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With Early Voting Underway, Pandemic Brings Heightened Scrutiny of Texas Election Code

With Early Voting Underway, Pandemic Brings Heightened Scrutiny of Texas Election Code

The fundamental basis of any democracy is the right of the people to vote. The COVID-19 pandemic has had an impact on nearly every aspect of our day-to-day lives, and this year’s elections are no exception. In the past six months, we’ve seen orders issued by Governor Abbott allowing Texas cities to move their elections from May to November and extending the early voting period, and we’ve also seen a litany of cases filed in Texas courts contesting various issues related to the November elections.

We’ve touched on this subject in previous blog posts, but the 2020 election and its challenges have been ever evolving over the past months. So where do Texas voters now stand?

In July, Governor Abbott ordered that early voting for the general election in Texas will begin nearly a week earlier than usual. This was in response to the COVID-19 pandemic to allow more Texas voters an opportunity to safely cast their votes and make themselves heard. Typically, early voting in Texas begins on the 17th day before election day. This year, however, Governor Abbott extended the early voting period by six days through an executive order. As we’ve discussed in a number of blog posts this year, the Governor has expanded powers during a time of emergency such as a pandemic. Multiple lawsuits have been filed challenging this extended period for early voting by arguing that Governor Abbott defied state election law by extending the early voting period. The Texas Supreme Court, however, ruled last week that the early voting period would remain extended under the Governor’s Order. Essentially, the court found that the lawsuit which challenged Abbott’s extension for early voting was filed at the last minute while the Governor had announced his plan months ago. As Chief Justice Nathan Hecht stated in the court’s opinion, “To disrupt the long-planned election procedures as relators would have us do would threaten voter confusion.”

All of that is to say that the early voting period this year, pursuant to Governor Abbott’s order, begins on October 13, 2020.

On another similar note, on October 1st, Governor Abbott issued a proclamation concerning mail-in ballots. Under the October 1st order, the Governor suspends Section 86.006(a-1) of the Texas Election Code to allow voters to deliver a marked mail ballot in person to the early voting clerk’s office prior to and including election day. However, the suspension only applies when:

(1) the voter delivers the marked mail ballot at a single early voting clerk’s office location that is publicly designated by the early voting clerk for the return of marked mail ballots under Section 86.006(a-1) and this suspension; and

(2) the early voting clerk allows poll watchers the opportunity to observe any activity conducted at the early voting clerk’s office location related to the in-person delivery of a marked mail ballot pursuant to Section 6.006(a-1) and this suspension, including the presentation of an acceptable form of identification described by Section 63.0101 of the Election Code by the voter.

Essentially, this is a convoluted way of saying that those voting by mail-in ballots can either mail their ballot in the U.S .mail, or drop off their ballot at the publicly designated location in their county. It is worth noting that the Governor’s October 1st order was challenged in U.S. District Court earlier this month. The plaintiffs complained that having one designated location for each county would unfairly burden large urban counties and potentially deter voters or create health hazards. District Court Judge Robert Pitman issued a preliminary injunction against Abbott’s October 1 order. However, just before midnight on October 12, and mere hours before early voting would begin, the 5th Circuit Court of Appeals lifted the preliminary injunction and restored the Governor’s October 1 order.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.

Brandon Morris is an experienced litigation attorney who has worked on a wide variety of cases, including personal injury claims, Texas Deceptive Trade Practices Consumer Protection Act (DTPA) violations, family law, criminal law, and credit collections. Brandon joined the Randle Law Office team early in 2018.

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