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.