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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.

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.

First hearing for mail ballot dropoff locations

Hopefully we’ll get some action quickly.

Lawyers for voters and voting rights groups asked a federal judge Thursday to block Gov. Greg Abbott’s recent order limiting counties to one location where voters can hand-deliver mail-in ballots.

Abbott waited too long to issue his order on Oct. 1, they argued, not only because it came the same day Travis County opened four drop-off locations after a monthlong public information campaign, but also because voting had already begun in the Nov. 3 general election.

“It is too late and too dangerously burdensome to change election rules midstream,” lawyer Chad Dunn told U.S. District Judge Robert Pitman in a hearing that was held via Zoom as a pandemic precaution.

Other lawyers argued that Abbott’s order placed a disproportionate burden on Texans who are most likely to vote by mail — those who are 65 and older or have a disability — by forcing many to endure longer and more difficult travel to ensure that their votes are submitted in a time of decreasing confidence in the U.S. Postal Service.

“It’s ironic and sad,” lawyer John Devaney said. “Now, after voting has started, the plug has been pulled.”

Lawyers for Abbott disputed claims that his order limited voting rights, saying the governor acted to expand opportunities and options for voters during the pandemic.

Abbott’s first election-related order, issued July 27, added six days of early voting and suspended a state law that allows voters to hand-deliver mail-in ballots only on Election Day, lawyer Eric Hudson told the judge.

In effect, Abbott gave voters almost 40 extra days to hand-deliver their ballots, Hudson argued.

“That’s not provided for in Texas law, and without Gov. Abbott’s proclamation, that right … would not be possible,” he said.

Pitman broke in to ask: “Is it the governor’s position that we’ve given you so much it’s OK to take back a little?”

“I don’t think we’ve taken anything back, your honor,” Hudson replied.

This hearing was for the first lawsuit, filed by LULAC and the League of Women Voters. Earlier in the day, the ACLU and the Lincoln Project announced they had filed amicus briefs in support of the plaintiffs. Courthouse News has some further details.

Representing LULAC, San Antonio attorney Luis Vera said the fears of election fraud have already been discredited and voters had already turned in their ballots for four days until Abbott’s order.

“The state of Texas wants one set of rules for [the] one party they represent and one set of rules for the others,” he said.

Attorney Chad Dunn, with Brazil & Dunn in Houston, asked the judge to issue a preliminary injunction to “preserve the status quo.” He cited federal courts’ reluctance to change the terms of an election so close to Election Day.

“This case is about more than drop-box locations in a county. It is about whether the public believes the results of the election will be honored,” he said.

Attorney John Devaney, with Perkins Coie in Washington, told Pitman the individual voter plaintiffs have standing in the case because of the risk they face voting at the polls and contracting Covid-19, and because they will have to travel further to reach their county’s one absentee drop-off location.

He argued that LULAC and the League of Women Voters have standing as organizations due to the burden of having to reallocate their resources at the last-minute to account for Abbott’s order.

“They will need to change their website, their educational materials and contact their new members” with the new information, Devaney said.

In response to the judge asking if the state also faces a burden if he decides to block Abbott’s order, Devaney responded the state’s burden to maintain the status quo would be smaller than that of the plaintiffs.

“Voters tend to wait until the end of an election to request a ballot. It’s not just procrastination,” Devaney said. “In an election this heated, voters want to wait. There’s going to be a surge of absentee votes … given the two-week period for the USPS, people are going to have to turn in their ballots because they don’t trust the Postal Service.”

Judge Pitman asked the plaintiffs if there was any difference between the drop-off locations closed by Abbott’s order and the still-operation sites in terms of election security.

Attorney Susan Hays, representing Harris County Clerk Chris Hollins, responded the county’s shuttered annex locations are “typical business offices” that are more secure than other public places due to employees receiving election security training. She said they are “much more secure because they must show ID before handing over the ballot.”

Pitman said he would issue his ruling “as soon as possible” given the close proximity to Election Day. Early voting locations are scheduled to open on Oct. 13.

It wouldn’t shock me if we get a ruling by Monday, but we’ll see. This is now the fourth lawsuit filed against the Abbott order, with three of them in federal court. According to the Statesman story, there’s a hearing scheduled for the state lawsuit next week.

UPDATE: Here’s the Chron story:

During a hearing Thursday, U.S. District Judge Robert Pitman appeared unconvinced by the idea that eliminating the additional locations would have no impact on voting accessibility.

The suit before Pitman is one of several challenging Texas election laws and Abbott’s pandemic executive orders amending them that are still swirling, even as the start of early voting approaches.

[…]

The pool of voters using this method appears to be relatively small so far, though mail-in voting is up across Texas, so demand could rise.

In Harris County, for example, just 0.2 percent of 85,922 absentee voters hand-delivered their ballots during the low-turnout July primary runoff; 39 of the 404 ballots for the Nov. 3 election that have been returned through Thursday were dropped off by voters. Those dropoffs ceased when Abbott’s order went into effect with less than 24 hours notice.

It should be noted that dropoff boxes were basically never mentioned as an option for the July primary runoffs, so the fact that almost no one used them is no surprise. And since 39 out of 404 is almost ten percent, it sure looks like we were on our way to a significant increase in the use of this method. I point these numbers out because one can make an argument about how much of a burden Abbott’s order is based on them.

There’s so much more money in Texas races

Item one:

It’s the question that many, many people have raised — often as a joke — for years. But the combination of changing demographics, chaos among the state Republican ranks, and the ongoing struggles of President Donald Trump’s campaign have led some to re-examine this question. Among them are the Republicans behind the anti-Trump PAC The Lincoln Project, betting that this is the year — and they’re putting a $1 million chip on the table to start.

Tuesday, the Lincoln Project announced that they were launching a $1 million ad buy in the Lone Star State, chiefly targeting hundreds of thousands of suburban and rural Republican women and Hispanics, voters whom they believe can be persuaded to vote against Trump.

The current buy is digital only, geotargeted in areas around the state ranging from rural counties like Lubbock, urban neighborhoods in Austin, and the Dallas-Fort Worth suburbs.

“We can more easily and effectively target the specific group of individuals we are trying to target digitally than we can with TV,” Ryan Wiggins, the PAC’s senior adviser for communications, told Mediaite. Wiggins added that they were considering expanding to television and mail in the final weeks before the election, and this $1 million investment was just an initial buy, planned to cover a week’s worth of digital ad placements.

The ads will include some of the PAC’s previous videos, like the viral “Mourning in America,” as well as new Texas-specific content, including some that will be in Spanish.

Wiggins and others associated with the Lincoln Project were optimistic that not only would they be dropping more cash into Texas, but that they had a real chance to move the needle.

It’s a long story, so go give it a read. Whatever you think of the Lincoln Project, this looks like a good investment.

Item two:

Democratic presidential nominee Joe Biden’s campaign is set to spend millions of dollars on TV ads in Texas as polls continue to show a close race in the state.

The former vice president’s campaign announced earlier this year that it would make TV reservations this fall in Texas, and as of Tuesday, it had booked more than $6 million through Election Day, according to the media-tracking firm Advertising Analytics.

“This is historic. That shows you just how important Texas is to them and it shows that Texas is in play,” said Abhi Rahman, a spokesperson for the Texas Democratic Party. “It shows you their investment in Texas is real.” Rahman noted that Biden’s spending is the biggest investment from a Democratic presidential nominee in the last 25 years and is a drastic change from 2016, when then- nominee Hillary Clinton didn’t spend seriously in the state.

[…]

As speculation has swirled about the extent of Biden’s investment in the state, the Texas Democratic Party has been ramping up its advertising. On Tuesday, the party announced a digital, print and radio campaign aimed at Black voters in Dallas, Fort Worth, Houston and East Texas. The party described the size of the effort as “high six figure(s).”

We can certainly debate about the effectiveness of this approach versus others, the need to be engaged on a more consistent basis, and so forth. All I know is, we are not used to seeing this kind of investment.

Item three:

The Texas House Democratic Campaign Committee has raised over $3.6 million in just under three months, a massive cash infusion as the party pushes to take control of the lower chamber for the first time since 2002.

The $3.6 million haul, which came between July 1 and Sept. 24, is more than double the $1.6 million that the committee raised in the first six months of the year. That in itself was a committee record at the time, exceeding its total fundraising for the entire 2018 election cycle.

“Affordable healthcare, economic security, and a plan to deal with COVID-19 are on the ballot, and achieving those goals starts with flipping the Texas House,” the HDCC’s chairwoman, Rep. Celia Israel of Austin, said in an announcement of the committee’s latest fundraising that was first shared with The Texas Tribune. “That has been our mission from day one, and donors have responded in a big way.”

The HDCC said the $3.6 million came from 4,165 donors, 98% of whom donated online. Over three-quarters of contributions were less than $100, and roughly four out of five donations came from Texans.

[…]

Andrew Reagan, the committee’s executive director, said the money is going toward ensuring that battleground campaigns have “robustly funded paid communications,” including TV and digital ads, as well as direct mail. Some candidates are already running ads that are jointly funded by their campaigns and the HDCC.

The committee did not immediately disclose its cash-on-hand figure, but Reagan said it is “healthily in the seven figures.”

That’s in addition to some eye-popping numbers raised by various other candidates, including $13.5 million for MJ Hegar. The 30-day reports for state candidates is out now, I’ll be reviewing those in the coming days, and then of course I’ll have the Q3 Congressional reports. Remember when all this stuff was boring and perfunctory? Those days are gone.

And to be sure, some of that money is for the bad guys, as we see in Item four:

Outside money is flooding battleground Texas House races across the Houston area, helping Republican candidates erase fundraising advantages amassed by Democrats who are raking in money from individual donors outside Texas.

In all seven battleground districts around Houston, five of which are under GOP control, Democrats raised more cash than Republicans from early July through late September, the period covered by the latest round of campaign finance reports.

However, spending by political action committees and other groups favored Republicans by a more than 2-to-1 margin in those districts, helping three candidates — Republican Justin Ray, state Rep. Sarah Davis, R-Houston, and state Rep. Sam Harless, R-Spring — overcome their fundraising deficits.

[…]

During the 12-week period covered by the campaign finance reports filed earlier this week, the 14 candidates in Houston’s seven battleground House districts combined to raise nearly $4.7 million and spend almost $1.6 million. They collectively are heading into the stretch run of the 2020 election with about $2.4 million cash on hand, with millions more set to come from outside groups.

Two longtime political donor groups, Associated Republicans of Texas and tort reform advocacy group Texans for Lawsuit Reform, have particularly escalated their spending on House Republican candidates in 2020, combining to buy $276,000 worth of digital ads, direct mail, canvassing and other expenses to support Ray and another $272,000 on behalf of Davis.

Democrat Ann Johnson, an attorney who is challenging Davis, outpaced the incumbent in fundraising from individual donors. Committees and other groups spent about $525,000 backing Davis, however, helping her rack up more than $597,000 in contributions to Johnson’s roughly $481,000.

A similar dynamic played out last reporting period in the west Houston district where Ray, the former mayor of Jersey Village, is attempting to unseat state Rep. Jon Rosenthal, D-Houston. Though Rosenthal raised more cash than Ray, the challenger benefited from a massive lead in spending from committees and other groups, giving him a 2-to-1 edge in overall contributions.

And in northwest Harris County, groups including the Republican State Leadership Committee, a group focused on legislatures around the country, and Leading Texas Forward, a PAC run by House Republican lawmakers, helped Harless make up a fundraising deficit to Democrat Natali Hurtado.

Best way to deal with all that money is beat the candidates it was supporting, so that it was all wasted. Feels really satisfying, too.