(CN) — The Fifth Circuit reinstated Republican Texas Governor Greg Abbott’s controversial limit of one absentee ballot drop-off box per county early Tuesday morning, rejecting voter suppression arguments and agreeing with the state that Abbott has actually expanded voter access by allowing drop-offs beyond Election Day.
A three-judge panel with the New Orleans-based appeals court unanimously ruled in an opinion released shortly after midnight that Abbott’s executive order – one of several responding to the Covid-19 pandemic – is valid. All three judges are appointees of President Donald Trump.
“Leaving the Governor’s October 1 proclamation in place still gives Texas absentee voters many ways to cast their ballots in the Nov. 3 election,” U.S. Circuit Judge Stuart Kyle Duncan wrote. “These methods for remote voting outstrip what Texas law previously permitted in the pre-Covid world. The October 1 proclamation abridges no one’s right to vote.”
The ruling most notably affects Travis and Harris counties, which must keep closed three and 11 respective extra drop-off sites that they operated before Abbott’s order.
Two individual voters, the League of United Latin American Citizens, its Texas chapter and the League of Women Voters of Texas sued Abbott, claiming the order discriminates against absentee voters in larger, Democrat-controlled counties. They rejected Abbott’s justification of election security fears as phony, claiming the state has produced little proof of ballot fraud and that voters must still show identification and sign a roster before dropping off their absentee ballot.
The Fifth Circuit’s ruling overturns U.S. District Judge Robert Pitman’s block of Abbott’s order on Oct. 9. Pitman, a Barack Obama appointee, agreed with the plaintiffs to “maintain the status quo” of keeping the extra drop-off sites open to reduce voter confusion so close to Election Day.
Pitman agreed with the plaintiffs that the closures force older and disabled voters in large counties to travel farther “to more crowded ballot return centers where they would be at an increased risk of being infected by the coronavirus in order to exercise their right to vote and have it counted.”
He also rejected the state’s fears of election fraud, writing Abbott failed to establish that the “vague” state interest outweighs his order’s “significant burden” on absentee voters.
But the Fifth Circuit disagreed, concluding Abbott does not need to show “actual examples” of voter fraud.
“Such evidence has never been required to justify a state’s prophylactic measures to decrease occasions for vote fraud or to increase the uniformity and predictability of election administration,” Tuesday’s opinion states.
The appeals court also disagreed with the trial judge’s concern about voter disenfranchisement due to well-publicized delays in the U.S. Postal Service delivering ballots on time. Pitman feared requested absentee ballots may not arrive on time due to Texas law allowing voters to ask for absentee ballots up to 11 days before Election Day, while the Postal Service recommends at least 15 days.
“This kind of speculation about late-arriving ballots comes nowhere close to rendering Texas’ absentee ballot system constitutionally inadequate,” Duncan wrote. “Neither plaintiffs nor the district court have cited any authority suggesting that a state must afford every voter multiple infallible ways to vote.”
LULAC said the Fifth Circuit’s ruling sends a message “that voter suppression is allowed even when it threatens all Texans” and American democracy.
“It is offensive to every reasonable American to allow a politician the power to stifle lawful votes and essentially rig the outcome to an election, especially during a pandemic,” said LULAC President Domingo Garcia in a statement. “LULAC is prepared to fight this as far as we have to and make sure each of our voices is heard and every vote is counted.”
Texas Attorney General Ken Paxton, a Republican, thanked the appellate court for staying Pitman’s “unlawful injunction” and protecting election integrity.
“My office will continue to defend the security of our democratic process and combat voter fraud,” Paxton said Tuesday afternoon.
Abbott cheered the reinstatement of his order Tuesday morning, repeating his claim that he acted to expand voter access by allowing drop-offs during early voting.
“Critics were clearly clueless about the legality of my action & simply voiced prejudicial political opinions,” he tweeted.
In a nod to Texas Republicans who accuse Abbott of going too far with his executive orders during the pandemic, U.S. Circuit Judge James Ho penned a concurring opinion in which he admitted to “grudgingly” agreeing with his two fellow circuit judges.
“The district court was wrong to rewrite Texas law. But the distinguished judge who did so was simply following in the governor’s footsteps,” Ho wrote. “It is surely just as offensive to the Constitution to rewrite Texas election law by executive fiat as it is to do so by judicial fiat. Yet that is what occurred here.”
Ho’s opinion echoes arguments Abbott’s attorneys made during an Oct. 8 hearing before Pitman, during which they said Abbott’s July order allowing drop-off ballots being accepted before Election Day was an expansion of voter access. That order resulted in a separate lawsuit filed by Republicans who argue Abbott has exceeded his authority and should have called a special session of the Texas Legislature to decide.
U.S. Circuit Judge Don Willett joined Duncan and Ho on the Fifth Circuit panel.