vision 2020

Fear of the Coronavirus May Not Be Enough to Get a Texas Mail Ballot

Don’t mess with Texas attorney general Ken Paxton by suggesting you need to vote by mail. Photo: Andrew Harrer/Bloomberg via Getty Images/© 2019 Bloomberg Finance LP

Last week I wrote about the two top election officials in New Hampshire, both Republicans, announcing that anyone afraid of being infected with coronavirus could vote by mail under a loophole allowing this method of casting ballots for those with a “disability.” I thought it was significant in particular because Governor Chris Sununu has been a hard-core opponent of liberalizing access to the ballot in his politically competitive state. Perhaps this benevolent approach could spread to the other 15 states requiring an excuse in order to vote by mail.

It’s not looking good for that theory in the largest such state, Texas. An unofficial but still influential letter of “legal advice” to the chair of the elections committee of the Texas House, from a deputy to Republican Attorney General Ken Paxton, frowned upon the idea:

The Legislature has defined a “disability” for purposes of voting by mail as a “sickness or physical condition” from voting in-person on election day without a likelihood of needing personal assistance or of injuring the voter’s health … A person ill with COVID-19 would certainly qualify as having a sickness. However, a reasonable fear of contracting the virus is a normal emotional reaction to the pandemic and does not, by itself, amount to a “sickness,” much less the type of sickness that qualifies a voter to vote a mail-in ballot under Texas Election Code Section 82.002.

So an entirely “normal” fear of getting sick and dying isn’t a sufficient excuse to get that suspect mail ballot, and those suffering from this “emotional reaction” need to just suck it up and get their Texas asses down to the polling place or let sturdier folk control the results.

That’s not the end of the guidance from Paxton’s staff, though. Get this friendly “advice”:

[T]o the extent third parties to apply for a mail-in ballot based solely on fear of contracting COVID-19, such activity could subject those third parties to criminal sanctions imposed by Election Code section 84.0041.

This is presumably aimed at any outside agitators who come in and try to mobilize registered voters to exercise their rights without putting on their masks and taking their chances.

I would imagine that Governor Sununu isn’t traveling much these days, but if he happens to find himself in Texas, he should keep his opinions to himself about a reasonable fear of death representing a “disability.” He could wind up in the slammer.

The apparent desire of Texas Republicans to keep a lid on voting by mail, however, has hit at least a temporary bump in the road, according to the Dallas Morning News:

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.

Paxton is now publicly standing behind the negative opinion of his deputy:

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.

So in Texas as in the White House, the GOP is identifying itself with the completely unsubstantiated assumption that voting by mail is inherently fraud-prone, and needs to be restricted as much as possible.

This item has been updated.

Fear of Coronavirus Is Not Enough to Get a Texas Mail Ballot