HOUSTON (CN) — The county clerk in Houston can send absentee ballot applications to all registered voters, a Texas judge ruled Friday, rejecting state officials’ claims the clerk is inviting widespread voting fraud.
Harris County District Judge R.K. Sandill held there is nothing in the Texas Election Code barring Harris County Clerk Chris Hollins from disseminating the applications. Both Hollins and Sandill are Democrats.
Texas Attorney General Ken Paxton, a Republican, sued Hollins on Aug. 31 in the county seat Houston after Hollins announced his mailing campaign.
State attorneys, at a hearing Wednesday, told Sandill the Election Code’s clause stating county clerks must mail absentee ballot applications “to each applicant requesting” one means Hollins cannot send them unsolicited to the county’s 2.4 million registered voters. And he would be the first Texas county clerk to carry out such an initiative.
Texas is one of six states in which all voters cannot opt to vote by mail in the November election. Voters over 65 are automatically eligible for such ballots, as are disabled people, those in jail, and those who are out of their home counties during the early-voting period and Election Day.
Noting that voters can print absentee ballot applications on both the Texas secretary of state’s and Harris County clerk’s websites, Sandill wrote the Election Code makes clear the Texas Legislature intended they “be freely disseminated.”
He found the state’s interpretation of the code would “lead to the absurd result that any and every private individual or organization may without limit send unsolicited mail voting applications to registered voters” but county clerks, who have broad authority to manage elections, cannot.
In Wednesday’s hearing, Texas Elections Director Keith Ingram said he had no doubt some voters would mistakenly think they qualify simply because they have received an application from the county clerk and commit a felony by sending them in. State officials believe the Covid-19 pandemic will be used as a vehicle for absentee voting fraud.
Though the Texas Supreme Court recently clarified lack of immunity to Covid-19 does not qualify as a disability, it said if voters had underlying conditions putting them at risk of a life-threatening Covid-19 infection they can vote by mail.
It is up to voters to decide. They simply check a box stating they have a qualifying disability on the application. They do not have to provide any medical records, and election officials are not obligated to vet their health history.
Harris County is taking a broad view of disability, following Centers for Disease Control and Prevention guidance that people with a wide array of medical conditions are susceptible to severe illness from Covid-19.
“These underlying medical conditions include obesity; high blood pressure; smoking; diabetes; asthma; cardiovascular disease; cancer; chronic obstructive pulmonary disease (COPD); and numerous other medical conditions,” the county wrote in a court filing.
The state disagrees that obesity and asthma are qualifying disabilities, Texas Assistant Attorney General Charles Eldred told Judge Sandill in Wednesday’s hearing.
“You can’t just say you are disabled. You have to actually be disabled. And if you are disabled for election purposes but no other purposes I don’t think that’s correct,” he said. “I think that’s a fraudulent statement to make to say I’m disabled on Election Day, but I’m not disabled on any other day.”
Hollins maintains his goal with the mass mailing is to educate voters about their options. He disagrees with the state’s claims he will be walking voters into felonies, because he says the mailers clearly set out who is qualified for absentee voting.
Besides the health concerns, Hollins says, more people voting absentee will cut down on the long lines of voters expected to turn out in November.
From the presidential election at the top of the ticket down to justice of the peace races, Harris County will have the largest ballot in Texas. And people will be in the booth longer because it will be the first year without the option of straight-ticket voting, which the Legislature did away with as of Sept. 1.
The ACLU of Texas and Texas Civil Rights Project filed an amicus brief supporting Hollins on behalf of the League of Women Voters Texas. The league’s president Grace Chimene praised Sandill’s order.
“This is a victory for Harris County voters! During this pandemic, voters must be able to assess their own health circumstances and be able to choose whether to vote in person or by mail,” she said in a statement.
Texas Civil Rights Project attorney Joaquin Gonzalez said Paxton is wasting taxpayer money on a bogus lawsuit whose sole goal is to make it harder to vote.
Hollins agreed to wait until five days after a ruling to send the applications. But a higher court may complicate his plans, as Paxton has already appealed. A lawsuit brought by the Harris County Republican Party aiming to stop Hollins from mailing the applications is also pending before the Texas Supreme Court.
Litigation is roiling the election landscape day by day across the United States as a dizzying stream of orders, many of them involving mail-in voting, alter rules in the run-up to Election Day.
U.S. District Judge Orlando Garcia in San Antonio ruled Tuesday county election officials cannot reject mail-in ballots over mismatched signatures without first contacting the voter and giving them a chance to dispute the rejection.
On Thursday, a Fifth Circuit panel vacated an order that would have allowed any registered Texas voter to qualify for an absentee ballot during the Covid-19 pandemic. The Texas Democratic Party unsuccessfully argued Texas law making all voters over 65 automatically eligible for such ballots, but not younger people, violates the 26th Amendment.
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