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.
After all the blovilating about fraudulent mail ballots combined with the very real possibility of amateur signature analysis being this year’s version of hanging chads, there’s no way I’d do a mail ballot this cycle.
Good analysis, Kuff.
At this point in the game, it may not make much of a difference, even with the unlikely prospect of perhaps prevailing before the whole thing is moot.
The Plaintiffs might want to consider killing off the pending appeal, and moot the mandamus, with a nonsuit, as the Texas Democratic Party and their litigation allies did in the vote-by-mail suit in the same trial court.
The Court of Appeals opinion would still be in place even if it is without effect (given that this an interlocutory appeal of a temporary order), and the SCOTX justices already had their opportunity — once more — to show who they are by issuing the overnight stay orders.
They could then go out of their way and declare that the COA opinion is no good (nonprecedential, and non-citable), but it’s already out there for all Texans to read and appreciate. The dastardly good deed for the benefit of the eligible mail-voters has been done, and cannot be undone at least as to its symbolic show of support in favor of democracy and rule by the people, including those old or disabled.
As for the requested response, one is needed before they issue a final ruling (if they follow their own rules), but they are surely already busy drafting what they are going to issue as we speak, so whatever the respondents (in the appeal) who are also the real-parties-in-interest (in the mandamus action) have to offer by way of briefing will hardly make any difference. Nor any offerings of assorted friends of the court, or — more likely — frenemies. Indications are that a majority of Supremes (if not all) have already made up their minds.
On the other hand, if the Supremes issue a substantive ruling, they could garner more bad publicity at the national level (do they really need any more?). That can’t be all that beneficial for the four of them who are on the ballot.
Or they could make themselves look more moderate and seemingly nonpartisan by (1) declining discretionary review (and mooting the mandamus/stay) or (2) ruling for the Plaintiff, though that seems unlikely, given the Governor Abbott is one of the two defendants.
Justice Devine is going to be in a quandary: He is itching to clip Abbott’s emergency powers, but not for the benefit of THESE plaintiffs. Only the second executive order is being challenged, as noted by the court of appeals, not the original one (technically a “proclamation” that amended the prior one by reducing the number of drop-off locations to one and imposing “security” conditions), so even if his colleagues were to side against Abbott this time, there is no way they could strike down the Disaster Act as unconstitutional for all purposes. Alas for Abbott’s detractors, this case does not present an opportunity to nix Abbott’s ability to run the State like “King” or like a “tyrant”, depending who is doing the complaining. It would at best be a narrow ruling.
More likely, however — if there is a ruling at all — it won’t be on the merits of the ultra vires/constitutional complaint about Abbott’s proclamation, but on jurisdictional grounds, such as lack of standing or a determination that Abbott and Hughs are not proper defendants due to noninvolvement in actual enforcement. That’s been a hotly contested issue also in Fifth Circuit litigation in multiple cases, though in a slightly different presentation of the sovereign immunity issue (Ex Parte Young exception to inability to sue State/State officials in federal court).
Note also that AG Paxton, who represents Abbott and Hughs, has an interest in seeking to diminish the relevance and role of the SOS via jurisprudence so he can augment his own power in the realm of elections at the SOS’s expense, such as by wielding the power to bring “ultra vires” actions against local election officials as he sees fit, a type of action that the Election Code does not authorize him to bring, but one the Supremes have obligingly blessed in State v. Hollins.
Here are the interim stay rulings verbatim:
in Tex. No. 20-0846:
Relators’ emergency motion for temporary relief, filed October 23, 2020, is granted. The mandate and judgment dated October 23, 2020, in Cause No. 03-20-00498-CV, styled 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, in the Third Court of Appeals, Travis County, Texas, are stayed. The temporary injunction issued by the district court is not in effect pending further order of this Court. The respondents are requested to respond to petitioners’ petition for review on or before 5:00 p.m., Monday, October 26, 2020. The petition for review remains pending before [the Court].
in Tex. No. 20-0847:
Relators’ emergency motion for temporary relief, filed October 23, 2020, is granted. The mandate and judgment dated October 23, 2020, in Cause No. 03-20-00498-CV, styled 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, in the Third Court of Appeals, Travis County, Texas, are stayed. The temporary injunction issued by the district court is not in effect pending further order of this Court.
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