The governor’s proclamation “does nothing to prevent Texans from mailing in their absentee ballots, as they have done in the past in election after election,” the decision states. “Properly understood . . . the October 1 proclamation is part of an expansion of absentee voting in Texas, not a restriction of it.”
Voting rights advocates had sued Abbott (R) on Oct. 2, the day after he issued his proclamation, contending that the rule burdens voters and “undermines the public’s confidence in the election itself” ahead of a projected rise in mail voting during the general election.
The increase is expected despite state GOP officials’ success in maintaining strict eligibility limits on mail voting in Texas during the coronavirus pandemic. The state is one of only five that are prohibiting voters from casting mail ballots this fall if their only reason for wanting to do so is their fear of being exposed to the virus.
The clerk of Harris County — the state’s most populous county, with more than 4.7 million residents — said at the time that the governor’s order “is confusing to voters and will serve to suppress Texas votes, plain and simple.”
“Make no mistake, this is intentional,” Democrat Chris Hollins said then. “This is being done to make it more difficult for you to vote. But I urge you — do not be discouraged. If every voter only takes away one thing from today, I want it to be that your vote is your voice in our democracy.”
The three judges responsible for Monday’s decision are all appointees of President Trump.
Comprising 254 counties and more than 260,000 square miles of land, Texas is the largest of the Lower 48 states, area-wise. More than 70 of its counties exceed 1,000 square miles; the biggest, Brewster County, is about 6,200 square miles.
The appeals court stayed the lower court judge’s decision on Saturday. In its new decision, the three-judge panel ruled that Abbott’s actions had actually expanded voter access in Texas, by adding six days of early voting, now scheduled to begin Tuesday, and by allowing drop boxes that give voters 40 extra days to hand-deliver their ballots if they are uncomfortable using the Postal Service.
“And the voter still has the traditional option she has always had for casting a mail-in ballot: mailing it,” the order states.
The judges also appeared to support Abbott’s prerogative to oppose multiple drop boxes per county, “which, in his view, threatened election uniformity and security” — despite local election officials’ push, particularly in the state’s more geographically expansive counties, to offer multiple drop boxes for far-flung residents. Abbott offered no widespread evidence of irregularities or fraud relating to the use of drop boxes.
James C. Ho, one of the appellate judges, agreed with the decision but wrote in a concurring opinion that the district judge wasn’t the only one who had usurped the authority to fashion election law in Texas. He said that that authority lies with the state legislature, not the governor, and that Abbott’s proclamation on ballot boxes is unconstitutional as a result.
“Respected legislators and public leaders called on the governor to call a special session so that legislators in both parties could consider and debate amendments to the state’s election rules to accommodate voter concerns arising out of the pandemic,” Ho wrote. “But the governor rejected those calls, and instead issued a series of executive proclamations purporting to unilaterally ‘suspend’ various Texas election laws.”
Aaron Schaffer and Elise Viebeck contributed to this report.