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Early voting gets an early start

This is a remarkably sensible thing to do.

Ahead of the first statewide election during the coronavirus pandemic, Gov. Greg Abbott has doubled the length of the early voting period for the upcoming July primary runoff elections.

In a proclamation issued Monday, Abbott ordered early voting for the July 14 runoffs to begin June 29 instead of on July 6. He noted that sticking with the truncated early voting window that’s typical for runoff elections “would prevent, hinder, or delay necessary action in coping with the COVID-19 disaster.”

Abbott previously used his emergency powers under his statewide disaster declaration to delay the primary runoffs, which were originally slated for May, and a special election for the Austin area’s Texas Senate District 14.


“In order to ensure that elections proceed efficiently and safely when Texans go to the polls to cast a vote in person during early voting or on election day,” Abbott wrote in the proclamation, “it is necessary to increase the number of days in which polling locations will be open during the early voting period, such that election officials can implement appropriate social distancing and safe hygiene practices.”

See here for the background. Bear in mind, it is this election for which the expanded vote by mail order applies, pending the outcome of appeals. Both increasing vote by mail and extending the early voting period serves the purpose of reducing the risk of in person voting. It could be that this decision was a strategic one, designed to undercut the Democratic argument that fear of contracting coronavirus is a legitimate disability per Texas law that must be mitigated by mail ballots. The idea here would be that having a longer early voting period for this election means that the risk of being in a crowd or waiting on line to vote is sufficiently lower that no further mitigation is needed. It may also be that Abbott is responding to the wishes of Republican voters, who have so far expressed greater interest in voting in person. Or maybe, just maybe, Abbott did this because it was a smart and beneficial thing to do. Crazier things have happened. If that’s the case, maybe he’ll be amenable to allowing a longer early voting period for November as well. Be that as it may, you now have two weeks to vote early in person for the primary runoffs. It’s a good thing however it came to be.

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  1. Wolfgang says:

    Regardless of the motivation was, it’s a good measure. I must agree (not that my opinion matters).

    I also agree that this partial remedy may indeed undermine the plaintiffs’ arguments in the pending lawsuits, but they are not that strong anyhow. I labored my way through the AG’s merits brief (in the 14th COA case) yesterday.

    Please note that Paxton himself (and his litigators) are pushing the argument that FEAR of infection is insufficient. That’s not the ground for issuance of the temporary injunction, however. It’s the physical condition of not having immunity to the novel virus and the RISK of infection, rather than the subjective fear of catching it. It’s an important distinction because the Election Code requires either an illness or a “physical condition” likely to impair the voter’s health. Paxton argues that mere “fear” does not meet the statutory criteria that govern eligibility for those under 65 or not otherwise ill because fear is an emotional response to the pandemic, not a physical condition or illness (short of diagnosed phobia, I suppose). He draws the distinction between body and mind. It’s a good common-sense argument but it also involves a re-framing the issue (and misleading the addressees and other readers of his vote-suppression letter).

    Judge Sulak did not rule that FEAR of the virus was sufficient to entitle a voter to vote by mail, so fear as a key fact/factor is really besides the point in the appeal. It’s sort of a strawman argument. That said, the AG makes all manner of other arguments trying to get the case (appeal and trial court case) dismissed for lack of jurisdiction (standing, lack of ripeness, sovereign immunity, etc. etc.). They obviously do this kind of litigation (on behalf of state and its subdivision) all the time, and are very good at it. With hundreds of case citations at the ready.

  2. brad says:


    Should we get rid of the under 65 eligibility if the high percentage of folks over that age do not have an illness or physical condition likely to impair the voter’s health?

  3. Wolfgang says:

    Hmm, interesting question indeed but there is a difference between public policy/institutional design and fiddling with what is the legal “is” status (in the way of statutes) through litigation, even when the normative concern (maximizing voters’ ability to participate in elections) is the same.


    We actually have a very good illustration of the problem right now with COVID-19. The legislature is not in session and cannot act promptly to devise a solution, so the mail-in vote litigation is about how the existing Election Code applies to a novel societal circumstance. The anti-mail-in-vote AG unsurprisingly argues that the courts should not be involved and are “usurping” the powers of the political branches.

    On the other hand, we have a common-law system that provides some flexibility in how to interpret the words in statutes, like “disability” and “physical conduction” and “likelihood” of adverse health effects. So, the courts can fashion a remedy in the process of statutory construction (when presented with a proper contested case) and thereby make or adjust policy to meet new exigencies, like a novel pandemic. Practical consideration and justification: How can the Legis anticipate COVID-19 when it’s by definition novel (never seen before) and legislate for that unanticipated scenario? Plus, the matter involves the need for facts, which are best developed in an adversarial process, so they are subject to some testing/accuracy & quality control. But that still leaves open the question of whether the executive branch should fill in the details, rather than the courts, such as the AG propagating his legal opinions or the Governor issuing order under the Disaster Act.


    The over/under 65 distinction is a legislative policy choice and concerns the method of ballot casting, as opposed to the right to vote (franchise). So the AG would argue that no fundamental (voting) right is involved, and an equal protection (differential treatment) challenge would fail accordingly because it’s up to the legislature to judge what is reasonable to accommodate age-related impairments. In other words, even with lots of over-65 folks are not ill, their preferential treatment by the statute is not objectionable on constitutional grounds because the Legis had a rational basis for it, even if it was just based on the notion that the 65+ segment is generally sicker and frailer and should be given a blanket benefit.

    The AG’s arguments do implicate the 65+ provision however because the AG argues, inter alia, that the individual plaintiffs (and the organizational ones) don’t have a concrete injury distinguishable from the general population. (That’s part of the standing test, which incidentally I disagree with, for what it’s worth).

    The question here is–at least for evaluating the standing argument–what the relevant reference group is/should be: all persons, all voters, or just certain segments of voters (like those that the statute treats preferentially). My argument would be that the individual plaintiffs are actually representative plaintiffs (in the class-action sense of the term) and they all share the same “injury” in legal parlance (risk of catching COVID-19 due to lack of immunity, a characteristic they share in the absence of a vaccine), and that they ALL therefore have standing. But there is that contrary line of precedents saying that you must be personally aggrieved by an injury done to you in particular, or about to happen. Which brings us to the next problem: that the risk (which is basically an aggregate-level or actuarial concept) is plausibly not the same for everyone. So the AG also argues that there is not sufficient individual-level evidence of risk to satisfy the “likelihood” of injury to health criterion in the statute. Risk, of course, is always a probabilistic concept, so individual risk can only be estimated based on statistical patterns in a broader population of cases or phenomena.
    The AG is also arguing that risk varies geographically (in addition to absence of evidence of calibrated risk level at the individual level), and that therefore Judge Sulak’s injunction is too broad to the extent it applies to the entire state.

    This is just scratching the surface. There are lots of other arguments and sub-arguments in the AG’s merits brief, and some folks actually find this sort of thing interesting (or make a living expounding the finer points of “the law”). My academic training is in the social sciences/political science. So I am not just interested in legal authority, but good public policy and good institutional design. I actually wrote my dissertation on Electoral Participation, and factors that have a bearing on turnout.