AUSTIN, Texas -- Top Texas officials are again trying to keep counties from having multiple drop-off locations for absentee ballots heading into the Nov. 3 general election, opening a new front in one of many legal battles over voting as mail-in ballots are already being collected and just days before early voting begins.
Attorney General Ken Paxton filed an emergency stay Saturday, seeking to halt a federal judge's ruling from Friday night that said Texas counties can have multiple absentee ballot drop-off locations. U.S. District Judge Robert Pitman's ruling blocked Gov. Greg Abbott's recent order that sought to limit counties to just one such location.
Saying the district court's injunction "usurps the power of the governing state authority," Paxton requested that the U.S. 5th Circuit of Appeals stay the lower court's ruling later than 9 a.m. Tuesday, pending an appeal. Tuesday is the day early voting begins in Texas.
Pitman's Friday ruling that blocked Abbott's order said the governor's directive confused voters and restricted voter access. With an unprecedented number of Texas voters requesting mail-in ballots during the coronavirus pandemic, and concerns about the reliability of the U.S. Postal Service, some large, Democratic counties had set up numerous locations to accept the ballots before Abbott's order.
"By limiting ballot return centers to one per county," Pitman wrote, "older and disabled voters living in Texas's largest and most populous counties must travel further distances to more crowded ballot return centers where they would be at an increased risk of being infected by the coronavirus in order to exercise their right to vote and have it counted."
A spokesperson for Abbott did not immediately respond to a request for comment after Friday's ruling.
To qualify to vote by mail, voters must be 65 or older, be confined in jail but otherwise eligible, be out of the county for the election period, or cite a disability or illness. The Texas Supreme Court has said that lack of immunity to the coronavirus does not itself constitute a disability, but voters may consider that alongside their medical histories to decide whether they qualify. Texas remains one of only a handful of states that don't allow for universal mail-in voting during the pandemic, and Republican officials have pushed back on other efforts to expand access to voting.
Earlier this year, Abbott extended the early voting period for the November election and also allowed people using absentee or mail-in ballots to drop them off before Election Day. Early voting begins Tuesday, but counties had already started collecting mail-in ballots before Abbott's attempt to limit the number of drop-off locations in each county.
Voting rights advocates called that move an unconstitutional burden on the right to vote that will disproportionately impact voters of color in the state's biggest cities.
Harris County, the state's most populous and home to Houston, had designated a dozen ballot drop-off locations in clerk offices across the county's roughly 1,700 square miles, and had already begun collecting them. In Travis County, which includes Austin, officials had designated four locations where voters could deliver their ballots. Voters must present an approved form of identification to deliver their mail-in ballots, and they may not turn in any one else's ballot.
Abbott's order, which the governor said was meant to "strengthen ballot security protocols throughout the state," required all but one of each county's drop-off locations to close and allowed political parties to install poll watchers to observe the process. A spokesperson for the governor did not answer questions on how allowing multiple locations for ballot delivery might lead to fraud.
The Texas Democratic Party called Friday's ruling a "common sense order (that) followed well-established law and stopped the governor from making up election rules after the election started."
Before Friday's ruling, Democrats had denounced Abbott's order, labeling it voter suppression in a state that has repeatedly been knocked in federal court for intentionally discriminating against voters of color. Voting rights advocates and civic groups quickly sued Abbott in federal court, arguing the order was based on invalid security concerns and places an unconstitutional and unequal burden on the right to vote.
The Texas and national League of United Latin American Citizens, the League of Women Voters of Texas and two Texas voters filed suit the night of Abbott's order, and another lawsuit was filed the next day by the Texas Alliance for Retired Americans, the get-out-the-vote group Bigtent Creative and a 65-year-old voter.
"Cutting these mail-in voting locations was wrong and done solely to attempt to steal the election from the rising Texas electorate," said Gilberto Hinojosa, chair of the Texas Democratic Party. "A county, like Harris County, with more than 4.7 million Texans should have more than one hand delivery location. Limiting counties like Harris is a desperate Republican attempt to hold onto power."
There has been a flurry of legal battles over voting in Texas during the coronavirus pandemic this year. The Texas Supreme Court ruled this week against several GOP officials who pushed to keep early voting to a two-week period during the pandemic. But the state's highest civil court also ruled this week that Harris County elections officials could not send out mail-in ballot applications to all of the county's 2.4 million registered voters.
County clerks in large counties, like Harris and Travis, began opening up multiple drop-off locations for absentee ballots to handle the expected influx of ballots delivered by hand, especially as the U.S. Postal Service is plagued by cutbacks and doubts over its ability to deliver ballots on time.
It was a move that seemingly had initial approval from the state of Texas. One day before Abbott's limiting proclamation, Texas Solicitor General Kyle Hawkins said Harris County's multiple drop-off locations were legal in a filing related to another voting lawsuit. Nothing in Texas election law says that multiple drop-off locations cannot be used, Hawkins told the Texas Supreme Court, and "accordingly, the Secretary of State has advised local officials that the Legislature has permitted ballots to be returned to any early-voting clerk office."
Local officials are also implementing safety precautions at the polls, including getting creative with polling location choices, stocking up on sanitizer and mandating social distancing in lines. Masks are encouraged but not required at polling places - one of a few exemptions Abbott gave from a statewide mask order earlier this year.
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