In late night decision, appeals court says Texas can limit mail ballot drop-off sites

AUSTIN — A federal appeals court ruled late Monday night that Texas can limit counties to one mail ballot drop-off site in a decision with deep implications for November’s presidential elections.

In an order filed at 11:06 p.m. the night before early voting was set to begin in Texas, a three-judge panel of the U.S. 5th Circuit Court of Appeals said Gov. Greg Abbott’s order limiting drop-off sites still gave Texans other ways to cast their votes. Therefore, it granted the state’s request to stay a lower court’s order blocking Abbott’s action and let the state limit drop-off sites.

“Leaving the Governor’s October 1 Proclamation in place still gives Texas absentee voters many ways to cast their ballots in the November 3 election. These methods for remote voting outstrip what Texas law previously permitted in a pre-COVID world,” the court said. “The October 1 Proclamation abridges no one’s right to vote.”

In an early morning tweet, Abbott celebrated the ruling and took a shot at his opponents.

“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,” he said. “Critics were clearly clueless about the legality of my action & simply voiced prejudicial political opinions.”

All three judges — Don Willett, James Ho and Stuart Kyle Duncan — were appointed by President Donald Trump. Willet previously served on the Texas Supreme Court.

Voting rights groups say the decision will make it harder for people in larger and more populated urban counties to vote by requiring them to drive longer distances and potentially being exposed to larger crowds while dropping off their ballots. Advocates for senior citizens said sick and elderly people, who are more susceptible to the virus, will be hurt because they’ll have fewer options to avoid being exposed to COVID-19.

Opponent’s of Abbott’s order are likely to take their case to the U.S. Supreme Court, which has traditionally held that courts should not decide cases on the eve of elections to avoid confusing voters. They will likely argue that, due to an earlier order allowing mail ballots to be delivered in person before Election Day, the election had already started prior to Abbott’s Oct. 1 amendment because Harris County was already accepting ballots at its multiple drop-off sites.

Other counties like Travis and Fort Bend also planned to offer multiple drop-off sites before Abbott’s order.

The appeals court did not discuss that in its overnight order. It said Abbott’s initial order expanding early voting on July 27 grants Texans more flexibility than in other years in a response to COVID-19. Early voting was extended by six days and voters who want to drop off their ballots in person to the early voting clerk’s office can now do so at any time before and up to Election Day. Previously, voters could only do that on Election Day.

“That effectively gives voters forty extra days to hand-deliver a marked mail-in ballot to an early voting clerk,” Duncan wrote in the court’s order. “And the voter still has the traditional option she has always had for casting a mail-in ballot: mailing it.”

Because Abbott’s later order limiting mail ballot drop-off sites is part of the original July order extending early voting, the court said it is “part of an expansion of absentee voting in Texas, not a restriction of it.”

In reversing the lower court’s stay, the panel said the burden on voting rights had been overstated.

“Indeed, one strains to see how it burdens voting at all,” Duncan wrote.

The panel took particular issue with the lower court’s argument that problems with the U.S. Postal Service were discouraging voters from sending their ballots in the mail and therefore multiple drop-off sites in large counties were needed.

Though the postal service has warned that ballots sent late in the election cycle — even within the parameters of Texas’ deadlines for requesting a mail ballot — are not guaranteed to be delivered by Election Day, the panel said that still leaves voters with the option to deliver it in person.

The judges rejected the argument that voters would have to choose between casting their ballot and their health and said “this kind of speculation about late-arriving ballots comes nowhere close to rendering Texas’s absentee ballot system constitutionally inadequate.”

“Neither Plaintiffs nor the district court have cited any authority suggesting that a State must afford every voter multiple infallible ways to vote,” the order said, noting that the court’s previous rulings make clear that “merely mak[ing] casting a ballot more inconvenient for some voters are not constitutionally suspect.”

By contrast, it said the burden on the state of Texas’ goal of keeping uniform elections and maintaining their security would be irreparably harmed if Abbott’s order was blocked.

Advocates with Texas Right to Vote, a network of Texans working to address voter confusion, said voters should not be deterred by the court’s ruling. The network includes Texas figures like Luci Baines Johnson; Julián Castro and his mother, Rosie Castro; Lina Hidalgo and Dallas County Judge Clay Jenkins.

“Texans know manufactured chaos when they see it. With anticipated record breaking turnout numbers, this will not detract Texas voters from casting their vote,” Ginny Goldman, a representative of Texas Right to Vote, said in a statement. “Abbott’s strategy is to cast a cloud of confusion at the ballot and is pushing an agenda that manufactures chaos to undermine our democracy. We won’t allow that to happen.”