As COVID-19 continued to infect and kill Texans and other Americans, Governor Abbott signed a proclamation on July 27, 2020 that allowed county election officials in Texas to choose to operate additional polling centers to meet the needs of their county’s voters.  The order was designed to allow counties the flexibility to provide voting opportunities that would best accommodate older, disabled, and otherwise qualified absentee voters. However, on October 1, Governor Abbott abruptly reversed that order. The governor’s new order limited every county, regardless of size, to one ballot return center. In practice, this means that counties with millions of voters and counties with hundreds of voters will have the exact same number of ballot return centers, significantly harming voters in more populous counties seeking to exercise their right to vote.

Non-profit civil and voting rights organizations, as well as individual voters, challenged that order in court. Judge Robert Pitman of the District Court for the Western District of Texas held that Abbott’s order placed an undue burden on vulnerable Texas voters and preliminarily enjoined implementation of the order. Texas Secretary of State Ruth Hughs appealed that ruling to the Fifth Circuit and sought a stay of the injunction. CAC filed a brief on behalf of Members of Congress, urging the Fifth Circuit to deny the stay and leave the District Court’s injunction intact.

Our brief made two principal points.  First, our brief argued that Governor Abbott’s order violates the Fourteenth Amendment’s guarantee that “every voter is equal to every other voter in his State.” Second, our brief explained that the District Court’s grant of injunctive relief preserved the status quo and should not be stayed simply because voting had already started.

The Fourteenth Amendment guarantees that states may not arbitrarily value one person’s vote over that of another. In this case, however, Governor Abbott’s order did just that. Our brief explained that the one-polling-center-per county rule at issue allocates voting opportunities in a manner that discriminates against voters based on where they live. As a result, elderly and disabled voters in more populous counties are forced to endure significantly greater risks in order to vote than are those in less populous counties. This outcome cannot be squared with the Fourteenth Amendment’s guarantee of equal protection for all persons.

Finally, our brief argued that the District Court’s injunctive relief was in line with the Supreme Court’s precedent disfavoring court orders that alter election rules on the eve of an election. Because the district court’s injunction prevented the last-minute closure of dropboxes and thereby maintained the status quo, we argued that the Fifth Circuit should not grant a stay of that injunction.

A panel of the Fifth Circuit, however, stayed the district court’s injunction.