Texas Governor Greg Abbott and His Court: The One Ballot Drop-Off Site Per County Case

Abstract

In Abbott v. Anti-Defamation League, Common Cause, and Robert Knetsch, the Texas Supreme Court sided with Republican Governor Greg Abbott in a legal challenge to his order reducing the number of drop-off sites for mail ballots during the early voting period of the 2020 general elections to just 1 per county regardless of the county’s population and geographic size. Counties in Texas range in population between a few hundred to several millions.The lower courts had ruled for the plaintiffs and enjoined Abbott's reduction order, but the all-Republican high court reversed and used the occasion to greenlight Abbott’s use of emergency power for non-disaster purposes in denigration of express statutory restrictions.Abbott v. Anti-Defamation League Austin, Southwest, and Texoma Regions, No. 20-0846, 2020 WL 6295076 (Tex. Oct. 27, 2020) (per curiam) (rejecting state constitutional and ultra-vires challenge to proclamation issued pursuant to gubernatorial emergency powers under Chapter 418 of the Texas Government Code in interlocutory appeal of temporary injunction against Governor and Secretary of State). It was the third time in the 2020 election season that the all-Republican high court ruled against Texas voters. This time the SCOTX decision came at the expense of vulnerable citizens: older and disabled voters entitled to case absentee ballots. In a prior legal challenge to Abbott’s exercise of pandemic powers under the Texas Disaster Act, one brought by Harris County misdemeanor judges in April against an order that interfered with the judges’ authority to set bail and grant release, the Court found that the plaintiffs lacked standing and vacated a restraining order against the Governor on that basis. See In re Greg Abbott, No. 20-0291, 601 S.W.3d 602 (Tex. Apr. 23, 2020)(orig. proc.). In Abbott v. Anti-Defamation League, by contrast, the Court skipped the question of standing and issued a precedent-setting decision on the merits, through which it blessed an expansionist notion of gubernatorial emergency powers. This article offers a critique encompassing (1) the Texas High Court's procedural handling of the Attorney General's appeal of the injunction against Abbott; (2) the Court's undue reliance on an opinion by a Fifth Circuit panel consisting of three Trump appointees in a similar challenge brought by LULAC and other advocacy organizations based on federal constitutional law, and (3) the Texas Court's cursory treatment of the plaintiffs' ultra-vires challenge to Governor Abbott's use of emergency powers under Texas Disaster Act, and the ominous ramifications of the newly created precedent. CITE for the federal case: Texas League of United Latin American Citizens v. Ruth Hughs, No. 20-50867, 2020 WL 6023310 (5th Cir. Oct. 12, 2020)(“We agree with the Secretary and grant the stay.”)(Motions panel opinion by Duncan, concurrency by Ho). Defendant Governor Abbott was dismissed from the underlying federal district court cases on Eleventh Amendment immunity grounds. STATUTORY BASIS for emergency powers in Texas: Tex. Government Code Chapter 418, titled Emergency Management (Texas Disaster Act of 1975).