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Supreme Court sticks its nose in

I suppose this was to be expected.

The Texas Supreme Court on Friday temporarily put on hold an expansion of voting by mail during the coronavirus pandemic.

Siding with Attorney General Ken Paxton, the Supreme Court blocked a state appeals court decision that allowed voters who lack immunity to the virus to qualify for absentee ballots by citing a disability. That appellate decision upheld a lower court’s order that would have allowed more people to qualify to vote by mail. The state’s Supreme Court has not weighed the merits of the case.

It’s the latest in an ongoing legal squabble that in the last three days has resulted in daily changes to who can qualify for a ballot they can fill out at home and mail in.

Federal and state courts are considering legal challenges to the state’s rules for voting by mail as Democrats and voting rights groups ask courts to clarify whether lack of immunity to the coronavirus is a valid reason for people to request absentee ballots. A resolution to that question is gaining more urgency every day as the state approaches the July primary runoff elections.


The court also set oral arguments for May 20 on Paxton’s request for it to weigh in on whether the appeals court erred and abused its discretion when it allowed Sulak’s order to go into effect.

See here and here for the background. I just want to remind everyone, early voting for the July primary runoffs begins on June 29, and mail ballots are already being sent to voters who requested them. People are going to have to start making decisions about how they’re going to vote. And whatever the state courts ultimately say, there are those federal lawsuits out there as well. This is going to be a whirlwind of uncertainty for some time. The Chron has more.

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  1. Jeff N. says:

    I have questions. I’m planning to vote by mail because I have a chronic illness that increases my vulnerability to COVID-19. I’m considered to have a disability under the Americans with Disabilities Act. I’m younger than 65 so I checked the box for disability on my VBM application. What does this stay by the Supreme Court mean for me? Who’s to say I shouldn’t vote by mail? Who’s to say the county clerk shouldn’t accept my application or count my ballot? Where is this headed? Is Paxton going to argue my vote shouldn’t count? Very disturbing.

  2. Jeff, my read is that Paxton has two goals. One is to stop counties like Harris (and other entities) from actively telling voters they can apply for a mail ballot under the disability provision. This is consistent with their argument that being vulnerable to COVID-19 due to comorbidities or other health factors is not a disability under Texas law.

    That doesn’t mean Paxton can stop you from applying for a mail ballot under that provision. As noted, counties have no way of verifying your status, and are under no obligation to try. It does lead to the second goal, which is the ability for Paxton to pursue charges against those who he deems in violation of the law as he interprets it. Whether that means he would mostly go after election officials or political actors who are pushing vote by mail, or if he would single out a few individual voters like yourself, is an open question. Some of both would be my guess. I have no doubt that if he is given this power he will use it, to “make an example” of whoever he can and send a clear message to everyone to not apply for a mail ballot unless you’re over 65 or are clearly “disabled” by the more narrow reading of the law.

    I think we can also be assured there will be a fight over this in the 2021 Lege, regardless of the outcome of the various lawsuits. That’s not a direct goal of Paxton’s, but it’s in line with the broader Republican agenda.

  3. Jeff (and now, Kuff):

    I think I could offer an educated opinion/answers on these questions of great public importance as well (and previously submitted an amicus letter brief), but Ken Paxton has threatened to come after “third parties” like moi in addition to local election officials who don’t toe the line. Being in lockstep here means following the Paxton’s interpretation (construction) of the “disability” under the Texas Election Code, rather than Judge Sulak’s, who order is – as of now – the only citable legal authority—binding or otherwise– on the subject of mail-in voting in times of the novel COVID-19 pandemic in Texas. You would think that a judge’s order would carry more legal weight than the AG’s, who is not sworn to impartiality and is an officer in the political branch. But hey, this is Texas anno 2020, and the excutive branch now dictates to the judiciary, at least the lower judiciary.

    I am a PhD (political science UH 1992), however, and not a licensed JD, so Paxton might instigate a prosecution under the UPL statute, in addition to prosecuting me for “misleading” voters and thereby committing an election crime. That said, it may not matter if I don’t survive the pandemic.

    So here is my non-legal but actionable political advice:

    You should consult with an attorney with subject matter expertise on the plaintiffs/voters’ side of this voting-rights issue and become the lead (or additional) plaintiff in the next declaratory judgment action. Consider forming an informal association of concerned denizens because you are not the only one affected by this. Proceeding in consort with others generally has advantages over acting alone, though you must be able to demonstrate standing to make your case individually.

    Vote Suppression by the Captured State

    At least until recently, the promotion of civic engagement – including voter registration and turnout – was protected by the First Amendment. I actually wrote my dissertation on Electoral Participation, and some time ago also co-authored a report on Youth Voter Participation by an international organization. The underlying normative premise was that having an engaged citizenry is a good thing, and that high turnout in election was a worthy goal, indeed a measure of the health of democracy.

    Alas, that’s been put in question in Texas. The least we can do is to stand up against the destruction of the rule of the people by the group that has captured the State and has proceeded to eliminate all checks on its power. (Note that the AG argues the STATE’S vital interests in enforcing the Election Code the way Paxton would have it, as opposed to the ELECTORATE’s interest in choosing those who should serve them. Paxton’s petition has two footnotes to newspaper articles to “support” his claim of a dire threat to the integrity of elections if more ballots are cast by mail.

    The facts on the ground have changed

    As Chief Justice Frost of the 14th COA pointed out in her dissenting opinion (the SCOTX has since sided with her), Paxton’s May 1, 2020 letter (the one in which defies the district judge and threatens criminal prosecution) came AFTER the entry of the Sulak order, which is relevant because the appeal must be resolved based on the evidence before the trial court at the time (if the entire case is not nixed for lack of jurisdiction, which the AG is alternatively trying to do).

    The Sulak order didn’t create any confusion, it merely clarified applicability of the Texas Election Code to voters at risk of catching COVID-19 at the polling places, a novel scenario that the legislature couldn’t have anticipated with particularity when it wrote the statute, but nevertheless covered with the generic provision regarding “disability” and threat to a voter’s health. It was Paxton who subsequently created confusion by issuing contrary “guidance”, an act the Sulak order expressly prohibited (“enjoined”) to prevent confusion.

    So, now we have grounds to seek a declaratory judgment to end the confusion created by the AG in a district court of competent jurisdiction. The AG will then promptly go to the SCOTX again, of course, but some of the problems with the record and evidence in the Travis County suit can be addressed at the time the local district court hears the TRO and/or application for temporary injunction. And a federal constitutional claim can perhaps be thrown in, so the AG-beholden SCOTX does not have the last word (if the AG does not remove to federal court). Winning in the SCOTUS may be a long shot, but we must put forth our best efforts to preserve the rule of the people and not be bullied into surrender.

  4. Bill Daniels says:

    Kuff’s assessment of the situation here is exactly spot on, motivations, potential enforcement actions from Paxton, all of it.

    Jeff N.,

    I have questions. How are you actually living your life and supporting yourself right now? Are you living as a virtual shut in, having your basic necessities like groceries and meds delivered to you? Are there any activities that you do that involve you leaving your residence and being around others, including working? Finally, how long do you plan on restricting your outside activities, and how does all this differ from your response to the swine flu 10 years ago?

    Serious questions, not picking at all.

  5. Jeff N. says:

    Thanks, Charles and Wolfgang. We are on a path toward prosecution of voters for declaring themselves disabled and that is disturbing. I agree with Judge Sulak’s reasoning. We should follow the science and the medicine in defining disability, as courts traditionally have done. Whether I have a disability shouldn’t be a purely political decision made by a partisan like Paxton. I shouldn’t have to pay a poll tax with my health to vote.

  6. Jeff N. says:

    Bill, I’m working at home, usually 10 hours a day plus weekends. Everyone in my office is doing the same. I’m not a shut-in. I exercise, take walks in the neighborhood, and enjoy cooking outside on a charcoal grill. Last weekend we drove to Austin to visit our daughter. Not a shut-in at all.

    But I’m vulnerable to COVID-19 because I’ve had type 1 diabetes since childhood. I wear an insulin pump and continuous glucose monitor to manage my disease. I pay thousands of dollars out of pocket for this level of care.

    People with diabetes are designated as vulnerable people by the CDC who should avoid crowds. (A study released yesterday says that 26% of the people who have died in the UK from COVID-19 had diabetes.) So we cook at home and have groceries delivered.

    I’ve taken very good care of myself for many years so I can have as normal a life as possible. I’ve raised a family and put my kids through college. I grew up in a working class family and paid for most of my own education.

    I’ve invested in my own health and am appalled by those who whine about wearing a mask to protect others because “freedom.” I’m appalled by elected officials who are pressuring me to expose myself to disease because of politics.

    I will vote by hook or by crook, but I won’t be voting for the crooks who have failed to develop plans that should already be in place to follow the science, not the politics.

    Swine flu never became a pandemic In Houston but we were careful then. I’ll live like this until I’m confident it’s safe to change this routine. that decision will be based on my doctor’s advice, public health authorities’ advice, and my common sense.

  7. Jules says:

    Thanks for sharing, Jeff, really highlights that people’s health is none of Paxton’s, any county clerk’s, and certainly none of Bill’s business.

  8. Bill Daniels says:

    Jeff, thanks. One of my neighbors has the same set up, it’s a pretty neat delivery system, and, while the neighbor isn’t doing anything like that in the way of virus precautions, I respect you making the personal decisions you feel are right for you and your family. We all have a different tolerance for risk.

  9. Jeff N. says:

    Bill, I may be older than your neighbor. I’m in my early 60s and I’m following my endocrinologist’s advice on this. I have nothing left to prove to anyone regarding my ability to take care of myself and others. I’m fortunate in so many ways, especially to share my life with a partner who is supportive and loving. I appreciate that you understand I may have different risk factors than your friend. All of us are different and each of us is the best judge of our own risk. There are a spectrum of sicknesses and disabilities that cause us to stay away from crowds. I hope our government will recognize that each of us should have the freedom to choose for ourselves.

  10. Joel says:

    Thanks for the clarification(s), Wolfgang. My dissertation was on how electoral democracy is not democratic. Looks like we were both right, although I bet mine was shorter. ;O)

    Thanks also to Jeff for the perspective. One of my kids has Type I, and both are immunocompromised. So I have been acting like I am at-risk. Which means I am paying very close attention as this vote by mail thing unfolds.

  11. Jeff N. says:

    Joel, you sound like a very good dad. Best wishes to you and your kids. I’ve had type 1 since 1973 and it hasn’t held me back—I wish the same happiness to you all.

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