Texas Attorney General Warns Against Mail-In Balloting

AUSTIN, TX — Amid the ongoing debate over mail-in voting amid spread of the coronavirus, the Texas attorney general on Saturday warned county officials not to encourage such ballot casting for those fearing exposure to the respiratory illness.

Attorney General Ken Paxton issued a second "guidance letter" to Texas county judges and elections officials warning that Texas residents are not able to claim disability based on fears of contracting the respiratory illness virus while waiting in lines to vote. Conservatives have voiced opposition to mail-in balloting based on such fears.

Paxton said "inaccurate statements by public officials and private groups" prompted him to issue his first guidance letter on May 1, the same date that Gov. Greg Abbott began to reignite the coronvirus-stalled economy by allowing the first slate of business to reopen their doors, albeit at limited occupancy levels.

Those favoring mail-in balloting have predicated their stance on the tactics of physical distancing advised by health officials as an effective way to help blunt the spread of illness. Conservative lawmakers have countered that fear of becoming sick via proximity to others in voting queues does not justify the practice of mail-in balloting generally reserved for those with physical disabilities. Despite a lack of longitudinal evidence to the contrary, Republican lawmakers have argued that mail-in balloting is rife for voting fraud.

The mail-in balloting option is offered to voters who are 65 or older, those with disabilities or illnesses, voters who are abroad during the election period or those who are incarcerated. The Texas election code defines disability as a “sickness or physical condition” preventing a voter from appearing in person without the likelihood of “injuring the voter’s health.”

“As the Texas Supreme Court held, mail ballots based on disability are specifically reserved for those who are legitimately ill and cannot vote in-person without assistance or jeopardizing their health. The Texas Election Code is lawful, constitutional, and correctly protects our elections from fraud and voters from disenfranchisement,” Paxton said in a prepared statement. “It is vital that we work together to preserve the integrity of our democratic election process and consistently follow the law established by our legislature.”

Paxton said his latest guidance letter follows a Texas Supreme Court decision that held that a voter may not claim “disability” for the purpose of casting a ballot by mail merely because the voter lacks immunity to COVID-19. Additionally, Paxton added, the U.S. Court of Appeals for the Fifth Circuit found that Texas is likely to win arguments that the Election Code’s ballot-by-mail provisions are consistent with the Equal Protection Clause and the 26th Amendment to the U.S. Constitution. Following these rulings, Paxton noted, the Texas Democratic Party and other groups filed a motion to dismiss their state court lawsuit this week.

Read a copy of the letter here.

Plaintiffs arguing for expanded mail-in voting amid coronavirus had persuaded District Judge Tim Sulak of Travis County that susceptibility to the coronavirus constitutes a disability under state election law, yielding a legally valid reason for voters to request mail-in ballots, as Texas Tribune reported. A panel of the 14th Court of Appeals of Texas let that ruling stand, the Tribune added, rejecting Paxton’s effort to have the ruling put on hold while he appealed it. The Texas Supreme Court then put it on hold, as the Tribune reported.

However, the Tribune added, the state Supreme Court last month ruled a lack of immunity to the virus alone fails to meet the state’s qualifications for voting by mail — a decision that effectively gutted Sulak’s ruling and the state lawsuit. But that Supreme Court decision was vague as the court repeatedly opined that it is ultimately up to voters to assess their own health and physical conditions in determining if they meet the election code’s definition for disability, as the Tribune reported.

Voters aren't rewquired to describe their disability in requesting a mail-in ballot — a point the state ultimately conceded, the Tribune reported. Legal challenges to the state's position on the issue continue at the federal courts level, and the Tribune reported it's possible the case will end up before the U.S. Supreme Court after the runoffs.