Appeal means limit on ballot drop-off sites stays in place
AUSTIN — Gov. Greg Abbott’s order limiting counties to only one mail ballot drop-off location will remain in effect while Attorney General Ken Paxton appeals a state judge’s decision to block it, Paxton said Thursday.
State District Judge Tim Sulak’s decision came just days after an appellate court upheld Abbott’s order in a similar case at the federal level. It marked the second time a judge at least temporarily had blocked Abbott’s order.
“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 rights to vote, as a consequence of increased travel and delays, among other things,” Sulak wrote.
But Paxton said his appeal in the case means an automatic stay of Sulak’s decision.
The constitutionality of that part of the Texas Rule of Appellate Procedure, which allows governmental bodies’ appeals to supersede lower court orders, is being questioned in a case currently before the Texas Supreme Court.
Plaintiffs did not immediately respond to requests for comment on whether they agree with Paxton’s interpretation.
Bexar County already had planned to have just one drop-off location. However, Harris County had planned to have 11 additional sites for drop-off until the governor’s Oct. 1 order triggered a back-and-forth legal battle.
Harris was among at least four counties that had planned to — or already had begun — offering the service.
Sulak set a hearing on a permanent injunction for Nov. 9, six days after Election Day, “unless the parties and the court find a mutually agreeable alternate date.”
The attorney general’s office, which represents state officials and agencies and did not respond to a request for comment, is likely to appeal.
Abbott had said he made the decision to protect against voter fraud, though he offered no evidence that additional drop-off sites open a door to fraud, and experts have said it is highly unlikely.
The state has defended the governor’s orders by saying that he has expanded voting opportunities by lengthening the early voting period by a week and allowing in-person ballot drop-off before the election, rather than just on Election Day as the law provides.
Lawyers for the plaintiffs — the Anti-defamation League, Common Cause Texas and 70-yearold Harris County voter Robert Knetsch — argued in state court that the governor didn’t have the authority to manage and conduct the early voting process and that the order violates the Fourteenth Amendment’s equal protection clause.
They argued the order would force disabled and elderly voters to travel longer distances to drop off their ballots and risk expo
sure to the virus for longer periods of time from having to wait in line. The burden is further complicated, they wrote, by the anticipated delays to U.S. Postal Service mail delivery.
The argument that Abbott exceeded his emergency authority is one that’s most frequently been made by conservative members of the Texas Republican Party, who have filed more than a dozen suits challenging executive orders issued during the pandemic.
Civil rights groups and individual voters made similar arguments in the federal case.
“Texans deserve to have safe and accessible options for voting – that’s what this ruling affirms,” said Cheryl Drazin, vice president of the Anti-defamation League’s Central Division. “Having absentee ballot return sites where voters need them is crucial to holding a fair election, particularly during the pandemic.”