Updated: Oct 13
This column first appeared in the San Antonio Express News and other Hearst Newspapers on September 28, 2020.
Dear Mr. Premack: Thanks for posting “Voting Information you need to know” on your website. The calendar and links to registration and other voting information is really helpful. You mentioned two different lawsuits, the first with the goal of shortening the early-voting period and the second related to online voter registration. Can you provide more information on those lawsuits? – V.L.
Thanks for the kind words about the voting information. Any national election is important, but the 2020 election seems to be one of the most vital in recent memory. If the pandemic causes an increase in mail-in voting, it could take many days after November 3 before the final vote is counted. We, as a nation, need to participate in the vote and then be patient while the votes are tallied.
Early voting expansion attacked
Early voting is one method that Texas law provides to make voting more available, lines shorter, and to help the election administrators by having a large portion of voters complete their ballots several days before the general election. Many states, including Washington, mail ballots to all registered voters who then return them by mail or to designated drop-off boxes. Texas restricts mail-in voting to anyone 65 or older (without condition; you don’t need to be ill or absent when you are 65+ to get a mail-in ballot, you just need to properly and timely request one). Of course, registered voters can apply for an “absentee” ballot if the voter is sick or disabled, if the voter is in jail yet qualified to vote, and if the voter will be out of county on election day (and away for the entire early voting period).
However, two lawsuits have been filed in Texas. The first relates to early voting. Due to the pandemic, Governor Abbott has issued a variety of emergency orders, one of which extended the period for early voting. Ordinarily, early voting would have started on October 19 but to spread-out the crowds and increase safety from transmission of Covid-19, the Governor ordered that early voting begin on October 13.
On September 23, some Republican leaders in Texas filed suit against the Secretary of State asking the Texas Supreme Court to void the Governor’s emergency order. They seek to delete the extra days of early voting by restoring the October 19 start for early voting. The Governor had expanded early voting in the runoff election without objection and had announced his intention to expand early voting for the general election all the way back in May. The Texas Supreme Court recently ruled that the Governor's order stands, and early voting will begin on October 13 as scheduled.
The second lawsuit was decided in federal court about a month ago (Stringer v Hughs). It started six years ago when Stringer – a person qualified to vote - attempted to register to vote when updating his Texas driver’s license. The federal “motor voter” law was passed by Congress and signed into law by President Clinton in 1993. It requires states to allow people to register to vote when obtaining or changing their driver’s license. All Texas has done was provide a link to the Secretary of State’s online registration application, not to the actual registration itself. Forty-one states allow online voter registration. Texas is one of the few that do not and have never allowed online voter registration.
Stringer thought, however, that submitting his information to Texas had actually registered him to vote, but when he later went to the poll to vote he was told he was not registered, and was not allowed to vote. Consequently, Stringer and other like the League of Women Voters brought suit in federal court to enforce the federal motor voter law. And on August 28, Judge Orlando Garcia ruled that Texas had to comply no later than September 23. Reports indicate that the state has complied with the court’s order.
This is a third lawsuit over voting rights. Governor Abbott issued an order instructing County Election Administrators to eliminate all but one drop-off box for returning ballots. Clearly those who are "absentee" will not be using the boxes as they are away from their home counties. This means that the order restricts voters age 65+ and disabled voters to having one drop-box per county. (Voters may still mail-in their ballot).
Several organizations, including the League of Women Voters, filed for an injunction asking the federal court to stop the Governor's order. On Friday, October 9, 2020 a federal district Judge ruled that the Governor's order amounted to voter suppression. Counties like Harris (Houston area) had plans to install about a dozen drop-boxes, and limiting it to one would require older or disabled voters to travel excessive distances.
Texas appealed to the 5th Court of Appeals in New Orleans. On Saturday, the court put a hold on the district Judge's order. On Monday, October 12, a panel of 3 appeals Judges ruled that the order will proceed and that counties must only place one drop-box. All 3 appeals Judges who voted to limit drop-box availability were appointed by President Donald Trump.
Paul Premack is a Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. View past legal columns or submit free questions on those legal issues via www.Premack.com.