If you suffer a late illness that prevents you from getting to a polling place, you will need a doctor’s note to get an absentee ballot.
Texas voters who get sick shortly before Election Day and can’t go to the polls will still need a doctor’s note before they can get an emergency absentee ballot, a state appeals court ruled Friday.
Voting rights group MOVE Texas will not appeal the temporary ruling further. Instead, as a fallback, the group has established a free telehealth service with volunteer physicians to provide the necessary documentation for sick voters seeking absentee ballots starting Saturday, the executive director said.
The Texas 3rd Court of Appeals’ ruling, overriding a state district court order, said implementing the lower court’s ruling “would change the longstanding requirements governing late mail-in ballots and risk voter confusion.” The case will still be reviewed further after the election.
MOVE Texas first challenged existing election law in a Travis County court after reports this summer detailed voters who tested positive for the coronavirus in the days before the primary runoff election struggling to cast ballots.
Unlike applications for absentee ballots received before the general deadline, which was Friday, Texas law dictates that voters submitting applications for emergency absentee ballots must provide certification from a doctor that the voter has developed an illness that would keep them from being able to vote in person.
In the July primary runoffs, two Austin voters tested positive for the new coronavirus and were put under self-quarantine orders shortly after the cutoff date for mail-in ballot applications. They asked a Travis County district judge to waive the requirement for a doctor’s note but lost their case.
On Oct. 2, MOVE Texas filed a challenge in court, arguing that the state’s criteria for applying for emergency absentee ballots is unconstitutional and imposes an undue burden on the right to vote. Travis County District Judge Tim Sulak agreed, ruling against the requirement for a doctor’s note last week.
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Preparing for the loss in the 3rd Court of Appeals, Galloway said the group designed a fallback program to connect sick voters to volunteer physicians who will meet via videoconference.
“It’s completely up to the physician if they want to issue the waiver or not,” Galloway said. “If so, they can do it digitally. That voter is then set and it’s at no cost to them to be able to complete the application and turn it into the elections department.”
Probably for the best at this point. I remember the earlier story, but if I blogged about it at the time, I can’t find the post.
Let’s be clear about three things. One, this is likely to affect a tiny, tiny number of people. The set of circumstances under which someone would be affected by this are super specific. It’s always worth worrying about anyone who faces obstacles to voting, but you can probably count the number of these people on your fingers. That said, if you haven’t voted yet, you could be a person affected by this.
Two, the main reason for all of this is our state’s restrictive laws for voting by mail. In a world where getting a mail ballot is easy – or even the default – problems like this go away. This specific situation could have been addressed by the court, but the big picture needs to be handled by the Legislature.
Finally, this is the argument for voting at your first opportunity. Life is uncertain. I get wanting to vote on Election Day, out of a sense of tradition or because you want to make sure that nothing comes up that might change your mind in a given race, or because a voting location that has meaning for you is only available on Election Day. The risk you take is that the longer you take, the greater the chances that something could come up that will complicate your ability to vote. I’m a committed early voter, and have been for years. Your mileage may vary. Just be aware of the tradeoffs.
It’s no doubt true that the doctor’s-note issue affects a small number of voters, relative to the total volume of votes, but the legal and procedural issues in the case are nevertheless of jurisprudential significance.
DENIAL OF REINSTATEMENT OF TEMPORARY INJUNCTION PENDING APPEAL
Unlike the Third Court of Appeals decision in the mail ballot drop-off appeal by Abbott and SOS Hughs (No. 03-20-00498-CV, now in the SCOTX under Nos. 20-0846 and 20-0847), this decision is a denial of a motion to reinstate the temporary injunction granted by the trial court (Judge Sulak) at the appeals-court level. As a general rule, the appeals court can grant such temporary relief to preserve the rights of the parties while the merits of the appeal are being briefed and considered (which usually takes months).
As such, the decision is in the form of a procedural order, rather an opinion (or memorandum opinion) that resolves the appeal at the level of the appellate process. It says nothing about how the same court will eventually rule.
This decision was issued the same day the Austin-based Third Court of Appeals affirmed the temporary injunction against the Governor and Secretary of State on the mail ballot drop-off issue in the challenge brought by the Anti-Defamation League et al.
You can find both issuances here:
http://search.txcourts.gov/Docket.aspx?coa=coa03&FullDate=10/23/2020
ORDER CITE: Ruth Hughs in her Official Capacity as the Texas Secretary of State v. Move Texas Action Fund, No. 03-20-00497-CV (Tex.App.- Austin, Oct. 23, 2020)(order denying temporary relief pending appeal). (“Applying the Rule 29.3 standard, we conclude that MOVE has not shown that reinstating the injunction during the pendency of this appeal is necessary to preserve the parties’ rights. Accordingly, we deny the motion for temporary relief.”).
OFFICIAL FAVORATISM FOR THE STATE IN THE APPELLATE PROCESS
The reason Move Texas Action Fund filed the motion in the Court of Appeals is the automatic suspension of a temporary injunction against the state or state officials when they file a notice of appeal (automatic “supersedeas”).
Remember that this happened before when the Texas Democratic Party appealed Judge Sulak’s order that had extended disability-based vote-by-mail eligibility to all voters based on COVID-19. In that case, the Court of Appeals granted the motion for temporary relief (in No. 14-20-00358-CV) with a dissent by Chief Justice Frost, but the Texas Supreme Court put a hold on this order upon request of the Attorney General, who immediately filed a SCOTX mandamus action against the Fourteenth Court of Appeals (No. 20-0401). MOVE Texas Action Fund was one of the parties in that case also, which was later dismissed based on a nonsuit in the trial court, following the Supreme Court’s decision on the key legal issue in a separate case: the direct mandamus action the AG brought against select County Election Clerks and Administrators. See In re Texas, No. 20-0394, 2020 WL 2759629 (Tex. May 27, 2020).
The State’s automatic right to “supersedeas” means that the State/State Officials can continue to engage in the conduct that a trial court has already found to violate the law (or the constitution) while the appeal is pending. This was also the legal basis for AG Ken Paxton telling election officials to ignore Judge Sulak’s ruling regarding vote-by-mail eligibility based on the pandemic circumstances and lack of immunity, and to follow his (the AG’s) interpretation of the Election Code instead. Or else.
STATUTORY SUPERSEDEAS FAVORITISM ALSO A FACTOR IN THE PENDING MAIL-VOTE DROP OFF LITIGATION AGAINT GOVERNOR ABBOTT
The currently pending appeal over Abbott’s reduction of the number of drop-off locations for mail ballots to one per county presents a variation on the supersedeas theme.
The Attorney General is attacking the decision of the Third Court of Appeals upholding the injunction against Abbott and SOS Hughs in two Supreme Court cases.
In the second one, which is a mandamus action against the Court of Appeals (docketed as No. 20-0847), he complains about that Court having issued the mandate to the trial court immediately. In the AG’s view, this accelerated issuance of the mandate (which is an option available under the appellate rules in interlocutory appeals) violates the State officials’ right to automatic supersedeas until the appeals process has run its complete course, which is to say, until the Texas Supreme Court has had the last word in the second appeal (here docketed as No. 20-0846). Unsurprisingly, given the relevant track record and the political consanguinity, the AG counts on winning in the all-GOP high court. The real parties in interest respond that the mandamus concerning the COA mandate is now moot because the SCOTX has already granted an emergency stay of the lower-court rulings (ie, the Sulak injunction and its affirmance on appeal), and has requested briefing on an accelerated basis. Indeed, the plaintiffs have already filed a full-fledged brief on the merits, rather than just a response to the AG’s petition, and had to request leave to exceed the word limit.
This and a lot of other election-related lawsuits this year appear to be designed more to garner publicity and attention for some voting issue than to really win in court.