Texas Democrats sought a ruling that the state’s mail-in voting law allows anyone who fears contracting or transmitting the novel coronavirus at the polls to vote by mail this summer.
AUSTIN, Texas (CN) — A state judge signaled Wednesday he will side with the Texas Democratic Party and voters who filed a lawsuit seeking widespread use of mail-in ballots for an election this summer in light of the Covid-19 crisis.
“There is the understandable need for some kind of clarity and some kind of uniformity in order to try to accomplish the ultimate objective of full and fair participation of all eligible voters in all elections in which they choose to vote, and so in that respect I am inclined to grant the temporary injunction,” Travis County Judge Tim Sulak said from the bench at the end of his “virgin effort” at using video conference platform Zoom for the hearing.
Last month, the Texas Democratic Party, its chair and two Austin-area voters sued the Texas Secretary of State and the Travis County clerk over Texas’ mail-in voting law, asking the court to clarify that the law allows Texans who fear contracting or transmitting the novel coronavirus at the polls to apply for a mail-in ballot. The state is holding primary runoff elections on July 14.
Texas’ election code says eligible voters can vote early by mail only if they have a sickness or condition “that prevents the voter from appearing at the polling place on election day.” People who are out of the county during voting days, those older than 65 and inmates who are eligible to vote may also apply for a mail-in ballot.
Voting rights advocates also seek a court injunction that would keep state prosecutors from pursuing voters who apply even though they are not yet sick. Residents who vote by mail but whose applications are later found to be unlawful can be found guilty of a state jail felony.
Texas Democratic Party Chair Gilberto Hinojosa celebrated the apparent victory in a statement Wednesday afternoon.
“Our state is better off when more Texans participate in our democracy. Voting by mail is safe, secure, and accessible. It allows more voters to participate in our democracy, and it’s a commonsense way to run an election, especially during a public health crisis,” Hinojosa said.
Sophia Lin Lakin, deputy director of the American Civil Liberties Union’s Voting Rights Project, said, “The court recognized the gravity of not allowing all eligible voters a mail-in option during the pandemic. It is a common-sense solution to protect democracy and people’s well-being during this public health crisis.”
Expressing his disappointment, Texas Attorney General Ken Paxton said the court “ignored the plain text of the Texas Election Code to allow perfectly healthy voters to take advantage of special protections made available to Texans with actual illness or disabilities.”
“This unlawful expansion of mail-in voting will only serve to undermine the security and integrity of our elections and to facilitate fraud,” he said in a statement. “Fear of contracting Covid-19 does not amount to a sickness or physical condition as required by state law.”
About a dozen attorneys and witnesses connected to a Zoom call to deliver testimony and argue the case before Judge Sulak earlier Wednesday.
Chad Dunn of the Austin firm Brazil & Dunn represented the Texas Democrats in opening arguments.
“We’re obviously in an unprecedented time,” Dunn began. “We … have to reduce the demand on in-person voting, as a matter of practicality and as a matter of public health.”
Joaquin Gonzalez, an attorney representing the intervening plaintiffs — a University of Texas student, three voters’ rights groups and a labor rights organization — also gave opening arguments.
“Our clients, like all voters, should not be forced to choose between physical safety and their right to vote,” Gonzalez said.
Tommy Glen Maxey, the Texas Democratic Party’s director of primary elections and legislative affairs, said on direct examination that retaliation from state prosecutors could suppress the vote.
“The attorney general has been very active in doing cases to make a point that people who misunderstand the law can go to jail for considerable sentencing, as we have seen around the state of Texas,” Maxey testified. “Under the current guidance of the secretary of state, 254 different county clerks are going to make interpretations of the disability statute. … I think this is a total, muddled mess.”
Maxey said many election judges and volunteers in the 42 counties he oversees did not participate in the Democratic primary in February, citing fears of contracting Covid-19.
After a recess, ACLU senior staff attorney Edgar Saldivar questioned Catherine Troisi, an infectious disease epidemiologist at the University of Texas Health Science Center in Houston.
Troisi emphasized the urgency of social distancing for everyone, including people under the age of 65.
“About two out of five people who are hospitalized with this virus, meaning they have a very severe case, are between the ages of 20 and 44,” Troisi said. “The fastest we have ever developed a vaccine was four years.”
She also rejected the idea that the coronavirus will go away in the hot summer months, saying similar viruses “do not show seasonality” and places that currently have warmer temperatures, such as Singapore, have still suffered greatly from Covid-19.
Polls will be a hotspot for the contagion’s spread, Troisi warned. She said election workers will be more vulnerable to infection than voters, as they will be exposed to more people and at their posts for many hours.
By contrast, the virus is unlikely to travel through the mail, Troisi said, citing a study finding the virus lives only for an hour on cardboard.
An attorney for the state, Michael Abrams, cross-examined Troisi and highlighted that election officials have committed to enforcing social distancing at polling locations, but Troisi pushed back.
“If you have a lot of people lined up to vote, that line could go on for blocks and blocks and blocks,” she said. “Not everybody is good at maintaining social distance … Some people are maintaining that 6-feet distance, some people are not.”
Abrams also said some counties have not reported any cases of Covid-19, to which Troisi noted that this does not mean there are no cases of Covid-19, only none diagnosed or reported.
The Texas attorney general’s office intervened in the lawsuit last week, arguing that Texans cannot qualify to early vote by mail “based on an unspecified fear of contracting a disease—whether it be Covid-19 or the seasonal flu.”
On Wednesday, Assistant Attorney General Anne Marie Mackin said the harm anticipated by the plaintiffs may never happen.
“Since it’s undisputed that we don’t know exactly how coronavirus will progress, that the governor has the power to suspend laws where necessary during a state of disaster and has done that,” Mackin said, “this case is unripe because the events plaintiffs anticipate may not occur as expected and indeed might not occur at all.”
She also said an injunction is improper because the election code has not yet been violated.
“A reasonable fear of contracting the coronavirus — that’s a normal reaction to the current situation in which we all find ourselves and it does not by itself amount to a sickness sufficient to meet the definition” of ‘disability’ in the law,” Mackin argued. “To the extent that a fear of contracting Covid-19 without more could be described as a ‘condition,’ it would at most be an emotional condition, and not a physical condition as required by the legislature to vote by mail.”
Dunn, the Texas Democratic Party’s attorney, rebuffed the state’s view.
“Their position essentially is: let’s hope for the best, against all the medical evidence, and if somehow we end up wrong, don’t worry — the governor can write the law for us and tell us how to handle our elections,” he said. “That doesn’t describe a state or nation of laws.”
Harris County, home of Houston, filed an amicus brief in support of the Democrats’ lawsuit.
“As the largest and most diverse county in the state, and currently stricken by the greatest number of Covid-19 cases and deaths, Harris County has an intense interest in this case,” the brief states.
The county also expressed concern that it won’t be able to recruit the 6,000 workers needed for the election.
After the July 14 primary runoff elections, Texans will join the rest of the country in heading to the polls for the nationwide general election on Nov. 3.
The Texas Democratic Party filed a similar lawsuit in San Antonio federal court last Tuesday.