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Yet another lawsuit over voting by mail

Turns out there are a lot of obstacles to voting by mail in Texas, and so there are a lot of lawsuits being filed by various plaintiffs to rectify that.

A coalition of voters and civil rights groups opened a new front Monday in the legal wars over mail-in voting in Texas during the new coronavirus pandemic.

Several lawsuits already underway challenge state limits on who can vote by mail, but a lawsuit filed Monday dives into the mechanics of mail-in balloting, arguing that existing rules will deprive voters of their constitutional rights in the middle of a public health crisis. In the federal lawsuit filed in San Antonio, five Texas voters with medical conditions, Voto Latino, the NAACP Texas and the Texas Alliance for Retired Americans argue that four existing rules for absentee voting will place undue burdens on the right to vote, or risk disenfranchising Texans, during the pandemic.

First, they’re challenging a requirement that voters pay postage to return mail-in ballots, arguing that it amounts to a poll tax during a public health crisis. Second, they’re challenging a requirement that sets deadlines for when ballots must be postmarked and received, arguing that the window should be extended. Third, they object to a requirement for matching signatures on the flap of a ballot envelope and the signature used on an application to vote by mail, which they argue discriminates against voters with disabilities whose signatures may change. And fourth, they’re challenging restrictions on the assistance absentee voters can get to return a marked ballot.

Naming Texas Secretary of State Ruth Hughs as the defendant, they’re asking a federal judge to block the state from enforcing the provisions.

“Even if all registered voters are eligible to vote by mail in Texas in the November election, that would not be sufficient to prevent the serious risk of disenfranchisement and threats to public health that will occur if the Vote By Mail Restrictions remain in place in the pandemic,” the plaintiffs, who are backed by the National Redistricting Foundation, wrote in their complaint.

[…]

But the latest challenge brings in voters who already qualify to vote by mail based on their disabilities but who must navigate the provisions for absentee voting in question during the pandemic. Among the plaintiffs is George “Eddie” Morgan, a 63-year-old former nurse in Dallas who has a genetic lung disorder and has been in strict isolation during the coronavirus outbreak in his community.

Morgan receives $19 dollars a week in food stamps and relies on food banks. To obtain postage for a mail-in ballot online to remain in isolation, he would have to purchase an entire book of stamps for $11, according to the lawsuit.

“The Postage Tax’s burden on the right to vote is severe. At best, it requires Texans — millions of whom are vulnerable to severe complications from COVID-19 or have vulnerable loved ones — to pay to vote by mail so that they can avoid exposing themselves to the virus while exercising their right to vote,” the plaintiffs wrote. “At worst, it disenfranchises the millions of Texans who cannot risk exposure to COVID-19 but who also cannot obtain postage to mail their ballots.”

To recap, we have the federal lawsuit filed by the TDP, which has its first hearing this Friday, which argues that the threat of coronavirus qualifies as a disability under the law for anyone who wants to request a mail ballot. We have the federal age discrimination lawsuit, which alleges that the 65-and-over provision for requesting a mail ballot violates the 26th Amendment. We have the state lawsuit, also filed by the TDP on the same grounds, for which a judge has issued an order allowing anyone to request a mail ballot for the July runoff, with a hearing set for later on the merits, which would allow the same for November and beyond. That order is being threatened by Ken Paxton, and the plaintiffs have filed a motion with the Third Court of Appeals to end those shenanigans. Oh, and now a couple of activists have filed a complaint in Dallas County alleging that Paxton’s communication to county election officials constitutes voter fraud on Paxton’s part. I believe that sums it all up.

This lawsuit goes in a slightly different direction. It argues that even if everyone were granted the ability to request a mail ballot today, there would still be problems. In a rational world, with a well-designed election system, of course mail ballots would be postage free for exactly the reasons cited by the plaintiffs, there would be no effort to criminalize helping someone who needs it to fill out their ballot, and signature matching would be done in a fair and efficient manner. We obviously do not live in that world, but maybe we can take a step towards it with this flurry of litigation. At the very least, I hope they’re all losing sleep in the Solicitor General’s office. The Chron has more.

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3 Comments

  1. Re: “We have the state lawsuit, also filed by the TDP on the same grounds, for which a judge has issued an order allowing anyone to request a mail ballot for the July runoff, with a hearing set for later on the merits, which would allow the same for November and beyond. That order is being threatened by Ken Paxton, and the plaintiffs have filed a motion with the Third Court of Appeals to end those shenanigans.”

    AUSTIN VOTE-BY-MAIL CHALLENGE MOVED TO HOUSTON

    Here is what happened:

    State of Texas v. Texas Democratic Party et al, No. 03-20-00251-CV, was transferred from the Third Court of Appeals to the Fourteenth COA in Houston pursuant to Texas Supreme Court order. The new appellate case number is 14-20-00358-CV.

    Amicus briefs/letters have since been submitted by Harris County and Communications Workers of America, AFL-CIO (in addition to an amicus letter by myself).

    The Plaintiffs and aligned Intervenors who won the injunction in favor of expanded mail-in voting in times of COVID-19 pandemic filed an emergency motion in the court of appeals to get a quick appellate ruling, and the AG’s filed a response for the State yesterday (5/11/2020). They are mostly quibbling over whether the trial court order is “superseded” (suspended and unenforceable, and variations on the semantics) while the COA considers the appeal. It’s an arcane hyper-technical argument, but it’s obviously critical to whether or the AG’s threatening letter to the county judges and election administrators misrepresented the legal effect of the State (AG) filing the notice of interlocutory appeal, i.e. whether Judge Sulak’s injunction is currently in effect or not (without the higher court ruling so). That’s what the emergency motion concerns. If the COA accelerates a decision on the merits of the State’s appeal this interim issue should be mooted.

    The substantive issues is basically a statutory construction issue under the Election Code: the distinction between “fear” of the virus, which the AG says is not a qualifying physical condition for voting by mail if under 65 and not otherwise ill (just an emotional response) and the susceptibility to infection in the absence of immunity (which is a physiological fact and therefore a physical condition). Under the latter interpretation, anyone and everyone is eligible to vote by mail regardless of level of fear. The AG says that emotions (such as fear of infection) do not qualify in the absence of actual infection/affliction with the disease.

    Also, the appellate dockets went dark because the Texas appellate court websites were hijacked last week and are still down.

    Hello media!!! This is a big deal …. Where is the Texas Tribune when there is a cyber disaster like this? It’s not like this is just a minor power outage!

    Meanwhile filed documents in pending cases can be located and viewed through re:Search, an adjunct of the Texas eFile system (similar to federal PACER), but that system, unlike Pacer, does not contain all the docket information and the court-issued orders or correspondence.

  2. brad says:

    Wolf,

    I think the TX Tribune is too busy keeping up with the GOP’s anti-American and anti-democracy attempts to supress safe voting in our state. Too me that is a bigger story any day of the week.

    Democracy > IT hack

  3. Wolfgang says:

    Well … this turns out to be a rapidly developing story … and the Tribune should be happy to get more “fodder”.

    The Fourteenth just sent out accelerated briefing schedule. Panel consists of Chief Kem Thompson Frost, Jerry Zimmerer (D) and Meg Poissant (D). Chief Frost was already a leading dissenter (on the statewide tally even) before the Dems arrived, so this could get interesting. No oral argument, via Zoom or otherwise.

    Order filed May 12, 2020.

    In The
    Fourteenth Court of Appeals
    ____________
    NO. 14-20-00358-CV
    ____________
    STATE OF TEXAS, Appellant
    V.
    TEXAS DEMOCRATIC PARTY, GILBERTO HINOJOSA, IN HIS
    CAPACITY AS CHAIRMAN OF THE TEXAS DEMOCRATIC
    PARTY, JOSEPH DANIEL CASCINO AND SHANDA MARIE
    SANSING, Appellees

    On Appeal from the 201st District Court
    Travis County, Texas
    Trial Court Cause No. D-1-GN-20-001610

    ORDER

    The court issues the following revised briefing and submission schedule in
    this interlocutory appeal:

    Appellant State of Texas’s brief was filed on May 11, 2020.
    Appellees’ brief(s) shall be filed on or before June 1, 2020.

    The State’s reply brief, if any, shall be filed on or before June 11, 2020.

    No motions to extend time to file briefs will be entertained. This case shall be
    submitted without oral argument one day after the State’s reply brief (if any) is filed or June 12, 2020, whichever occurs first. See Tex. R. App. P. 38.6 (d) (allowing the court to shorten the time for submission of the case in the interests of justice).

    PER CURIAM

    Panel consists of Chief Justice Frost and Justices Zimmerer and Poissant

    Comment: Looks like the court is now also using the eFile system, what with TAMES being off-line and quarantined, or whatever the proper terminology might be, following what per OCA Chief is a ransom (not virus) attack. The SCOTX meanwhile issues orders via Twitter and Dropbox. Good to have that for Plan B.