AG sues to stop county’s ballot effort
Paxton’s suit seeks to halt plan to send mail-in applications
The Texas attorney general on Monday sued Harris County Clerk Chris Hollins in an attempt to halt his plan to send mail ballot applications to all of the county’s 2.4 million registered voters.
Attorney General Ken Paxton accused Hollins of exceeding his authority by sending the applications, an action the attorney general said would confuse voters and open the door to fraud.
“Election officials have a duty to reject mail-in ballot applications from voters who are not eligible to vote by mail,” Paxton said in a statement. “Unfortunately, instead of protecting the integrity of our democratic process, the Harris County clerk decided to knowingly violate election laws by preparing to send over two million ballot applications to many Texans who do not qualify and have not requested to vote by mail.”
The suit came on the same day the Texas Democratic Party argued before the 5th U.S. Circuit Court of Appeals that the state unlawfully is discriminating against the majority of the voting-age population by requiring only those under the age of 65 to have an excuse to receive a mailin ballot. Texas is one of seven states in which all voters are not eligible for mail ballots.
Both cases could have a significant impact on how many Texans vote by mail in this fall’s presidential election in a state with historically low turnout. With just six weeks before early voting begins, they illustrate what has become an increasingly partisan dispute over mail voting.
The Texas Democratic Party and local Democratic leaders have pushed to expand mail voting here, while statewide Republican leaders have opposed it.
A Politico/Morning Consult poll released Aug. 5 found 81 percent of Democrats but just a third of Republicans supported universal mail voting.
Hollins and the Harris County Attorney’s Office said there is no law that prevents the county from sending the applications. The clerk, who took office in June and is running his first major election, said the mailer will include a document explaining which voters qualify for mail ballots.
“If the secretary of state would take the time to meet with us instead of jumping into court, they would see that the information we plan to share with voters provides clarity about voters’ rights and eligibility to vote by mail,” Hollins said in a statement.
Texans who are younger than 65 can apply for mail ballots if they will be out of their home county or incarcerated during the voting period or are disabled.
The disability clause has been the focus of debate during the pandemic. The state Supreme Court ruled in May that a lack of immunity to COVID-19 alone does not meet the disability standard; however, it could be one of several factors a voter uses to qualify for a mail ballot.
Since elections administrators have no responsibility to vet applications, that essentially leaves voters to determine their own eligibility, Hollins said.
Lawsuit expected
Paxton’s intervention was foreseeable last week when the Texas Secretary of State’s Elections Director Keith Ingram said in a letter to Hollins he would seek the attorney general’s help if Harris County did not abandon its mail ballot application plan by noon Monday. Hollins refused.
Hours after the deadline, Paxton announced his suit. It argues that the Texas Election Code permits county clerks and election administrators to send mail ballot applications to any voter who requests one but does not provide explicit permission to send applications to those who made no such request.
Most voters are ineligible for mail ballots, the attorney general asserts, therefore Hollins’ plan to send applications to millions of voters is irresponsible. These unnecessary applications will be unused at best, the suit states, or will become “ripe material for voter fraud.” He also warned the clerk’s office could be overwhelmed by the volume of returned applications and be unable to process them before the voting period begins. Election law experts disagree. Myrna Pérez, director of the voting rights and elections program at the left-leaning Brennan
Center for Justice at the New York University Law School, said last week that nothing in the Texas Election Code prohibits Harris County from mailing applications to whomever the clerk chooses. Douglas Ray, Harris County’s assistant county attorney, said the same.
Paxton’s lawsuit offers no evidence to bolster the assertion that sending mail ballot applications facilitates fraud, said Rick Hasen, a professor specializing in election law at the University of California Irvine School of Law.
“Given that these are only applications, not ballots, there is ample opportunity for the county to protect against sending any fraudulent submissions,” Hasen said. “If that were a means of fraud, then people could send in fraudulent applications even if the county never asked them to do so.”
He added that states that use mail ballots for most or all of their voting, including Republicancontrolled Utah, report “very low” rates of fraud.
Age discrimination?
Texas Democrats on Monday made what could be their final push before the election to bring about statewide mail-in voting. The party argued before the 5th U.S. Circuit Court of Appeals that the state unlawfully is discriminating against the majority of the voting-age population by requiring only those under the age of 65 to have an excuse to receive a mail-in ballot.
In the face of the pandemic, some states have expanded mailin voting to all residents for the general election. Texas has not.
Democrats say the refusal of top GOP officials in Texas to expand mail-in voting, or to allow counties to do so, is tantamount to voter suppression because of widespread health concerns during the pandemic.
Paxton contends that those concerns about election safety are unfounded because of precautions such as expanded early voting — Gov. Greg Abbott has added an extra week to the early voting calendar — and the use of masks, hand sanitizer and gloves.
The Texas Democrats’ case before a three-justice panel of the federal appeals court on Monday, as well as a nearly identical one filed in state court, has had little success so far.
Early on, two trial judges ruled that lack of immunity to COVID-19 was enough for any voter to request a mail-in ballot, but those rulings were overturned by higher courts.
The Texas Supreme Court in late May ruled that a voter under 65 may consider lack of COVID-19 immunity only in conjunction with his or her overall health history to decide whether he or she qualifies as having a disability under state law and thus be eligible for an absentee ballot.
The Democrats’ federal case is expected to make its way to the U.S. Supreme Court, but the clock is ticking. The deadline to request a mail-in ballot in Texas is Oct. 23, leaving just seven weeks for the appellate court and high court to rule on it.
At Monday’s hearing, Chad Dunn, representing the Texas Democratic Party, told the court that the Texas mail-in voting law violates the 26th Amendment, which says the right to vote can’t be “denied or abridged” on account of age.
The state, represented by Texas Solicitor General Kyle Hawkins, argued that Supreme Court precedent exists to show that the Texas law does not violate the 26th Amendment.
“It does not deny or abridge the right to vote to make voting more available to some groups as opposed to others,” Hawkins said.