Confusion won’t end

Under Texas court ruling, voters will choose between their health or risk prosecution.

The confusion won’t end in the debate over letting more Texans vote by mail during the coronavirus pandemic.

The cry from those who favor expanded mail-in voting has been that Texans shouldn’t have to choose between their health and their right to vote. After a flurry of rulings by state and federal judges, the Texas Supreme Court has left voters with a third option: covert civil disobedience.

Facing an increase of cases of COVID-19 and irresponsible obstinance by Texas officials, all voters must consider this a valid choice, even if it trades one risk for another.

The state has left the millions of Texans who are concerned about going to the polls during a global pandemic but who don’t strictly meet the requirements for an absentee ballot with few alternatives. Under current rules, eligibility is limited to those 65 or older, the disabled, people out of the county during the election and those in jail but otherwise qualified.

It is the disability qualification that is the crux of the argument for expansion proponents, who reasoned that the law considers eligible those with a “sickness or physical condition that prevents the voter from appearing at the polling place” at the risk of injuring health. Without a widely available vaccine, the risk is there for all voters.

After a series of court decisions that traded victories between civil rights groups and state officials led by Attorney General Ken Paxton, the final word, for now, rests with the Texas Supreme Court.

The justices — who heard oral arguments over video due to the outbreak — found the law does not allow voters who exclusively fear contracting COVID-19 to request an absentee ballot. But the court left it up to voters to make the determination of what constitutes a threat to their health.

“We agree, of course, that a voter can take into consideration aspects of his health and his health history that are physical conditions in deciding whether, under the circumstances, to apply to vote by mail because of disability,” Chief Justice Nathan Hecht wrote in a majority opinion.

The court went on to say that elections officials “do not have a ministerial duty, reviewable by mandamus, to look beyond the application to vote by mail.” Meaning they can take the word of voters who say they qualify to request an absentee ballot.

In trying to have it both ways, the court created a de facto “don’t ask, don’t tell” policy that adds to the confusion. The hand-off foists on voters the responsibility the court failed to take.

This makes Texas an outlier as more than 10 states that previously required an excuse to request an absentee ballot — under Republican and Democrat control — have made temporary or permanent changes to allow vote-by-mail by any eligible voter. Texas is one of the last holdouts, along with Tennessee, Louisiana and Mississippi.

To his credit, Gov. Greg Abbott has taken steps to make voting safer. He postponed the runoff election to July 14, doubled the period for early voting and ordered increased precautions at the polls, including social distancing.

Requesting an absentee ballot should be nothing more than another measure to keep voting as risk-free as possible, but instead, it has been politicized. Paxton has continuously cast his crusade against vote-by-mail as protecting election integrity, although widespread voter fraud is virtually non-existent. His comments have been in line with those of President Donald Trump, who has falsely claimed that voting by mail benefits Democrats.

Harris County officials are urging voters who qualify for an absentee ballot to request one. They have mailed absentee ballot applications to anyone currently registered who is 65 and older. For the November election, they are considering mailing applications to every registered voter along with instructions on the court’s decision and letting them make that choice.

“This is at the voters’ discretion. The form doesn’t require information beyond checking a box for eligibility,” Assistant County Attorney Douglas Ray told the editorial board. “We don’t have the authority or ability to investigate that.”

But the risk of investigation is there, even if minimal.

The editorial board’s calls to the attorney general’s office went unanswered as of press time, but Paxton has not shown previous restraint. In April, he threatened to prosecute activists, county elections officials and anybody else who would advise voters who didn’t qualify to request an absentee ballot even after a state judge found the statute’s wording could be interpreted more broadly.

For Ray here in Harris County, the danger of prosecution is a realistic outcome only for those who advertise that they voted by mail simply because they were scared of the pandemic. For all others, the court’s ruling, which encompassed a voter’s overall health picture when making the decision, should provide protection.

Proponents say they will appeal the latest judicial setback to the U.S. Supreme Court, whose decision could impact the November election, which is expected to have a very high turnout at a time when experts believe there may be a resurgence of COVID-19 cases.

Monday is the last day to register to vote in the July 14 runoff, with absentee requests due by no later than July 3. We once again call on state officials to expand voting by mail.

Voting shouldn’t be an ink blot test anymore than it should be a health risk. Texans deserve safe access to the polls, and clear rules on how to vote legally. As long as confusion reigns, voters lose and so does our democracy.