Paxton Renews Threats Against Vote-by-Mail

On Friday, June 12, Texas Attorney General Ken Paxton distributed his third warning to election officials and others that he will consider “criminal sanctions” against voters (and “third parties”) using voting by mail without legal permission. The threats are aimed at anyone citing “disability” due to Covid-19 risk.

In a letter addressed to County Judges and Election Officials in all 254 Texas counties, under the guise of “updating” officials about the status of recent rulings by the Texas Supreme Court and the Fifth U.S. Circuit Court of Appeals, Paxton reiterated his threats of criminal sanctions against anyone “advising” voters to vote by mail in order to avoid the risk of Covid-19 infection.

“Consistent with those decisions and this Office’s prior guidance,” the letter continues, “public officials shall not advise voters who lack a qualifying sickness or physical condition to vote by mail in response to COVID-19 based on disability status. Moreover, to the extent third parties advise voters to apply for a ballot by mail for reasons not authorized by the Election Code, those third parties could be subject to criminal sanctions.”

On May 27, the Texas Supreme Court ruled that “lack of immunity” to Covid-19 alone does not constitute a “disability” under the state election code, but also ruled that the “decision to apply to vote by mail based on a disability is the voter’s, subject to a correct understanding of the statutory definition of ‘disability.’” If that phrasing (from the Court’s unanimous ruling) sounds ambiguous, that’s because it is. The ruling provides no guidance whether a Texas voter with some underlying health condition (or living with an elderly or health-compromised family member) should apply for a mail ballot on disability grounds. Yet in his May 20 argument before the Supreme Court, Solicitor General Kyle Hawkins conceded immediately that election officials are not expected to “look beyond” or investigate a voter’s indication of “disability” on an application for a mail ballot.

Paxton’s letter – which reiterates his warnings in two earlier letters, one to Texas House Member Stephanie Klick and another to county officials – does not cite any particular election officials or others engaging in the conduct the letter warns against. Nevertheless, he says it’s happening: “Inaccurate statements by public officials and private groups, as well as misreporting by the media, incorrectly informed voters that anyone who wished to avoid in-person voting because of fear of contracting COVID-19 could claim disability status and receive a ballot by mail regardless of whether that voter would need personal assistance to vote in-person or risk injuring their health because of a sickness or physical condition.”

The letter goes on to threaten criminal sanctions against anyone providing “misleading information” to prospective voters, and against voters who “submit false information” on a ballot application (“depending on the facts and circumstances of the individual case”). Since this is the third reiteration of Paxton’s warnings (not counting his accompanying press releases), it’s possible that he intends to act on these threats in some way – perhaps by pursuing investigations or prosecutions of officials, individual voters, or other “third parties,” following the July 14 election.

Writing in Slate May 27, Richard L. Hasen, professor of law and political science at the Univ. of California-Irvine, said the Supreme Court decision created a “Lone Star-size mess” and a “recipe for disaster,” confusing vulnerable voters and officials who might try to navigate voting under pandemic conditions yet run afoul of Paxton’s proscriptions. Hasen wrote before a panel of the Fifth Circuit ruled that Paxton was likely to succeed in overturning a lower court decision that extended VBM to all eligible voters during a pandemic, and he said that “it is up to the federal courts to step in.” (“Texas Voters Face Malicious Prosecutions After COVID-19 Absentee Ballot Ruling,” Slate, May 27)

The full Fifth Circuit court has yet to hear the case for which it extended its stay, although its lengthy order provided plenty of rhetorical ammunition for the full court to reject any VBM expansion. The court is unlikely to act soon enough to have any effect on the July election, and the state's increasingly rare restrictions on VBM will probably be tested in the U.S. Supreme Court.

Paxton’s threats continue a long-standing pattern of state Republican leadership using various means to restrict and discourage voting: extreme Voter ID laws, purging of voting rolls, exaggerated claims of “voting fraud,” and now refusal to adjust voting procedures to respond to an unprecedented public health crisis. Whether or not Paxton acts on his threats of “criminal sanctions” against voters, election officials, and others, the threats alone are sufficient to discourage wider participation by Texans in their own governance.

For more on the VBM story and the legal disputes, see "How Are We Going to Vote?," June 12. Follow the Daily News and the Chronicle's print edition.