Unless the U.S. Supreme Court rules that Texans fearful of COVID-19 have the right to cast a ballot by mail, many voters in Texas will face a tough choice in the presidential election. They can risk exposure to the coronavirus by voting in person. Or they can commit an act of civil disobedience and face possible jail time by voting by mail.
Under current state law, Texans are eligible to vote by mail for only four reasons: you are 65 years or older; you are out of your home county during early voting and on Election Day; you are in jail; or you have a disability. Voting rights groups and the Texas Democratic Party say that fear of contracting COVID-19 at the polls is covered by the disability provision, which defines a disability as “a sickness or physical condition” that risks “injuring the voter’s health” if he or she were to vote in person. Republicans, primarily Attorney General Ken Paxton, have argued that widespread use of mail ballots will result in more fraud.
The two sides are fighting it out in both federal and state court. Though the U.S. Supreme Court will have the final say, in May Paxton succeeded in getting the all-Republican Texas Supreme Court to rule mostly in his favor. In a unanimous decision, the majority on state’s highest civil court rejected the Democrats’ argument that a lack of immunity to COVID-19 qualified as a disability for the purposes of obtaining a mall ballot. But the court also left it up to each voter to consider “aspects of his health and his health history” in deciding whether to apply for a disability ballot. That bit of legal jujitsu has created a Catch-22.
You can’t legally claim fear of the coronavirus as a disability, but you can claim that your health history renders you disabled. Asthma and other chronic lung conditions, obesity, immune disorders such as HIV, kidney disease, diabetes, and heart disease are all COVID-19 risk factors listed by the Centers for Disease Control, but would they count as a disability for a zealous prosecutor?
Paxton has warned local elected officials that they may face criminal prosecution if they advise ineligible voters to check the disability box to get a ballot “under false pretenses.” Democratic lawyer Chad Dunn says the state is putting voters in the untenable position of making a decision to obtain a ballot while guessing whether a district attorney “is going to later think the excuse they used to check the disability box is sufficient.”
Paxton declined to answer questions about whether he would prosecute voters, but if he does, he may have a lot of work on his hands. The pool parties and beach barbecues of Memorial Day, as well as the tens of thousands of Texans who filled the streets to protest police brutality after the killing of George Floyd, undermined the idea that Texans will be too afraid of the coronavirus to vote in person. But with COVID-19 infections surging in the state, many may choose instead to defy Paxton and vote by mail.
The court fights are not over, though. The Democrats have asked the U.S. Supreme Court to invalidate the Texas mail ballot law as an unconstitutional violation of the Twenty-sixth Amendment prohibition on voting rights “denied or abridged … on account of age.” Because the state law allows anyone 65 or older to obtain a mail ballot, Dunn says the law discriminates against people under the age of 65. A federal district judge agreed, but the Fifth Circuit Court of Appeals stayed the order, saying neither the Constitution nor the pandemic necessitates voting by mail. Dunn says the high court likely will rule prior to the November election, but he does not know whether the it will act in time to affect the July 14 primary runoffs.
The dilemma could be simply resolved by Governor Greg Abbott. He has emergency powers that would allow him to establish new mail voting procedures during the pandemic. But his executive orders so far only allow for “eligible voters to exercise their right to vote in person.”
For more than a decade, Texas Republicans have used the specter of “voter fraud”—a near nonexistent form of election tampering—to justify restrictions on voting, most notably voter ID laws.
During his tenure as state attorney general, Abbott investigated voter fraud with the zeal of a church lady trying to sniff out sin in the congregation. His investigations resulted in 66 cases, mostly for technical violations rather than invalid ballots, all of them targeting Democrats, mostly Black and Hispanic voters. Paxton was involved in an investigation of 700 mail ballots in a Dallas city election that resulted in a single conviction for forgery on one ballot.
Proving mail ballot fraud is difficult. Typically, such fraud involves either stealing mail ballots from senior citizens and forging the documents, or pressuring elderly voters into filling out ballots favoring certain candidates. But even when the allegations are significant—such as the 2018 investigation into 1,200 suspicious mail ballots in another Dallas city election, they rarely change the outcome of an election.
If fraud occurred in November mail ballots, it is unlikely that there would be enough fraudulent votes to affect the outcome of a statewide election like the presidential contest. It would be more likely to affect close elections for Congress or state House districts. And close contests almost always result in recounts that could ferret out fraudulent votes.
President Donald Trump has said he opposes expanded mail voting this year because it would lead to massive fraud. But in the 2016 presidential election, more than 311,000 Texans voted by mail, and Trump carried the early vote by more than 600,000 ballots. Mail balloting increased by more than 58,000 votes in 2018, and Republican U.S. senator Ted Cruz still carried the early vote. And some recent research indicates Republicans are more likely to benefit from mail voting than Democrats.
Republicans need to realize that the only way to eliminate all fraud in elections is to eliminate voting. And Democrats need to understand that just because Trump says there will be fraud, that doesn’t mean there won’t be any. Ultimately, however, this is about how to promote the democratic right to vote in the days of a highly contagious and deadly disease. Unless the Supreme Court spares us, voting in the days of pandemic may offer a dark twist to the revolutionary cry of “Give me liberty or give me death.”