As polling last week revealed a tight race in Texas between President Donald Trump and Democratic nominee Joe Biden with just a month before Election Day, Abbott issued a proclamation to limit drop-off sites, which critics charge exceeds his authority, will make it unnecessarily difficult for Texans to vote during the Covid-19 pandemic, and will disproportionately impact Democratic counties.
The lawsuit (pdf) challenging Abbott's order was filed in the district court of Travis County by Common Cause Texas and the Anti-Defamation League's (ADL) Austin, Southwest, and Texoma Regions, who are represented by the Brennan Center for Justice at New York University Law School and Dechert LLP. It comes ahead of the state's early voting period, which begins October 13.
"Many of the Texans who qualify to vote absentee have disabilities and are elderly, and they rely on public transportation," Common Cause Texas executive director Anthony Gutierrez explained Monday. "With only one drop-off site per county, these voters would face challenges in travel that might make it impossible for them to vote."
Gutierrez added that "the drop-off site limit will also make the one site in each country prone to lines and crowds, endangering voters' health."
"Gov. Abbott's order takes healthy, reasonable, safe options away from some of this state's most vulnerable voters," declared Myrna Pérez, director of the Brennan Center's Voting Rights and Elections Program. "It should not stand."
Abbott issued his order to limit drop-off sites not only during a pandemic—which is expected to lead more Americans to vote early in-person or by mail—but also in the midst of U.S. Postal Service mail delivery delays due to controversial changes implemented by Postmaster General Louis DeJoy, which have generated voter concerns about mailed ballots being counted.
Texans may vote by mail if they are age 65 or older; have an illness or physical condition that prevents them from appearing at the polls; will be outside their home county during early voting and on Election Day; or they are in jail but otherwise eligible to vote. Thanks to a Texas Supreme Court ruling this year, those with physical conditions putting them at greater risk of contracting Covid-19 may vote by mail.
"The state of Texas should be working to ensure safe and accessible voting for all Texans," said Cheryl Drazin, vice president of the ADL's Central Division. "The governor's order does the opposite. Limiting the number of drop-off sites available to absentee voters reduces the options Texans have to participate in the 2020 election without risking their health."
The complaint claims that Abbott's proclamation "exceeds the governor's authority and violates the Texas Constitution—in addition to being inconsistent with principles of efficient election administration and fundamental fairness to all Texas voters." It points out that state law designates the county clerk as the official with the power to make decisions about early voting.
"The governor doesn't have the legal authority to limit drop-off sites for absentee ballots," Dechert LLP counsel Lindsey Cohan said. "It's up to each county's clerk to decide how many drop-off sites the county needs and where they should be placed."
As the rights groups filed suit, the Dallas Morning News reported Monday that with Trump "hamstrung by a bout with Covid-19, Joe Biden is eyeing opportunity in Texas and doing something no Democratic nominee has done in decades: making a serious push in the state."
"The former vice president hasn't scheduled a visit so far. But he has quietly reserved $5.8 million for an advertising blitz through the final four weeks, starting Tuesday," the newspaper noted. Texas Democratic Party chairman Gilberto Hinojosa said that "it's a hell of a lot more than anybody else ever spent, that's for sure."
The news came after a Sunday op-ed in the Washington Post by former Democratic presidential primary rival and Texas Congressman Beto O'Rourke, who has since endorsed Biden, and Tory Gavito, president and co-founder of Way to Win and the former executive director of the Texas Future Project.
Noting the state's stockpile of electoral votes, O'Rourke and Gavito wrote that "Joe Biden can end the election on election night. All it takes is an investment in Texas. Texas is the state where big, late money and showing up could put an end to the suspense about whether President Trump will concede defeat."
"Given the high stakes in the presidential election and strategic opportunity in Texas, Biden has no better investment than turning out voters in the Lone Star State," the pair added. "This is not the cycle for Democrats to wonder if Texas is going to flip. This is the election to make it flip—and end the national nightmare on election night."
