Appeals court sides with Harris County in lawsuit over mailing absentee ballot applications

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An intermediate state appeals court sided with Harris County Clerk Chris Hollins on Friday in his quest to mail applications for absentee ballots in the November election to every registered voter in the county. But the ruling will not take effect before the Texas Supreme Court hears the case.

A three judge-panel of the state’s 14th Court of Appeals agreed with a state district judge who rejected the Texas attorney general’s request for a temporary injunction blocking the mailing plan. The all-Republican Texas Supreme Court directed the county to hold off on sending any unsolicited applications earlier this week while the case is on appeal, and the high court is the next stop for the politically fraught lawsuit.

Friday’s ruling marks a second loss for Texas Attorney General Ken Paxton in convincing state courts that the mailing is legally dubious and would cause confusion among voters.

In an 11-page ruling, three Democratic justices — Charles Spain, Meagan Hassan and Margaret Poissant — rejected the state’s argument that the injunction was necessary to keep the county from “walking” voters into committing felonies by sending applications to voters who may ultimately not be eligible for mail-in ballots. That claim, the panel ruled, was “based on mere conjecture,” with the state offering no proof to support it.

“The State failed to meet its burden of showing that mailing the applications will result in irreparable injury,” the panel wrote. “The injury alleged by the State is at best speculative.”

The case is on track to the Texas Supreme Court, but the clock is running out for the applications to be mailed with sufficient time to get ballots into voters’ mailboxes. The deadline to request a mail-in ballot is Oct. 23, but the U.S. Postal Service recommends voters get their requests in by Oct. 19.

The ruling is the latest in a legal face-off between Harris County, where elections are run by a Democrat, and the state’s Republican leadership over mail-in voting in Texas during the coronavirus pandemic.

Harris County came under fire from Texas Republicans after announcing it planned to mail out applications for mail-in ballots to all 2.4 million registered voters in the county. The county has already mailed out applications to voters who are 65 and older, as it did in the July primary runoffs. Under Texas law, voters 65 and older automatically qualify for ballots they can fill out at home and mail in, or drop off at their county elections offices.

Texas also allows voters to cast ballots by mail if they will be out of the county during the election period, they are confined in jail but otherwise eligible, or they apply based on disability, which the state defines as a physical condition or illness that makes a trip to the polls a risk to their health.

(While lack of immunity to the new coronavirus alone doesn’t qualify a voter for a mail-in ballot based on disability, a voter can consider it along with their medical history to decide if they meet the requirement.)

During a virtual hearing at the lower court, Hollins presented the proposed mailer and detailed how it would be accompanied with guidance on who is eligible to vote by mail.

In its ruling, the appeals panel wrote that a voter “would be less likely to engage in fraud” using the application sent by the county because it contains “extensive explanations for what qualifies a voter to receive a mail ballot under the law, and is accompanied by text and red-siren graphics traditionally associated with danger and caution in general.”