How Are We Going to Vote?
While the U.S. moves toward voting by mail, Texas digs in its heels
By Michael King, Fri., June 12, 2020
Nearly everybody loves voting by mail. While only seven states currently enable universal voting by mail, the situation is changing rapidly. In May, California joined Hawaii, Washington, Colorado, Oregon, and Utah, and more recently Nevada in conducting its June 9 primaries entirely by mail. Indeed, at least 36 states (although they vary in specific regulations) already allow "no-excuse" requests to vote by mail. According to the nonprofit National Vote at Home Institute, nearly all states could improve their procedures, but under the current national threat of the coronavirus pandemic and the public risk of contracting COVID-19, several more states (from New Hampshire to Mississippi) are either temporarily loosening restrictions on mail balloting or planning ways of expanding VBM access.
The voters are ahead of them. Recent polls reflect majority support for allowing vote by mail, especially by a voter's choice. According to a Pew Research Center poll reported in April, 70% of adults say they support "allowing any voter to vote by mail if they want to." That support was much stronger among Democrats (or "Democrat-leaning" independents), at 87%, while Republicans or those leaning GOP were split down the middle (49% in favor, 50% against). The poll, of nearly 5,000 adults, was conducted in early April – before the full effects of the pandemic had been realized and its necessary precautions implemented. In the intervening weeks, state actions enabling VBM have accelerated.
In April, U.S. Senators Ron Wyden and Amy Klobuchar, both Democrats, introduced a bill to allow all voters to vote "absentee" (i.e., by mail), and the May House coronavirus relief act (aka "HEROES" Act), while facing strong GOP opposition, would also promote VBM. It might seem that given our current emergency circumstances, making it easier to vote without risking voters' health amounts to common sense. But in politics, sense is not necessarily common – and many Republican officials have been reflexively opposed to measures that might increase voter turnout, considering it a partisan threat. In April, President Trump bluntly declared that making it easier to vote would disadvantage his party. In response to a draft of the first stimulus package, Trump said, "They had things – levels of voting that if you'd ever agreed to it, you'd never have a Republican elected in this country again."
In short, "nearly everybody" is not everybody – neither at the U.S. Capitol nor in Austin. VBM remains a distant long shot in D.C., and is equally embattled in Texas. Two recent lawsuits by the Texas Democratic Party briefly legalized mail voting, in principle, for all Texas voters, by court orders subsequently stayed by higher courts following appeals by Texas Attorney General Ken Paxton. It's likely that these Texas legal disputes will arrive for final disposition at the U.S. Supreme Court – which won't end the arguments. (See "Voting by Mail in Texas: Where Things Stand.")
State and federal lawsuits, as well as a criminal complaint against Paxton for attempting to mislead election officials, continue to simmer. While the legal fights proceed at their unhurried pace, election officials in the state's 254 counties have been left to determine on their own how best to proceed in light of abruptly conflicting directions – while deadlines loom for July 14 run-offs and other interim elections.
The National Context
Voting by mail is hardly a new alternative to in-person voting, but it became an urgent discussion and a headline matter under the public health threat of the novel coronavirus pandemic, most visibly embodied by the early April election debacle in Wisconsin. Mail ballots and election deadlines sparked a rigidly partisan argument, as Wisconsin Democrats demanded expanded mail voting and extended deadlines to submit mail ballots, and Wisconsin Republicans successfully sued to block both. The result was an April 7 election held under harrowing conditions, with dramatically reduced numbers of polling places and voters standing in physically distanced lines for hours. Afterwards, dozens of voters and poll workers had been infected with COVID-19.
The Wisconsin election may not have provided a useful test of mail voting – structural problems delayed delivery of ballots to voters and then from voters to tabulators – but the outcome in the heated contest for a state Supreme Court seat did deliver a surprise. Not only did the Democratic candidate, Jill Karofsky, handily defeat Republican incumbent Daniel Kelly, she did so by garnering an impressive 10% advantage in mailed ballots – which in Wisconsin still required an uploaded photo ID and a witness signature. For their success, Wisconsin Democratic Party officials cited an extraordinary campaign outreach effort to Democrats to vote by mail.
The outcome confounded much of research on voting by mail, which has generally demonstrated little partisan advantage: Overall turnout generally increases but without favoring either party. For example, a recent study of the effects of VBM in Colorado (where universal mail voting was adopted in 2014), like much similar research, found "little evidence that all-mail voting disproportionately benefits Republican or Democratic Party identifiers. The turnout effect for Coloradans who are categorized as likely Republicans or likely Democrats is almost identical." (Bonica, et al.: "All-Mail Voting in Colorado Increases Turnout and Reduces Turnout Inequality," May 4, 2020)
The unexpected Wisconsin results might well add fuel to Republican opposition to expanded vote by mail. Yet across the U.S., in states led by either party, the current trend is to expand VBM options. While President Trump has been fulminating about the imaginary threat of massive voter fraud, The New York Times reports that officials in blue and red states alike were acknowledging reality and moving to ease VBM rules, for upcoming primaries as well as for the November general election. "In the face of a pandemic, what was already limited opposition to letting voters mail in their ballots has withered. Eleven of the 16 states that limit who can vote absentee have eased their election rules this spring to let anyone cast an absentee ballot in upcoming primary elections. ... Four of those 11 states are mailing ballot applications to registered voters. ... And that doesn't count 34 other states and the District of Columbia that already allow anyone to cast an absentee ballot. ..." ("As Trump Rails Against Voting by Mail, States Open the Door For It," The New York Times, May 21).
Texas remains one of the handful of exceptions. State officials, most aggressively A.G. Paxton, are resisting any effort to expand VBM. The result has been a head-spinning series of courtroom showdowns and contradictory decisions, leaving officials and voters wondering who will or will not be "allowed" to vote by mail in the July 14 run-offs and special elections involving most of the state.
Here's a breakdown of where things stand in the courts, as of late May:
The Texas Lawsuits
On March 27, the Texas Democratic Party filed a lawsuit in state District Court against Secretary of State Ruth Hughs and Travis County Clerk Dana DeBeauvoir (in their official capacities). Hughs was removed for technical reasons, while other "intervenors" joined the suit: a group of voters rights organizations on the TDP side, and the state of Texas defending current state election practices. DeBeauvoir's role became to ask the court for procedural direction for the July 14 election, which in Travis County encompasses congressional run-offs as well as a special election for state Senate District 17 (to succeed retiring Sen. Kirk Watson).
In an April 15 hearing before Judge Tim Sulak (held remotely in the 201st District Court), attorneys for the TDP and intervenors argued that under pandemic conditions, all Texas voters are potentially vulnerable to infection by COVID-19, and therefore possess the "physical condition" required by election law to avoid in-person injury by voting by mail on grounds of "disability." (Current law allows VBM to absentees, voters 65 or older, those confined in jail but otherwise eligible, or those claiming a disability.)
The state, represented by assistant attorneys general, argued that only a personal, individual disability qualifies a voter for VBM. They also argued that pandemic conditions might change by July, meaning a change in policy would be premature, and that state officials (i.e., Gov. Greg Abbott) would be making any necessary changes to election planning.
DeBeauvoir did not testify, but her submitted Declaration emphasized the need to begin election preparation in earnest by May 1. That meant budgeting, equipment purchases, sufficient mail ballots to cover at least the expected spike in demand from already qualified voters, and anticipation of in-person voting (early and on election day) that would require physical distancing as well as special precautions and equipment to protect voters and poll workers.
On April 17, the court ruled in favor of TDP – that lack of immunity to COVID-19 is indeed a "physical condition" with the potential of injury to in-person voters and therefore qualifies as a disability under the "plain language" of election law. Judge Sulak also enjoined local or state election officials from discouraging voters to request mail ballots or threatening sanctions.
Paxton filed an appeal to be heard by the 14th Court of Appeals, which on May 14 ruled that the injunction remained in place pending the appeal; on May 15, the state Supreme Court stayed the injunction pending its own review. Meanwhile, Paxton twice issued letters suggesting that anyone – voter or election official – acting on the broader definition of "disability" as ruled by two courts could be subject to "criminal sanctions."
The Supreme Court heard the case on May 20 (remotely, via Zoom). On May 27, the Court issued a unanimous but ambiguous ruling: It declined to expand the definition of "disability" to include the risk of coronavirus infection to an otherwise healthy voter, but it also left the actual determination of disability to individual voters – election officials, the court ruled, "do not have a ministerial duty ... to look beyond the application to vote by mail." Paxton celebrated the decision, but he was denied a writ of mandamus against election officials, and the Court said those officials should continue to accept disability claims on ballot applications. (See sidebar above.)
Federal Lawsuits
On April 6, the TDP filed suit in the U.S. District Court for San Antonio joined by three individual voters, against Gov. Greg Abbott, Secretary of State Hughs, Travis County Clerk DeBeauvoir, and Bexar County Elections Administrator Jacquelyn Callanen. The initial pleading summarized the emergency nature of the current coronavirus pandemic, and cited the immediately preceding decision of the U.S. Supreme Court on the Wisconsin disputes – that the courts should not interfere "on the eve of an election" – to ask the court, accordingly, to rule ahead of any election-eve deadline.
The TDP brief repeats the argument that the "plain language" of state election law allows voters to cite disability under pandemic conditions as a reason for voting by mail, and pointedly, cites a formal 2015 opinion by Attorney General Paxton to that effect: "The plain language of section 82.002 does not require that a person satisfy any specific definition or standard of 'disability' outside of the Election Code in order to qualify to vote by mail." (A.G. Opinion KP-0009) The pleading also notes that the political parties administer primary elections, including the July congressional run-offs, and need to have clear guidelines for those primaries. There are also constitutional claims: that restricting the opportunity to vote by mail to only certain classes of voters violates the Voting Rights Act and the First, 14th, 15th, and 26th Amendments.
The plaintiffs asked the court for a declaratory order and a permanent injunction that would allow any eligible voter to request a mail ballot, and to enjoin the election officials to accept and tabulate those ballots.
In a second federal lawsuit – filed April 29 in San Antonio by six young Texas voters (from Houston, Austin, San Antonio, and elsewhere) against Sec. of State Hughs – the 26th Amendment claim of age discrimination, is central. The plaintiffs' brief claims that restricting VBM to those 65 or older violates the U.S. Constitution: "The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged ... by any State on account of age." That case has yet to be heard, although its claims are effectively incorporated into the TDP federal suit.
On April 29 – partly in response to Paxton's release of an "advisory" letter threatening prosecution of anyone who might act in accord with the state district court decision – the TDP filed a motion for a preliminary injunction in the San Antonio federal court, asking Judge Fred Biery "to ensure basic constitutional protections for the U.S citizens" in Texas. They asked that the court issue an injunction to enable all voters wishing to do so to vote by mail, and to enjoin Paxton "from threatening voters or voter groups with criminal or civil sanction for voting by mail or communicating with or assisting voters in the process of vote by mail." Two days later (May 1), the attorney general released a letter addressed to election officials in all 254 Texas counties, formally threatening them with "criminal sanctions" if they should act in accordance with the district court ruling by counseling voters to vote by mail.
On May 19, in an expansive opinion, Judge Biery ruled that any eligible Texas voter can apply to vote by mail, that election officials must accept and tabulate those votes, and that his order must be posted on the websites of election administrators for any elections held "during the pendency of pandemic circumstances." He also enjoined Paxton and any other state officials against "issuing any guidance, pronouncements, threats of criminal prosecution" or other actions in violation of the court's order – a direction that the attorney general has reflexively defied.
On the following day, Paxton was granted an administrative stay of Biery's order from the 5th Circuit Court of Appeals, pending the court's review. On June 4, the 5th Circuit extended that stay pending its full review, in a lengthy order denouncing Biery's opinion and ruling that the state was likely to prevail on all counts – while acknowledging that the Texas Supreme Court had left the judgment of sufficient health risk of in-person voting to the individual voter.
The attorney general's May 1 letter to all county election officials and county judges – threatening "criminal sanctions" against any official counseling expanded vote by mail – prompted a criminal complaint in Dallas County by two Dallas Democrats, asking District Attorney John Creuzot to investigate Paxton for "felony election fraud" by providing false information to election officials. Paxton's legal appeals are presumably protected official actions – it's not clear that threats directly contradicting court orders would be similarly defensible. (The Dallas D.A.'s office declined to provide any comment on the status of that complaint.)
The Politics of Vote By Mail
Despite the ongoing legal spectacles, the actual procedure for acquiring a mail ballot in Texas has not changed: Voters may request an application, indicate their reason for choosing to vote by mail, and receive a ballot in the mail from county election officials. The admissible reasons remain absentee, 65 or older, confinement, or "disability" – and as the state conceded to the state Supreme Court, a voter does not have to separately explain or justify the indication of "disability" on the application (indeed, an application including "extraneous information" may be rejected, or returned for correction). Yet Paxton and other state officials continue to insist that encouraging people to vote by mail is illegal and will promote election fraud.
It's all too easy for voters to get lost in the blizzard of legal actions surrounding vote by mail in Texas – and to a certain extent, the confusion is intentional. It might seem irrational for Paxton and other state officials to insist on a rigidly limited use of VBM when most states already allow it with little controversy and few problems, when it will benefit voters (including those who choose to vote in person) regardless of party affiliation, and when it's a relatively simple way to make voting safer during a public health crisis. But it's only irrational when viewed outside the context of Texas Republican politics, where every policy position is heavily constrained by how it might play nationally and – more immediately – how it appeals to the Texas hard-right base that dominates Republican primary contests.
Viewed in that context, the vote-by-mail debate is the 2020 incarnation of the ongoing ideological battles over voting rights, which in 2019 were headlined by the state's attempt to purge tens of thousands of registered voters on the spurious grounds that a few might be ineligible, as noncitizens. The effort, based upon inaccurate and irrelevant records, eventually collapsed, as did the career of then Sec. of State David Whitley, charged with its implementation. But it had already accomplished its more permanent purpose, which was to spread the myth of widespread voter fraud while intimidating some voters (primarily Hispanic) away from the polls ("Point Austin: 'Show Us Your Papers,'" Feb. 15, 2019).
Paxton's grandstanding court fight against a common-sense interpretation of election law (as even expressed in some of his own earlier legal opinions) has much the same intent: to reinforce the myth of widespread voting fraud while discouraging people from exercising their right to vote by mail, or indeed from voting at all. Paxton's threats also represent headline devotion to President Trump, currently spreading hysterically false alarms over VBM. (Indeed, it was the president's unsubstantiated claims about "fraudulent" mail-in ballots that moved Twitter to begin adding fact-checking labels to his tweets.) The three most prominent Texas officials – Gov. Abbott, Lt. Gov. Dan Patrick, and A.G. Paxton – continually jockey for pro-Trump headlines and any potential advantage they might accrue for their future political ambitions. Despite the arcane Zoom-court arguments over the definitions of "physical condition" and "disability" in election law, the litigation is more accurately understood as the latest episode in the ongoing Republican campaign of voter suppression.
Despite his losses in state district court and federal court, where judges readily accepted the logic and legality of expanding VBM in the midst of a pandemic, Paxton not only immediately appealed the rulings but defied the court orders directing him not to discourage voting by mail. Although he claims otherwise, he failed to receive an outright victory at the state Supreme Court. He seems likely to succeed at the 5th Circuit Court of Appeals, which regularly rubber-stamps the state's appeals. Gov. Abbott has already predicted that the argument will likely be settled in the U.S. Supreme Court, where the Wisconsin precedent is not encouraging.
Yet there was no small irony in the aftermath of the May 20 hearing of Paxton's state appeal in the Supreme Court, where the parties discussed the persistent GOP grocery store analogy as a counter to serious health risks for in-person voters: "If it's safe to go to the grocery store," goes the refrain, "isn't it safe to go to the polls?" The next day, Justice Debra Lehrmann announced that she and her husband had both been diagnosed with COVID-19, despite largely adhering to stay-at-home advisories since early March. Lehrmann, who is 63 years old, told the Dallas Morning News that she and her husband "wore masks and gloves whenever they went out. And they only ventured out to go to the grocery store."
Two days later, Lt. Gov. Patrick told Fox News that the push for expanding VBM is a Democratic "scam" to steal elections. "There is no reason ... that anyone under 65 should be able to say I am afraid to go vote," Patrick said. "Have they been to a grocery store?"
To vote by mail, you must first apply for a ballot. The Travis County Elections Division only sends out applications or ballots on specific request from a voter. For more info, or to download a ballot application, visit countyclerk.traviscountytx.gov.
To vote, you must first be registered. The last day to register to vote in the July 14 primary run-off and Senate special election is Mon., June 15. More info at austinchronicle.com/elections.
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