A May 27 ruling from the Texas Supreme Court blocked efforts by state Democrats and voting rights organizations to expand access to voting by mail during the coronavirus pandemic. The Court agreed with state officials, who argued that a lack of immunity to COVID-19—the disease caused by the coronavirus—did not qualify as a "disability" in and of itself under state law, and therefore was not enough to make a voter eligible for a mail ballot.
"We agree with the State that a lack of immunity to COVID-19 is not itself a 'physical condition' that renders a voter eligible to vote by mail within the meaning of [the Election Code]," the court wrote in a 24-page ruling.
As a result, mail ballots will continue to only be available to certain populations including people ages 65 and older and disabled people. However, in their ruling, Supreme Court justices also said voters can determine for themselves whether or not they are disabled, and local election officials are not obligated to verify those applicants' claims.
"We agree, of course, that a voter can take into consideration aspects of his health and his health history that are physical conditions in deciding whether, under the circumstances, to apply to vote by mail because of disability," the court wrote. "We disagree that lack of immunity, by itself, is one of them."
Meanwhile, a separate but similar lawsuit is making its way through federal court, where a judge recently ruled in favor of expanded mail ballot access. The ruling was temporarily put on hold while the case is appealed.
In a May 27 statement, Texas Democratic Party Chari Gilbert Hinojosa condemned the ruling from the Texas Supreme Court and looked to federal courts to rectify the issue.
“Now, it is up to the federal court to ensure basic constitutional rights still exist in Texas and ensure that Texans have a right to vote safely and not put their health at-risk," Hinojosa said.
Those opposed to expanding vote-by-mail, including Attorney General Ken Paxton, said it would be against state law and could lead to voter fraud. In a statement, Paxton praised the ruling.
"I applaud the Texas Supreme Court for ruling that certain election officials’ definition of ‘disability’ does not trump that of the Legislature, which has determined that widespread mail-in balloting carries unacceptable risks of corruption and fraud," Paxton said.
The debate is taking place as Harris County election officials prepare for primary runoff elections set to take place in July. In runoff elections, voters in the Republican and Democrat parties vote for candidates they want to represent their party during the presidential election in November. Ballots will include races for U.S. Senate and Harris County Precinct 3 for Democrat voters, and Harris County Sheriff and U.S. Congress District 18 for Republican voters, among other races.
Officials with the Harris County Clerk’s Office said they are preparing new protocols for voting in-person that try to prevent the spread of the virus. As Harris County Clerk Diane Trautman is set to step down from her position May 31 for health reasons, the county’s efforts will being taken over by interim County Clerk Christopher Hollins.
An ongoing dispute
The question over mail ballots has been playing out in courts since mid-April, when state district Judge Tim Sulak first ruled any voter who lacks immunity to COVID-19 is eligible for a mail ballot. That ruling was quickly appealed by Paxton.
Mail ballots are available to Texas voters for one of four reasons: The voter is age 65 or older, has a disability, is a resident of Harris County but will not be able to vote in the county during the election, or is in jail but eligible to vote. The ongoing debate centers on whether a lack of immunity to COVID-19 qualifies as a “disability,” said Douglas Ray, a special assistant in the Harris County Attorney’s Office.
Paxton has warned county election officials that advising a voter to request a mail ballot for an unauthorized reason could come with criminal punishment. However, when a voter requests a mail ballot on their own, the county has no means by which it can vet that request, Ray said.
“The county clerk does not have the ability to demand proof,” he said. “It’s unreasonable to demand that we either warn people that they can’t do it on this basis or try to require some kind of further proof or do any investigation.”
Rosio Torres-Segura, the administrator of communications and voter outreach with the Harris County Clerk’s Office, said the office is bound by law to process all requests for mail ballot applications if they are from registered voters and signed.
“It is up to the voter to decide if they qualify for any one of the four eligibilities,” she said. “The clerk’s office is not requiring any more information if the voter selects sick or disabled.”
In its May 27 ruling, the Texas Supreme Court justices agreed.
"The elected officials have placed in the hands of the voter the determination of whether in-person voting will cause a likelihood of injury due to a physical condition," the justices wrote. "The respondents do not have a ministerial duty, reviewable by mandamus, to look beyond the application to vote by mail."
Possible consequences
As of May 22, the Harris County Clerk’s Office had received 77,317 requests for mail ballots from county voters, Torres-Segura said, as compared to the roughly 36,021 total mail ballots that were cast in 2018 primary runoffs.
Renee Cross, senior director of the Hobby School of Public Affairs with the University of Houston, said that number is likely to be much higher for November general elections, which could bring new layers to any courtroom battles that are still ongoing.
“There’s a growing flurry of these lawsuits,” Cross said in an interview that took place prior to the Texas Supreme Court ruling. “I don’t see this conflict going away regardless of whatever is resolved for July. [There] could be a whole new slew of disagreements for the November election.”
Lillie Schechter, chair of the Harris County Democratic Party, said she believes every registered voter in the county should be eligible for a mail ballot, a position she said the party advocates regardless of the pandemic.
However, Schechter said the pandemic adds urgency. She said she does not want voters to feel they have to choose between voting and health.
“That is not a fair question and shouldn’t be a question that people have to think about,” she said.
Critics of the move to expand mail ballots include Wendell Champion, a candidate in the Republican runoff election for Texas Congressional District 18. Champion echoed Paxton's concerns that an expansion in access to mail ballots could lead to an increase in voter fraud.
“In-person ballot voting is the securest way to make sure that the individual’s vote is counted and that it is counted at the time it should be counted,” he said.
However, in a May 19 ruling that would eventually be put on hold, federal district Judge Fred Biery rejected the idea that mail ballots would lead to voter fraud.
“Texas truth is to the contrary,” Biery wrote. “Between 2005 to 2018, there were 73 prosecutions out of millions of votes cast.”
For those pushing for expanded mail ballot access, the debate centers on the coronavirus and its potential to spread at a greater rate if people are required to show up to polling locations in person to vote.
In making the case to Sulak in April, lawyers called on public health officials to testify, including Catherine Troisi, an infectious disease epidemiologist at the University of Texas Health Science Center in Houston. In April, Troisi testified polls would be a hot spot for the virus, expressing concerns about potential long lines where people may or may not be social distancing.
The Harris County Clerk’s Office has a number of changes underway meant to increase safety for in-person voters, Torres-Segura said. In late April, Harris County approved investing up to $12 million to install new safety measures and increase the ability to process mail ballots.
Efforts include training poll workers, increasing the number of early voting locations and searching for larger venues to allow voters to spread out more. Texas Gov. Greg Abbott also moved the start of the early voting period from July 6 to June 29.
In a survey of 1,000 registered voters in Harris County conducted between March 27 and May 4 by Rice University, about 61.8% of voters said they would be “very likely” to vote in person if social distancing measures were enforced at the polling location. Another 17.2% of voters said they would be “somewhat likely” to do so. However, voters over 65, female voters and Democratic voters showed preferences for mail voting.
In an interview prior to the Texas Supreme Court ruling, Tommy Buser-Clancy, a senior staff attorney with the American Civil Liberties Union of Texas, said safe in-person voting opportunities are crucial, but are not enough on their own.
"The notion that the ameliorative effects of the steps that they’re taking are sufficient and displace the need to vote by mail, I think, is wrong," he said. "It is good and necessary for steps to make in-person voting as safe as possible, but it needs to be paired with vote-by-mail. Otherwise, I think you’re going to see a lot of people staying home, not exercising the right to vote, and you create a dangerous situation for those who do go to vote."
Cross said if July elections can be tied to new outbreaks of the coronavirus, that will add pressure leading up to November.
“This is a very important election, and I have a feeling that people would want to make their voice heard,” she said. “I think between seeing its successful implementation in other states [and] if the virus continues, those that may oppose mail voting right now will be more open to it by November.”
