Litigation Continues in the Courts Regarding Elections

October 13, 2020

Legislative News

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As the Nov. 3 general election approaches, there is no shortage of litigation in federal and state courts over voting. The most recent lawsuit came in response to the Oct. 1 proclamation issued by Gov. Gregg Abbott reducing the number of drop boxes for early voting mail-in-ballots to one location per county and requiring that poll watchers have access to the main early voting location to observe activities. This includes observing voters dropping off mail-in ballots and confirming that an acceptable form of identification is presented by the voter.
 
A lawsuit filed by the Texas Alliance for Retired Americans and a get-out-the-vote group, BigTent Creative, requested that the court overturn the proclamation. The League of United Latin American Citizens (LULAC), LULAC Texas, the League of Women Voters of Texas and two Texas voters filed a lawsuit asserting that the proclamation is unconstitutional because it violates the Voting Rights Act by limiting absentee voting drop-off locations to one per county and because it “targets Texas’ most vulnerable voters,” including older voters and those with disabilities, and “results in wild variations in access” to absentee voting drop-off locations depending on the county a voter resides in. According to the lawsuit, the proclamation also results in “predictable disproportionate impacts on minority communities that are already hit hardest by the COVID-19 crisis.” A hearing was scheduled for Thursday, Oct. 8, in Austin in the U.S. District Court for the Western District of Texas.
 
The U.S. District Judge, Robert Pittman, issued an Order on Oct. 9 stating “the public interest is not served by Texas’s continued enforcement of a proclamation Plaintiffs have shown likely violates their fundamental right to vote. This factor therefore weighs in favor of a preliminary injunction.” The court granted the plaintiffs’ preliminary injunction and “from implementing or enforcing the following paragraph on page 3 of the October 1 proclamation:

"(1) the voter delivers the marked mail ballot at a single early voting clerk’s office location that is publicly designated by the early voting clerk for the return of marked mail ballots under Section 86.006(a-1) and this suspension;"

In a matter of hours, Attorney General Ken Paxton filed an appeal on Oct. 10 in the U.S. 5th Circuit Court of Appeals requesting an emergency stay of the lower court’s decision to allow for multiple drop-off-locations for absentee ballots and to expedite the ruling no later than 9 a.m. on Tuesday, Oct. 13 (start of early voting), pending an appeal.  The federal appeals court granted the emergency stay on Oct. 10.
 
The U.S. 5th Circuit Court of Appeals issued a ruling granting the emergency stay on Oct. 12 and "understood, the Secretary [Texas Secretary of State] tells us, the October 1 proclamation is part of an expansion of absentee voting in Texas, not a restriction of it." The court was “unpersuaded by the district court’s view that voters must have multiple drop-off locations in order to ‘avoid the delays involved with mailing their ballots through the U.S. Postal Service.’” The court opined “the Governor’s October 1 Proclamation in place still gives Texas absentee voters many ways to cast their ballots in the November 3 election.” A number of judicial decisions related to other challenges to procedures related to the November 3 general election were issued in the weeks before the decision on Oct. 12.
 
On Oct. 7, the Texas Supreme Court issued a per curiam decision barring Harris County from sending applications for mail-in-ballots to all of its registered voters. The opinion stated: “We hold that the Election Code does not authorize an early-voting clerk to send an application to vote by mail to a voter who has not requested one and that a clerk's doing so results in irreparable injury to the State. We grant the State's petition for review, reverse the court of appeals' judgment, and remand the case to the trial court for entry of a temporary injunction prohibiting the Harris County Clerk from mass-mailing unsolicited ballot applications to voters.”
 
On Sept. 25, a U.S. District Court judge for the Southern District of Texas in Laredo issued an order allowing straight-party voting. House Bill 25 from Rep. Ron Simmons (R-Carrollton) repealed the practice in 2017; the law took effect on Jan. 1, 2020. The court reasoned that straight-party voting expedited the voting process and would prevent longer lines at the polls, while lessening possible exposure to COVID-19.
 
The state filed an appeal to block the ruling in the 5th U.S. Circuit Court of Appeals, and the court issued an informal stay “while the court can consider argument on the merits, [which] will minimize confusion among both voters and trained election officials.”
 
On Sept. 23, members of the Republican Party of Texas sued Governor Abbott, trying to reduce the number of early voting days, which the governor extended in a July 27 proclamation for the Nov. 3 general election. The Texas Supreme Court ruled on Oct. 7, denied the plaintiffs’ request. The court reasoned that it was as a last minute request, given that the election is already underway and a disruption in the procedures “would threaten voter confusion.”
 
On Sept. 8, the U.S. District Court for the Southern District of Texas in San Antonio ruled that the state’s rules regarding signature verification on mail-in ballots were unconstitutional and needed to be revamped before the Nov. 3 general election. The ruling requires election officials to notify a voter within 10 days that there is a perceived mismatch of signatures on the application for ballot-by-mail and their mail-in-ballot. The court determined the voter should be given the opportunity to cure their signature on their mail-in-ballot before rejection by the early voting ballot board.
 
The state filed an appeal to the 5th U.S. Circuit Court of Appeals, and the stay was granted. No further action has occurred in this case. The stay is still in effect.
 
There has been no further action in the courts on federal lawsuits mentioned in this article as of the date of this publication.
 
For more information on this article, contact Nanette Forbes.