How Texas Has Taken Its Fight Against Pandemic Absentee Voting To The Next Level

May 20, 2020 6:00 a.m.
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Everything is bigger in Texas — including the lengths to which the state will go to limit absentee voting in the pandemic.

When requesting an absentee ballot, voters in many states have to list a reason why they cannot cast their vote in person. A handful of those states have resisted letting voters invoke the coronavirus outbreak to cast ballots by mail. But among that handful, Texas has taken its resistance to the next level.

The state is embroiled in a nasty legal battle over whether COVID-19 qualifies as an absentee voting excuse under state law. As the court fight rages on, Texas state officials have repeatedly raised the prospect of criminal sanctions for anyone who advises voters that they can vote absentee due to the pandemic. While lower courts have backed the idea that COVID-19 counts as an absentee voting excuse, the process for getting the question in front of the state Supreme Court has been turbo-charged.

On Tuesday night, a federal court ordered the state to allow voters to vote absentee if they’re seeking to avoid the virus. The order, which will be appealed, came the day before the state Supreme Court was scheduled to hear arguments on certain aspects of the dispute.

Already local Texas officials have seen a significant uptick in requests for such an option, and they expect that interest to only increase as the next election gets closer.

Right now the court fight centers on absentee voting in the run-off election being held on July 14. But how it is resolved will likely set the ground rules for absentee voting in November’s general election, which some health officials have warned could come amidst a resurgence of the outbreak. The stakes for that election are high at both the national and state level, where Democrats are hoping to capture Texas’ House and get a seat at the table for the next redistricting cycle.

A ‘Physical Condition,’ Or Simply An ‘Emotional’ Fear?

As the coronavirus outbreak hit the United States in earnest this spring, Texas joined several other states in delaying the election it had next on its calendar — a primary run-off scheduled for May — until the summer. Its early voting period will also be twice as long. But state officials — led by Attorney General Ken Paxton — drew a red line at letting the pandemic be an excuse to vote absentee in the state, which typically limits vote by mail to Texans who are incarcerated, out of town, are 65 or older, or who suffer from a “disability”

Paxton has echoed rhetoric by President Trump in claiming baselessly that an expansion of vote-by-mail would invite fraud. The legal argument the state is making is that the pandemic is not covered by the “disability” qualification the state code allows for voting absentee.

The court battle over that interpretation began in March, with a state court lawsuit against the state and local officials brought by the Texas Democratic Party, which sought clarity on whether the outbreak qualified as an absentee voting excuse. A federal lawsuit was filed weeks later, and state Democrats have also been joined by voting rights groups that have intervened in the litigation.

They’ve pointed to the language in the statute that says either “illness” or a “physical condition” can make someone eligible for the disability qualification. The challengers argue that the viral outbreak, combined with the current lack of immunity to COVID-19, amounts to a physical condition that makes in-person voting a risk to one’s health, as contemplated by state code.

Texas has dismissed the challengers’ arguments by equating them to a “mental” or “emotional” fear of COVID-19, in contradiction to the state code’s description of a “physical” condition triggering the disability exemption.

In his order Tuesday, U.S. District Judge Fred Biery said that “such fear and anxiety is inextricably intertwined with voters’ physical health,” while also backing the argument that the lack of immunity is a physical condition.

“Citizens should have the option to choose voting by letter carrier versus voting with disease carriers,”Biery said.

A ‘Chilling Effect’

Texas is not the only state that is fighting in court lawsuits seeking to expand absentee voting. But how it’s reacted to court rulings against it have set it apart, voting rights experts said.

After a state court judge had signaled he was leaning against the state, but before the judge issued the formal ruling, state officials released a letter floating the potential for criminal prosecution for anyone who advises the use of COVID-19 as an excuse to vote absentee.

“Attempts to intimidate election officials who are trying to figure out ways to make the elections work under very trying circumstances … is obviously inappropriate and politicizes the election process to really a shocking degree,” said Wendy Weiser, director of Brennan Center’s democracy program.

County officials signaled that they were following the state court judge’s interpretation of the law that allowed the outbreak to be used as an excuse to vote absentee, even as the state was appealing that decision. This prompted Paxton to make the threat of criminal prosecution again in a May 1 advisory. The advisory came with a press release that explicitly called out Harris County, which is home to Houston.

The legal challengers asked a state appeals court to push back on the claims that Paxton made in his May 1 letter, and his threats didn’t stop Harris County and local officials elsewhere from telling voters the outbreak counted as an excuse to vote absentee.

“I’ve said that if anybody actually gets prosecuted by these characters, I’ll come down to the trial and tell them, ‘I told the person they could do this,’” Douglas Ray, a special assistant attorney for Harris County, told TPM. “Part of the chilling effect is not on the voters, but on the groups that want to advocate that voters do this.”

Biery, the federal judge, on Tuesday also blocked the state from making prosecutorial threats or otherwise issuing guidance that was inconsistent with his order.

Pre-pandemic, less than 1 percent of absentee ballot requests in Harris County cited the disability excuse, according to Ray. As requests have quadrupled since the previous Texas election, that reason now makes up 4 percent of the requests. Use of the disability provision made up 10 percent of all absentee ballot requests that were filed after the state court okayed COVID-19 as an excuse.

Rather than let the fight play out at the appeals court, the Attorney General then went straight to the Texas Supreme Court for an intervention. Seeking a so-called writ of mandamus, which leapfrogs over the normal appellate process, Paxton is asking the justices to block the clerks of five Democratic-leaning counties from advising people who fear the outbreak to vote absentee.

That writ is before the state Supreme Court as it hears oral arguments tomorrow, as is a separate writ of mandamus petition filed by the state on a procedural issue that has arisen in the litigation.

‘We’re In For a Very Bumpy Ride’

Whether the state Supreme Court will use Wednesday’s arguments to address the larger legal interpretation question or resolve the narrower procedural dispute is unclear.

If Texas’ Supreme Court resolves only the narrower procedural question after Wednesday’s arguments, then litigation over the merits of the state court dispute will likely continue for several weeks longer.

The number of states that, like Texas, are fighting efforts to expand absentee voting is shrinking. Tennessee is facing a legal fight for its refusal to let COVID-19 to count as an excuse. But in other states, including those facing lawsuits, legislators have come up with narrow measures to expand absentee voting during the pandemic, or are at least discussing those measures.

In its obstinacy, Texas remains exceptional.

Once the state Supreme Court has its say on who can vote absentee because of the pandemic, the fight will continue in the federal court, where the state will appeal the Tuesday order.

Texas is also facing a federal lawsuit targeting exactly how it carries out absentee voting, including its lack of paid postage and its ban on certain ballot collection programs.

Expect those fights to be as contentious as the one over the “disability” exemption.

“If this small step is being fought so aggressively, we’re in for a very bumpy ride in Texas,” Weiser said.

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