Texas Judge Blocks Limit on Ballot Drop Boxes Upheld by Fifth Circuit

Signs direct traffic at a drive-through ballot drop-off location in Austin, Texas, on Oct. 1, 2020. (Jay Janner /Austin American-Statesman via AP)

AUSTIN, Texas (CN) — A Texas state judge blocked Governor Greg Abbott’s limit of one absentee ballot drop-off box per county Thursday, two days after the Fifth Circuit reinstated it in a parallel federal case.

Travis County District Judge Tim Sulak, a Democrat, issued a temporary injunction, agreeing with the plaintiffs that Abbott’s Oct. 1 executive order needlessly exposes voters to the risk of contracting Covid-19.

“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 right to vote, as a consequence of increased travel and delays, among other things,” the order states.

The Anti-Defamation League, Common Cause Texas and voter Robert Ketsch sued on Oct. 5, asserting violations of the Texas Constitution and Election Code. They claim Abbott, a Republican, is “impermissibly” intruding on the authority of local election officials to manage elections.

“The proclamation burdens plaintiffs who would be precluded altogether from early voting because they do not have access to a car and live too far from the early drop-off location,” the 28-page complaint states. “They do not have access to public transportation; or they have access to public transportation, but that mode of transportation is not a practical and/or safe means during a pandemic.”

The plaintiffs argue the order favors smaller, Republican-leaning counties while harming larger, Democrat-controlled counties with more people.

Abbott’s order most notably affects Travis and Harris counties, which must keep closed three and 11 respective extra drop-off sites that they operated before Abbott intervened.

Texas Attorney General Ken Paxton quickly appealed Sulak’s order to the Third Court of Appeals in Austin. The court is expected to quickly rule on whether to stay Sulak’s order and reinstate Abbott’s limit.

Cherly Drazin, vice president of the Anti-Defamation League’s Central Division, said the ruling affirms Texans deserving “to have safe and accessible options” to vote.

“Having absentee ballot return sites where voters need them is crucial to holding a fair election, particularly during the pandemic,” she said in a statement.

In a separate federal lawsuit earlier this month, the League of United Latin American Citizens and the League of Women Voters of Texas made similar claims that Abbott’s order exposes voters to the risk of Covid-19 and favors smaller, more conservative counties. That lawsuit rejected Abbott’s claims of election security fears as phony, arguing voters must still show identification and sign a roster before dropping their ballot off.

U.S. District Judge Robert Pitman, an appointee of President Barack Obama, agreed with the plaintiffs and blocked Abbott’s order on Oct. 9. He said the state’s election security fears are “vague” and fail to outweigh the “significant burden” placed on absentee voters.

The Fifth Circuit did not agree, reinstating Abbott’s order four days later. A three-judge panel consisting of all President Donald Trump appointees concluded 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,” the Fifth Circuit opinion stated.

The New Orleans-based appeals court agreed with arguments Abbott’s attorneys made during a hearing before the trial judge that Abbott has actually acted to expand voter access during the pandemic by allowing absentee ballot drop-offs beyond just Election Day like in the past. That order upset Texas Republicans, who sued Abbott over it directly in the Texas Supreme Court.

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