The notoriously conservative U.S. Court of Appeals for the 5th Circuit on Sunday reinstated the draconian limits that Texas Gov. Greg Abbott (R) imposed on mail ballot drop off options.
In doing so, the appeals court concluded that Texas is actually expanding voting, even though Abbott’s move limited mail-in ballot drop boxes to one per county in a state where some counties are bigger in area than some states and other counties have larger populations than some states.
The order reversed a move by a federal judge to expand the opportunities voters have to hand in mail ballots in person. At least a handful of Texan counties — some of them with populations larger than some states — had planned to set up multiple sites for ballot drop off.
Thanks to the 5th Circuit, those counties, which tend to be Democratic-leaning, will only be able offer one location for voters to drop their mail ballots off.
Texas already has one of the strictest voting regimes for the pandemic, as it continues to limit mail-in voting to Texans 65 and or older, or fitting into one of the other narrow excuses the state allows, which does not include fear of COVID-19 by itself.
The appeals court said that because Abbott had expanded for the pandemic the period during which voters can hand-submit their mail-in ballots — previously that option was available only on Election Day, now it’s offered for the 40 days leading up — his later order to limit where they can be dropped off should not be construed as a restriction on the right to vote.
“[T]he October 1 Proclamation was part of an expansion of absentee voting opportunities beyond what the Texas Election Code provided,” the court said, referring to Abbott’s directive imposing the limitations. “The fact that this expansion is not as broad as Plaintiffs would wish does not mean that it has illegally limited their voting rights.”
The appeals court also noted the voters can use other methods — namely, the postal service — to turn in their mail ballots, and it dismissed the concerns the challengers raised that they might not have enough time to do so.
“We cannot conclude that speculating about postal delays for hypothetical absentee voters somehow renders Texas’s absentee ballot system constitutionally flawed,” the court said.
The court gave credence to the state’s vague claims that the ballot drop off restrictions were necessary to prevent voter fraud, and it also touted the state’s assertion that the restrictions would bring uniformity to the voting system in Texas.
The court treated the many miles that voters in some counties — such as Harris County, which is geographically larger than Rhode Island — would have to travel to hand deliver their mail ballot as an inconvenience.
“[M]ail-in ballot rules that merely make casting a ballot more inconvenient for some voters are not constitutionally suspect,” the court said.
The case was before an appellate panel of three Trump-appointed circuit judges.
Circuit Judge James Ho wrote a concurrence said that he was joining the opinion only “begrudgingly” because he was skeptical of the earlier moves Abbott took to expand voting during the pandemic.
“Only the district court’s rewriting of Texas law is before us today, however,” he said. “And that leads us to an unfortunate irony: by setting aside only the district court’s rewriting of Texas law, we must restore the Governor’s rewriting of Texas law.”
Read the opinion below:
