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.
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