CORONAVIRUS
Paxton asks state high court to block mail-in vote expansion.
Texas Attorney General Ken Paxton filed a petition Wednesday with the state Supreme Court asking it to stop Harris County and other counties from allowing voters who fear contracting the novel coronavirus to request mail-in ballots.
This marks the latest development in an ongoing feud between the state and counties looking to expand absentee voting with a normally high-turnout general election on the horizon and a pandemic lingering.
Other counties named in the brief include Dallas, Cameron, El Paso and Travis.
“Each misapplication of Texas election law damages the integrity of our elections and increases the risk of voter fraud. In-person voting is the surest way to prevent voter fraud and guarantee that every voter is who they claim to be and has a fair opportunity to cast their vote,” Paxton said in a statement.
“It is unfortunate that certain county election officials have refused to perform their duties and have instead unlawfully gone beyond the Legislature’s determination of who is eligible to vote by mail,” he added. “My office will continue to defend the integrity of Texas’ election laws.”
While some election studies have shown a slightly higher risk of mail-in voting fraud compared to in-person voting, overall that risk remains low.
The Brennan Center for Justice said in 2017 the risk of voting fraud is infinitesimal — 0.00004 percent — for a voter casting a ballot at the polls and just under a thousandth of a percent for a mail-in ballot.
Texas is one of the few states that still require voters younger than 65 to have an excuse to cast a ballot by mail. Fewer than 7 percent of Texas voters mailed in ballots in 2018.
The Texas Democratic Party
and a group of voters have sued in state and federal court, hoping to make the case that risk of contracting an illness should qualify all voters for a mail-in ballot if they want one.
Paxton has argued that fear of contracting the coronavirus doesn’t amount to an illness or physical impairment that would allow mail-in voting under the law.
“After a month of thousands of mail-in ballot requests sent by Texans who are under the age of 65, Paxton now wants to upset the election process,” said Chad Dunn, the party’s lawyer. “Apparently, none of the counties agree with Ken Paxton’s view that everybody under age 65 has to vote in person during a pandemic, and the court shouldn’t either.”
As the case has continued on, the counties named in the petition have begun making plans to expand mail-in voting, even before it’s been settled in court. Harris County last month budgeted $12 million to the cause, anticipating an increase in requests for voteby-mail.
The issue has been up in the air in recent weeks, as supporters lean on Travis County District Judge Tim Sulak’s April ruling saying counties can’t put out guidance prohibiting mail-in voting for those concerned about being infected at the polls. Paxton has argued the decision was stayed when he appealed it.
Most counties named in the petition have not gone as far as Harris and merely indicated they would allow coronavirus-driven requests. Travis County Clerk Dana DeBeauvoir said her office had received 14,000 applications as of May 8 and has said she will honor them based on Sulak’s ruling.
The other counties showed their support for accepting the requests through briefs filed in court, resolutions filed by commissioners courts and other statements.
Dallas attorney David Coale said Paxton’s request for a court order limiting the discretion of government officials is a “very unusual” legal maneuver in this case because of the pending lawsuits on the matter and the lack of action to this point.
While the counties may have noted their intention to issue mail-in ballots, none actually has done so yet. Typically, the writs are used to compel an official to do something required of them or stop doing something prohibited under the law, he said.
“This is way early for a mandamus petition,” Coale said. “I would ordinarily expect to see the offending thing is happening. … Here, they’re just talking and funding.”
The Texas Supreme Court often has shown in previous cases that it prefers not to get ahead of lower courts in contentious matters such as these, and is not obligated to take up the matter.
Even if the state prevails with the high court, a writ wouldn’t stop the ongoing litigation, but it would provide the attorney general with a strong legal opinion to use as support, Coale said.