A policy playbook during the pandemic

Dave McNeely

Texas Atty. Gen. Ken Paxton continues his dogged campaign to keep most Texans from being able to vote by mail, rather than in person, because of fear of catching the COVID-19 coronavirus.

In a legal battle mostly along party lines, Republican Paxton has been contested by Texas Democrats, plus allied groups like the American Civil Liberties Union, and groups representing minorities.

They think the state's top lawyer is unfairly working to hold down Democratic and minority voter turnout.

To qualify to vote by mail, Texans must submit an application and be either 65 years or older, disabled, out of the county on Election Day and during in-person early voting, or eligible to vote but confined in jail.

Paxton is leaning on what it takes to be disabled enough to vote by mail.

The election code says "A qualified voter is eligible for early voting by mail if the voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter's health."

Paxton says having COVID-19 meets the test to vote by mail, but fear of getting it doesn't – even as officials have had stay-at-home orders and social distancing.

Paxton has sent letters warning election officials in all Texas counties they could face criminal penalties for encouraging voters he thinks shouldn't be eligible for voting by mail.

On April 15, Travis County State District Judge Tim Sulak, a Democrat, agreed with Democrats that during a pandemic, fear of catching the virus by voting in person qualifies as a "disability" for persons under 65 to vote by mail.

He issued an injunction warning election officials not to refuse mail-in ballot applications, or receiving and counting the ballots.

He said the injunction would last until a final judgment is reached in the case.

Paxton immediately appealed, claiming “this unlawful expansion of mail-in voting will only serve to undermine the security and integrity of our elections and to facilitate fraud.”

However, Texas is one of just seven states with laws restricting access to mail-in ballots for people under a certain age, without having to justify that request.

(The other states are Indiana, Kentucky, Louisiana, Mississippi, South Carolina and Tennessee.)

A three-judge panel of the 14th Court of Appeals upheld Sulak's ruling, by a 2-1 vote: two Democrats for it, and a Republican against. However, Paxton had also appealed to the Texas Supreme Court, where all the justices are Republicans.

The high court justices late Friday night agreed Paxton's appeal blocks Sulak's injunction until they can rule directly on the merits of the case. They set a hearing for 2:30 p.m. Wednesday, May 20.

“I am pleased," Paxton said in a statement, "that today the Texas Supreme Court confirmed that my office may continue to prosecute voter fraud and issue guidance on mail-in ballots while that appeal plays out.”

Texas Democratic Party Chair Gilberto Hinojosa charged that Friday’s ruling will put Texans’ lives at risk.

“This is a dark day for our democracy," Hinojosa said in a statement. "The Republican Texas Supreme Court is wrong to force the people of Texas to choose between their health and their right to vote.

“Voters should have the ability to vote-by-mail during a pandemic if they feel their health is in danger. Every single justice who ruled today should be ashamed of themselves. They are the new Republican death panel.

“We will continue to fight like hell to protect every eligible Texan’s right to vote and have their voices heard by their government,” Hinojosa said.

He added that the Democrats will do everything they can to remove the four of the court's nine judges that are on the ballot in November – all opposed by Democratic candidates.

While Paxton's relentless mission continues, Sulak's April 15 injunction agreed with Texas Democrats' point that the time for preparing for mail-in balloting for runoffs and other elections on July 14, and the Nov. 3 general election, is rapidly disappearing.

Gov. Greg Abbott had moved the May 2 elections to July 14 because of the virus, and more recently doubled the time for early voting, moving the starting date from July 6 to June 29.

Democrats have also filed a federal suit seeking the broader vote-by-mail ability, arguing the case Friday before San Antonio District Judge Fred Biery.

The judge sounded sympathetic to the Democrats arguments, but did not indicate when he would rule. A federal judgment would trump the Texas state courts.

This partisan struggle is dividing not just the state, but the country. And it will likely be going on at least until the general election in November, and probably beyond.

Stay tuned. This ain't over.

Contact McNeely at davemcneely111@gmail.com.