Texas’ high court takes another look at mail-in voting
AUSTIN — The Texas Supreme Court, which has already turned aside one effort to expand mail-in voting during the pandemic, heard arguments Wednesday over Harris County’s plan to send absentee voting applications to all registered voters in the county.
A lawyer for Texas Attorney General Ken Paxton, who has taken a hard line against attempts to expand voting by mail, told the court that Harris County Clerk Chris Hollins does not have the legal authority to send unsolicited applications en masse.
The vast majority of those voters are not eligible to vote by mail, and receiving an official invitation to do so would sow confusion, Solicitor General Kyle Hawkins told the court.
“This action that Hollins contemplates is a serious affront to electoral integrity on the eve of a national election,” he said.
Susan Hays, a lawyer for Hollins, argued that state law gives county officials broad power to manage and conduct elections.
When a dangerous pandemic is added to the equation, giving voters more information about how to cast a ballot by mail — including specifics about who is eligible to do so — is imperative, Hays told the court.
“The clerk does have the right to mail these out in a normal election. It helps to make the election run more smoothly,” she said. “The pandemic makes it all the more important that this be done. This isn’t just a matter of voting rights now, it’s a matter of public health.”
The emphasis must be on helping voters, Hays said, adding: “We encourage people to vote as the government. We do not put up hurdles.”
In oral arguments conducted over Zoom because of the pandemic, Justice Eva Guzman pushed back, saying a mass mailing of applications appears to go beyond merely managing an election, particularly because state election law specifies that the applications must be given to voters “upon request.”
The power to manage an election, Hays responded, must include efforts to help eligible voters cast a vote by mail, particularly during a pandemic.
“By increasing the ratio of voters who vote by mail, you decrease the bodies that come into the polling place,” she argued.
Guzman also picked up on Paxton’s argument that mailin ballots are more susceptible to fraud than in-person voting, which requires a photo ID.
Briefs in favor of Hollins, Guzman asked Hays, “argue there is no proof of rampant or significant voter fraud, but you’ll agree any fraud dilutes votes. Is even one fraudulent vote acceptable?”
Hays replied that there are numerous safeguards to verify mailed ballots, including signatures that must match on the ballot and application for the ballot, Hays replied.
“The act of giving someone an application doesn’t increase fraud,” Hays said, adding that unsolicited vote by mail applications are routinely sent by political campaigns and advocacy groups without raising concerns from state lawyers about fraud.
But Hawkins argued that Hollins is proposing something else.
“I think there is something fundamentally different about a governmental entity, bearing the imprimatur of the government, sending you something saying here, take a look at this. That’s, I think, distinguishable from the reams of junk mail that we all receive in our mailboxes every day,” he said.
Texas law limits voting by mail to those who are 65 and older, have a disability, will be out of their county during the entire voting period or are in jail but still eligible to vote.
In May, the all-Republican Supreme Court rejected a bid by the Texas Democratic Party to allow any voter to cast a mail-in ballot during the pandemic.
Democrats argued that a lack of immunity to COVID19 qualified as a disability for every voter, but the court sided with Paxton, ruling that state law defines disability as a “sickness or physical condition,” not a generalized fear of contracting a deadly disease.
The Harris County vote by mail case is on an expedited schedule with early voting set to begin Oct. 13.