Election Day Stay

Early voting begins today in Texas. The Fifth Circuit stayed the district court’s order that would have let large Texas counties have more than one early-ballot pickup location. The panel majority concluded, inter alia, that the plaintiffs misconstrued the entirety of the Governor’s actions: “The July 27 and October 1 Proclamations—which must be read together to make sense—are beyond any doubt measures that ‘make[] it easier’ for eligible Texans to vote absentee. How this expansion of voting opportunities burdens anyone’s right to vote is a mystery” (citation omitted). From there, the majority concluded that the plaintiffs overstated the claimed burden, and failed to give sufficient weight to the Governor’s asserted interest in preventing voter fraud. A concurrence criticized the Governor’s use of emergency power: “If a governor can unilaterally suspend early voting laws to reach policy outcomes that you prefer, it stands to reason that a governor can also unilaterally suspend other election laws to achieve policies that you oppose.” Texas LULAC v. Hughs, No. 20-50867 (Oct. 12, 2020).