Judge issues order allowing Texans to vote by mail to prevent spread of coronavirus
Editor’s note: This story has been updated to reflect the judge’s order signed Friday.
A state district judge issued a temporary injunction Friday allowing Texans to vote by mail to prevent the spread of the novel coronavirus.
Judge Tim Sulak, who presides over the 353rd Civil District Court in Travis County, had signaled he would do so Wednesday, after hearing arguments via a Zoom conference in the Texas Democratic Party’s lawsuit. It argues a provision of Texas Election Code allows for eligible voters who are fearful of contracting COVID-19 by voting in-person to cast their ballots by mail.
In order to qualify to vote by mail under state law, Texans must submit an application and be either 65 years or older, disabled, out of the county on election day and during early voting, or be eligible to vote but confined in jail.
Attorneys representing the plaintiffs argued that Texans following stay-at-home orders and exercising social distancing fall under the Texas Elections Code’s definition of a disability, which is “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.”
Lawyers from the Texas Attorney General’s Office argued that “a reasonable fear of contracting the coronavirus” does not meet the definition of a “sickness” outlined in the Texas Elections Code.
However, Sulak, a Democrat, pointed to the vagueness of the elections code’s language and the need for clarity and uniformity among Texas’ 254 counties as a reason for granting the temporary injunction ahead of the July primary runoff elections.
Sulak’s order allows Texans to cite the disability category in order to vote by mail because otherwise, “they will be forced to either vote in-person and risk transmission of a deadly illness or lose their ability to vote entirely.”
“Furthermore, even to the extent there is easing of social distancing, it will still be a public health risk to attend larger gatherings such as those associated with voting at polling places because without a vaccine or herd immunity, communities will remain susceptible to surges in infection rates,” the order read.
Sulak’s decision is likely to be appealed by the state, but it was a win for the Texas Democratic Party, which has filed multiple lawsuits in an effort to expand vote-by-mail and clashed with the Republican Party of Texas over the issue.
Texas Democratic Party Chair Gilberto Hinojosa celebrated the decision Wednesday when Salak indicated he would issue the injunction.
“Our voting rights have been under attack for decades, long before the coronavirus pandemic reached the borders of our state,” Hinojosa said in a statement. “We cannot allow this public health crisis to be the death of our democracy when it is taking so many of our loved ones.”
In a statement following Wednesday’s hearing, Attorney General Ken Paxton vowed to continue to defend Texas’ election laws.
“I am disappointed that the district court 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,” Paxton said. “This unlawful expansion of mail-in voting will only serve to undermine the security and integrity of our elections and to facilitate fraud.”
The lawsuit against Texas Secretary of State Ruth Hughs and Travis County Clerk Dana DeBeauvoir was filed late last month by the Texas Democratic Party and two voters seeking to cast ballots by mail. An additional voter and voting rights groups, including the League of Women Voters and MOVE Texas, joined as plaintiffs.
Do polling places pose a threat to spread of virus?
Catherine Troisi, an infectious disease epidemiologist with the University of Texas Health Science Center at Houston, testified during Wednesday’s hearing that any location — including polling places — where people are less than six feet apart represents an opportunity for the virus to spread.
Election workers would be at a higher risk than voters because of their prolonged presence at polling places, Troisi said, and pointed to voting by mail as a safer method.
James Mitchell Carroll, a doctor who specializes in internal medicine for geriatric patients, testified that he would recommend poll workers be equipped with the same personal protective equipment doctors use, such as face masks and shields, gowns and gloves.
Attorneys representing the state argued that plaintiffs were assuming “the worst potential outcome for the virus” and claimed that elected officials, such as Gov. Greg Abbott, would take the necessary steps to protect public health as the situation evolved and changed.
But Glen Maxey, the Texas Democratic Party’s primary and legislative director, testified that local elections administrators need to know sooner rather than later whether Texans who hope to vote by mail to prevent the virus’ spread are eligible in order to prepare for an increase in mail-in ballot requests.
What’s more, Troisi said that she anticipates social distancing guidelines will be needed for at least a few months and warned that relaxing guidelines would lead to an “inevitable” rise in cases.
Toward the end of Wednesday’s hearing, the Texas Attorney General’s Office issued a letter in response to a request from Rep. Stephanie Klick, a Republican from Fort Worth and chair of the House Elections Committee, that stated that “an individual’s fear of contracting COVID-19 is not, by itself, sufficient to meet the definition of disability for purposes of eligibility to vote a mail-in ballot.”
However, a person ill with COVID-19 would qualify as having a sickness, the letter read.
This story was originally published April 15, 2020 at 4:43 PM.
