Judge, Paxton Clash Over Coronavirus Absentee Voting

Hard to social distance at a polling place.
Hard to social distance at a polling place. iStock/bizoo_n
Despite a lot of noise Wednesday, the fate of Texans hoping to cast mail-in ballots in 2020's remaining elections is still up in the air. A state district judge sided with voting rights groups late in the afternoon, saying that he would grant a temporary injunction that would allow Texans to get a mail-in ballot if they feared they would be exposed to the novel coronavirus if they voted in person.

Minutes before state District Judge Tim Sulak's ruling, however, Texas Attorney General Ken Paxton made it known that his office believes that merely fearing the coronavirus is not a good enough reason to get an absentee ballot. Texas is one of a minority of states that does not allow absentee voting without an excuse.  

"Fear of contracting COVID-19 does not amount to a sickness or physical condition as required by the Legislature." – Ken Paxton

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“Mail ballots based on disability are specifically reserved for those who are physically ill and cannot vote in-person as a result. Fear of contracting COVID-19 does not amount to a sickness or physical condition as required by the Legislature,” Paxton said. “The integrity of our democratic election process must be maintained, and law established by our Legislature must be followed consistently.”

The judge's order trumps Paxton's letter, a spokeswoman for the ACLU of Texas said.

Given Paxton's position and history, though, it's safe to assume an appeal is likely.

In a letter explaining the reasoning behind Paxton's claim, Ryan Vassar, a deputy in the attorney general's office, said groups that encourage people to apply for absentee ballots because of their fear of the coronavirus could face criminal penalties.

Texas Republicans have insisted throughout the COVID-19 pandemic that expanded mail-in voting will corrupt the electoral process.

Voting rights advocates and Texas Democrats hailed Sulak's ruling, despite Paxton's proclamation.

“As public health officials began speaking to the severity of the coronavirus pandemic, the Texas Democratic Party knew voting by mail would have to reduce the demand for in-person voting. In Wisconsin, we saw the debacle that ensues when voters are prevented from mailing their ballots during a pandemic. Voters should not have to choose between their lives or their right to vote," Texas Democratic Party Chairman Gilberto Hinojosa said. “The Texas Legislature provided for these circumstances by statute allowing voters to vote by mail when they have a physical condition that makes it dangerous for them to do so. That’s why we fought in court on behalf of voters."

Attorneys with the ACLU of Texas and the Voting Rights Program at the Texas Civil Rights Project — both groups are representing the plaintiffs in the case — said that Sulak's decision was common sense.

"As our local and state leaders work with public health experts to handle the COVID-19 crisis, we are appreciative of this step forward in clarifying the law in a manner that will permit all Texans to exercise their fundamental right to vote during this extreme time without jeopardizing their health,” said Thomas Buser-Clancy, senior staff attorney for the ACLU of Texas.

Texas' next statewide election is July 14, when voters will decide the state's primary runoffs.
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Stephen Young has written about Dallas news for the Observer since 2014. He's a Dallas native and a graduate of the University of North Texas.
Contact: Stephen Young