Battle Over Texas Mail-In Ballots Rages in Federal Court

Texas argues a federal judge cannot rule on the state’s absentee voting law because the dispute is already being heard in state court.

A shopper wears a mask to protect against Covid-19 as she walks through a grocery store in Dallas on April 29. (AP Photo/LM Otero)

SAN ANTONIO (CN) — The fight over Texas’ absentee voting law reached San Antonio federal court Friday morning, as attorneys representing the state and the Texas Democratic Party clashed over whether Texans fearful of catching Covid-19 at the polls can vote by mail.

After listening to almost two hours of arguments presented in person and over telephonic and video calls, U.S. District Judge Fred Biery, a Bill Clinton appointee, said that a judgment “will be forthcoming, no guarantee as to when,” noting that more than 10,000 pages in filings were submitted to the court in this case.

The hearing came hot on the tail of several legal actions — in both state and federal court — concerning Texas’ vote-by-mail law, which permits eligible voters to request mail-in ballots under certain conditions.

The Texas Democratic Party and three voters sued Republican Governor Greg Abbott, Secretary of State Ruth Hughs and Travis and Bexar County election officials, seated in Austin and San Antonio respectively, in early April to ensure that voters who lack immunity to the coronavirus can obtain mail-in ballots under the election code’s disability exception.

Chad Dunn of Brazil & Dunn represented the Texas Democrats and voters in opening arguments Friday. He said the coronavirus pandemic is already disrupting elections, citing the March Democratic primary, when election administrators did not show up to the polls because they were afraid of catching or spreading Covid-19, the respiratory disease caused by the novel coronavirus.

“It is absolutely critical that the demand for in-person voting, the curve for that demand be reduced in some way. Not as a matter of policy … but as a matter of necessity,” said Dunn.

Texas Attorney General Ken Paxton’s office has repeatedly held that only voters with a “sickness or physical condition” keeping them from “voting in person on election day without a likelihood of needing personal assistance or of injuring the voter’s health” may claim disability as a reason to receive a mail-in ballot.

“A voter ill with Covid-19 and who meets those requirements may apply for a ballot by mail,” Paxton, a Republican, said in a statement Wednesday. “Fear of contracting Covid-19, however, is a non-physical reaction to the current pandemic and does not amount to a sickness or physical condition that qualifies a voter to receive a ballot by mail.”

State attorney Michael Abrams expanded on that argument during Friday’s hearing.

“If we were to, all of a sudden, expand vote-by-mail that significantly, the state has a legitimate concern that there would be an increase in voting fraud,” Abrams said

Biery pointed out that Texas’ election code already permits voters above the age of 65 to vote by mail regardless of their disability status.

“What’s the rational basis [for distinguishing] between 65 and one day, and one day less than 65?” the judge said.

Abrams balked, saying the line doesn’t have to be “so precise” and that the executive branch only had to demonstrate that the Texas Legislature had a rational basis for establishing the age limit.

The attorney also enumerated the mitigation strategies endorsed by Texas’ secretary of state: the government could put up plexiglass shields between administrators and voters, provide sanitizing wipes and hand sanitizer and give voters cotton swabs to touch election machines with, for instance.

“What is essentially before the court is a battle of experts,” Abrams said, referencing the disagreement between an epidemiologist who testified on behalf of the state and the plaintiffs’ own disease experts, who disagree that any amount of safety measures can eliminate the risk of the disease’s spread.

“There’s a reason the state has orders in place that no more than 10 people should be together,” Dunn replied during his rebuttal.

Abrams focused on two key legal defenses in his argument. First, the state claims the so-called Pullman abstention doctrine bars the San Antonio federal court from determining the constitutionality of the state law because it is already being heard in state court.

In a similar state-court lawsuit filed in Travis County, seated in the state’s capital of Austin, the district judge took the voters’ side after hearing arguments in mid-April, ordering election officials not to deny registered voters’ applications for mail-in ballots if they claim disability eligibility as a result of the Covid-19 pandemic.

Paxton immediately appealed the ruling and repeatedly asserted that the order was automatically suspended upon appeal, but was corrected Thursday by Texas’ 14th Court of Appeals, which clarified that the Travis County judge’s ruling “remains in effect until disposition of this appeal.”

After Friday’s hearing, Paxton’s office filed his second petition with the Texas Supreme Court this week, asking the high court to stay the appellate court’s ruling.

“The Fourteenth Court correctly concluded that the trial court’s order was superseded, but it incorrectly allowed the order to go into effect anyway,” an attorney general spokesperson said in a statement. Paxton is “asking the Texas Supreme Court to uphold the State’s automatic right, guaranteed by the Legislature, to stay temporary injunctions from lower courts upon filing an appeal.”

Late Friday evening, the Texas Supreme Court stayed the appeals court’s ruling, which had upheld the Travis County judge’s order permitting voters to apply for mail-in ballots under the “disability” exception if they feared Covid-19 transmission at the polls.

During the federal hearing, Abrams partially quoted the U.S. Supreme Court when he argued, “where the challenged statute is part of an integrated scheme” of election regulations, “we have regularly required the district courts to abstain … That doctrine applies in full force to plaintiffs’ claims.”

Second, the state levied a number of arguments against the plaintiffs’ standing to bring their action against the state.

“What’s critical is that [the Democrats] have sought and preliminarily obtained that exact remedy in state court already,” state attorney Abrams said, referencing the appeals court’s ruling Thursday. “The court would essentially be treading the exact same ground that the Travis County court already did.”

Abrams also argued that the voters had not “demonstrated an injury in fact,” or a redressable grievance they have already suffered, which civil plaintiffs are generally required to demonstrate before seeking relief from a court.

In the state’s view, confusion about the law does not constitute a remediable injury, and is regardless not an irreparable harm because other avenues to vote — in-person, at the polls, namely — are available to the plaintiffs.

“This isn’t some sort of academic concern,” Dunn, the Democrats’ attorney, retorted during rebuttal.

One of the voter plaintiffs is under 65 but has asthma and is confused as to whether his underlying condition qualifies him to receive an absentee ballot. Another plaintiff’s husband and daughter have compromised respiratory systems, Dunn said, so she would prefer to not risk bringing Covid-19 home from the voting booths.

The attorney general has threatened to investigate and prosecute voters who unlawfully obtain mail-in ballots, which is a state felony, as well as election officials who misinform voters as to whether they can vote by mail.

But Robert Green, attorney for Bexar County elections administrator Jacquelyn Callanen, told the court it may not be possible to distinguish between voters who tick the disability box on the application form because they are not immune to Covid-19 and applicants who claim disability for other reasons. Applicants are not given space to specify their disability.

“Ultimately it’s up to the secretary of state to issue guidance to election administrators,” Green said, “and ultimately it’s up to the judiciary to tell all of us what the law is.”

Dunn said in a statement released by the Texas Democratic Party after Fridays’ hearing that every county has been accepting mail-in ballot applications since April 15 after the state court ruling.

“It would be quite an extraordinary event if the Texas Supreme Court breaks that process,” he said.

Gilberto Hinojosa, the Texas Democrats’ chair, echoed Dunn’s argument.

“We believe that both the constitution of the United States of America and the specific statute of the state of Texas election code require that any single person that wants to vote should be allowed to vote by mail,” Hinojosa wrote. “Simple as that.”

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