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Anti-Defamation League Austin, Southwest, and Texoma Regions vs. Abbott

In this lawsuit, the plaintiffs challenge Texas Governor Greg Abbott’s order limiting the number of absentee ballot drop-off locations to one per county. The Brennan Center and Dechert LLP represent the Anti-Defamation League Austin Southwest, and Texoma Regions, Common Cause Texas, and an individual in the challenge to Governor Abbott’s order.

Last Updated: October 28, 2020
Published: October 5, 2020

On Octo­ber 5, 2020, the Bren­nan Center and Dech­ert LLP filed a lawsuit in Texas state court on behalf of the Anti-Defam­a­tion League Austin, South­w­est, and Texoma Regions (“ADL”), Common Cause Texas, and an indi­vidual Texas voter, chal­len­ging Governor Greg Abbot­t’s Octo­ber 1, 2020 Proclam­a­tion, which bars local elec­tion offi­cials from provid­ing more than one drop-off site for mail-in ballots during the early voting period. The plaintiffs also applied for a tempor­ary restrain­ing order and tempor­ary injunc­tion.

The plaintiffs argue that the Proclam­a­tion exceeds the Governor’s power, even in even in an emer­gency setting, because the Governor does not have author­ity to manage and conduct the early voting process, and his emer­gency powers are to be used to alle­vi­ate a disaster, not to exacer­bate one, as the Proclam­a­tion does. Moreover, the plaintiffs argue that the Proclam­a­tion viol­ates their equal protec­tion rights under the state consti­tu­tion.

Back­ground

The Texas Elec­tion Code desig­nates local elec­tion offi­cials as the offi­cials with the author­ity to manage and conduct the early voting process. And, as Governor Abbott has told the state Supreme Court, the Elec­tion Code allows local elec­tion offi­cials to desig­nate more than one early voting ballot drop-off site in each county.  Pursu­ant to this author­ity, many counties offered multiple drop-off loca­tions in the primary runoff elec­tion and inten­ded to do so in the upcom­ing general elec­tion.

Never­the­less, on Octo­ber 1, 2020, Governor Greg Abbott issued a Proclam­a­tion, which bars local elec­tion offi­cials from provid­ing more than one drop-off site for mail-in ballots during the early voting period, regard­less of the size or popu­la­tion dens­ity of the county.  

On Octo­ber 5, 2020, the Bren­nan Center and Dech­ert LLP filed a lawsuit in Texas state court on behalf of ADL, Common Cause Texas, and an indi­vidual Texas voter, chal­len­ging the Octo­ber 1 Proclam­a­tion, and seek­ing a tempor­ary restrain­ing order and tempor­ary injunc­tion The plaintiffs argue that the Proclam­a­tion exceeds the Governor’s power, even in even in an emer­gency setting, because the Governor does not have author­ity to manage and conduct the early voting process, and his emer­gency powers are to be used to alle­vi­ate a disaster, not to exacer­bate one, as the Proclam­a­tion does. Moreover, the plaintiffs argue that the Proclam­a­tion viol­ates their equal protec­tion rights under the state consti­tu­tion.

On Octo­ber 6, the Defend­ant filed a response to the applic­a­tion for tempor­ary injunc­tion and a plea to the juris­dic­tion.

On Octo­ber 11, Plaintiffs submit­ted a motion for leave to file a First Amended Peti­tion to add Secret­ary of State Ruth Hughs as a defend­ant.

On Octo­ber 13, the trial court held a tempor­ary injunc­tion hear­ing.

On Octo­ber 15, the district court issued an order grant­ing a prelim­in­ary injunc­tion against the part of the Governor’s Proclam­a­tion that limited counties’ abil­ity to offer more than one absentee ballot return loca­tion prior to Elec­tion Day.

On Octo­ber 15, Defend­ants filed a notice of appeal, which stayed the district court’s tempor­ary injunc­tion.

On Octo­ber 19, Plaintiffs filed an emer­gency motion, in the Court of Appeals, to rein­state the tempor­ary injunc­tion. On Octo­ber 20, the Court of Appeals ordered Defend­ant-Appel­lants to respond to the motion by Noon on Octo­ber 21. The Court also ordered exped­ited hear­ing on the merits, with the matter to be fully briefed by Noon on Octo­ber 23.

On Octo­ber 23, the Court of Appeals affirmed the district court’s tempor­ary injunc­tion. The same day, the Defend­ants filed an emer­gency peti­tion for review in the Texas Supreme Court. They also filed a peti­tion for a writ of manda­mus, request­ing that the Supreme Court order the Court of Appeals to recall its mandate.

On Octo­ber 24, the Texas Supreme Court stayed the Court of Appeals’ judg­ment and mandate, effect­ively paus­ing the effect of the district court’s tempor­ary injunc­tion. The Court also ordered the Plaintiffs to respond to the emer­gency peti­tion for review by 5:00pm on Octo­ber 26.

On Octo­ber 27, the Texas Supreme Court reversed the Court of Appeals and dissolved the tempor­ary injunc­tion.

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