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.

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One Response to SCOTX upholds Abbott’s limit on mail ballot dropoff locations

  1. Kibitzer Curiae says:


    The legal analysis wasn’t even original. The Honorable Per Curiams endeavored to parrot the prior decision of a Fifth Circuit panel in a similar case, and followed them in faulting the district judge for considering evidence when he ruled against Governor Abbott and his Secretary of State. See Tex. League of United Latin Am. Citizens v. Hughs, No. 20-50867, 2020 WL 6023310 (5th Cir. Oct. 12, 2020).

    What’s wrong with that? – Lots.

    The recycled Fifth Circuit case is an opinion order issued by a motion panel on a motion for stay that will not even be binding on the merits panel in the same case. Nor does such a piece constitute precedent even in the federal court system, as pointed out in the concurrence by Judge Patrick Higginbotham in Richardson v. Hughs, No. 20-50774 (5th Cir. Oct, 19, 2020), another voting rights case in which the Texas Secretary of State is a defendant.

    “I would not attempt to settle our circuit’s law on such complex and delicate questions in a preliminary ruling that has not benefitted from oral argument or collegial discussions. And a decision by this motions panel granting a stay settles no law. To the contrary, it has no precedential force and is not binding on the merits panel, leaving it as a writing in water—made the more empty by pretermitting the jurisdictional requisites of sovereignty and the reach of Ex parte Young. The matter is yet to travel its ordinary course to be settled by a fully considered opinion by the merits panel, perhaps then by the en banc Court. This reality is brought home by the changing opinions of my colleagues as the Court responds to legal challenges in the electoral process as conflicting opinions in other circuits indicate.[5] Here, we proceed without collegial conference on a motions panel and need not as a panel traverse numerous paths and crossroads engaging significant issues whose impact on our voting-rights jurisprudence remains contested, including standing and the reach of Ex parte Young, core principles of federalism.”

    For an illustration of the panel dynamics on the Fifth, see how the equal protection analysis of a prior motions panel in Texas Democratic Party v. Gov. Abbott, AG Paxton, and SOS Hughs was subsequently expressly disavowed by the merits panel. Tex. Democratic Party v. Abbott, No. 20-50407, 2020 WL 6127049 (5th Cir. Oct. 14, 2020)(substituted opinion, op. of Sep. 19 withdrawn).

    The merits panel in that case declined to decide the appropriate level of scrutiny and test for the federal equal protection claim at issue, a matter to be addressed by the District Court on remand. (“We have uncertainties about McDonald and do not wish that the earlier necessity for a preliminary decision on the merits by the motions panel control the remand on an issue we never reached. We therefore use our authority as the panel resolving the merits to declare that the holdings in the motions panel opinion as to McDonald are not precedent.”).

    Boldly, the Texas Supremes equated the procedural and tentative ruling by the 5th Circuit motions panel on the State Defendants’ motion for a stay in the LULAC case with their own final merits review and dissolution of the temporary injunction in the case before them. Obviously, there was no occasion for them to try to anticipate how a different panel of the same court might rule after oral argument. The SCOTX doesn’t sit in panels, and they had already issued an immediate stay for which they did not – unlike the stay decisions of the motions panels on the Fifth – offer any reason.

    So eager were the Texas Supremes to nix the injunction on the substance of the Plaintiff’s legal complaint, they did not even bother to go into the lack-of-jurisdiction arguments. The normal approach would be to determine whether the plaintiffs had standing to pursue their claim, and whether subject matter jurisdiction was present. That’s because the lack of jurisdiction precludes a ruling on the merits, not to mention judicial relief. But this is not normal. Extraordinary contingencies call for custom-made judicial solutions, such as jumping to the merits question and adjudicating in the Governor’s favor while bypassing the jurisdictional issue.

    “Because we conclude the plaintiffs’ claims are likely to fail on their merits, we need not consider at the temporary injunction stage whether the plaintiffs have standing.”


    The federal action challenging Abbott’s proclamation was not only brought by different plaintiffs, but relied entirely on federal law. The state-side challenge, by contrast, encompassed a state-law “ultra vires” claim (a claim that Abbott had gone beyond what the Texas Disaster Act permitted) and a constitutional challenge under the equal rights guarantee of the Texas constitution, which reads as follows:

    Sec. 3. EQUAL RIGHTS. All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.

    The Texas equal rights guarantee is textually different from the Fourteenth Amendment. It does not even include the phrase “equal protection”. Nor is it expressly directed at the State or at state action. The Supreme do not even quote the wording or discuss the divergence or the federalism dimension; nor do they address whether federal equal protection analysis is properly imported into the interpretation of the Texas Bill of Rights when it is invoked against state government officials in a state court, as opposed to a federal court of limited jurisdiction subject to U.S. Supreme Court’s Ex parte Young precedent.

    No signs of judicial federalism here. Just regurgitation of prior work product of federalists on a different court of different jurisdiction in a different case involving different plaintiffs.


    Nor did the Supremes abide by the operative language in the Disaster Act that gives the Governor the authority to suspend certain laws “if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster.” TEX. GOV’T CODE § 418.016(a).

    Instead, they saw fit to “rewrite” it to enlarge its sweep in the Governor’s favor.

    Note the phrase “necessary action in coping with a disaster.”

    This language leaves no doubt about which ends must be served to justify the wielding of extraordinary emergency/disaster powers by the Governor — powers that he does not normally possess — to remain within the ambit of the Texas Disaster Act.

    Coping with a disaster is a far more restrictive definition of the scope of permissible use of emergency powers than the notion that it suffices that the Governor’s action be “related to” the disaster. (“But only with blinders on could anyone view the October Proclamation as unrelated to the pandemic.”).

    Instead of accusing the Plaintiffs (and those who agree with them) of being blinded, the Supremes should have taken off their own blinders, and should have read the statutory text as written so as to faithfully give it effect.

    Instead, they saw fit to bless the Governor’s use of emergency powers for other purposes; purposes that are no doubt important to them. To wit: economic welfare, protecting constitutional rights, ensuring the integrity of elections. But where is the statutory authorization for use of emergency powers for such purposes? – They do not say. Instead, the Supremes brought these additional justifications into legal existence by judicial fiat out of nowhere, and with such bold feat of judicial revamping of the Disaster Act resolved the Attorney General’s appeal of the temporary injunction in Abbott’s favor.

    Indeed, they gave a green light for Governor Abbott to utilize emergency powers for all sorts of purposes that do not narrowly fall into the category of measures to cope with the declared disaster, thus encouraging him to continue to use the COVID pandemic as an excuse to rule without restraint.


    What we see here is an evisceration of the separation of powers and checks and balances system caused by the real-world circumstance of both executive and judicial branches being are under the ironclad control of the same clique of partisans who take care of each other.

    Abbott himself is a former member of the Supreme Court and a former Attorney General, and has appointed several of the current incumbents, who therefore owe their high court positions to his graces and stand in his debt. When Abbott’s use of emergency powers is legally challenged, he is represented by his successor in the Office of Attorney General and his army of litigators, who reliably rush to the Supreme Court to fend off the legal challenge and arrange for the desired disposition.

    Instead of protecting Texas citizens against executive overreach by the Governor and act as a check on potential abuses of power and as a restraint, the apex of the Texas judicial branch operates as Abbott’s Court, validating his unbridled exercise of emergency powers as he deems opportune. De facto, we have a fusion of powers, rather than a separation with checks and balances.


    Justice John Devine, the serial dissenter in COVID cases, could normally be expected to raise hackles. Here, however, he remained silent because the claim of misuse/abuse of emergency powers by Abbott was not brought by the right kind of plaintiffs and does not involve a claim dear to Devine’s constituency, such as a grievance about gubernatorial infringement of economic liberties. That will be left for on another day. After the elections.


    Tex. Gov’t Code Sec. 418.016. SUSPENSION OF CERTAIN LAWS AND RULES. (a) The governor may suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster.


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