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Another view of the lawsuit over expanded voting by mail

From Ian Millhiser at Vox, who is decidedly more pessimistic about the plaintiffs’ chances. He starts by noting how restrictive Texas’ existing vote-by-mail law is.

The law only allows Texas voters to obtain an absentee ballot under a very limited list of circumstances. Voters may obtain an absentee ballot if they plan to be absent from their home county on Election Day, if they have a “sickness or physical condition” that prevents them from voting in person, if they are over the age of 65, or if they are jailed.

It is far from clear that a healthy person who remains at home to avoid contracting coronavirus may obtain an absentee ballot.

Texas Democratic Party v. Hughs, a lawsuit filed by the state Democratic Party, seeks to fix this law — or, at least, to interpret the law in a way that will ensure healthy people can still vote. But the lawsuit potentially faces an uphill battle in a state court system dominated by conservative judges.

All nine members of the state Supreme Court are Republicans, and Republican Attorney General Ken Paxton filed a motion seeking to intervene in the lawsuit — a sign that he intends to resist efforts to prevent this law from disenfranchising voters.

The stakes in this case are astoundingly high. As Texas Democrats note in their complaint, voters are “now heavily discouraged” from even leaving their homes “by various government orders and are being discouraged in an enormous public education campaign.”

Even if the pandemic were to end by July 14, when the state plans to hold several runoff elections, “certain populations will feel the need and/or be required to continue social distancing.” Millions of voters could potentially be forced to choose between losing their right to vote and risking contracting a deadly disease.

[…]

Whether these Texans can get an absentee ballot could end up depending on how the courts interpret the phrase “physical condition.”

On the one hand, the law explicitly labels this provision as an accommodation for people who have a “disability.” The words “physical condition” also appear in conjunction with the word “sickness,” which implies that those words should be interpreted to refer to some sort of disabling condition that only a subset of Texans possess. Often, when a law uses a general term in the context of other, more specific terms, courts will assume that the general term should be given a narrow reading — one similar to the specific terms.

On the other hand, the literal meaning of the words “physical condition” is much more expansive. As a team of civil rights lawyers, including several from the ACLU, argue in a motion suggesting that the state law should be read expansively, “everyone has a physical condition” that prevents them from appearing at their polling place during a pandemic — the physical condition of being susceptible to coronavirus.

Either one of these interpretations of the Texas law is plausible, and a judge could reach either conclusion using methods of statutory interpretation that are widely accepted as legitimate. One judge might argue that the words “physical condition” should be read expansively, because that is the ordinary meaning of those words. Another might argue that they must be read in context with words like “sickness.”

The problem facing the Texas Democratic Party is that, when a fair judge acting in good faith could legitimately read a law in two different ways, it is very easy for a partisan judge to choose the interpretation they prefer. And every one of the nine justices on the Texas Supreme Court is a Republican.

Because older voters tend to prefer the GOP, the Texas Republican Party has a clear interest in preserving a legal regime that allows voters over 65 to obtain an absentee ballot but makes it much harder for younger voters to do so.

That said, if Democrats lose this particular lawsuit, that does not necessarily mean millions of Texans will lose their right to vote. It’s possible a federal court could rescue Texas voters in a separate lawsuit — one that most likely has not even been filed yet — holding that the unique burden the coronavirus pandemic imposes on voters renders Texas’s strict absentee ballot law unconstitutional.

This was written before the TDP filed its federal lawsuit, so bear that in mind as you read. I appreciate the analysis, which is the first in-depth look at the crux of the issue that I’ve seen. It’s a little crazy that it all hangs on the interpretation of two words, but here we are. I agree that in normal times one could reasonably interpret this either way, but if there’s ever a time for a bit of leeway, this is it. It’s not terribly surprising to me that the AG’s office has petitioned to intervene in the case – this is standard procedure for when the state gets sued, though the SOS does have its own attorneys. I’m more keen to know what if anything Greg Abbott thinks – if there’s going to be some influence on the court, it’ll come from him. There are definitely plenty of Republican elected officials who are in denial about the situation, and that could lead to pressure on Abbott to take a line-in-the-sand stance. Hasn’t happened yet, but that doesn’t mean it can’t or it won’t.

It’s also possible that the delayed July 14 primary runoffs will go off without any problems and in-person voting is fine, thus leading to a sense of complacency for November. Or maybe things will still be bad, or at least bad in the more-Republican rural areas, and that might make some people more aware of the fact that everyone has something to lose if we don’t plan better. That recent SOS advisory leaves me with some hope for a settlement in the existing litigation. The real tell will be if and when the usual agitators on the right start whipping up a frenzy. Remember also that the Republicans are busy trying to register voters this year – they have a stake in getting whatever new voters they sign up to the polls, too. Like I said, I have hope for a settlement, but it’s too early to tell which way the wind will blow.

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2 Comments

  1. Manny says:

    We may not have a post office to deliver mail by November, but then I think all those people that live in fly over country are the ones that will have to pay dearly for private delivery. There is always a silver lining.

    When the Democrats take over Texas they have to play by the same rules as the Republicans. Fine a number where it will place the least number of polling places in rural areas. Could be done using population as a criteria, i.e. one polling place for every 10,000 people. That would mean maybe one polling place in two or three fly over counties.

  2. […] a vacuum, I think people of good faith could reasonably differ on the interpretation of our vaguely-worded state law, and one could make a principled argument that it’s the role […]