Texas voters can decide for themselves about mail-in ballots.
State Supreme Court leaves it up to people to say if they qualify
As Democrats and civil rights groups sue to expand mail-in voting during the pandemic, a recent decision by the Texas Supreme Court has left it up to voters to decide for themselves whether they qualify for vote-by-mail.
In its decision in late May, the highest civil court in the state ruled that lack of immunity to COVID-19 alone does not constitute a disability that would allow those under 65 years old to vote by mail rather than at the polls, under the
Texas election codes.
But it added — which legal experts say is crucial — that a voter can take the possibility of being infected into consideration along with his or her “health” and “health history” to determine whether he or she needs to vote by mail under the ‘disability’ provisions in the law.
“I think really the story here is that it’s going to be up to individual voters to decide whether they fit this definition or not,” said Joseph Fishkin, a University of Texas professor who studies election law and has closely followed the cases.
So while the court battle continues with Democrats on one side, and on the other side Republican state leaders who argue that an expansion of mail-in voting would encourage more voter fraud, it will be up to elections officials across the state to set the tone for mail-in voting.
Early voting in congressional and statewide runoffs begins June 29. Election Day is July 14.
The law allows those with a “sickness or physical condition that prevents the voter from appearing at the polling place” to use mail-in ballots, in addition to people over 65, people traveling outside the county during the election and people confined to jail. In the 2018 elections, fewer than 7 percent of Texans voted by mail.
Texas counties have taken different approaches to explaining
the decision to voters. Harris County has encouraged mail-in voting whenever possible. The county in April put $12 million toward sending mail ballots to any voter who requests one for the July or November elections. It also took the unusual step of sending a mail ballot to every voter age 65 and up.
Assistant County Attorney Douglas Ray has said Harris is relying on the Supreme Court decision to bolster its recommendation that voters request a ballot if they believe they are eligible.
“If it’s checked disabled, we’ll just send the ballot,” Ray said. “We don’t question that. We don’t have the authority or ability to investigate that.”
In Bexar County, the commissioners court last month passed a resolution supporting access to mail-in ballots for voters afraid of contracting COVID-19 at polling place, but the county has not made any recommendations to voters since.
Bexar County Judge Nelson Wolff said Monday that such a public notice is on the way.
The Bexar commissioners last week directed the county attorney
to help craft language for voter guidance, citing the Texas Supreme Court decision, and requesting for the election administrator, Jacque Callanen, to consider publishing it. Callanen did not respond to a request for comment.
“We’ve asked her to make it clear to voters that it’s up to them to determine whether they have a health condition or a physical condition” that qualifies them to vote by mail, Wolff said. “It’s their decision, not the state’s decision.”
Commissioners last month also approved setting aside about $2.1 million in federal coronavirus stimulus package money for election health and safety improvements at polling sites, such as personal protective equipment for election workers and hand sanitizer. Wolff said the county is likely set for the July election but could potentially use some of that money to cover increased costs associated with more mail-in voting in November.
The Texas Democratic Party filed two lawsuits, one in federal court and one in state court, and the state Supreme Court decision will likely be the final word in the state case. The federal case is still in front of the Fifth Circuit Court
of Appeals.
Last week, a decision by a three-judge panel of the federal appeals court, known as one of the most conservative in the nation, foreshadowed a likely loss for Democrats at the federal level. The panel stayed a temporary injunction by a federal judge that had allowed all Texans at risk of contracting the new coronavirus to vote by mail instead of in-person.
Similar decisions are likely to follow, judging by the courts the case has yet to face, legal experts and attorneys said. Another panel of the Fifth Circuit still has to hear the appeal and make a ruling. The Texas Democratic Party, which brought the suit, will likely then take the case to the conservative-majority U.S. Supreme Court.
“This preliminary ruling from the panel could be the end of it for the July primary, or if there’s a final Fifth Circuit opinion, it’s likely to sound similar,” Fishkin said. “Any additional levels of review, that’s not that likely to happen before the July primary.”
The November general, expected to draw record turnout, is when the effects of the suits will be most consequential.
In a 47-page order, Circuit Judge Jerry Smith, who was appointed by President Ronald Reagan, wrote that it is the role of state lawmakers, not federal judges, to decide how to hold elections and who can vote by mail. Smith bashed San Antonio District Court Judge Fred Biery for writing an order “that will be remembered more for audacity than legal reasoning.”
“The spread of the virus has not given ‘unelected federal jud(ges)’ a roving commission to rewrite state election codes,” Smith wrote.
Smith took issue with Biery siding with the Democratic Party in arguing that the state’s law only allowing voters age 65 and up to vote by mail without an excuse was discriminatory and unconstitutional, saying the Legislature had “asserted interests in giving older citizens special protection and in guarding against election fraud.”
(The risk of voter fraud is also one the Texas Attorney General has made against the expansion of mail-in voting, though academic studies have found little evidence of that.)
“If anything, the Virus’s existence proves the reasonableness of Texas’s approach, given that older persons have a greater risk of becoming seriously ill or dying from it,” Smith wrote.