Three judges on the Fifth Circuit Court of Appeals on Monday stayed an injunction by a lower district court that sought to protect the voting rights of Texans voting by mail.
The majority decision, written by Judge Jerry E. Smith, blocked the lower court's orders to Texas Secretary of State Ruth Hughs that would have required officials to notify Texans whose mail ballots were rejected because of an apparent signature mismatch and give them an opportunity to address the issue. Under current law, election officials can reject a mail ballot if they determine that the signature does not match the voter's signature on file; officials must notify the voter of the rejection within 10 days. But even then, the voter may not be given an opportunity to fix the problem.
As the result of an ongoing lawsuit, the U.S. District Court for the Western District of Texas ordered Hughs to adopt procedures that would allow voters to address a signature mismatch, or to stop rejecting ballots based on signature issues altogether. Judge Orlando Garcia said the existing policy "plainly violates certain voters' constitutional rights." But the Fifth Circuit rejected this injunction, saying Hughs should follow the law as written — rejecting ballots without necessarily giving voters any due process.
In a remarkable sentence encapsulating the emerging right-wing view of voting rights, the decision explained:
Because Texas's strong interest in safeguarding the integrity of its elections from voter fraud far outweighs any burden the state's voting procedures place on the right to vote, we stay the injunction pending appeal.
While this may sound like dry legalese, it's a dramatically bold and unambiguously dangerous idea. The court's claim is that "any burden" on the right to vote can be justified if it is meant to restrict the opportunity for voter fraud.
This notion sounds like a farcical caricature of Republicans' views on voting, but it's an actual statement from right-wing judges defending a right-wing administration. It falls apart under even the mildest scrutiny though. While preventing voter fraud is surely a legitimate interest of the state, there must be some reasonable limits on how far the government can go in trying to prevent it. Is it reasonable to, say, create so many obstacles to voting that 10,000 fewer ballots will be cast in an election if doing so will also stop a handful of fraudulent ballots?
The answer should obviously be "no." The problem with voter fraud is that it distorts the will of the electorate, undermining the very point of a democracy. But if efforts to combat voter fraud distort the democratic process even more than fraud would, it's difficult to see how they can be justified. And all the best evidence indicates that voter fraud is incredibly rare.
But when Republicans discuss voter fraud, all they ever seem to care about is stopping the extremely rare cases of illegally cast ballots. They almost never consider balancing the risk of fraud with the risk of preventing legitimate votes from being cast. In this decision, the court made that view explicit. And it's even more absurd than it sounds, because the decision actually allows election officials to literally throw away votes that may have been legitimately cast without giving the voter any platform to challenge this decision. Isn't this at least as bad as voter fraud?
The Texas Tribune reports of this process:
The state election code does not establish any standards for signature review, which is conducted by local election officials who seldom have training in signature verification.
So at best, the disposal of ballots may be entirely capricious. At worst, it could disproportionately target groups of voters that the existing government would rather not have voting — minority groups, for instance, that may be likely to vote Democrat. It may be hard to say what the motivation is for the laws in this particular case, but the GOP's actions in the past decade have made clear that they see restricting the right to vote as a vital part of retaining electoral power. The court's reasoning lays bear this motivation: Based on the slimmest fears about "voter fraud," they can justify restricting voters' rights as much as possible. The path to illegitimately holding on to office is clear.
The Fifth Court's decision justified the stay in part by arguing against the idea that there's a due process protection for the right vote. But even if there is, the court argued, there isn't a right to vote by mail — that's simply an option that Texas provides without being obligated to.
This reasoning, though, is spurious. If Texas provides voters the option to vote by mail, it is not reasonable that it can then simply reject those ballots based on dubious and unreviewable claims of a signature mismatch that the voter may not even be alerted to until after Election Day has passed. Once it has provided the option of voting by mail, Texas is still obligated to ensure that the process provides reasonable protections for voters' rights.
In a concurring opinion, Judge Patrick Higginbotham rejected the majority's arguments for the stay. He agreed with issuing the stay, however, noting the difficulties of changing election rules while votes are already being cast. And he warned that the matter in question is grave:
In 2016 and 2018, "approximately 5,000 [Texas] ballots were rejected on the basis of perceived signature mismatches."8 Such "small" differences have the potential to decide both local and national elections. And with the large increase in votes cast by mail in our ongoing pandemic that error rate would toss out far greater numbers. There is much at stake here.