Texas Democrats Ask Federal Judge to Expand Mail-In Voting

SAN ANTONIO (CN) – The Texas Democratic Party and three voters filed a federal lawsuit Tuesday seeking an expansion of the state’s mail-in voting law, after the U.S. Supreme Court ruled the night before that Wisconsin acted too late in extending the deadline for absentee voting amid the Covid-19 pandemic.

The federal lawsuit filed in San Antonio argues that state and public health officials’ repeated requests for citizens to stay at home and slow the spread of the novel coronavirus are at odds with most Texans’ traditional behavior of voting in person, where large groups congregate and come into contact with each other, voting equipment and election personnel.

A custodial staffer sprays disinfectant in a classroom in Brownsville, Texas, on March 11, 2020. (Denise Cathey/The Brownsville Herald via AP, File)

The Texas Democratic Party and the three voter plaintiffs seek an order blocking state officials from enforcing current election laws that limit absentee voting. They named as defendants Republican Governor Greg Abbott, Secretary of State Ruth Hughs and elections officials in Travis and Bexar counties, where Austin and San Antonio are located, respectively.

Texas Democratic Party Chair Gilberto Hinojosa said in a statement Tuesday that state officials so far have not issued “concrete guidance to county election officials on whether voters can cast a mail-in ballot during the coronavirus pandemic.”

“Republicans have opposed vote-by-mail without providing any credible justification. Current law allows any voter whose health may be injured by voting in person to vote by mail. As our city and county leaders issue shelter-in-place orders and our residents are urged to stay inside, we must protect Texans’ ability to cast a ballot without jeopardizing their health or safety,” Hinojosa said.

The secretary of state’s director of elections, Keith Ingram, issued an advisory to Texas election officials on April 2 that said voters must have “a qualifying reason” to vote by mail, enumerating four scenarios: those who will be away from the county during the voting periods, voters who are sick or disabled, those older than 65, and inmates who are eligible to vote. These voters must submit an application for an absentee, mail-in ballot.

This advisory complies with Texas’ election code, which says qualified voters can vote early by mail if they have sickness or physical condition, including pregnancy, “that prevents the voter from appearing at the polling place on election day.”

But Democrats worry the statute will be unevenly applied absent an order from courts permitting more voters to send mail-in ballots in an effort to avoid contracting or spreading the virus and the Covid-19 disease it causes. Their lawsuit asserts claims of age, race and language-minority discrimination, as well as violations of the First Amendment.

“These election conditions impose severe burdens on voters, in time, inconvenience and expense,” unlawfully applying different rules for “those over the age of 65 or those with a disability,” according to the lawsuit.

Though a Wisconsin federal judge declined to postpone state elections last Thursday, the court extended the deadline for submitting absentee ballots just five days prior to Tuesday’s election.

This order was reversed by the U.S. Supreme Court on Monday evening, which held in a 5-4 decision that “lower federal courts should ordinarily not alter the election rules on the eve of an election.” The party-line ruling clarified that the decision “should not be viewed as expressing an opinion on … whether other reforms or modifications in election procedures in light of Covid-19 are appropriate.”

The Texas Democratic Party cites these passages in Tuesday’s petition to notify the court that the plaintiffs “file this suit at the earliest possible moment … so as to ensure timely merits review,” urging that it is “critically important” to reduce the number of ballots cast in person.

The Lone Star State is scheduled to hold primary election runoffs on July 14, after being pushed back in light of the coronavirus outbreak. The nationwide general election is set for Nov. 3.

Much of the lawsuit describes the severity of Covid-19’s spread, warning that “addition waves” and “localized infection hotspots” will further stress hospitals and medical resources even if social distancing, widespread closures and self-quarantine measures successfully flatten the curve of viral infections.

“It is very likely true that the globe, and Texas, is in for wave after wave of new infections until there is an effective treatment, a vaccine and/or greater than approximately 60% of the population survive the epidemic,” the lawsuit continues.

The plaintiffs are represented by lead attorney Chad Dunn of Brazil & Dunn in Austin.

The case has been assigned to U.S. District Judge Fred Biery, a Bill Clinton appointee, in the Western District of Texas.

The Texas secretary of state’s office could not be reached Tuesday for comment.

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