Texas Supreme Court upholds Governor Abbott’s disaster mandate restricting mail-in ballot deliveries before Election Day to single Early Voting Clerk’s office location

The Supreme Court of Texas with Chief Justice Nathan Hecht sitting front and center.

The Golden Hammer Staff Reports

Austin, October 29 – The Texas Supreme Court on Tuesday, October 27, 2020, upheld Texas Governor Greg Abbott’s Chinese Coronavirus disaster mandate restricting mail-in ballot deliveries before Election Day to a single early voting clerk’s office location, which the early voting clerk in each county must designate. The ruling came in response to a lawsuit by liberal interest groups which sought to allow for more opportunities for voter fraud similar to the horror which has occurred in Bexar County, as Project Veritas uncovered in recent days.

The opinion in Greg Abbott, in His Official Capacity as Governor of Texas, and Ruth Hughs, in Her Official Capacity as Texas Secretary of State, versus The Anti-Defamation League, Common Cause Texas, and Robert Knetsch was a unanimous ruling by the Supreme Court.

The plaintiffs had challenged one among the Governor’s many disaster proclamations, by which he altered the statutory requirements for hand-delivery of a mail-in ballot. On October 1, 2020, the Governor issued a proclamation restricting delivery of mail-in ballots before election day to “a single early voting clerk’s office location that is publicly designated by the early voting clerk for the return of marked mail ballots.” The October proclamation prohibited county officials from designating multiple mail-in ballot delivery sites before election day, but left in place the county officials’ ability to offer multiple drop-off sites on election day.

The Supreme Court held the plaintiffs’ claims are likely to fail on their merits and ruled:

  • The Governor’s July and October proclamations expand the options otherwise available to voters. The proclamations cannot conceivably be read as more restrictive than the baseline established by the Election Code.
  • The October proclamation is not more restrictive than the July proclamation. The plaintiffs failed to contend the governor has a constitutional or statutory obligation to expand voting opportunities at all. They argue only that the limitation on a prior expansion of voting options was itself unconstitutionally burdensome.
  • The plaintiffs’ complaint is that the governor ultimately decided not to increase their voting options quite as much as he initially announced. In other words, the plaintiffs’ challenge is to the governor’s decision to change from one expansion of voting options to another slightly less generous expansion.
  • The plaintiffs cannot successfully attack the October proclamation for departing from the Election Code without undermining their desire to reinstate the July proclamation, which also departs from the Election Code. The Disaster Act, the plaintiffs contend, does not empower the governor to suspend statutes for reasons unrelated to the disaster. But only with blinders on could anyone view the October proclamation as unrelated to the pandemic. The July proclamation’s expansion of early voting was undisputedly based on the pandemic and the October proclamation was merely an adjustment to what was and still is a reaction to the pandemic. The October proclamation’s reference to ballot security explains the governor’s action, but the net result is an expansion of voter opportunity beyond that afforded in the Election Code because of the pandemic. Nothing in the act suggests any limitation on the governor’s ability to consider valid policy goals when undertaking such an amendment, such as encouraging economic recovery, preserving constitutional rights, or promoting ballot integrity. The plaintiffs have not demonstrated a probable right to relief on their claim that the October proclamation exceeds the governor’s statutory authority.
  • The plaintiffs’ next claim that the October proclamation infringes their right to vote in violation of the Texas Constitution. But the October proclamation lowered barriers to casting ballots during the pandemic relative to the existing Election Code’s. For this reason, the governor’s action may not trigger any judicial scrutiny under federal voting-rights case law. The court of appeals affirmed the trial court based primarily on the evidentiary record and the trial court’s discretion to credit the views of the plaintiffs’ experts. In so doing, the appeals court, too, effectively applied strict scrutiny, treating the October proclamation as a “severe” restriction on voting. Any burden on voting rights arising from the October proclamation was not a severe burden and the proclamation is clearly constitutional when subjected to the appropriate scrutiny. Plaintiffs complain that limiting early hand-deliveries of mail-in ballots to one office per county requires more travel time for many voters. But this ignores the other options for casting their ballots that these voters have.
  • The plaintiffs presented evidence that a voter who wishes to hand-deliver a mail-in ballot before election day at a single location will face difficulties in doing so, including increased risk of exposure to the virus. This burden, however, would fall exclusively on a voter who (1) is eligible to cast a mail-in ballot, (2) credibly fears the mail-in ballot would not arrive on time, (3) could not deliver that ballot on election day to any of the multiple mail-in ballot drop-off locations available on that day, (4) faces substantially greater health risks by voting early in person than by hand-delivering a mail-in ballot early in person, and (5) could not at any time before election day feasibly travel to the single location in the county where early hand-delivered mail-in ballots are accepted.
  • Because the plaintiffs have not demonstrated that the voting procedures established by the October proclamation “severely” burden the right to vote, any interference with that right is minimal. The state was under no obligation to present empirical evidence to rebut the plaintiffs’ claims and the lower courts erred by requiring otherwise.
  • The state easily met its burden to articulate an important interest to which the requirement of one early mail-in ballot-delivery location per county is rationally related. The measure plausibly promotes uniformity of elections and increases confidence in electoral integrity by ensuring that every ballot drop-off location can be properly staffed by poll watchers. It also plausibly decreases the opportunity for fraud in the submission or collection of mail-in ballots. Limiting the number of drop-off locations – while still expanding voting options relative to the statutory baseline – was a rational means of achieving the valid goals of ballot integrity, fraud prevention and voter access. The governor need not prove the regulation’s efficacy with evidence in court.
  • Plaintiffs claim that the October proclamation disparately affects voters in populous counties and voters in large counties, who face the prospect of crowds or long driving distances if only a single drop-off location exists in each county. No county in Texas is just like any other, so it is impossible for any statewide voting regulation to identically affect all voters across county lines. Moreover, a policy’s disparate effect does not raise concerns of discriminatory classification unless the measure was adopted because of, and not merely in spite of, its disparate impact on the effected class. Plaintiffs provided no such evidence of intent.

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