(CN) — Texas county clerks’ authority to manage early voting is limited to things like setting the air conditioning at a comfortable level at polling sites, not mailing unsolicited absentee voting applications, the state argued before the Texas Supreme Court on Wednesday.
Texas Attorney General Ken Paxton, a Republican, sued Harris County Clerk Chris Hollins, a Democrat, on Aug. 31 in the county seat Houston, seeking an injunction to stop him from sending absentee ballot applications to all the county’s registered voters.
Hollins has already mailed them to all Harris County voters 65 and older, all of whom are eligible to vote by mail.
The state claims Hollins is acting beyond his authority because the state Election Code stipulates county clerks can only send applications to people who request them.
Hollins claims the mailer is implicitly allowed in his broad authority to manage and conduct early voting, particularly amid a pandemic, because the fewer voters who vote in person the less chance the virus will be transmitted among the electorate.
Texas Solicitor General Kyle Hawkins on Wednesday told the state Supreme Court, whose eight justices are all Republican, Hollins’ plan is unprecedented.
“If it was necessarily implied in clerks’ powers I think we would have seen this before, and I think that undercuts this case,” he said during the virtual hearing.
Justice Jeffery Boyd asked Hawkins if there is anything county clerks can do to manage early voting not expressly authorized in the statute.
“Of course, Justice Boyd. Let me give some concrete examples,” Hawkins said.
Hawkins said setting the air conditioning in a room at a level at which people could enter and submit early voting ballots is included in a clerk’s power to conduct early voting, as is printing out requested absentee ballot applications and buying stamps for them, though there’s no mention of these actions in the Election Code.
“But our point here is what he seeks to do in this election, to send out unsolicited applications to vote by mail, is a far cry from any of that,” he said.
Hollins cited five statutes he believes gives him authority to do the mass application mailing.
But Hawkins said, “These statutes he cites all involve the word ‘request,’ telling clerks what to do in event they receive a request.”
Harris County’s outside counsel Susan Hays, of Austin, said Hollins had moved the county’s main election office and polling place from a crowded building downtown to the NRG Center, a sprawling complex that hosts the Houston Rodeo each spring, so his staff and voters can socially distance, and these actions are not specifically allowed in the statute.
But Justice Eva Guzman focused on the absentee ballot applications.
“How does mailing out unsolicited voter applications constitute management of early voting?” she asked Hays.
Hays turned back to the pandemic.
“By increasing the ratio of voters who vote by mail, you decrease bodies that come into the polling place,” she said.
She also said because the applications include bar codes specific to each voter they are mailed to, they will be much easier and quicker to process than if they were not personalized.
Hays said Harris County has started printing them, but they have not all been printed.
Texas is one of just five states this election cycle requiring voters to have an excuse to vote by mail. To qualify one must be 65 or older, in jail, out of their home county or have a disability, defined as a “sickness or physical condition” that prevents them going to the polls.
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 it’s up to voters to decide if they have a qualifying disability, not election officials.
Harris County says on its mailer voters can still qualify as disabled if they have a physical condition that puts them at increased risk for severe illness from Covid-19, and includes a link to a Centers for Disease Control and Prevention advisory that lists 20 such conditions, including obesity, smoking, pregnancy and asthma.
Hawkins argued Wednesday the mailer leaves out a crucial point of the Texas Supreme Court’s analysis in its May ruling on whether the pandemic qualifies all Lone Star State voters for absentee voting.
“Which is the likelihood of injuring the voter’s health that comes from in-person voting,” Hawkins said. “The mailer speaks to that not at all, so I think there’s a real possibility the mailer will only lead to confusion.”
The state claims Hollins will be walking some voters into a felony, punishable by up to two years in jail, by making them mistakenly believe they qualify for voting by mail.
The court did not say when it would issue a ruling, but it is expected to rule quickly as Texas absentee ballot applications must be received by Oct. 23.
Mail-in ballots came up in Tuesday’s election debate between Republican President Donald Trump and his Democratic opponent, former Vice President Joe Biden.
Trump again claimed without evidence that fraud has already resulted from states sending unsolicited absentee ballots to all voters.
“There’s fraud. They found them in creeks,” Trump said. “They found some, just happened to have the name Trump just the other day in a wastepaper basket. They are being sent all over the place … This is going to be a fraud like you’ve never seen.”
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