What happened: A federal appeals court has reinstated Texas Gov. Greg Abbott’s order limiting the use of absentee ballot drop boxes to one location per county, regardless of population.
Just before midnight Monday Texas time, a unanimous three-judge panel of the 5th Circuit Court of Appeals lifted a district judge’s preliminary injunction against Abbott’s October 1 directive.
Fifth Circuit Judge Stuart Duncan said the lower court erred by failing to view the governor’s order as part of a broader initiative aimed at making it easier for Texans to vote amid the ongoing coronavirus pandemic.
“Critics were clearly clueless about the legality of my action & simply voiced prejudicial political opinions,” Abbott wrote in a celebratory tweet.
The background: Civil rights groups and Democrats complained that the one-dropbox-location-per-county rule that Abbott abruptly imposed two weeks ago unfairly burdens large urban counties and has the potential to deter voters and create health hazards.
However, Duncan said the rule would have a “de minimis” impact on voters, at most.
“One strains to see how it burdens voting at all,” wrote Duncan, joined by Judges Don Willett and James Ho. All three judges are appointees of President Donald Trump.
“The October 1 Proclamation was part of an expansion of absentee voting opportunities beyond what the Texas Election Code provided. The fact that this expansion is not as broad as Plaintiffs would wish does not mean that it has illegally limited their voting rights,” Duncan added.
The judge’s 20-page opinion also noted that Texas law normally allows hand-delivery of absentee ballots only on Election Day, but voters will have a 40-day window to do so this year and retain the right to send ballots by mail.
In issuing the injunction last week, Austin-based U.S. District Court Judge Robert Pitman said
the “about-face” by Abbott from a July order threatened to disenfranchise disabled and elderly voters who would now have to travel longer distances to drop off their ballots. The judge also said postal service delays and changes created doubts about whether mailed ballots would arrive in time to be counted.
What’s next: Civil rights groups and minority state legislators who pressed the federal suit against Abbott’s order could ask the full bench of the appeals court to take up the issue, but their appeal is unlikely to find traction with the conservative court.
The plaintiffs could also seek relief from the U.S. Supreme Court, but that court is shorthanded due to the death of Justice Ruth Bader Ginsburg, meaning those opposed to Abbott’s order would likely need to win the votes of two conservative justices in addition to the court’s three remaining liberals.
One of the 5th Circuit judges, Ho, added a provocative concurring opinion that argued Abbott violated Texas law and perhaps the U.S. Constitution by unilaterally changing Texas’ election procedures without action by the state legislature. However, the judge said only the error by the federal district judge could be addressed in this case.
“It recalls the adage that sometimes it’s only the guy who throws the second punch that gets caught,” Ho wrote.
Ho also seemed to deliberately give a boost to cases Republican election lawyers are pursuing in various states, arguing that virus-related election-procedure changes issued by governors and secretaries of state are unconstitutional because they were not directly authorized by state lawmakers. Two such challenges to Pennsylvania ballot receipt-deadlines are pending at the Supreme Court.
“The Constitution vests control over federal election laws in state legislatures, and for good reason — that’s where we expect the voice of the people to ring most loudly and effectively,” wrote Ho, whose concurrence also raised concerns about fraud related to absentee ballots.