Appeals court reinstates Texas governor’s limit on ballot dropboxes
What Happened: A federal appeals court reinstated Texas Governor Greg Abbott's order restricting the use of postal voting boxes to one location per county, regardless of population.
Just before midnight, Monday, Texas time, a unanimous three-judge panel of the 5th Court of Appeal overturned a district judge's injunction against Abbott's October 1 policy.
Fifth Circle Judge Stuart Duncan said the lower court made a mistake by failing to view the governor's order as part of a broader initiative to make it easier for Texans to vote amid the ongoing coronavirus pandemic.
"Critics clearly had no idea the legality of my actions and simply expressed adverse political opinions," wrote Abbott in a solemn tweet.
Background: Civil rights groups and Democrats complained that the one-drop-location-per-county rule, abruptly imposed by Abbott two weeks ago, unfairly weighs on large urban counties and has the potential to deter voters and create health risks.
However, Duncan said the rule would have at most a “de minimis” effect on voters.
"It takes an effort to see how it weighs on voting," wrote Duncan, along with Judges Don Willett and James Ho. All three judges have been appointed by President Donald Trump.
“The October 1 proclamation was part of an expansion of postal voting options beyond what the Texas Electoral Code provided. The fact that this extension is not as broad as plaintiffs would like does not mean that it has illegally restricted their voting rights, ”added Duncan.
The judge's 20-page statement also indicated that Texas law normally only allows postal ballot papers to be delivered by hand on election day. However, voters have a 40-day window to do so this year and reserve the right to post ballot papers.
In giving the restraining order last week, Austin-based District Court judge Robert Pitman said
Abbott's “U-turn” from a July order threatened to disenfranchise disabled and elderly voters who would now have to travel long distances to cast their ballots. The judge also said delays and changes in the postal services raised doubts as to whether the postal ballots would arrive in time for counting.
What's next? Civil rights groups and minority lawmakers who have brought the federal lawsuit against Abbott's order could ask the full bench of the appellate court to look into the matter, but their appeal is unlikely to gain approval in the conservative court.
Plaintiffs could also seek relief from the U.S. Supreme Court, but that court is understaffed due to the death of Judge Ruth Bader Ginsburg, meaning those who oppose Abbott's orders are likely to have the vote in addition to the court's three justices two conservative judges would have to win remaining liberals.
One of the 5th Circle justices, Ho, added a provocative consensual opinion arguing that Abbott was violating Texas law, and possibly the U.S. Constitution, by unilaterally amending the electoral process in Texas without the legislature of the State was operating. However, the judge said that in this case only the federal district judge's mistake could be fixed.
"It's reminiscent of the saying that sometimes only the guy who hits the second blow gets caught," wrote Ho.
Ho also appeared to be purposely boosting the cases that Republican electoral attorneys are pursuing in various states, arguing that electoral process changes issued by governors and state secretaries related to virus are unconstitutional as they have not been directly approved by state lawmakers. Two such challenges to the Pennsylvania ballot deadlines are pending in the Supreme Court.
"The Constitution transfers control over federal electoral laws in state legislatures, and for good reason - this is where we expect the people's voices to be the loudest and most effective," wrote Ho, who agreed with concerns about postal voting fraud poses.
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