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Ruth Hughs

Update on that other vote by mail lawsuit

From Daily Kos:

A federal judge has rejected Republican Secretary of State Ruth Hughs’ motion to dismiss a case brought by several Texas voters and civil rights organizations seeking to expand access to absentee voting for the November general election.

Plaintiffs are asking the court to order the state to prepay the cost of postage; require officials to count ballots postmarked by Election Day and received within a few days afterward (currently, they must be received by the day after the election); prevent the state from using arbitrary standards to reject absentee ballots for allegedly non-matching signatures without giving voters a chance to fix any problems; and allow third parties to collect and turn in completed absentee ballots.

Based on a schedule the judge previously set out, a ruling on plaintiffs’ requests is not likely until after Labor Day.

See here for the background. This lawsuit, unlike the TDP lawsuit that is awaiting action from the Fifth Circuit or the age discrimination lawsuit, which is also on hold pending action with the first lawsuit (info per the DKos Elections Litigation Tracker), is not about who is allowed to vote by mail. It is about the barriers that exist for those who are eligible to vote by mail. Here’s a summary of the plaintiffs’ claims, from the court ruling (the first link in my excerpt above):

First, Plaintiffs challenge Section 86.002 of the Texas Election Code’s failure to provide prepaid postage for mail-in voters. Id.; Tex. Elec. Code § 86.002 (“Postage Tax”). Second, Plaintiffs challenge the requirement mail-in ballots be postmarked by 7:00 p.m. on election day and then received by the county no later than 5:00 p.m. on the day after the election in order to be counted. See Tex. Elec. Code § 86.007 (“Ballot Receipt Deadline”). Third, Plaintiffs challenge the requirement that voters must submit two signature samples that “match,” according to local election officials, in order to have their early voting ballots counted. Id. § 87.027 (“Signature Match Requirement”). Fourth, Plaintiffs challenge the criminalization of a person assisting a voter in returning a marked mail ballot. Id. § 86.006 (“Voter Assistance Ban”).

The effect of this lawsuit, if the plaintiffs prevail, would be to make it easier for the people who can vote by mail to do so, and would likely reduce the number of ballots rejected for not having a legally accepted signature. That would be fairly small in the aggregate, but it would be quite meaningful for some number of people. The defense had also filed a motion opposing an expedited schedule, which the judge (Orlando Garcia, whom you may recall from previous redistricting cases) also rejected. The last filing in that schedule is for September 4, so perhaps we’ll get a ruling not too long after that. I have also read somewhere – it may have been on Daily Kos, I just don’t remember – that the Fifth Circuit is going to expedite the appeals hearing for the TDP vote by mail case, so who knows, maybe we will get some clarity before November. Doesn’t mean it will be good clarity, but it ought to be something.

Another lawsuit filed over mobile voting locations

Don’t know that there’s enough time for this to be heard, but it’s a good idea.

Mi Familia Vota, the Texas NAACP and two Texas voters this week filed a suit against the state over its election policies, alleging they discriminate against minority voters who are disproportionately hurt by the pandemic.

The suit, filed Thursday in San Antonio federal court, alleges that the state’s “insufficient” number of polling places and “limited and inaccessible” early voting locations will result in unsafe voting conditions and voter suppression.

“Texas proposes to rely on election policies that, during the pandemic, will create inordinate burdens on the right to vote,” the suit states. “The burden will be particularly high for Black and Latino voters. Without the relief this lawsuit requests, voters’ exercise of the franchise will be compromised.”

The wide-ranging suit seeks a court order to suspend the Texas law that limits mobile early voting sites, to force the state to extend the duration of early voting and allow the opening of additional polling places in counties where lines typically exceed 20 minutes.

There’s some additional detail in the Trib.

Abbott and Texas Secretary of State Ruth Hughs are named as defendants, but the suit targets some decisions that are ultimately up to local officials. The long list of changes the plaintiffs are seeking includes a month of early voting, an across-the-board mask mandate for anyone at a polling place and a suspension of rules that limit who can vote curbside without entering a polling place.

The plaintiffs also want to overturn a relatively new statewide election law that ended the long-established practice of setting up temporary or mobile early voting sites that could be moved around during the early voting period to reach as many voters as possible near where they live, work or go to school. They are asking the court to allow counties a temporary reprieve from that 2019 law, which is the target of a separate lawsuit filed last year.

To “ensure that polling sites are safe and of low risk to the health of all registered voters,” the suit also seeks that the state be ordered to open additional polling places and provide enough voting booths and workers to keep waits to less than 20 minutes.

(Polling places for general elections are ultimately designated by county commissioners courts.)

[…]

Without offering details, Abbott has previously indicated he will be ordering an expansion to the typical two-week early voting period for November. Extended early balloting has been one of the main ways in which state Republican leaders, who have vehemently opposed an expansion in voting by mail, have modified election processes during the pandemic.

I’m aware of two previous lawsuits filed over HB1888 from the last legislative session, which basically required that any early voting location had to be in operation for the entirity of early voting, so no more one-day popup locations on a college campus or at a senior center or whatever. That will have the effect of reducing voting locations, since the whole reason these had been temporary before was that there wasn’t enough money and/or poll workers for them to operate the whole time. Anyway, the TDP, DCCC, and DSCC filed one suit, and the Texas Young Democrats and Texas College Democrats filed the other, both last November. Both stories only referenced the TDP/DCCC/DSCC lawsuit, which maybe is an oversight and maybe means the second suit got tossed or joined with the first one. Far as I know, there’s been no court action on either of them, so I can’t say I expect a result from this one. But it can’t hurt to try.

Voter, sanitize thyself

WTF?

With voting in the primary runoff election starting next month in the middle of the coronavirus pandemic, the Texas secretary of state on Tuesday issued “minimum recommended health protocols” for elections, including a suggestion that voters bring their own hand sanitizer to the polls and that they “may want to consider” voting curbside if they have symptoms of COVID-19.

In an eight-page document, Secretary of State Ruth Hughs laid out checklists for voters and election workers that range from self-screening for symptoms to increased sanitation of voting equipment — none of which are binding and many of which were already being considered by local election officials planning for the first statewide election during the coronavirus pandemic.

In its recommendations, the state said voters should consider wearing cloth face masks, bringing their own marking devices — like pencils with erasers or styluses — and using curbside voting if they have a cough, fever, shortness of breath or other symptoms associated with COVID-19, the disease caused by the new coronavirus. Voters in Texas have long had the option of having a ballot brought to them outside their polling place if “a voter is physically unable to enter the polling place without personal assistance or likelihood of injuring the voter’s health.”

The state instructed local election officials to place markings on the floor to facilitate social distancing and to keep at least 6 feet between voting stations. Election officials should also consider having all employees wear masks, the secretary of state said.

The recommendations are meant to serve as a baseline, and county officials can adopt additional protocols. Early voting for the July primary runoff starts June 29.

Man, this is weak. The main takeaway here is that the state of Texas really, really doesn’t want to do anything to make it safer or easier for anyone to vote. Let’s put aside the hotly-contested question about allowing more voting by mail and consider two fairly simple alternatives the state could do in this regard. One, the state could pay for the extra supplies that voters or county officials if they are willing and able are being encouraged to provide for themselves. A few million bucks from Greg Abbott’s discretionary fund would go a long way towards buying hand sanitizer, pencils, masks and gloves for poll workers, and so forth, not just for the July election but for November as well. Additionally, and speaking of November, Abbott could use his emergency powers – or call a special session if this would be too legally questionable – to extend the early voting period for November to four weeks. That would do a lot to address concerns about long lines and crowds of people crammed inside polling places waiting their turn. He extended the early voting period for July to address this, which I do appreciate. But no, we get this limp mixture of “you might wanna bring some Purell with you, and oh yeah, mark some spots on the floor”. Are you kidding me?

Republican voters should be unhappy about this inability to engage with the actual issue, too. This isn’t hard. And surely I’m not the only one looking at that recommendation to voters that they spend their own money to provide their own risk mitigation and thinking that telling voters there’s a cost to voting they have to pay amounts to a poll tax. If there isn’t a lawsuit filed over this, I’ll be quite surprised. I don’t know what it’s going to take to get the state to take this seriously.

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.

TDP gets initial win in vote by mail lawsuit

It’s a good start, but we’ve got a long way to go.

A state district judge on Wednesday said he will move forward with an order easing restrictions for voting by mail in Texas in light of the new coronavirus pandemic.

After conducting a video conference hearing in a lawsuit filed by state Democrats and civic organizations, Judge Tim Sulak told the attorneys he will issue a temporary injunction allowing all voters fearful of contracting coronavirus if they vote in person to ask for a mail-in ballot under a portion of the Texas election code allowing absentee ballots for voters who cite a disability. His ruling, which is almost certain to be appealed by the state, could greatly expand the number of voters casting ballots by mail in the upcoming July primary runoff elections.

[…]

During the hearing, those plaintiffs offered up two expert witnesses — a local doctor and an epidemiologist — who testified to the risks for transmitting the virus that would come with in-person voting. Meanwhile, the risks tied to mail ballots are “negligible,” said Catherine Troisi, an epidemiologist with the University of Texas Health Science Center at Houston School of Public Health.

The Texas attorney general’s office, which intervened in the case, argued against the expansion, claiming the vote-by-mail disability qualifications apply to voters who already have a “sickness or physical condition” and not those who fear contracting a disease “whether it be COVID-19 or the seasonal flu.”

Just as the hearing was wrapping up, Texas attorney general Ken Paxton made public an “informal letter of advice” that further teed up what is expected to be a drawn out court battle over expanding voting by mail ahead of the runoffs and the November election.

Paxton stated that an individual’s sole fear of contracting the virus was not enough to meet the definition of disability to qualify for a mail ballot, and that those who advise voters to apply for a mail ballot based on that fear could be criminally prosecuted.

See here and here for the background; there is also a federal lawsuit over the same issues, for which I don’t know the status. The Chron adds some more detail.

State law currently allows voters to claim “disability” and apply for an absentee ballot if showing up at a polling place risks “injuring the voter’s health.”

“Mail ballots based on disability are specifically reserved for those who are physically ill and cannot vote in-person as a result,” Paxton wrote in a letter on Wednesday. “Fear of contracting COVID-19 does not amount to a sickness or physical condition as required by the Legislature … The integrity of our democratic election process must be maintained, and law established by our Legislature must be followed consistently.”

The state’s elections director earlier this month issued guidance to elections officials in all 254 counties pointing to the election code’s disability clause, which voting rights advocates had claimed as a victory.

Attorneys for the Democratic Party argued in court on Wednesday that the disability clause “plainly provided for circumstances such as this when public health makes it dangerous to vote in person.”

But they said the courts need to make that clear as county officials are currently wrestling with how to conduct the upcoming runoff elections in July, when voters will pick a Democrat to challenge U.S. Sen. John Cornyn.

“This is a total muddled mess,” said Glen Maxey, the Texas Democratic Party’s primary director, who administers elections in dozens of counties, as he testified about the guidance during a court hearing on Wednesday. “We’re going to have a mishmash of who can vote and who cannot vote by mail in this election.”

But Anna Mackin, an assistant attorney general, argued that the law clearly does not cover those afraid of COVID-19 and urged state District Judge Tim Sulak “not to allow this global crisis to be manipulated as a basis for rewriting a provision of the election code.”

Yes, Paxton’s “letter” does indeed seem to fly in the face of that SOS advisory. Is that a lack of communication between branches, or a real difference of opinion? Hard to say. Bear in mind, there’s nothing in state law that allows the Governor to order the cessation of abortions in the state. AG Ken Paxton interpreted the Abbott emergency order that initiated a shutdown of non-essential businesses and services to include abortion providers, which the exigent circumstances allowed. Here, however, he’s arguing that these same exigent circumstances do not allow for an interpretation of the state’s absentee ballot law that includes voting by mail for people who claim under that law that they are unable to vote in person. It’s not that these interpretations are indefensible, but the two of them together sure suggest a strictly partisan motive. (Add in the ruling that gun shops do count as “essential” for some extra zest.)

In 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 of the Legislature to make such a significant change in how it should be read and enforced. But Ken Paxton is not making a good faith argument, he’s simply doing what he always does, advancing his partisan interests over anything else. He certainly may win, in both venues. Let’s just be clear about what he’s doing. The TDP (a plaintiff in the case), the ACLU of Texas (an intervenor), and the Texas Signal have more.

UPDATE: More from Texas Lawyer:

The dispute—which asks whether all Texans should be able to vote by mail because of social distancing restrictions and the risk of contracting the coronavirus—was headed to a higher court. Acknowledging that, Judge Tim Sulak of the 353rd District Court ruled from the bench that he would grant a temporary injunction, and reject jurisdictional arguments by the state of Texas.
The judge will issue a written order once it’s prepared.

Sulak said that if voters didn’t get clarity on whether the Texas vote-by-mail law applied to them, they might face a choice of having to vote in person, and accept the risk of getting sick. Or they could try to apply for a mail-in ballot. However, if the government later found their mail-in ballot inappropriate, voters could face prosecution, or find that their ballot was not counted, the judge said.

Also, if Sulak didn’t grant relief, he said there was a risk of future conflicts involving candidates filing election contests to challenge the voting results.

“Some of that could lead to the unstable, unsettled, uncertain situation about: Who are our elected representatives,” Sulak said. “Especially now that we are in this disaster scenario, where we don’t have courts running as efficiently as they have previously, it could result in some very serious governance issues, very serious jurisprudential issues.”

[…]

The plaintiffs sought a temporary injunction, and eventually a permanent injunction, that would require the defendants to accept and tabulate mail-in ballots from voters who are practicing social distancing to stop the spread of the virus.

On the other hand, the state of Texas, which intervened as a defendant, argued that the court didn’t have jurisdiction. The state claimed that a voter wouldn’t qualify to vote by mail just from having a fear of contracting the coronavirus. Also, the claim wasn’t ripe, since no one knows if the contagion will still be present in July, when the primary runoff elections are scheduled.

However, during a hearing Wednesday on the application for a temporary restraining order, an infectious-disease epidemiologist who testified for the plaintiffs said that it’s highly likely that the coronavirus will continue to spread in Texas through the summer.

“Once social distancing guidelines are relaxed, in my expert opinion, it’s inevitable we will see a rise in cases,” said Cathy Troisi, a professor at the University of Texas School of Public Health in Houston.

Voters going to the polls will be at risk of infection because they’ll come into close contact with other people, and they’ll touch voting machines that many voters have touched, Troisi explained. Election workers would be at a higher risk, because they stay at polling locations all day and have contact with many more people, she added.

When asked if voting by mail carries a risk of infection, Troisi replied, ”Voting by mail does not, so yes, voting by mail would protect the public health and public safety of Texans.”

Sulak rejected the state’s jurisdictional arguments, which also included claims that the plaintiffs’ interpretation of the vote-by-mail law was significantly expanding the statute the Texas Legislature wrote.

“I respect the separation of powers. We’ve got a choice here between arguments from that perspective and arguments from something that has seminal, fundamental, individual constitutional rights: that is, free people making full choices and having full access to have choices about their government,” Sulak said.

The judge asked plaintiffs’ counsel to draft an temporary restraining order, and to submit a proposed order denying the state’s plea to the jurisdiction.

And now we wait for the appeal, and for a hearing in the federal case.

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.

SOS moves towards increasing vote by mail

How about that?

Texas is opening the door to an expansion of mail-in voting during the coronavirus outbreak, though the state is unlikely to heed calls to have every voter cast ballots by mail to avoid exposure to COVID-19 at polling places.

The state’s director of elections on Thursday sent guidance to elections officials in all 254 counties telling them that voters can ask for mail-in ballots if they are worried that showing up to a polling place could be a danger to their health. The guidance also suggests that counties be more lenient with curbside voting and says counties should consider recruiting and training more poll workers this year.

[…]

The guidance isn’t a mandate. The secretary of state’s office says it can only advise counties on how to work within existing election law. But it offers a green light to county officials to take a lenient approach in approving requests for mail-in ballots.

“This is a big step in the right direction,” said Bay Scoggin, director of Texas Public Interest Research Group, one of dozens of groups that have urged the state to expand mail-in voting as at least one option for this year’s elections. “While we still want a more concrete expansion of vote by mail, this plan gives guidance to counties on a number of important issues.”

Texas is one of the few states that still require voters younger than 65 to have an excuse to cast a ballot by mail. Fewer than 7 percent of Texas voters mailed in ballots in 2018.

The guidance notes that the election code currently includes a “disability” clause that allows voters to apply for an absentee ballot if showing up at a polling place risks “injuring the voter’s health.” It suggests counties can get a court order to temporarily expand eligibility for mail-in voting — especially in areas under quarantine.

Advocates say while it appears to allow anyone with concerns about the coronavirus to get a mail-in ballot, the state still needs to be more clear. Democrats say it doesn’t go far enough.

“In the middle of this public health crisis, we must all be working together to keep people safe and healthy, while also keeping our democracy moving forward,” said U.S. Rep. Sylvia Garcia, a Houston Democrat. “This should include a statewide no-excuse vote-by-mail program that will give every eligible Texan the opportunity to make their voice heard in this year’s electoral process and guarantee their well-being.”

Every Texas Democrat in Congress wrote a letter to Abbott this week urging an expansion of voting by mail, pointing out that the Centers for Disease Control and Prevention suggests shifting that way for 2020 elections.

This was also covered in that Trib story about the May elections being postponed. As noted, there was a lawsuit filed to force this issue, and I have to say, I’m more than a little surprised to see the state take the idea seriously rather than dig in their heels as usual. It isn’t everything that activists have demanded, but it’s a lot, and it’s not clear that “everything” would be possible to do in time for November. If this were the basis of a settlement agreement in that lawsuit, I’d be happy with it. Let’s put a bow on this so we can get down to the practical issues that would need to be addressed to make this much happen.

The May elections will not happen

Not in May, anyway.

Citing the state’s stay-at-home order, the Texas secretary of state is instructing municipalities to delay their May 2 elections.

In an email to local election officials sent Thursday afternoon, the state’s director of elections, Keith Ingram, said cities, towns and school boards that hadn’t pushed their upcoming elections to November “must take action to do so immediately” or risk facing a challenge in court.

“If you don’t move your May 2nd election, you are subjecting voters to health risks and potential criminal violations,” Ingram wrote. “Failure to postpone your election will put your election at severe risk for an election contest.”

[…]

Abbott issued an executive order Tuesday telling Texans to stay at home for the next month unless they are taking part in essential services and activities. In announcing his order, the governor made clear he expects all Texans to adhere to the guidance or face criminal punishment. The order lasts until April 30. Early voting for municipal elections would have started before then.

Although election workers are included under the federal government’s guidance on essential workers, that would not include voters, Ingram said.

Earlier in the week, the Trib had a previous story about a handful of cities, school boards, utility districts, and the like that were still planning on having their May elections, despite the earlier admonition to put them off till November. I can understand the arguments for wanting to proceed as scheduled, especially for elections that would be expected to have miniscule electorates, but really there was no good justification for it. This was the right thing to do.

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.