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Coronavirus in Texas

Texas attorney general asks state Supreme Court to step into fight over voting by mail

Ken Paxton, a Republican, wants the state's highest civil court to tell five counties — all under Democratic control — to follow his interpretation that fear of contracting the coronavirus isn't a legally valid reason for voters to request absentee ballots.

Ken Paxton at the inaguration ceremony of Judge Michelle Slaughter at the state capitol. Jan. 11, 2019.

In a bit of judicial leapfrog, Texas Attorney General Ken Paxton is asking the Texas Supreme Court to weigh in on his interpretation of how voters can qualify for absentee ballots during the coronavirus pandemic.

Various lawsuits are pending over whether eligibility for mail-in ballots can be expanded to voters who risk contracting the virus by voting in person. Paxton believes it can't, and he asked the state's highest civil court Wednesday to issue a relatively rare writ of mandamus preventing local election officials from doing so.

In a motion filed Wednesday, the Republican attorney general asked the Texas Supreme Court to order election officials in some of the biggest, largely Democratic counties in the state to follow his reading of existing eligibility requirements for absentee voting, arguing the court must step in quickly because those county officials intend to apply an “incorrect reading” of state law.

Federal and state courts are considering legal challenges to the state’s rules for voting by mail that seek to extend eligibility to voters who lack immunity to the new coronavirus. Primary runoff elections are set for July, and new ground rules could also come into play for the November general election.

Paxton has been fighting individual Texas voters, state Democrats and civil rights organizations asking the courts to rule that susceptibility to the coronavirus counts as a disability under state election law and is a legally valid reason for voters to request an absentee ballot. At least one state district judge in Travis County has ruled their way, though the state is appealing that ruling.

The Texas election code defines disability as a “sickness or physical condition” that prevents a voter from appearing in person without the risk of “injuring the voter’s health.” Travis County District Judge Tim Sulak ruled lack of immunity to the virus falls under that definition.

The election officials Paxton is targeting — county clerks or election administrators in Harris, Dallas, Travis, El Paso and Cameron counties — have generally indicated they will process mail-in ballots that cite a disability in accordance with the law and court rulings.

In his filing, Paxton argued that county election officials are refusing “to discharge” their duty to reject applications to vote by mail from voters who don’t qualify under the state’s existing eligibility criteria.

“They have instead determined that the coronavirus pandemic allows them to unilaterally expand the Legislature’s determination of who is eligible to vote by mail,” Paxton wrote. “To the local election officials of Travis, Harris, Cameron, Dallas, and El Paso Counties —all Respondents here —a ‘disability’ does not mean a ‘sickness or physical condition.’ Instead, it means a generalized fear common to all voters of contracting disease.”

It’s unclear how election officials would be able to reject applications from voters who use the disability category of eligibility as a result of the coronavirus pandemic.

Voters who cite a disability to receive a mail-in ballot don’t have to provide any information beyond checking a box on the application form. Election officials can reject an application if they know the applicant is ineligible, but they’re unable to require voters to substantiate their disabilities.

In a statement, Chad Dunn, the Texas Democratic Party’s general counsel, accused Paxton of wanting to “upset the election process” and said Texans sent in thousands of mail-in ballot requests after Sulak’s ruling.

“Apparently, none of the counties agree with Ken Paxton’s view that everybody under age 65 has to vote in person during a pandemic and the court shouldn’t either,” Dunn said. “The Legislature provided for vote-by-mail in these pandemic circumstances.”

Paxton's request to the Texas Supreme Court is the latest in a growing legal fight over who can qualify to request a ballot that can be filled out at home and mailed in during the coronavirus pandemic. Until now, voting by mail has been fairly limited in Texas, where voters can qualify for mail-in ballots only if they are 65 years or older, have a disability or illness, will be out of the county during the election period, or are confined in jail.

Paxton also argued that the election officials’ actions were “not only unlawful; they are also unnecessary” because the state is already making changes to the voting process during the pandemic. Earlier this week, Gov. Greg Abbott doubled the early voting period for the July 14 primary runoff.

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