Texas Appeals Court Upholds Broad Mail-In Ballot Rules

An election official checks a voter’s photo identification at an early voting polling site in Austin, Texas, in 2014. (AP Photo/Eric Gay, File)

(CN) — A Texas appeals court on Thursday upheld a ruling that broadens the state’s election laws, allowing eligible voters to apply for mail-in ballots if they fear contracting Covid-19 at the polls — a change the state’s Republican attorney general has fought tooth and nail.

“We … order that the trial court’s temporary injunction remains in effect until disposition of this appeal,” Justice Margaret Poissant of Texas’14th Court of Appeals wrote in a three-page ruling.

The temporary injunction in question was issued by Travis County Judge Tim Sulak, who sided last month with the Texas Democratic Party in their lawsuit seeking to loosen restrictions on mail-in ballot applications.

Sulak’s order, issued two days after the case was heard in a Zoom call broadcast live on YouTube, enjoins county election officials from denying registered voters’ applications for mail-in ballots if they claim disability eligibility as a result of the Covid-19 pandemic and requires for their votes to be accepted and tabulated.

The order undermines Texas Attorney General Ken Paxton’s repeated assertions that the district judge’s ruling was rendered inert immediately upon Paxton’s appeal.

For instance, Paxton announced in a statement Monday that his appeal automatically stayed Sulak’s order, which the attorney general described as “misconstruing the Election Code to allow anyone to vote by mail using specific protections intended to aid only those with true disabilities.”

Similarly, Paxton declared in a recent statement that county officials were “misleading the public about their ability to vote by mail, telling citizens that in light of Covid-19, anyone can claim a ‘disability’ that makes them eligible for ballot by mail.”

Sophia Lakin, deputy director of the American Civil Liberties Union’s Voting Rights Project, rebuked Paxton in a statement Thursday.

“This order makes clear that the attorney general, like anyone else, must comply with a court order,” Lakin said of the appeals court’s ruling. “Texans shouldn’t have to choose between their health and their vote.”

ACLU senior staff attorney Tommy Buser-Clancy also praised the appellate court’s decision.

“The court of appeals has recognized the need to allow efforts to ensure Texans have the ability to vote by mail during this pandemic to proceed while the full appeal is heard,” Buser-Clancy said. “We appreciate the court of appeals’ realization that the attorney general’s attempts to override judicial decisions are improper, and directly impact voters who are trying to participate in our democracy without having to risk their health.”

On Wednesday, Paxton asked the Texas Supreme Court to compel five counties’ election officials “to follow Texas law on mail-in ballots” and stop “encouraging voters without actual disabilities” to apply to vote by mail.

“Each misapplication of Texas election law damages the integrity of our elections and increases the risk of voter fraud,” he said. “In-person voting is the surest way to prevent voter fraud and guarantee that every voter is who they claim to be and has a fair opportunity to cast their vote.”

The attorney general’s statements appear to violate Sulak’s order, which directed the state not to issue “guidance or otherwise tak[e] actions that would prevent counties from accepting and tabulating any mail ballots revised from voters who apply to vote by mail based on the disability category of eligibility as a result of the Covid-19 pandemic.”

Paxton’s office argues the Texas Election Code stipulates that eligible voters are considered disabled only if they have “a ‘sickness or physical condition’ that prevents a voter from voting in person on election day without a likelihood of needing personal assistance or of injuring the voter’s health.”

Voters who apply for a mail-in ballot but whose applications are later found to be unlawful or dishonest can be prosecuted for a state felony.

In the attorney general’s view, only someone sick with Covid-19 meets the requirement – voters who worry they may contract the disease at the polls only suffer “a non-physical reaction to the current pandemic” that “does not amount to a sickness or physical condition.”

Ed Espinoza, executive director of the left-leaning organization Progress Texas, celebrated the appellate ruling in a statement Thursday.

“This ruling goes directly against indicted-Attorney General Ken Paxton’s recent actions and will hopefully put an end to his threats against Texans who wish to vote by mail,” he said. “Instead of spending time and resources fighting vote by mail expansion, the state should turn its efforts to increasing health and safety measures for all of us.”

The attorney general’s office did not return a call seeking comment by press time.

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