly be appealed to a higher state court.

See here for more about the state lawsuit, which as we had heard was scheduled for a hearing this week. The Statesman has some more details.

In a letter sent Thursday afternoon, state District Judge Tim Sulak, who presided over a hearing in the matter on Tuesday, told lawyers that he will issue a temporary injunction against Abbott’s Oct. 1 order.

“The limitation to a single drop-off location for mail ballots would likely needlessly and unreasonably increase risks of exposure to COVID-19 infections, and needlessly and unreasonably substantially burden potential voters’ constitutionally protected rights to vote, as a consequence of increased travel and delays, among other things,” Sulak wrote.

As the Chronicle notes, this ruling is (very likely) stayed for the time being:

Paxton said his appeal in the case means an automatic stay of Sulak’s decision. The constitutionality of that part of the Texas Rule of Appellate Procedure, which allows governmental bodies’ appeals to supersede lower court orders, is being questioned in a case currently before the Texas Supreme Court.

Plaintiffs did not immediately respond to requests for comment on whether they agree with Paxton’s interpretation.

Remember a million years ago when the Libertarian/Green challenge to filing fees was still in effect despite the lower court ruling because of superseding? That’s the principle here. I’ll leave it to the lawyers to explain if it should be the principle here or not, but that’s where it’s at. The question now is, how quickly does this get to SCOTX? It seems likely to me that the ruling would be upheld by the Third Court of Appeals, but we all know where this is headed. It’s just a matter of when. So offer a halfhearted cheer for now, but keep your expectations in check until it’s all over.

Third lawsuit filed against Abbott’s order to limit mail ballot dropoff sites

This one’s in state court.

Gov. Greg Abbott’s order limiting Texas counties to one mail ballot drop-off location has been challenged in court a third time.

The lawsuit filed in Travis County court on Monday alleges that Abbott’s order exceeds his authority under the state’s constitution and would make it unreasonably difficult for eligible Texans to use ballot by mail.

“The state of Texas should be working to ensure safe and accessible voting for all Texans. The governor’s order does the opposite,” Cheryl Drazin, vice president of the Anti-Defamation League’s Central Division, which includes Texas, said in a statement. “Limiting the number of drop-off sites available to absentee voters reduces the options Texans have to participate in the 2020 election without risking their health.”

Several Texas chapters of the Anti-Defamation League are plaintiffs in the case, as are the government watchdog group Common Cause Texas, and Robert Knetsch, a 70-year-old voter from Harris County.

[…]

The plaintiffs argue that Texas election code gives local officials, not the governor, authority to manage elections. So by limiting drop-off locations to one per county, Abbott was overstepping his authority.

The order also went against what the state had already said in other cases, plaintiffs said. In late September, Attorney General Ken Paxton’s office said in a filing to the Texas Supreme Court that the state election code allowed local officials to interpret “early voting clerk’s office” as extending to annexes of those offices and the secretary of state had already allowed that.

Because of projected increases in vote by mail and delays in the U.S. postal service’s mail delivery, taking away the option for multiple drop-off locations would harm voters, like Knetsch, who was at high risk for COVID-19 because of his age, plaintiffs said.

Knetsch had planned to drop off his ballot at one of Harris County’s multiple locations, but “now plans to risk voting in-person at his local polling place, despite the risk to his health” because he fears there will be large crowds at the remaining drop-off site.

“Many of the Texans who qualify to vote absentee have disabilities and are elderly, and they rely on public transportation,” Anthony Gutierrez, executive director of Common Cause Texas said in a statement. “With only one drop-off site per county, these voters would face challenges in travel that might make it impossible for them to vote. The drop-off site limit will also make the one site in each country prone to lines and crowds, endangering voters’ health.”

See here and here for background on the previous lawsuits, both of which were filed in federal court. A copy of the complaint for this suit is here, and a statement from the Brennan Center, which is representing the plaintiffs, is here; you can also see their Twitter thread. I have no idea if one or the others has a better chance of success, I just know that we need to get a ruling Real Soon Now for any of this to make a difference. You can see all the filings from the first federal lawsuit here, and for whatever it’s worth, the top Democratic Congressional leaders have written a letter to Greg Abbott asking him to repeal this order. I’m sure he’ll get right on that.

The federal stimulus package includes money for elections

What we’ll do with it remains unknown at this time.

Be like Hank, except inside

The $2 trillion coronavirus stimulus package Congress is working to pass this week includes $400 million for election costs states face in wrestling with how to hold high-profile 2020 elections in a time of social distancing.

Advocates estimate the that could mean as much as $20 million for Texas, where state officials have so far opted to delay election dates — including pushing back a runoff to pick the Democratic challenger to U.S. Sen. John Cornyn until mid-July — rather than expand vote-by-mail options or offer up online voter registration.

It’s unclear how the state would use the funding — which still has to clear Congress and get signed by President Donald Trump — but advocates were already pushing for state leaders to consider expanding mail-in voting and offering online registration, something 39 states do now.

“Every Texan needs should be able to safely register to vote and cast their ballot whether by mail or in person,” Anthony Gutierrez, Executive Director of Common Cause Texas, said in a statement. “The way we make that happen is to use these funds to implement online voter registration, expand vote by mail, extend early voting, recruit more election workers, and ensure all poll sites meets public health safety standards.”

I don’t know if $20 million is enough to accomplish that, but then I also don’t know what if any conditions there are on this money. I hope there are some and that they are clear, because I have no doubt that our state leadership would use the money in some way that they could claim was about supporting the 2020 elections but really wasn’t. I have no idea what that may be, but I have faith in their ability to conjure something.

Civil rights groups push back on bogus SOS letter

Good.

Still the only voter ID anyone should need

Lawyers with 13 organizations — including the Texas Civil Rights Project, the ACLU of Texas, the League of Women Voters of Texas and the NAACP Legal Defense Fund — are demanding that the state rescind an advisory sent to local election officials regarding the individuals whose citizenship status the state says the counties should consider checking. In a letter sent Monday, the groups requested a response by Jan. 30, claiming that the state’s data was flawed and demanding more information about the methodology it used.

Some of the groups are considering litigation against the state, said Beth Stevens, voting rights legal director for the Texas Civil Rights Project.

The letter comes three days after the Texas secretary of state’s office announced it would send local election officials a list of 95,000 registered voters who had provided the Texas Department of Safety some form of documentation, such as a green card or a work visa, that showed they were not citizens when they were obtaining driver’s licenses or an ID cards.

“Using such a data set to review the current citizenship status of anyone is inherently flawed because it fails to account for individuals who became naturalized citizens and registered to vote at any point after having obtained their driver license or personal identification card,” the lawyers wrote.

In their letter, the groups point to efforts in Florida that used similar methodology to create a list of approximately 180,000 registered voters that officials claimed were noncitizens based on records used when they obtained driver’s licenses. That fight ended up in federal court after more than 2,600 were mistakenly removed from the rolls after being classified as noncitizens. About 85 voters “ultimately proved actionable,” the lawyers wrote.

See here for the background. The letter to the SOS is here, and the letter they sent to all 254 county election administrators is here. The latter is both a public information request for “all records relating to the Advisory, including but not limited to the list of all individuals identified by the Secretary of State or Department of Public Safety as potential non-citizens, the Voter Unique Identifier for each of those individuals, and all communications and correspondence with the Secretary of State concerning the Advisory”, and a plea to not take any action “unless and until the Secretary of State has provided greater transparency on its procedures and ensured there are adequate safeguards for not identifying lawfully registered naturalized citizens.” The letter to the SOS lays out their demands for more information, and drops a little math on them:

Given that Texas Driver Licenses and ID Cards do not expire for a full six years after they are issued, the odds are quite high that this list of purported non-citizens includes tens of thousands of people who are now US citizens entitled to vote. Indeed, each year, between 52,000-63,000 Texans become naturalized citizens (roughly the same number of potential non-citizens you claim have voted in Texas elections over a 22-year period).1 Given that newly naturalized citizens have voter registration rates around 50%,2 it is reasonable to conclude that at least 25,000 newly naturalized Texans are lawfully registering to vote each year. Even if one assumes that not all naturalized citizens previously obtained driver licenses, and not all registered naturalized citizens registered immediately, it is easy to see how this would result in your office obtaining over 90,000 incorrectly identified matches.

Read them both. Given that Ken Paxton was sending out email earlier the same day screaming about thousands of illegal voters, I think the odds are very high this will wind up in court.

Trying again with online voter registration

Fingers crossed.

Still the only voter ID anyone should need

Texas voter registration might be heading to the internet if any of several bills filed for the upcoming legislative session finds its way to the governor’s desk.

Five bills, all filed by Democratic legislators, would require the state to create an online voter registration system if passed into law. Texas is one of just 10 states without such a system.

“This is not a partisan issue. This is a good government issue,” said Rep. Celia Israel, D-Austin, who filed House Bill 361 to create an electronic voter registration system in Texas. “I’m pledging to continue the fight, because now it’s embarrassing that so many states have it and Texas doesn’t.”

[…]

[Anthony Gutierrez, the executive director of Common Cause Texas] said he thought there was a lot of bipartisan support building behind the idea of an online registration system. Rep. Lyle Larson, R-San Antonio, agrees.

“Just about everything in our lives has been enveloped with the digital age, and I don’t know why voting would be any different,” said Larson, who shares a seat on the House Elections Committee with Israel. “I think a lot of it is unwarranted fear,” he said of concerns that online registration could welcome fraud. “People are banking online, paying bills online. Everything is online and digital, and I think the state needs to evolve so our registration is the same way.”

Other states with online registration include Georgia, which adopted the practice in 2012, and Alabama, which made the change administratively in 2016. Arizona was the first state to create an online voter registration system, in 2002. Larson said he thinks other conservative southern states’ use of an online system provides a strong case to the Texas Legislature to pass a similar law.

“If we were the first large Republican state to try this, I could understand the snail’s pace to implementing this — but we’re not pioneering, we’re following,” Larson said.

Despite her previous efforts, Israel is confident the upcoming legislative session, which starts Jan. 8, will be different.

“Texas has a sad and tortured history of making it harder to vote, not easier,” Israel said. “One enthusiastic freshman (legislator) was not going to change the world, but that enthusiastic freshman is now a revived and rejuvenated, enthusiastic junior, who has found I can make friends and make a case for this bill.”

I don’t want to oversell this, but one other difference is that now the Harris County Clerk’s office will favor such a bill instead of opposing it. The Harris County Tax Assessor’s office also now favors such a bill, and has done so since the last session. This is one of those “elections have consequences” situations. That may not be enough – if Dan Patrick doesn’t want an online voter registration bill to pass, it will not get a vote in the Senate – but it can only help. And as always, now is a good time to contact your legislators and let them know that you support online voter registration.

Abbott signs bill to remove Public Integrity Unit from Travis County DA office

As expected.

Ignoring calls for a veto, Gov. Greg Abbott signed controversial legislation this week that will allow elected and appointed state officials and state employees to bypass Austin prosecutors when they are accused of public corruption.

Abbott, a Republican, signed the bill Thursday without making a statement or staging a public signing ceremony. His press office did not respond to requests for comment left via email and over the phone.

The unique carve-out for politicians and state employees drew fire throughout the recently concluded session of the Texas Legislature. John Courage, state chairman of the nonpartisan watchdog group Common Cause, said he believes the bill is unconstitutional and could be challenged in court by various watchdog groups.

“They’ve set up a separate legal process for the legislators,” he said. “It doesn’t make any sense. A normal person would be tried in the location where they committed the offense and not the legislators. It’s just an unfair, unbalanced system.”

That’s the first I’ve heard of a potential lawsuit. I get the rationale – Texas lawmakers have created a separate system of justice for themselves, which is arguably unconstitutional. I wish the Trib had quoted a law professor to get an opinion on that. There are other issues with having the DPS in charge of these investigations, and empowering local prosecutors may not be a better deal for legislators than what they have now. I continue to believe that this is a scandal waiting to happen. We’ll see how long that takes.