Election 2020

4 Ongoing Legal Battles That Could Make It Harder To Vote In Texas

Local elections officials, voting rights advocates and Texas Republicans are entangled in multiple legal battles that impact access to the ballot.

Harris County voters take advantage of drive-thru voting at NRG Arena.

Updated 5:15 p.m. CT Friday

Texas voters are on pace to break records this year: already, the state has surpassed 80% of its total 2016 vote total.

But while Texas is among those states leading the country this year, it's long been notorious for low voter turnout — and rules that make it harder to vote here than in most other states. Recent University of Northern Illinois analysis ranked Texas dead last in terms of access to the ballot.

Urban counties across the state have tried to counteract restrictive voting policies by creating drive-thru voting, expanding early voting and allowing people to drop off their mail-in ballots at multiple locations.

These measures have been met with legal challenges — and some have succeeded at shutting down expanded voting access. Those legal challenges have also threatened to sow chaos into an already confusing process, and threaten to undermine public trust in elections.

Here are four legal challenges to voting laws that have popped up in the 2020 election cycle.

Drive-thru voting

Summary: The Texas Republican Party and former Harris County Clerk Stan Stanart — who is on the ballot again this election — have challenged the legality of drive-thru voting, implemented for the first time this year in light of COVID-19. The challenge made its way all the way up to the state Supreme Court, as tens of thousands of people had already voted at drive-thru locations.

Latest decision: The Texas Supreme Court declined to take up the case, without issuing an opinion. However, Texas Republicans on Wednesday filed another petition to the Texas Supreme Court, which made similar legal arguments on why drive-thru voting isn’t legal. Republicans have also requested a federal judge intervene to stop drive-thru voting.

Bottom line: Harris County’s 10 drive-thru voting locations will remain open through Election Day. But the Harris County Clerk’s Office said the legal uncertainty already caused some people to avoid drive-thru voting.

What’s next: Though the Texas Supreme Court's latest order was a win for Harris County, the assistant county attorney Douglas Ray said this battle isn’t necessarily over.

“Let’s imagine that when the election is over, one of the losing candidates alleges that he would have won if we didn’t count all of the ‘illegal votes' cast at the drive-thru voting, then it would have to go to the court and the court would have to decide first of all, whether the votes were legal or illegal and then second of all, whether that would have made a difference in the election,” said Ray.

Texas Republicans have already filed additional legal challenges to drive-thru voting in state and federal courts.

Emergency ballot access for people sick with COVID-19

Summary: Emergency ballots allow people who suddenly get sick to vote by mail, even if they missed the mail-in ballot application deadline. Using an emergency ballot historically has required a doctor’s note.

In the context of the COVID-19 pandemic, the Move Texas Action Fund sued Texas Secretary of State Ruth Hughs, saying that requiring a doctor’s note violates the Equal Protection Clause of the Constitution, and risks public health.

“This year we’ve really seen the need for these emergency late ballots more than ever before and it’s really come about because of the pandemic going on right now,” said Ryan Cox, Texas Civil Rights Project attorney, who estimated tens of thousands of Texans could get COVID-19 between the Oct. 23 vote-by-mail application deadline and Election Day on Nov. 3.

A judge in Austin agreed with Move Texas, but that decision was later appealed by the Texas Secretary of State.

Latest decision: On Friday, a court of appeals decided that while the case is being deliberated, the doctors note requirement will continue.

Bottom line: The doctors note is still required to use an emergency ballot.

What’s next: Move Texas has set up a telehealth system for voters who suddenly get sick and need a doctor’s note. Sick voters can call 833-466-8389 to connect with a doctor who can certify their illness. After getting the sick note, voters still need a friend or family member to pick up their ballot and then return it to their elections official.

Mail-in ballot drop off locations

Summary: On Oct. 1, Gov. Abbott issued an order saying Texas counties could only provide one mail-in ballot drop-off location, claiming it could lead to fraud. At the time, Harris County had set up 12 locations, and Travis County had four. Voting groups sued Abbott’s office and the Secretary of State.

Latest decision: On Saturday, an appeals court upheld a previous decision blocking Abbott’s mail-in ballot location order. Then the Texas Supreme Court put that decision on hold, meaning Abbott's order remains as the court deliberates on whether to take up the case.

Bottom line: The case is ongoing, but counties are limited to one mail-in ballot location for now.

What’s next: The Texas Supreme Court will decide the outcome of the case — possibly after the election.

Notification of mismatched signatures for mail-in ballots

Summary: Texas doesn’t require the secretary of state’s office to quickly notify voters if their ballot becomes invalidated by a mismatched signature.

Two voters sued over this when their ballots were not counted — officials said the signatures on their ballots and on their envelopes did not match.

Latest decision: The 5th U.S. Circuit Court of Appeals decided while the case is pending, that the state doesn’t have to notify voters of a mismatched signature before the election ends — but it has yet to make a final ruling on the case.

Bottom line: If a Texas voter mails in a ballot that is invalidated by a mismatched signature, election officials have no legal obligation to notify the voter of the mismatch before the election is over.

What’s next: The 5th Circuit Court of Appeals will hear the merits of the appeal to this case starting Nov. 9, according to attorney Ryan Cox.

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Elizabeth Trovall

Elizabeth Trovall

Immigration Reporter

Elizabeth Trovall is an immigration reporter for Houston Public Media. She joined the News 88.7 team after several years abroad in Santiago, Chile, where she reported on business, energy, politics and culture. Trovall's work has been featured on NPR's Morning Edition and All Things Considered, Marketplace, Here and Now, Latino...

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