Last week, I brought you this story about a federal district court judge in Texas — an Obama appointee — who had issued an injunction blocking Texas Governor Greg Abbott’s order that each county in Texas could have a single “Dropbox” location for voters to deliver absentee ballots in-person without having to exit their vehicles and enter a building.
Judge Robert Pittman used the same rationale as other Obama appointees who have interjected themselves into state election process matters, i.e., that 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 is about 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 take such steps is deemed by these liberal federal district court judges as constituting a violation by the State of the First and Fourteenth Amendment’s guarantee of the right to vote.
But Judge Pittman made the argument in his Order granting the injunction that it is the actions of Gov. Abbott that is the cause of 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 justified 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 “dropboxes” 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.
The Fifth Circuit Court of Appeals today ruled in favor of Gov. Abbott, granting a stay against the Order of Judge Pittman. The Court began with the premise of looking at Gov. Abbott’s Oct. 1 Order against the text of Texas voting law in order to determine if Texans’ right to vote is being burdened by Gov. Abbott’s Order:
The proclamation is part of the Governor’s expansion of opportunities to cast an absentee ballot in Texas well beyond the stricter confines of the Election Code. Previously, as we have explained, mail ballots could be hand-delivered to the early voting clerk only on Election Day… The Governor’s July 27 Proclamation effectively extended that hand-delivery option by forty days, and the impact of the October 1 Proclamation can be measured only against that baseline. To be sure, the proclamation requires a single designated drop-off location per county during the expanded forty-day period. But that represents merely a partial refinement of the bounds of a still-existing expansion of absentee voting opportunities. In a related context, we have recently explained that to “abridg[e]” the right to vote means to “place a barrier or prerequisite to voting, or otherwise make it more difficult to vote.” … By contrast, “a law that makes it easier for others to vote does not abridge any person’s right to vote.” The July 27 and October 1 Proclamations— which must be read together to make sense—are beyond any doubt measures that “make it easier” for eligible Texans to vote absentee. How this expansion of voting opportunities burdens anyone’s right to vote is a mystery.
Basically, the Appeals Court is saying that the use of ANY ballot box for a period of time beyond one day — Election day — as provided by Texas law is an “expansion” of Texans’ rights to vote. The fact that Gov. Abbott’s Oct. 1 clarification trimmed back that expansion is not the same as saying it “burdens” the right to vote. It might “burden the expansion”, but that is not the measure of a constitutional right.
Neither Plaintiffs nor the district court have cited any authority suggesting that a State must afford every voter multiple infallible ways to vote. As we explained in TDP I, mail-in ballot rules that merely make casting a ballot more inconvenient for some voters are not constitutionally suspect. The principle holds true even if “circumstances beyond the state’s control, such as the presence of the [coronavirus,]” or, here, possible postal delays, make voting difficult.
Certainly, there will be logistical challenges for some Texas counties. The idea that some significant number of Harris County residents — population 4 million — might wait until election day to attempt to drive to their ballot to a single ballot collection box in metropolitan Houston will be problematic. That is likely to be one long line.
So, my advice to any Texas voter who thinks there is a chance they may find themselves in that circumstance in three weeks is simple: fill up your gas tank before getting in line.