In response to Harris County Interim Clerk Chris Hollins’ expansion of drop-off locations due to coronavirus, Gov. Abbott issued an executive order limiting the expansion and requiring localities to reinstate poll watchers at the locations. Abbott cited preservation of election integrity as justification for the move.
Over the weekend, district court Judge Robert Pitman ruled against the state, allowing county elections officials to expand the number of locations where absentee voters could hand-deliver their ballots. Shortly thereafter, the Fifth Circuit issued an administrative stay of the ruling pending their final decision on the matter.
Abbott reacted, stating, “The Federal Court of Appeals upholds my proclamation about mail-in ballots saying that it actually expanded access to voting by allowing drop-offs before election day. Critics were clearly clueless about the legality of my action & simply voiced prejudicial political opinions.”
“But even if we focused myopically on the voting options restricted by the October 1 Proclamation,” the opinion reads, remarking on the lower court’s ruling, “we would still find no more than a de minimis burden on the right to vote.”
Potential delays in delivery by the U.S. Postal Service of mail-in ballots influenced the lower court’s decision, specifically that a delay by more than 11 days in delivery might cause voters to “risk infection” and deliver their ballot or vote in person.
The Fifth Circuit finds this unpersuasive, adding, “We cannot conclude that speculating about postal delays for hypothetical absentee voters somehow renders Texas’s absentee ballot system constitutionally flawed.”
And on the administrative side, notably the concerns Abbott has reiterated on preventing fraud, the Fifth Circuit emphasized, “States have critically important interests in the orderly administration of elections and in vigilantly reducing opportunities for voting fraud.”
The challenge was filed by, among other organizations, the Texas League of United Latin American Citizens (LULAC) which was key to obtaining standing in the lower court. The Texas Democratic Party filed a similar suit earlier this year but was not granted standing.
Another chief contention by the plaintiffs cited the equal protection clause of the Fourteenth Amendment, mainly that voters in large counties would be inconvenienced more than those in smaller counties.
The Fifth Circuit finds this unpersuasive as well, adding, “That voters who live further away from a drop-off location may find it inconvenient to take advantage of this particular, additional method to cast their ballots does not ‘limit electoral opportunity,’” reiterating that the governor’s proclamation expanded voting opportunities with the weeklong extension of early voting.
Fifth Circuit Judge James Ho issued a concurring opinion but did so “grudgingly.”
“The district court was wrong to rewrite Texas law. But the distinguished judge who did so was simply following in the Governor’s footsteps,” Ho wrote.
He continued, “The district court was wrong to rewrite Texas law…It is surely just as offensive to the Constitution to rewrite Texas election law by executive fiat as it is to do so by judicial fiat.”
The decision will likely be appealed to the Supreme Court of the United States (SCOTUS). However, with early voting beginning today, the time-sensitive nature of the issue is paramount. Due to Justice Ruth Bader Ginsburg’s death, only eight justices currently sit on SCOTUS.
And with the nomination of Amy Coney Barrett being considered this week with an undetermined date of resolution, if SCOTUS agrees to take the case immediately, Barrett may not be able to rule on the case.
Regardless, for the moment, Harris County et al. must limit their operations to one drop-off location.
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Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.