The persistence of the coronavirus pandemic is stirring fears about the safety of voting. Texas voters were able to head to the polls for the Super Tuesday primary on March 3, before the virus disrupted the state. But now concerns abound about how to safely hold the primary runoffs, which have been delayed until mid-July, as well as the November general election, which public health officials warn could come amid a second wave of infection.
Wisconsin’s primary in early April became the subject of a back-and-forth between Democrats, who wanted to expand the state’s vote-by-mail program, and Republicans, who insisted that voters should visit in-person polling locations amid the pandemic. (Republicans ultimately won the debate, although the voters who turned out at the polls elected a Democrat to a key state Supreme Court seat.)
New York, meanwhile, canceled its Democratic presidential primary scheduled for June 23, justifying the decision as way to reduce the risk of spreading the disease in a race that former vice president Joe Biden has already clinched.
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In Texas, mail-in voting is already an option for some voters, and several lawsuits have sought to expand that right to include the rest of them. Here’s what you need to know about voting in upcoming elections.
Can I vote by mail in the runoff election in July?
Maybe. In a typical election, Texans can qualify for a mail-in ballot if they are 65 or older, out of the country on Election Day, in jail but eligible to vote, or disabled. An April lawsuit from the Texas Democratic Party, League of Women Voters, Workers Defense Action Fund, and Move Texas Action Fund argued that the state’s election code on mail-in voting applies to every voter in the state under the disability qualification.
The text of the election code says that “A qualified voter is eligible for early voting by mail if the voter has 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.” The petitioners’ argument is that, during a pandemic, the “likelihood of injuring the voter’s health” clause applies to everyone, given that everyone is able to be infected.
Travis County Judge Tim Sulak ruled on April 17 that “all persons or entities of any type whatsoever acting in concert with them or acting on their behalf” could vote by mail in Texas. Attorney General Ken Paxton quickly announced that the state would be appealing the order to the Texas Third Court of Appeals. Paxton also disputed the plaintiffs’ argument in a press release on Friday, insisting that the election code language requires both a preexisting disability and the likelihood of injury to health. In his letter to county election officials, Paxton warned that if they encourage citizens who are not disabled to vote by mail, those officials are committing voter fraud and could be prosecuted.
Is Ken Paxton going to order the arrest of county judges who expand vote-by-mail?
Probably not—but who knows? Paxton makes the threat of criminal prosecution in his letter: “To the extent third parties advise voters to apply for a ballot by mail for reasons not authorized by the Election Code, including fear of contracting COVID-19 without an accompanying qualifying disability, such activity could subject those third parties to criminal sanctions.” Right now, it doesn’t appear that county officials who were planning to expand their capacity for mail-in voting are taking the threat particularly seriously.
Travis County Clerk Dana DeBeauvoir told the Austin Chronicle, in response to the letter, that she’d wait to hear from the court before listening to the attorney general. Travis County Judge Sarah Eckhardt told the paper that Paxton’s insistence that Sulak’s ruling is “stayed” until the Third Court of Appeals weighs in is similarly just his opinion, without the force of law behind it.
When will the appeals court rule?
We don’t know. But while we wait, a federal lawsuit has been filed by the Texas Democratic Party and supported by the ACLU and the Texas Civil Rights Project. It argues that federal courts should issue a preliminary injunction allowing voting by mail because “the Rule of Law has broken down in the State of Texas, and it has become clear that the federal courts will have to ensure basic constitutional protections for the U.S. Citizens within.” Democrats have requested a swift ruling from a federal judge, asking the court to expand access to mail-in ballots by May 15.
Is this all just partisan bickering?
The issue is a serious one, though belief on how to proceed does fall rather neatly along partisan lines. Republicans—in Texas and around the country—have historically favored various policies that would have the effect of reducing voter turnout, including voter ID laws and voter roll purges. Democrats, meanwhile, generally oppose such measures. President Donald Trump argued against expanded voting by mail in early April, saying that, with the levels of voting we’d see if a widespread vote-by-mail initiative were undertaken nationwide, “You’d never have a Republican elected in this country again.”
In a Dallas Morning News/UT Tyler poll published on Monday, the partisan divide extended to likely voters in Texas: 76 percent of Democrats expressed support for changing state law to allow universal voting by mail, while only 42 percent of Republicans agreed.
Both parties’ arguments are more or less consistent with their pre-pandemic positions on voting. Generally, Texas Democrats have been in favor of making it easier to vote, while Republicans tend to argue that voting by mail opens the possibility of more voter fraud. That’s not a concern that studies have borne out as particularly urgent—a 2018 study from Columbia University found an average of eight cases of individual voter fraud nationwide per year, hardly enough to swing an election.
Where do things stand right now?
Even though the appeals court will likely rule before the July runoff elections, Paxton’s appeal does have some urgency right now for counties that must prepare to possibly carry out an election by mail. Last week, the Harris County Commissioners’ Court voted to approve more than $12 million in funding for mail-in ballots across the state’s most populous county, in anticipation of the appeals court decision. On Tuesday, Dallas County commissioner John Wiley Price will introduce a resolution affirming the right of county voters to cast their ballots by mail, and El Paso County commissioners are throwing their weight behind the lawsuits that would expand mail-in ballot access, as well.
It’s also possible that the federal lawsuit will proceed along an accelerated timeline, regardless of what happens with the suit filed in state court.
Ultimately, there’s a lot we don’t know yet, as the cases make their way through their courts.