https://www.austinchronicle.com/daily/news/2006-11-01/415894/

Injunction Blocks Abbott Enforcement of Ballot Law

By Lee Nichols, November 1, 2006, 12:31pm, Newsdesk

On Tuesday, U.S. District Judge T. John Ward issued a preliminary injunction blocking state Attorney General Greg Abbott from what plaintiffs, including the Texas Democratic Party, described as overzealous enforcement of a ballot-handling law.

The plaintiffs had sued Abbott because he had prosecuted 13 individuals for possessing the ballots of other voters. The six citizen plaintiffs claim that they were doing nothing more than helping elderly friends or relatives get their ballots into the mail. Abbott contends they were committing voter fraud.

The law does indeed forbid possessing another’s ballot, but plaintiffs hope to have it stricken as overbroad and say it discourages the elderly from voting and others from helping them. The injunction orders Abbott to “cease enforcing” the law, pending trial, “under circumstances in which a person, other than the voter, has merely possessed the official ballot or official carrier envelope and such possession is with the actual consent of the voter.” The law is still enforceable under other circumstances, the court noted.

One of the groups pushing the suit, the Lone Star Project, characterized Abbott’s strict enforcement of the law as a “vote suppression scheme,” and noted that those prosecuted were all some combination of Democrats, racial minorities, and/or elderly. “Greg Abbott was not only improperly enforcing a flawed statute, but creating an atmosphere of intimidation and fear,” Lone Star Project Director Matt Angle said. Texas Democratic Party Chair Boyd L. Richie said, “Texas Republicans know that they would lose fair and free elections. That’s why they’ve done everything they can to stack the deck … even if it means willfully ignoring the law and abusing the power of their office.”

Solicitor General Ted Cruz, speaking for the AG’s office, said, “No political operative should view Tuesday’s unfortunate decision as an invitation to commit voter fraud. The Office of the Attorney General will file an immediate appeal, and will vigorously prosecute voter fraud to ensure the integrity of Texas elections. The district court’s decision is contrary to binding precedent from the U.S. Supreme Court, and we are highly confident on appeal.”

ADDITIONAL MATERIAL SINCE ORIGINAL POSTING: In Judge Ward's Conclusions of Law that led to his injunction, he ruled: "Plaintiffs have demonstrated a substantial likelihood of success on the merits of their claim that §86.006's prohibition on the possession of carrier envelopes and ballots provided to others unduly burdens the First and Fourteenth Amendment rights of the plaintiffs under circumstances in which the voter consents to that possession."

To that, the Attorney General's office replied: "Solicitor General Ted Cruz wants to point out that a bi-partisian national commission made a recommendation (5.2.1) that is essentially identical to the provision that U.S. District Judge Ward declared facially unconstitutional. The Bipartisan Commission was Co-Chaired by President Jimmy Carter and Secretary James Baker, and included as members Senator Tom Daschle, Rep. Lee Hamilton, Chief Justice Tom Phillips, and Raul Yzaguirre (former President of La Raza)."

The document to which Cruz refers, Building Confidence in U.S. Elections: Report of the Commission on Federal Election Reform (download an 8.11 MB pdf of the report here) makes this recommendation:

"5.2.1 State and local jurisdictions should prohibit a person from handling absentee ballots other than the voter, an acknowledged family member, the U.S. Postal Service or other legitimate shipper, or election officials. The practice in some states of allowing candidates or party workers to pick up and deliver absentee ballots should be eliminated."