The Fifth Circuit Got it Wrong: Last-Second Burdens on Voting Should be Prohibited

October 21, 2020

The conjunction of the COVID-19 pandemic and the 2020 election has wrecked legal and electoral chaos in the state of Texas. In July, in order to accommodate the large amount of individuals filing for mail-in-ballots, Governor Abbott issued several proclamations, permitting voters to turn in their mail-in-ballots in person not only on election day but for the entire early voting period. 

In response, several of Texas’s most populous and geographically dispersed counties set up multiple drop-off locations where voters could turn in their mail-in-ballots. This allowed voters to turn in their mail-in-ballots without having to travel far, wait in long lines, and risk exposure to COVID-19. In effect, the counties sought to realize the whole purpose of allowing mail-in-ballots: to avoid exposure to COVID-19. 

However, on October 1, thirteen days before early voting began in Texas and well after counties had starting planning for the multiple drop off locations, Governor Abbott issued a new order restricting counties to only one drop off location for all of the mail-in-ballots in that county. Quickly, progressive groups in Texas filed suit seeking an injunction to the order, arguing it significantly burdened the right to vote. 

On October 12, the day before early voting started in Texas, the U.S. Court of Appeals for the Fifth Circuit reversed the decision of the trial court below and upheld the Governor’s order restricting the mail-in-ballot drop points. 

The Fifth Circuit made the wrong decision because the court (1) misapplied the Anderson-Burdick test in evaluating the plaintiff’s First and Fourteenth Amendment claims, and (2) refused to even consider the Purcell principle in the case. 

In applying the Anderson-Burdick test, the Fifth Circuit held that the magnitude of the burden faced by the plaintiffs was too trivial or minor to merit consideration because of the other avenues available for Texans to vote, including voting early, mailing in an absentee ballot, and hand delivering the ballot to a single location. In fact, the court reasoned that the Governor’s plan was actually an expansion of voting access, given that his orders were the ones that extended the early voting period in the first place. 

However, the court failed to take into account the district court’s reasoning that many of those other avenues of voting are not viable because of the COVID-19 pandemic. The USPS has warned about being unable to deliver ballots in time, and many voters are unable to stand in long lines and risk exposure to COVID-19 in order to deliver a ballot to a singular location or vote in person. Also, the characterization of the Governor’s October 1 order as an expansion of voting rights is untrue. While the July order certainly expanded voting options, the October order serves to limit the ways individuals may vote and restrain the discretion of counties in running their elections.  

Secondly, in the Anderson–Burdick framework, the Fifth Circuit overvalued the state’s interest in ensuring ballot security and preventing voter fraud. Primarily, it is unclear how fighting voter fraud is an important state interest, given the extremely low amounts of voter fraud conducted through mail-in-voting. But even if curbing voter fraud was a vital state interest, as the district court noted, it does not follow that only allowing one drop off site versus having several more conveniently placed ones would do anything to prevent that fraud. 

Finally, the Fifth Circuit failed entirely to address the Purcell principle. In Purcell v. Gonzalez, the Supreme Court held that federal courts should not issue orders that disrupt the electoral process right before elections occur because of the amount of confusion it would cause for voters and election administrators. The district court below correctly reasoned that the Governor’s new order was “executive-caused voter confusion on the eve of an election,” and thus an injunction on the order was consistent with the principles of Purcell. 

The district court ruled correctly and the Fifth Circuit erred in not addressing the issue at all. Several of the reasons that Purcell allows federal courts to take action were present in this case. The district court’s remedy prohibiting the new orders would not cause voter and administrator confusion because voters and election administrators had known of and planned to have multiple drop-off sites prior to the Governor’s order. Additionally, if the court failed to stop this order, voter disenfranchisement would ensue because many voters would not be able to travel long distances to a crowded singular drop off site in the middle of large and populous counties like Harris and Travis counties, given the COVID-19 pandemic. 

In effect, in the middle of a global pandemic, the Fifth Circuit’s decision significantly burdened individuals’ voting rights and created mass voter and administrator confusion, one day before Texas commenced early voting.