By: Caitlin Turner-Lafving

Early voting in Texas began on Tuesday, October 13, and turnout rates have been “bonkers.” As of this writing, Texas leads the nation with more than 7 million people have already voted. On the first day of early voting, Harris, El Paso, and Travis counties broke records for single-day early voting turnout. Unsurprisingly, long lines in the state’s major urban areas have accompanied the high turnout. More than an hour after the lines were cut off on October 13, seven polling locations in Travis County, which includes Austin, reported wait times of more than 51 minutes.

Back in September, I wrote about Texas’s polling place closures and the dismissal of Mi Familia Vota v. Abbott. The plaintiffs filed suit in July, alleging that the state’s proposed election policies during the pandemic violate voters’ rights under the First Amendment, Fourteenth Amendment, Fifteenth Amendment, and Section 2 of the Voting Rights Act. 

Citing COVID-19 conditions and short early voting periods with limited early voting hours, the plaintiffs argued that Texas’s election laws unduly burden the franchise in violation of the Due Process Clause: “Voters will have to stand in long lines in large crowds, possibly for hours, in contravention of CDC recommendations. Because Defendants have closed hundreds of polling places over the last eight years, voters will have to travel further to vote in person and vote in locations that service a higher number of voters, burdening the exercise of the franchise and the risk of person-to-person transmission of the virus.” 

In alleging violations of Section 2 of the Voting Rights Act, the plaintiffs pointed to the discriminatory results of Texas’s refusal to expand voting by mail, reopen any closed voting places, or require voters and poll workers to wear masks: “The disproportionate infection rate and the more severe health consequences that Black and Latino people face from the coronavirus mean that voting procedures that fail to provide the necessary health and safety protections to all voters in the context of this pandemic will disproportionately burden the rights of Black and Latino voters, in particular. Thus, Texas’s voting procedures abridge and deny the equal rights of Black and Latino communities to participate in the voting process on account of their race.”

The district court granted the State’s Motion to Dismiss on September 7, ruling that the case presented nonjusticiable political questions. Plaintiffs Mi Familia Vota, the Texas State Conference of the NAACP, and Guadalupe Torres appealed the decision. On October 14, the Fifth Circuit affirmed the lower court’s decision in part, reversed with respect to the Voting Rights Act claim, and remanded that claim.

The Fifth Circuit relied on the Supreme Court’s decision in Rucho v. Common Cause, holding that racial discrimination and Voting Rights Act claims do not present political questions. In Rucho, the Court ruled that partisan gerrymandering claims are nonjusticiable political questions because they lack judicially manageable standards for resolving them. However, there are established standards governing racial discrimination and Voting Rights Act claims. Accordingly, the Fifth Circuit reversed the district court with respect to the plaintiffs’ claim under Section 2 of the Voting Rights Act and remanded the claim. 

In its decision, the Fifth Circuit cautioned that “it would be inappropriate for the district court to grant much of the requested relief with the election ongoing,” with the “possible exception” of mask-wearing: “Were the district court to conclude that the exemption from wearing a mask in public places contained in Executive Order GA-29 for poll workers, voters, and others in polling places violated section 2 of the Voting Rights Act, the district court might excise that provision if it concluded that this would redress the injuries the Plaintiffs have alleged.”

Early voting is underway, with Election Day quickly approaching. Texans are already standing in long lines due to limited voting locations, high turnout, ballots that require more time to complete, and sporadic problems. It does not have to be this way. Texas’s voting laws are the most restrictive in the country, including those governing mail-in voting eligibility. The State has closed 750 polling places since 2013, a disproportionate number of which affect communities of color. The COVID-19 pandemic also disproportionately affects communities of color.

Will voters standing in hours-long lines and entering heavily trafficked polling places be afforded the protection of a mandatory mask-wearing policy? Looking at you, U.S. District Court for the Western District of Texas.

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