Appeals court ruling on drop-off sites criticizes federal judge, governor

AUSTIN — A federal appeals court has reinstated a limit on the number of mail-in ballot drop-off locations in Texas, although Gov. Greg Abbott and a federal judge came under criticism for trying to sidestep the Legislature to alter state election law.

The 5th Circuit Court of Appeals late Monday issued a stay of a federal judge’s ruling on Friday that the Republican governor’s order is a likely violation of a voter’s right to vote. Early voting started Tuesday in Texas.

“Leaving the Governor’s October 1 Proclamation in place still gives Texas absentee voters many ways to cast their ballots in the November 3 election,” Judge Stuart Kyle Duncan wrote in the opinion. “These methods for remote voting outstrip what Texas law previously permitted in a preCOVID world. The October 1 Proclamation abridges no one’s right to vote.”

Abbott’s order limits mailin ballot drop-off locations to one per county, shuttering dozens of sites in some of Texas’ largest cities, mostly Democratic strongholds. The appeals court, however, noted that the order also provides Texas voters with 40 additional days to vote absentee and that they have many ways to deliver their absentee ballots before Nov. 3, including by hand and by mail.

“These methods for remote voting outstrip what Texas law previously permitted in a pre-COVID world. The October 1 Proclamation abridges no one’s right to vote,” Duncan wrote.

Abbott said the limit on drop-off sites is needed to ensure election security, while Democrats and voting rights groups, including the League of United Latin American Citizens, called it an effort to suppress voters.

The lawsuit challenging Abbott’s order was filed by the Texas League of United Latin American Citizens; the National League of United Latin American Citizens; the League of Women Voters of Texas; and two voters.

In a concurring opinion, Judge James Ho wrote that he grudgingly agrees with Duncan, but that the federal judge and Abbott were both wrong in trying to change state election laws.

“The district court was wrong to rewrite Texas law. But the distinguished judge who did so was simply following in the Governor’s footsteps. It is surely just as offensive to the Constitution to rewrite Texas election law by executive fiat as it is to do so by judicial fiat,” Ho wrote.

“Only the district court’s rewriting of Texas law is before us today, however,” according to Ho. “It recalls the adage that sometimes it’s only the guy who throws the second punch that gets caught … I grudgingly concur.”