As Republicans fight a push to expand voting by mail during the coronavirus pandemic, one GOP congressional candidate in Texas has already told voters the option has been expanded for them and mailed them ballot applications to take advantage of it.
That is at odds with the state’s position, and it is causing a stir — not to mention some confusion — in the primary runoff for a battleground district.
The candidate, Kathaleen Wall, has sent out mailers in recent weeks telling voters they have the “green light” to vote by mail and that the secretary of state has cleared them to do so if they are worried about contracting or spreading the virus by voting in person. While lawsuits on that issue are ongoing, the secretary of state’s office has not said that. And Attorney General Ken Paxton, a fellow Republican, has specifically been going out of his way to fight the perception that more Texans can qualify to vote by mail than usual due to the pandemic — and has even hinted at criminal charges against those who suggest otherwise to voters.
The ironic episode is unfolding in the 22nd District, where U.S. Rep. Pete Olson, R-Sugar Land, is retiring and national Democrats are working to flip the seat. The runoff pits Wall, a prominent GOP activist-donor, against Fort Bend County Sheriff Troy Nehls, who says Wall is resorting to "liberal Democrat tactics" to mislead voters during the pandemic.
Democrats and voting rights advocates have been leading the charge to expand voting by mail, arguing it is necessary to prevent the spread of the virus at polling places. Republicans from President Donald Trump on down have been resisting the efforts, claiming more mail-in ballots increase the possibility of voter fraud.
The controversy in the 22nd District has caught the attention of state officials. The secretary of state’s office says it "has been made aware of the mailings that have been sent out and have been in touch with representatives of the Wall campaign."
"We have informed them that certain statements attributed to the Secretary of State’s office are categorically false, instructed them to update voters who have already been contacted, and to immediately cease further distribution,” a spokesman for the office, Stephen Chang, said in a statement.
Wall’s campaign says she is doing her best to keep voters up to date on the fast-changing developments around voting by mail, pointing to posts on her website and social media that have come in addition to the mailers. In a statement, the candidate defended sending out the vote-by-mail applications.
"I’ve distributed over 60,000 face masks to first responders and businesses in CD22 to make sure they have the tools they need to stay safe,” Wall said. “Sending out ballot by mail applications is the same thing. I’m making sure voters know they have options if they want to exercise it and meet the qualifications."
However, Wall's questionable vote-by-mail efforts go back to mid-April, when she sent out a mailer with the state seal telling the voters that they had received the "green light" to vote by mail and that their applications would be arriving soon. (Federal candidates are exempted from state law that prohibits the use of the state seal in political advertising.) The mailer also said, "Recently, the Texas Secretary of State ruled that voters’ concerns over contracting or spreading the COVID-19 virus and endangering their health by visiting a public polling place meet the election law requirements to be deemed eligible to vote absentee."
Wall's campaign used the same language in the subsequent mailer with the application, which featured the "Disability" box pre-checked.
While the secretary of state issued an advisory in early April about voting during the pandemic, it simply reiterated what the law defines as a disability allowing a Texan to vote by mail. The advisory did not take a position on the thornier question of whether that definition includes people who are susceptible to the virus.
That is a key dispute in several lawsuits that are underway. One of them led a state district judge in Travis County to rule last month that voters can qualify to receive mail-in ballots if they lack immunity to the virus. However, Paxton appealed the ruling and has argued it is on hold, while Democrats disagree with him that the ruling is stayed.
Paxton's office declined to address the situation with Wall, saying it does not comment on "any received complaints or investigations." The office pointed to the guidance that Paxton has issued so far on voting by mail during the pandemic, including a May 1 letter that warned county officials against giving voters the impression that voting by mail has been expanded for now.
"To the extent third parties advise voters to apply for a ballot by mail for reasons not authorized by the Election Code, including fear of contracting COVID-19 without an accompanying qualifying disability, such activity could subject those third parties to criminal sanctions," Paxton wrote.
Wall has been campaigning on her party activism, including her service on the State Republican Executive Committee and leadership of its Election Integrity Working Group and Voter Registration Working Group. Nehls highlighted those credentials in a statement ripping Wall for her vote-by-mail program.
"This is unethical and goes against everything we stand for as a party on election integrity," Nehls said. "She should be held accountable for this attempt to mislead voters."
The Democratic nominee for the seat is Sri Preston Kulkarni, a former diplomat who ran against Olson in 2018 and lost by 5 percentage points.
Disclosure: The Texas secretary of state has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.