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A Texas judge ruled yesterday that voters’ fear of contracting COVID-19 was a valid reason for requesting an absentee ballot, contradicting the Attorney General, whose office advised it does not – setting the stage for further litigation in advance of the state’s July primary runoff elections and the general election this November. The Dallas News has more:

A state judge said Wednesday afternoon that all voters in Texas afraid of contracting COVID-19 through in-person voting should be allowed to vote by mail during the pandemic.

State District Judge Tim Sulak of the 353rd District Court in Travis County said he will issue a temporary injunction allowing voters who fear catching the new coronavirus to qualify for mail-in voting through the disability clause in the state’s election code.

The lawsuit was filed by the Texas Democratic Party and several voting rights groups who are concerned that voters in upcoming July elections, including the primary runoffs, could catch the virus if access to mail ballots is not expanded.

“Today is a victory for all Texans. The right to vote is central to our democracy,” the party’s chairman Gilberto Hinojosa said in a statement. “Voters should not have to choose between their lives or their right to vote.”

Texas Attorney General Ken Paxton said he was “disappointed” that the court had “ignored the plain text of the Texas election code to allow perfectly healthy voters to take advantage of special protections made available to Texans with actual illness or disabilities.”

“This unlawful expansion of mail-in voting will only serve to undermine the security and integrity of our elections and to facilitate fraud,” Paxton said in a statement. “Mail ballots based on disability are specifically reserved for those who are legitimately ill and cannot vote in-person without needing assistance or jeopardizing their health… My office will continue to defend Texas’s election laws to ensure that our elections are fair and our democratic process is lawfully maintained.”

Paxton is expected to appeal the court’s decision.

The AG’s office told the state legislature in an informal advice letter that fear of the coronavirus was not a valid reason to request an absentee ballot – a step urged by Democrats seeking to loosen the state’s strict absentee ballot laws:

Sulak’s decision came in the same hour that Paxton’s office said that fear of contracting COVID-19 does not qualify voters in upcoming state elections to vote by mail ballots.

“Based on the plain language of the relevant statutory text, fear of contracting COVID-19 unaccompanied by a qualifying sickness or physical condition does not constitute a disability under the Election Code,” Deputy Attorney General Ryan M. Vassar said in a letter to Fort Worth state Rep. Stephanie Klick.

Paxton and Klick are both Republicans. The GOP has been hesitant to expand mail-in voting or make any other changes to election laws during the pandemic…

“Our state is better off when more Texans participate in our democracy,” Hinojosa said. “Voting by mail is safe, secure and accessible. It allows more voters to participate in our democracy, and it’s a common sense way to run an election, especially during a public health crisis.”

The Texas Democratic Party and voting rights groups have asked the state and judicial system to expand the use of mail-in ballots for the upcoming primary runoffs on July 14 and the November general elections. Without such an expansion, and the additional use of other techniques such as curbside voting, voters and poll workers who administer the elections could be exposed to the novel coronavirus.

Currently, people over 65, military members, those who will be away from their residence during voting and people with disabilities can request mail-in ballots.

The key dispute is over the definition of a “disability” in Texas law:

Democrats argue that a disability, which is defined as 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 voters’ health,” covers all Texas voters under the age of 65 who are afraid to catch the virus.

In his letter, Vassar disagreed, saying that a fear of contracting the virus was not a sickness or a physical condition, but rather an emotional reaction to the pandemic that is not “sufficient to meet the definition of disability” for the purposes of requesting a mail-in ballot.

Vassar warned that “third parties” who advise voters to apply for mail-in ballots because they fear catching the virus could be punished for election fraud.

Not surprising, there is likely to be further litigation on this issue:

“Threatening to prosecute Texans who simply want to vote without endangering themselves, their families or their neighbors is just cruel,” said Anthony Gutierrez, executive director of Common Cause, a nonpartisan government watchdog group. “Everyone who works on voting rights or elections in Texas, including the secretary of state, has said this is a piece of law that is not clear, hence the litigation, and the judge made what we believe is the right call today.”

The Texas Democratic Party has also filed suit in federal court seeking the expansion of mail-in voting and other changes to election law in time for the July 14 primaries.

The dispute in Texas is especially interesting because other states with excuse requirements for absentee voting have already advised voters that fear of COVID-19 is a valid excuse; that is likely to be a key point in the forthcoming legislation – and a source of worry for other states should courts begin to narrow the requirement again. Stay tuned …

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