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Intervening in the mail ballot expansion lawsuit

From the inbox:

The ACLU of Texas, American Civil Liberties Union, and Texas Civil Rights Project on Wednesday joined a case seeking to declare that under Texas law all registered voters qualify to request a mail-in ballot as a result of the COVID-19 public health crisis.

The lawsuit states that in order to prevent wide-scale disenfranchisement during this public health crisis, the court should declare that the Texas Election Code’s definition of “disability” in the vote-by-mail provision – one of the basis of eligibility to vote-by-mail in Texas – currently encompasses all registered voters. The suit further states that the court should order that all mail-in ballots received by eligible voters under this category due to the pandemic be accepted and tabulated.

Because of the current COVID-19 public health crisis and the need to be confined at home, all individuals cannot physically appear at a polling place on Election Day without a risk to their health. Texas has 3,997 confirmed cases as of today. The latest guidance from the Trump administration advises against gatherings of more than 10 people, and many Texas counties have ordered restaurants and bars closed.

“Public safety must be prioritized during the coronavirus pandemic,” said Edgar Saldivar, senior staff attorney for the ACLU of Texas. “If we don’t address how COVID-19 will affect our access to the ballot, people will find themselves balancing their civic duty to vote and their need to stay healthy. Clarifying that all Texans may vote-by-mail during this crisis under current state law is unquestionably the most effective and immediate way to ensure we protect both public safety and voting rights. Our state leaders must act fast so we can educate the public about how they can safely exercise their right to vote.”

The civil rights organizations are asking for the court’s declaration that the vote-by-mail provision applies to all Texans in light of the pandemic to allow for public education and planning to process an increase of mail ballots.

“Texans should not be asked to choose between their physical well-being and their fundamental right to vote, when we already have an election code that can accommodate a public health emergency,” said Joaquin Gonzalez, lead attorney on the case in the Voting Rights Program at Texas Civil Rights Project. “The secretary of state has been shockingly silent when our clients have been seeking her leadership and guidance the most. I know we’re in isolation, but you can send an email.”

“States all across the country are making vote by mail available because they know it is a common-sense solution to protect democracy and people’s well-being during this public health crisis,” said Sophia Lin Lakin, deputy director of the ACLU’s Voting Rights Project, citing states such as West Virginia, Indiana, Delaware, and Virginia, among others. “In failing to issue guidance making clear that all Texans are eligible to vote by mail due to the COVID-19 outbreak, Texas is forcing a false choice between protecting public health and allowing Texans to exercise their right to vote. Vote-by-mail for all eligible voters allows for both. Texas can and should make this common-sense solution explicit.”

The plaintiffs in this filing include the League of Women Voters of Texas, MOVE Texas, League of Women Voters of Austin Area, Workers Defense Action Fund, and University of Texas student Zach Price.

A copy of the motion to intervene is available here.

See here for the background. Again, the arguments are straightforward and have been discussed before. It’s mostly a question of how the state will oppose them, and what the courts do from there. As the Chron editorial board notes, the Secretary of State could simply agree to the plaintiffs’ demands and be done with it, but I think we both know that Abbott and Paxton won’t let that happen. We’re going to need a ruling soon for this to matter for the primary runoffs. The Texas Signal has more.

UPDATE: And as soon as I finished drafting this, I got the following in my mailbox:

On Wednesday, Texas Secretary of State Ruth Hughs’s office responded to Progress Texas’ petition calling on Texas to implement universal vote-by-mail. So far, the petition has received roughly 3,000 signatures from voters across the state.

In the response, the Secretary of State’s office hinted at the possibility that Texans who are concerned for their health may meet the disability requirements currently in place to apply for a ballot by mail. However, the vague response is open to interpretation and requires clarity in the form of an official proclamation or agreed court order from Secretary of State Ruth Hughs or Governor Greg Abbott.

“Right now, no voter we know of has immunity to COVID-19, and physical polling places could risk exposure and cause injury by way of sickness,” said Ed Espinoza, executive director of Progress Texas. “We have to make our upcoming elections as safe as possible. We believe that election law provides a remedy for all voters to vote-by-mail, but we need clarity from the state. Texas already allows no-excuse vote-by-mail for voters aged 65 and up, and we need our statewide lawmakers to step up and expand the benefit to everyone.”

“Being terrified of catching a virus that’s killing hundreds of thousands of people should obviously qualify as a legitimate reason for Texans to want to vote by mail, but we need an advisory from Secretary Hughes to make that official,” said Anthony Gutierrez, executive director at Common Cause Texas. “This email communication seems to indicate the Secretary of State agrees with our position, but this needs to be explicitly stated.”

Secretary of State Ruth Hughs office’s response states:

“One of the grounds for voting by mail is disability. The Election Code defines ‘disability’ to include ‘a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health.’ (Sec. 82.002). If a voter believes they meet this definition, they can submit an application for ballot by mail.

“As the situation changes, we will be updating our guidance. We hope this information has been helpful.”

Progress Texas and Common Cause Texas call on Secretary Hughs and Gov. Abbott to act in the interest of Texans’ health, safety, and voting rights to officially expand vote-by-mail universally through an official proclamation or agreed court order as soon as possible.

We all agree on what the law says. What matters is what it means. If, as we have previously discussed, the state agrees that anyone can claim the disability allowance, then great! We’re done here. If not – and clearly, I think they won’t, though I’ll be happy to be proven wrong – that’s where we need the court to step in and issue a ruling. The clock is ticking.

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One Comment

  1. Joel says:

    with the sec. of state saying this:

    “If a voter believes they meet this definition, they can submit an application for ballot by mail.”

    i would DROP the lawsuits and just start requesting ballots en masse. pursuing the lawsuit only risks them tightening up their position.

    i am going to start telling everyone i know to request a mail in ballot. starting with my high school senior students.