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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.

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14 Comments

  1. Jules says:

    Abbott is an idiot. He sent a letter to the prime minister of Japan stating that Texas Central has all the necessary permits to begin construction. They do not.

    The letter was leaked, so Abbott is pretending that he was given incomplete information.

    I have not heard if he has issued a follow up letter to the prime minister apologizing for lying.

    “John Wittman, spokesman for the governor’s office, told The Texan, “From the beginning of this project, the Governor made clear that he could support this project if, and only if, the private property rights of Texans are fully respected and no state funding is used. The Governor’s team has learned that the information it was provided was incomplete. As a result, the Governor’s Office will re-evaluate this matter after gathering additional information from all affected parties.””

    https://thetexan.news/abbott-gives-full-support-to-high-speed-rail-in-a-letter-to-japanese/

  2. Bill Daniels says:

    Abbott will be primaried….bet on it. His destroying businesses, killing jobs, and mask mandates have generated cold anger that Trump supporters and R’s will never forget.

    Y’all don’t need to worry about Abbott, we’ll take him out ourselves next go-round. He’s a lame duck.

  3. Kibitzer Curiae says:

    NO ABUSE OF DISCRETION,
    NOT TO MENTION OF VOTERS’ DROP-OFF RIGHTS

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

    Kibitzer would point out that this formulation is unremarkable. “Abuse of discretion” is the applicable standard for reviewing the propriety of a temporary injunction (temporary in Texas state court is equivalent to preliminary in federal court, as distinguished from a permanent injunction issued upon final resolution of the case after a trial).

    “We review a trial court’s order granting temporary injunctive relief under an abuse-of-discretion standard. See Butnaru, 84 S.W.3d at 204 (citing Walling, 863 S.W.2d at 58; State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984)).”

    MIND THE PLEA

    This was an appeal of two rulings, however, albeit contained in the same order (as was also the case when Judge Sulak ruled that voters could invoke the disability ground for voting by mail based on COVID, a legal conclusion later nixed by the SCOTX in a separate case).

    The other ruling was the denial of the defendants’ pleas to the jurisdiction (in laypersons’ terms, a plea to the effect of “Hey, I am the Governor/SOS … You can’t sue me.”). Both types of trial court rulings can be appealed immediately by way of accelerated interlocutory appeal, and the plea appeal stops everything in the trial court. The Austin Court of Appeals affirmed both trial court rulings, and suspended the rules to speed things up even further.

    PANEL DISPOSITION MODE

    As for the “bipartisan” nature of the panel and disposition of the State Officials’ appeal, it should be pointed out that a per curiam disposition isn’t necessarily unanimous. It takes 2 of 3 votes to decide a case, i.e, a majority. If the third judge is in disagreement, he or she can either write a separate opinion (dissent or concurrence or some sort of hybrid) or not. He or she may also be able to influence the substance and wording of the panel opinion and refrain from writing a separate opinion in implicit exchange. The third (outvoted) justice could also just go along with the majority and not raise objections, and perhaps count on the SCOTX to reverse (rather than go to the trouble of writing a dissent as Chief Justice Frost of the Fourteenth did in one of election-related cases).

    (If any former staff attorneys/law clerks are willing to elaborate about the internal decision-making dynamics with the benefit of past personal observation, the KUFF-o-Sphere will no doubt appreciate it).

    So, it might at best be noteworthy here that there was no dissent on the mixed-composition panel, but the immediate issuance of the mandate to the trial court is probably more significant. The Generals and their troops (Attorney General, Solicitor General, and multiple staff attorneys that have not yet been whistle-blown away or fired outright) will now probably file an rapid-fire motion for emergency relief in the SCOTX, if they have not already done so.

    PERTINENT PROCEDURAL RULES

    TRAP 41.1. Decision by Panel (a) Constitution of Panel.

    Unless a court of appeals with more than three justices votes to decide a case en banc, a case must be assigned for decision to a panel of the court consisting of three justices, although not every member of the panel must be present for argument. If the case is decided without argument, three justices must participate in the decision. A majority of the panel, which constitutes a quorum, must agree on the judgment. Except as otherwise provided in these rules, a panel’s opinion constitutes the court’s opinion, and the court must render a judgment in accordance with the panel opinion

    TRAP 47.2. Designation and Signing of Opinions; Participating Justices (a) Civil and Criminal Cases.

    Each opinion of the court must be designated either an “Opinion” or a “Memorandum Opinion.” A majority of the justices who participate in considering the case must determine whether the opinion will be signed by a justice or will be per curiam and whether it will be designated an opinion or memorandum opinion. The names of the participating justices must be noted on all written opinions or orders of the court or a panel of the court.

    TRAP = Texas Rule(s) of Appellate Procedure, formally cited in briefs and opinion as Tex. R. App. P. __

    Current version here:

    https://www.txcourts.gov/media/1447296/texas-rules-of-appellate-procedure-updated-with-amendments-effective-312020-with-appendices.pdf

    BLOGOSPHERE FEEDBACK & SUGGESTION

    TO: (1) SCOTX Rules Attorney, (2) future Chief & Non-Chief Justices, and (3) current and would-be recipients of court administration innovation awards:

    The internal hotlinks in the Table of Contents of the online version of the TRAPs (see URL above) constitute progress, but why can’t the document be converted to single-column layout so users don’t have to move up and down when reading on the screen that isn’t big enough to show an entire page?

    And how about PDF bookmarks for each rule, or at least for each major section?

    It’s ironic that the clerk routinely rejects — or the Court strikes — efiled documents that don’t contain PDF bookmarks, but the Court’s very own 138-page compilation of rules has no bookmarks except for the appendices.

    — Not user-friendly!

    BEST COA PRACTICES

    The Third Court of Appeals has already implemented a commendable approach:

    Its “PRACTICE BEFORE THE COURT” instructions manual is posted BOTH as a web page (with hyperlinked-fitted Table of Contents at the top) AND as a single PDF document linked from that webpage.

    And they even invite suggestions from the public. To wit: The Court welcomes suggestions concerning this memorandum. Please address any comments to the Clerk.

  4. Brad says:

    Go get ‘em Wild Bill!

    What nut job right winger is going to primary Abbott out of a job?

    Carpet bagger Allen West? Ha.
    Jesus Shot Sid Miller? That’s a good one toI
    Gov Lite Danny Boy? That would be some shootin’ match.

  5. Kibitzer Curiae says:

    SATURDAY SPECIAL

    The Generals (AG Paxton and SG Hawkins) didn’t like the immediate issuance of the mandate by the Austin Court of Appeals. Hence the separate filing (just before midnight) of a mandamus atop the petition for review (appeal), with an extra emergency motion thrown in for good measure. (SOS. The Court of Appeals Abused Its Discretion in Immediately Issuing Its Mandate Before State Officials Could Exhaust Their Appeal.)

    Sure, why not put two stops on a pesky voter-friendly ruling if one will do?

    For emphasis.

    — overnite gimmie-a-writ quickie ruling quote start —

    THE SUPREME COURT OF TEXAS

    Orders Pronounced October 24, 2020

    ORDERS ON PETITIONS FOR REVIEW
    A STAY IS ISSUED IN THE FOLLOWING PETITION FOR REVIEW:

    20-0846
    http://search.txcourts.gov/Case.aspx?cn=20-0846&coa=cossup
    GREG ABBOTT, IN HIS OFFICIAL CAPACITY AS THE GOVERNOR OF TEXAS; AND RUTH HUGHS, IN HER OFFICIAL CAPACITY AS TEXAS SECRETARY OF STATE v. THE ANTI-DEFAMATION LEAGUE AUSTIN, SOUTHWEST, AND TEXOMA REGIONS; COMMON CAUSE TEXAS; AND ROBERT KNETSCH; from Travis County; 3rd Court of Appeals District (03-20-00498-CV, ___ SW3d ___, 10-23-20)
    stay order issued
    response requested due by 5:00 p.m., October 26, 2020
    [Note: The petition for review remains pending before this Court.]

    MISCELLANEOUS

    A STAY IS ISSUED IN THE FOLLOWING PETITION FOR WRIT OF MANDAMUS:

    20-0847
    http://search.txcourts.gov/Case.aspx?cn=20-0847&coa=cossup
    IN RE GREG ABBOTT, IN HIS OFFICIAL CAPACITY AS THE GOVERNOR OF TEXAS; AND RUTH HUGHS, IN HER OFFICIAL CAPACITY AS TEXAS SECRETARY OF STATE; from Travis County; 3rd Court of Appeals District (03-20-00498-CV, ___ SW3d ___, 10-23-20)

    relators’ emergency motion for temporary relief granted
    stay order issued
    response requested due by 5:00 p.m., October 26, 2020
    [Note: The petition for writ of mandamus remains pending before this Court.]

    — overnite gimmie-a-writ quickie ruling quote end —

    And there are again ominous intimations about invalidation of already-cast ballots:

    “Because of the court of appeals’ action, the State is not able to serve one of its most important functions: to safeguard the integrity of Texas elections. Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989) (the State “indisputably has a compelling interest in preserving the integrity of its election process.”). For example, as the Secretary of State’s Director of Elections testified, Fort Bend County’s intended annex locations do not meet the Election Code’s definition for an early-voting clerk’s office, raising a question about whether ballots delivered to those locations could legally be counted and creating a risk of a potential election contest.”

    AS A PURE MATTER OF LAW AS WE PRONOUNCE IT

    Now let’s eagerly anticipate the fact-free reversal of the fact-and-discretion-respecting intermediate appellate affirmance of Judge Sulak’s evidence-grounded temporary injunction.

  6. Bill Daniels says:

    Brad,

    I guess we need to see who can get your vote, our own Texas version of Joe Biden.

    Wanna see excerpts from Joe’s daughter’s diary, where she writes about inappropriate showers she took with Joe…..as a kid?

    https://nationalfile.com/exclusive-source-biden-daughters-diary-details-not-appropriate-showers-with-joe-as-child/

    And hey, while I’ve got you titillated, maybe you’d like a link to Hunter’s sex vids with underage girls, including Sen. Chris Coons daughter? You know, the same one Joe is pictured sniffing while she recoils in horror? Let me know, I’ve got the links, and you being a ‘MAP,’ I figure you’d get a thrill out of seeing that stuff.

  7. Brad says:

    Bill, you have an interesting, and disturbing, fixation.

  8. […] 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 […]

  9. Bill Daniels says:

    Brad, don’t get bashful now. No one is gonna kink shame you here, and I like you, so here’s the info on the Bidens that CNN and MSNBC are hiding from you:

    http://bidenhunter.org

  10. Bill Daniels says:

    Jen,

    The first link didn’t work for me “does not exist.” The dishwater blonde girl in the second link was funny, but a little short on actual evidence, unlike Laptopgate. Notice that the DNI came right out and said it’s legit, not “Russian disinformation.” Notice that others are corroborating it who are involved, including Devon Archer and Hunter Biden’s imprisoned business partner, who flipped from prison? Oh, and Archer just got convicted, too.

    In order to make the story go away, you’d have to show that the emails (buttery emails, LOL) were faked, especially the ones where the big guy gets half of everything and get 10% held by Hunter for him.

    Can we at least all agree that if the laptop, Bubolinski’s emails, and the stuff coming from Hunter’s imprisoned business partner are true, that Joe and his family are indeed corrupt?

  11. Manny says:

    Bill the troll asking for real evidence, nothing like a good laugh on a Monday morning.

    If Rudy the pervert/a la Bill Daniels, were to release the emails on copies of the hard drive it could be verified.

    Bill why not ply your bull to the other America haters, like Trump does.

    I approve this message

  12. brad says:

    Bill,

    I am trying to come up with a conspiracy theory crazier than your QAnon. You’ve made my work difficult.

    Thinking something along the lines that Republicans are a cabal of baby kitten killers that believe President Trump is a Russian “Useful Idiot”.

    Argh….one of these is actually a fact. This is going to be more difficult than I thought.