Straight ticket option ordered

Court decision citing COVID risk shocks local election officials

Just a little over two weeks before the start of early voting, aU.S. district judge in Laredo ruled Friday to reinstate straight-ticket voting in Texas, sending local officials scrambling ahead of what’s expected to be a record-high turnout election.

U.S. Southern District Judge Marina Garcia Marmolejo wrote that she made the decision with the pandemic in mind. Harris County officials and others across the state have warned that a long ballot would cause voters to take 15 minutes or more to make their picks, extending wait times because of the lack of a straight-ticket option, which allows voters to select candidates of one party across all races.

This was to be the year when that option ceased to be offered to Texas voters, under a 2017 state law.

“By creating mass lines at the polls and increasing the amount of time voters are exposed to COVID-19, HB 25 will cause irreparable injury to plaintiffs and ALL

Texas voters in the general election,” wrote Marmolejo, who was appointed by President Barack Obama in 2011.

The lawsuit was brought by the Texas Alliance for Retired Americans, the national senatorial and congressional committees of the Democratic Party, and Sylvia Bruni, chair of the Webb County Democratic Party.

Marmolejo sided with the plaintiffs, who argued that time constraints caused by the lack of straight-ticket voting would illegally impede Texans’ right to vote and disproportionately impact African-American and Hispanic voters, who tend to use the method more than non-minority voters.

Upon hearing news of the ruling late Friday, Bexar County Election Administrator Jacque Callanen said she was “speechless.”

“For us right now to have to stop what we’re doing and reprogram and retest, and with the early start of early voting — oh my God,” Callanen said. “It’s unbelievable. I can’t say we won’t do it, but it’s going to take everything in us, and we’re going to have to throw as many people at it as we can.”

She added that even just adding three Green Party candidates to the ballot, per a court ruling earlier this month, caused a one-week delay in preparation plans.

Marmolejo said her injunction only related to in-person, not mail-in voting, but if Bexar County were to have to reprint ballots and mail them out, it could add at least a week of work.

The office has already been working seven days aweek to prepare for the Oct. 13 start of early voting, Callanen said. Gov. Greg Abbott pushed forward the start date of the early voting period by a week to create a safer voting environment during the pandemic, though that decision is being challenged at the Texas Supreme Court in a pending case.

Attorney General Ken Paxton’s office, which represents state agencies, did not respond to a request for comment.

The state, which has aggressively fought against and successfully warded off multiple lawsuits by Democrats this year attempting to overturn voting restrictions, is likely to seek emergency relief from the 5th U.S. Circuit Court of Appeals in New Orleans. The 5th Circuit is considered one of the most conservative federal appellate courts in the nation.

Joseph R. Fishkin, a University of Texas law professor who studies election law, said the 5th Circuit Court could intervene on an emergency basis, but it’s hard to say whether it would and how long such an appeal might take.

“It is certainly not a situation where I would say that ‘You can take this to the bank. It won’t be changed before the election,” Fishkin said. “Far from it.”

Fishkin said the 5th Circuit Court, if it intervenes, is likely to reference the “Purcell principle,” a Supreme Court precedent stating that courts should not change election rules too close to an election to avoid voter confusion and election administration problems.

The irony is, Fishkin said, “as you keep fighting about it, the election only gets closer.” Fishkin added that last-minute rulings with profound impacts on upcoming elections are becoming more common nationwide as Democrats and Republicans clash over issues of voter access.

Texas Democratic Party Chair Gilberto Hinojosa applauded the decision by the district court Friday.

“Time and time again Republican leadership has tried tomake it harder to vote and time and time again federal courts strike it down,” Hinojosa said in a statement. “Texas Democrats will have to continue to win at the ballot box to protect the right to vote. Until the new Texas majority wipes out these out-of-touch Republicans, Texas Democrats will never stop fighting for Texans in court.”

The decision Friday is a 180-degree turn for Marmolejo, who had tossed out the case in June, calling the arguments by plaintiffs “speculative.” But she said Friday that “several developments have since bolstered Plaintiffs’ arguments,” citing the number of confirmed infections at 7 million and deaths at over 200,000 nationwide. That alone warranted a rehearing, she said.

The July primary runoff provided a window into some of the possible problems that can be anticipated in November, such as a lack of poll workers and fewer polling places available. Texas has “done little” to address those concerns since, she said.

In the 44-page ruling, she acknowledged the burden that the decision may put on election officialswho have already begun preparing ballots and programming voting machines. But she said the potential for harm to voting rights outweighed any resulting “inconveniences.”

House Bill 25, passed in 2017 on mostly partisan lines and favored by Republicans, put Texas in line with the majority of states that do not offer straight-ticket voting. Just six states continue the practice, according to the National Conference of State Legislatures. Regardless, Marmolejo said Texas voters have come to rely on it as part of their voting experience.

The straight-ticket option was discontinued after the 2018 general election. It had previously been in place for almost 100 years.

While the method had been key to helping Republicans become the majority party statewide, as Texas’ demographics have changed, Democrats have begun to benefit more in the last decade. In 2018, more than two-thirds of voters used straight-ticket voting. That year in Harris County, the straight-ticket vote was 77.2 percent of the total vote, and that vote split 55.3 percent for Democratic candidates and 44 percent for Republican candidates.

State Sen. Paul Bettencourt, R-Houston, said he has no doubt that when the case goes to the 5th Circuit Court, the straight-ticket law will be upheld. The 5th Circuit Court has a history of upholding Texas election laws, he said, and he expects nothing different in this case.

“I strongly believe it will be overturned,” Bettencourt said.

“I can’t say we won’t do it, but it’s going to take everything in us.”

Jacque Callanen, Bexar County Election administrator, on making changes to allow straight-ticket voting