As Democrats and civil rights groups sue to expand mail-in voting during the pandemic, a recent decision by the Texas Supreme Court has left it up to voters to decide for themselves whether they qualify for vote-by-mail.
In its decision in late May, the highest civil court in the state ruled that lack of immunity to COVID-19 alone does not constitute a disability that would allow those under 65 years old to vote by mail rather than at the polls, under the Texas election codes.
But it added — which legal experts say is crucial — that a voter can take the possibility of being infected into consideration along with his or her “health” and “health history” to determine whether he or she needs to vote by mail under the ‘disability’ provisions in the law.
“I think really the story here is that it’s going to be up to individual voters to decide whether they fit this definition or not,” said Joseph Fishkin, a University of Texas professor who studies election law and has closely followed the cases.
[…]
Assistant County Attorney Douglas Ray has said Harris is relying on the Supreme Court decision to bolster its recommendation that voters request a ballot if they believe they are eligible.
“If it’s checked disabled, we’ll just send the ballot,” Ray said. “We don’t question that. We don’t have the authority or ability to investigate that.”
In Bexar County, the commissioners court last month passed a resolution supporting access to mail-in ballots for voters afraid of contracting COVID-19 at polling place, but the county has not made any recommendations to voters since.
Bexar County Judge Nelson Wolff said Monday that such a public notice is on the way.
The Bexar commissioners last week directed the county attorney to help craft language for voter guidance, citing the Texas Supreme Court decision, and requesting for the election administrator, Jacque Callanen, to consider publishing it. Callanen did not respond to a request for comment.
“We’ve asked her to make it clear to voters that it’s up to them to determine whether they have a health condition or a physical condition” that qualifies them to vote by mail, Wolff said. “It’s their decision, not the state’s decision.”
Well, we know what Harris County has done. (Note: That was mail ballot applications the Clerk sent to all over-65 voters, not actual mail ballots.) We’ll see what the demand looks like in November. I would still advise, in my extremely I Am Not A Lawyer way, that there is some risk in applying for a mail ballot under the disability provision. How much there is I can’t say, but given the times and the apparent determination of the Republican Party to salt the earth, it’s definitely greater than zero. Make the best decision for yourself. Campos has more.
I encourage people to have a genuine health risk if they go this route. Paxton would have no qualms prosecuting people and filing a felony offense against them. He’s in office until 2022. I can easily imagine him checking Ds at random. This IS a primary so they know the party for which we’re casting our votes…just saying…very concerned
HAVE YOU SELF-ASSESSED YOUR FIRST AMENDMENT RIGHTS LATELY?
Sandra: If you have not already done so, please check out Paxton’s latest follow-up “guidance” [a euphemism, as you will see] on voting-by-mail eligibility, which he issued yesterday, June 12, 2020.
Thou shalt be vindicated in thy premonition.
General Paxton is now even threatening the MEDIA along with Democrats and civic groups (collectively “third parties”) with criminal prosecution for “misinforming” the public about disability under the Election Code. If you keep writing about mail-in voting and how to apply and check the box, you are moving onto dangerous territory: a free-speech death zone, of sorts.
The only bright spot I can see is that the media can afford legal counsel. But the AG knows that too, so he probably have his troops go for easier pickings, like me and you perhaps. Kuff might might make for a good fly to swat too. We are in distinguished company.
Meanwhile, we can get ready to write an obit for an erstwhile freedom of speech, and a freedom to motivate fellow citizens to exercise their right to vote. I always thought that was a good thing. I never imaged it would be criminalized. And I am glad I am not teaching civics any more, so I won’t get arrested in the lecture hall for not toeing the “correct” line as promulgated by the Texas Supreme Court on request of a certain alas-elected General.
General Paxton’s Conclusion:
Taken together, these court decisions [SCOTX and 5th Cir.] solidify this Office’s prior guidance that a ballot by mail is not available based purely on lack of immunity to COVID-19 or based on a desire to engage in social distancing to avoid exposure to the virus. Furthermore, we reiterate our prior guidance that 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 imposed by the Texas Election Code.11 Consistent with that guidance, the Texas Supreme Court observed that the “decision to apply to vote by mail based on a disability is the voter’s, subject to a correct understanding of the statutory definition of ‘disability.’”12 Section 84.0041 of the Election Code prohibits any person from deliberately misleading a voter about the meaning of “disability”—such as by suggesting that a voter may merely “check the disability box” for any reason—and thereby causing the voter to submit false information on an application for ballot by mail. Similarly, Section 276.013 prohibits a person from causing a voter to obtain a ballot “under false pretenses,” or from causing an intentionally misleading statement on an application for ballot by mail. Of course, as we previously advised, whether specific activity constitutes an offense under these provisions will depend upon the facts and circumstances of each individual case.
Sincerely,
KEN PAXTON
Attorney General of Texas
To the Republican voters out there: Okay, now we have got to the point where your wonderful Republican elected leaders have given you a choice, JAIL WITH A RISK OF BAD DEATH or VOTE WITH A RISK OF BAD DEATH.
What will it take for you to give up on these nasty jerks? Do you think ANY Democratic Attorney General or Supreme Court would go near a position like this? NO, NO and NEVER. It is long past time to kick these bastards out and put in real leaders– DEMOCRATS
I sure hope the new county clerk does a better job of reconciling the mailed-ballots list against the in-person voting list than the previous one. Where a lot of double voting happened in the primary was during early voting where folks first voted by mail and then showed up to vote in person (several in different party primaries), because the clerk didn’t show they had already voted by mail/ received a ballot, etc, for nearly a week.