The issue of “dropbox” collection of ballots that are intended for mail delivery has bounced around in several states in the last two weeks.
As a general proposition, the issue is to what extent a state can be required to allow multiple “drop boxes” within a certain jurisdiction in order to make easier the effort to deliver the absentee ballot to election officials in time to be counted.
The counter-argument raised by state election officials who argue to limit the number of such collection locations is one of security, and the need to staff such locations with election workers during the times “drop box” locations are open for collection. This contributes to the question of how many can be required since it taxes the state’s resources to provide such a service.
But the real controversy comes down to the basis for federal judicial intervention that says “Not doing so under the circumstances of a pandemic violates the First and Fourteenth Amendment rights of voters to cast their vote.”
The question of “how many drop boxes is enough” is not covered by any Texas statute. What Texas election law actually states — and the law has not been changed by the Legislature — is that absentee ballots can only be returned in person to the election clerk’s office of the county the voter lives in “while the polls are open on Election Day.”
In an order dated July 27, 2020, after having earlier declared a “State of Emergency” in Texas, Gov. Abbott issued an Order allowing in-person voting to begin on Oct. 13 in order to minimize Election Day congestion at polling precincts. The Order also allowed the return of absentee ballots during the early voting period beginning October 13, 2020, to “ballot return centers” in the weeks leading up to the election. The Order did not place limits on the number of ballot return centers counties were permitted to operate, allowing elected county officials in each Texas county to determine whether to have additional ballot return centers during the early voting period and how many ballot return centers to open.
In response to the Order counties publicized and began operating ballot return centers to ensure the safety of absentee voters. Several counties decided to offer multiple ballot return centers because “the size of some counties would make it difficult, if not impossible, for some voters to return their ballots to election administration headquarters in each county.”
On October 1, 2020, after voting had already begun, Gov. Abbott changed the rules and ordered county election officials to offer their absentee voters no more than one ballot return center per county. The October 1 Order only impacts absentee voters who, as defined by Texas law, either (1) will be away from their county on Election Day and during early voting; (2) are sick or have a disability; (3) are 65 years of age or older on Election Day; or (4) are confined in jail, but eligible to vote. Because voting had already begun when Governor Abbott issued his October 1 Order, he had to specify that absentee ballots cast at previously available ballot return centers would remain valid and be counted.
Democrat Party interest groups filed suit to block Gov. Abbott’s Order limiting the number of ballot collection centers. Late yesterday Federal District Court Judge Robert Pittman, an Obama appointee, granted a preliminary injunction doing just that, allowing each county to decide for itself how many “dropbox” collection sites they will use between now and election day.
Judge Pittman used the same rationale as all the other Obama appointees who have interjected themselves into state election process matters — the COVID-19 pandemic creates unprecedented challenges for voters to be able to cast their vote in a safe manner, and pursuant to a reliable process that ensures their right to vote will not be forfeited by a process problem. The argument boils down to whether a state can reasonably do something more that would make the casting of a ballot more convenient, and if so the State must have a compelling reason for NOT taking that step. The failure to do so is being determined by liberal federal district court judges as a violation by the State of the First and Fourteenth Amendment’s guarantee of the right to vote.
As I’ve noted in previous articles here and here, the Supreme and federal Appeals Courts have been consistently overturning the orders from these district court judges, oftentimes on the basis that the judicially-imposed changes to the state election processes come too late in time, and too close to election day, to justify the nature of the intervention ordered by the judges.
But Judge Pittman makes the argument in his order granting the injunction that it is the actions of Gov. Abbott that is the cause of current confusion among Texas county election officials and voters, coming as it has after voting is already underway, and “dropbox” collection centers in various locations of each county are being used. Judge Pittman justifies his action by claiming that he is only returning the Texas process for collecting absentee ballots in person to the status it had between July 27 when Gov. Abbott issued his first Order allowing “drop boxes” without limitation on the number, and Oct. 1 when he issued his second Order that said no more than one “dropbox” per county regardless of the size of the county.
While this argument has some facial validity, it ignores the words of Justice Kavanaugh in his “statement” accompanying the Supreme Court’s Order granting an emergency stay in connection with judicially mandated changes to South Carolina election law, which I wrote about in this story.
[F]or many years, this Court has repeatedly emphasized that federal courts ordinarily should not alter state election rules in the period close to an election.
Justice Kavanaugh did not write that “election rules” should not be altered close to an election — he wrote that federal courts should not altering election rules close to an election. Gov. Abbott’s Oct. 1 Order is an “election rule” under Texas law. Judge Pittman’s order changes the “election rule” less than 30 days prior to the election and after voting has already begun. The fact that he claims he’s only changing it back doesn’t make it any less of a change.
Gov. Abbott is accountable to the voters of Texas for his decisions. Judge Pittman is not.
Judge Pittman would have been well-advised to consider the words of the Fifth Circuit in vacating the Order of his fellow district court judge — and another Obama appointee — that required Texas to continue to offer “straight ticket” voting even though Texas law banned the practice in 2017. The Fifth Circuit wrote:
The principle from these cases is clear: court changes of election laws close in time to the election are strongly disfavored. Bearing this principle in mind, our court previously has stayed orders changing election laws when an
election is imminent. See, e.g., Tex. Dem. Party v. Abbott, 961 F.3d 389, 411– 12 (5th Cir. 2020); Veasey, 769 F.3d at 894.
Judge Pittman has changed the election rules. It makes no difference that Gov. Abbot changed the rules on Oct. 1 — he’s not a federal judge, he’s an elected official in the State of Texas who has the authority invested in him by the voters of Texas who elected him. He extended “delivery” options for absentee ballots on July 27, and he modified his Order on Oct. 1.
Nothing Gov. Abbott did falls within the prohibitions that have been repeatedly emphasized from the Supreme Court and Federal Appeals Courts across the country.
I’ll be surprised if the Fifth Circuit Court of Appeals doesn’t make this very point quite soon.