HOUSTON (CN) — The clerk of Texas’ biggest county will be walking some voters into a felony if permitted to mail absentee ballot applications to all registered voters, the state’s elections director testified Wednesday.
Harris County Clerk Chris Hollins believes voting by mail is the safest option, especially today with election officials across the country fretting over how to safeguard voters from catching Covid-19 at the polls.
Hollins has taken steps to make in-person voting safe: He said the county, whose seat is Houston, will keep early voting sites open until 10 p.m., have one day of early voting in which the polls stay open for 24 hours and have a record 808 polling places on Election Day.
But the pandemic has thrown a huge wrinkle into the process and intensified the partisan disputes in a state run by Republicans, but whose largest cities are controlled by Democrats.
Due to the uncertainty of what constitutes a disability qualifying Texans to vote by mail, Hollins announced in late August he would be mailing absentee voting applications to all the county’s 2.4 million registered voters.
Texas Attorney General Ken Paxton sued Hollins on Aug. 31, seeking an injunction to stop him from sending out the applications.
At a temporary injunction hearing Wednesday, Texas Elections Director Keith Ingram said voters can print absentee ballot applications off the Texas secretary of state’s website, get them from county clerks, advocacy groups can mail them to voters and people can even hand them out on the street.
The Texas Democratic Party, for instance, said it will mail absentee ballot applications to 1.75 million people age 65 or older, who automatically qualify, for the 2020 election cycle.
Besides disability and age, Texans can vote by mail if they will be out of the county during the early-voting period and Election Day or they are in jail.
Ingram said Hollins’ plan is a first for a Texas county election official and he is acting ultra vires, beyond his authority, because he can only give the applications to people who request them.
The state claims Hollins is violating this section of the Election Code: “The early voting clerk shall mail without charge an appropriate official application form for an early voting ballot to each applicant requesting the clerk to send the applicant an application form.”
Ingram testified he believes some voters will be misled by the application and be disenfranchised because they will apply for an absentee ballot when they are not eligible and others will decide not to vote.
“When something new happens, voters are very concerned it’s fraud, or an opportunity for fraud,” he said. “And when something new happens, it confuses some voters and could potentially turn some of them completely off.”
Worse, Ingram and state attorney Kathleen Hunker said, Hollins could be setting people up for prison time.
“There’s a real risk people will be walked into felonies,” Hunker told Harris County District Judge R.K. Sandill in a four-hour videoconference hearing.
Knowingly providing false information on the application is a “state jail felony” punishable by up to two years in prison and a $10,000 fine.
“We have an obligation to protect Texas voters from abuse by election officials,” Ingram said.
The Texas Supreme Court ruled in May that lack of immunity to Covid-19, or fear of contracting the disease, does not constitute a disability that qualifies people to vote by mail. But it said underlying conditions that increase the risk of complications from Covid-19 could qualify as a disability.
The application only requires voters to check a box indicating they are disabled, not to state the nature of their disability. And election officials are not required to investigate each applicant’s disability.
To qualify for an injunction, Texas must prove Hollins’ mass application mailing would cause the state irreparable harm.
Homing in on that standard, Sandill asked Ingram how many people the state has prosecuted for giving false info on an absentee ballot application.
“I don’t know,” Ingram said. But he said the Texas secretary of state’s office has received referrals about such crimes.
Hollins held up the mailer, which states up top in large red letters, “Do You Qualify to Vote by Mail?”
He said when one opens it up, they don’t even know there is an application in there. It begins with an advisory on who is eligible.
“It would be a very bizarre outcome and highly unlikely that someone would unfold this fully, go to the very bottom and say, ‘I need to fill this out,’ without looking up here,” he said.
Hollins, a Democrat, said the mailers are also designed to help with election management.
He said voters would simply tear off a postcard with their name and voter ID number printed on it, and a barcode that can be scanned to enter their info into the county’s records.
“No need to open envelopes,” he said. “And if you are doing hundreds and thousands of these, opening them and keying in info takes a lot of time and there’s an opportunity for error…These are much easier for our staff to process.”
Harris County’s outside counsel Susan Hays, an administrative law specialist, said Texas is showing a low regard for voters’ intelligence.
“The state is arguing somehow voters are too stupid to understand those instructions,” she said. “Even when there’s big red lettering and an order to please make sure you are eligible before you do this. That they will somehow accidentally commit fraud and they are making it very clear in this hearing they will prosecute.”
She continued, “So where is the harm to the voters coming from? It is manufactured by the attorney general’s office itself.”
Sandill said he would issue an order by 5 p.m. Friday. But he will not have the last word because both sides have vowed to appeal if they lose.
The Harris County Republican Party has also challenged Hollins’ mailing plan as unlawful. That case is before the Texas Supreme Court.