Democrats Take Texas 'Drop Box' Fight to Texas State Court and Win Injunction Against Gov. Abbott

AP Photo/Patrick Semansky

This is a fight that has bounced around federal courts in Texas for a few weeks, with Texas Gov. Greg Abbott ultimately prevailing.

It is actually one of the more consequential battles in the COVID-19 new election “paradigm” with states having hastily expanded voting by mail without necessarily thinking through and planning for the logistical challenges that would create.

The Democrats clearly believe greater absentee voting or other voting by mail will benefit their vote totals on election day.  One line of thought — which I prefer — is that it gives them greater opportunities to have huge numbers of ballots miraculous appear and be counted when there isn’t sufficient time/resources to sort out the questions of legitimacy.  Another line of thought is that the Democrats have more “foot soldiers” who can contact voters who received ballots to vote by mail so the more potential democrat voters there are in that group, the more votes they can generate with such efforts.

Either way, the widespread reporting of concerns about whether the postal system can process and timely deliver millions of vote-by-mail ballots when it has never been asked to do so before, has created the potential for some unknown — but a presumably large — number of voters to want to deliver their “vote-by-mail” ballot to the appropriate collection location, as that would still allow them to benefit from not having to go in person to a polling location to cast their vote.

And that is where the dispute has taken place in Texas — under Texas law as written, what is an appropriate collection location for the in-person delivery of such ballots?  After making some inconsistent pronouncements on the subject, on October 1 Gov. Abbott announced that each Texas County could establish a single “DropBox” collection location for the in-person delivery of “vote-by-mail” ballots.  His decision was based on considerations of ballot security, and the need to have such locations staffed appropriately while open to collect ballots being delivered.

This order was challenged in federal court, with a district court judge initially blocking Gov. Abbott’s order.  That was followed, however, by a decision from the Fifth Circuit Court of Appeals overturning the lower court’s order and upholding Gov. Abbott’s directive that each county is limited to one “dropbox” location.  I wrote a lengthy story about the federal court litigation.

Having lost in federal court, Democrat interest groups took their claims to the state courts in Texas.

On Oct. 15, a state court judge ordered that counties could have more than one location for “drop boxes” under Texas law.

A Travis County judge on Thursday ruled that Texas counties can have multiple drop-off locations for hand delivery of absentee ballots, overriding Gov. Greg Abbott’s recent directive limiting counties to one drop-off location. But it remains unclear if state District Judge Tim Sulak’s decision will lead to the reopening of ballot drop-off locations that were shut down in Harris and Travis counties after Abbott’s order.

Texas Attorney General Ken Paxton, on behalf of Abbott and Texas Secretary of State Ruth Hughs, immediately filed an appeal that paused Sulak’s decision until the state’s 3rd Court of Appeals in Austin reviews it.

“The limitation to a single drop-off location for mail ballots would likely needlessly and unreasonably increase risks of exposure to COVID-19 infections, and needlessly and unreasonably substantially burden potential voters’ constitutionally protected rights to vote, as a consequence of increased travel and delays, among other things,” Sulak wrote.

A Texas intermediate appeals court upheld the lower court’s decisions yesterday but stayed its order until an appeal could be submitted to the Texas Supreme Court, which the Texas Secretary of State and Gov. Abbott said they would do immediately.  The Texas Supreme Court acted early today to temporarily stay the effect of the lower court orders until it could consider the matter.

Texas law does not provide for drop-off boxes to accept vote-by-mail ballots as has been adopted in many other states that have expanded vote-by-mail opportunities.  As written, Texas law allows voters to drop off a mail-in ballot at County Election Offices, but to do so they must present an approved form of identification to a poll worker, and third-parties may not turn in someone else’s ballot. Such drop off — as provided by law — is limited to election day.

Because that is the way Texas election law reads, in the federal case the Fifth Circuit held than ANY use of ballot boxes authorized by Gov. Abbott was an “expansion” of voters’ rights in Texas, and his refusal to expand as far as interest groups might wish is not “interference” with voters’ rights.  Gov. Abbott’s order provided for the use of a single “dropbox”, and allowed collection via that “dropbox” starting 40 days prior to election day.

Gov. Abbott’s order does create a very significant practical problem.  Some Texas counties are quite large geographically, and voters who live far from the “dropbox” location will be obligated to drive a significant distance to drop off their ballots.  But more significantly, depending on the number of voters who wait too long, and then decide that they want to deliver their ballot in person on election day, the prospects for highway gridlock in places like Houston, Dallas, and Austin are pretty significant.  Houston is the fourth largest City in the US, with a population of more than 2.3 million people.  Harris County where Houston is located has a total population of more than four million people.

Dallas County, which includes a significant portion of the Dallas-Ft.Worth metropolitan area has over 2 million residents.  Tarrant County, also part of the Dallas-Ft.Worth metro area has 1.8 million residents.  Travis County, home of Austin, has over 1 million residents.

A single drop off location in any of these counties, where voters drive up in vehicles one at a time to drop off their ballots, is likely to become choked by traffic if the number of such voters is only in the thousands on election day.  And as the Democrats will gladly point out, these urban/metro areas have higher numbers of Democrat voters than do the more rural counties of Texas.

I expect the Texas Supreme Court, with a solid conservative majority, will return the question to the elected officials of the State of Texas just as the federal Fifth Circuit Appeals Court did.  As a result, we will get to see just how horrendous traffic will become in these large Texas cities on election day.