Elections 2020IssuesLawsuit Over Expanded Mail-In Ballot Campaign Raises Questions About State, County Power

The Texas Democratic Party has filed two lawsuits against the state regarding absentee ballot requirements in light of the coronavirus pandemic.
April 16, 2020
The Texas Democratic Party filed a federal lawsuit on Tuesday requesting that the federal court rule the state must expand vote-by-mail abilities in light of coronavirus’ spread.

The lawsuit was filed after a similar one in state court was filed. 

The plaintiffs cite Sec. 82.002. of the state’s elections code regarding disabilities: “(a) A qualified voter is eligible for early voting by mail if the voter has 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. (b) Expected or likely confinement for childbirth on election day is sufficient cause to entitle a voter to vote under Subsection (a).”

In the state lawsuit filed by Texas Democrats, a Travis County district judge announced he’d be issuing a temporary injunction declaring that anyone who risks exposure to COVID-19 can apply for an absentee ballot — effectively expanding that ability to every voter.

Attorney General Ken Paxton said of the ruling, “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. This unlawful expansion of mail-in voting will only serve to undermine the security and integrity of our elections and to facilitate fraud.”

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Prior to the ruling, Paxton issued a response to State Rep. Stephanie Klick’s (R-Fort Worth) request for an opinion on the matter, stating that “Mail ballots based on disability are specifically reserved for those who are physically ill and cannot vote in-person as a result. Fear of contracting COVID-19 does not amount to a sickness or physical condition as required by the Legislature.”

The Texas Secretary of State’s office distributed an advisory on April 2, reiterating the rules and guidelines surrounding absentee ballots. The document acknowledges that a guideline expansion is possible, but does not go so far as to list out what that would entail.

The state’s premier elections administrator is maintaining ambiguity on this issue because the state does not decide who votes absentee or not, the counties do. What the state provides, however, is guidance on the protocols.

Bruce Sherbet, the Collin County elections administrator, confirmed to The Texan that the county election office makes those calls. 

The state’s role comes in after the fact in the case of investigating improper absentee ballot votes.

When a disability absentee request is received by the elections office, Sherbet said, “it is accepted at face value.”

The question of what qualifies as “disability” is at the center of this debate.

Sec. 31.004 of the state election code reads, “(a) The secretary of state shall assist and advise all election authorities with regard to the application, operation, and interpretation of this code and of the election laws outside this code. (b) The secretary shall maintain an informational service for answering inquiries of election authorities relating to the administration of the election laws or the performance of their duties.”

The secretary of state’s office confirmed to The Texan that they do not make the determination on whose absentee ballot request is approved.

Texas Democratic Party Chair Gilberto Hinojosa said of the suit, “As we face the worst public health crisis in a century, neither Governor Abbott nor Secretary of State Hughes have issued concrete guidance to county election officials on whether voters can cast a mail-in ballot during the coronavirus pandemic.”

“Republicans have opposed vote-by-mail without providing any credible justification. Current law allows any voter whose health may be injured by voting in person to vote by mail. As our city and county leaders issue shelter-in-place orders and our residents are urged to stay inside, we must protect Texans’ ability to cast a ballot without jeopardizing their health or safety,” he continued.

Last week, The Texan reported the Harris County Commissioners Court voted to file an amicus brief joining the Texas Democrats’ lawsuit.

If the decision is made to ramp up the mail-in-ballot program, it’s not as simple as the state declaring its existence. States with broad absentee programs — such as Colorado and Washington — have taken years to implement them. And those states are a fraction of the size of Texas — both in terms of geography and population.

There’s also a wild disparity in various counties’ protocols and technological capabilities. Storage and paper backup practices vary greatly from one county board of election to another. And that’s to say nothing about the logistics behind printing substantially more paper ballots, sorting them, mailing them, then receiving and counting them. All of this places limitations on the entire system’s ability to work uniformly across the state.

Sherbet stated that, due to the usual low turnout for runoff elections, he thinks his office will be able to handle whatever logistical burden a higher influx of mail-in voters presents. But the general election in November would present a more difficult hurdle. 

But preparation for the general, should absentee ballots be made more available, can be aided by contracting out some of the upfront work, such as printing. The main problem Sherbet sees is securing polling locations in November and ensuring proper personal protective equipment is available. 

While the secretary of state is tasked with creating a set of uniform guidelines from which the counties operate, the logistical, technological, and workforce realities prevent the system itself from being entirely uniform.

Various political entities and voices have started to encourage people to apply for an absentee ballot ahead of Texas’ runoff elections. Some are even insisting that everyone is eligible.

The Howard County Elections Facebook page posted, “Those that are ill or could get sick if out in public can now apply for a ballot by mail under the disability section.”

Friends of Barbers Hill ISD, a political action committee supporting a school tax levy, wrote on Facebook, “Spread the word[,] every registered voter will be eligible to vote by mail this spring.” The post has since been deleted.

The City of Mont Belvieu, pointing to the secretary of state’s advisory, has stated on Facebook, “the option to vote by mail is available to all residents during the COVID-19 pandemic.”

They further added, “It is not our position to tell a voter if they feel their health could be injured or not nor would we ever attempt to intimidate voters by insinuating that exercising of their right to vote could result in a state jail felony.”

Additionally, there has been some discussion about changing the date of the November election with some even saying the president should by executive order. But this would prove to be even more difficult than moving primary dates as the date of the election is not only set by Congress, that responsibility is enshrined in the Constitution.

The state’s role in the matter is more on the back end. Challenges to absentee voter requests can be made, and if an offense is found then disciplinary action can be taken.

Sec. 276.013. (a) of the state election code reads, “A person commits an offense if the person knowingly or intentionally makes any effort to:…(2) cause a voter to become registered, a ballot to be obtained, or a vote to be cast under false pretenses or (3) cause any intentionally misleading statement, representation, or information to be provided (b) on an application for ballot by mail, carrier-envelope, or any other official election-related form or document.”

One added wrinkle to the absentee ballot discussion is that mail-in ballots are the easiest to tamper with. In 2018, a group of Fort Worth individuals was arrested for tampering with, and even stealing, elderly voters’ mail-in ballots. And in 2019, a North Carolina man was arrested for ballot tampering during the 2018 election.

Because of the way Texas’ elections system operates, localities are given the discretion to make these determinations, but the state reserves the right to enforce violations after the fact. That may yield yet another situation where the state and its political subdivisions are at odds — leaving voters wondering which to listen to.


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Brad Johnson

Brad Johnson is a senior reporter for The Texan and an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.