This story has been updated.
U.S. District Judge Fred Biery heard arguments Friday in a federal lawsuit seeking to give all voters the option to vote by mail due to fears of catching or spreading the coronavirus.
Hours after the hearing concluded, state Attorney General Ken Paxton urged the Texas Supreme Court to immediately stay a state appeals court ruling issued Thursday in a similar lawsuit that allows Texans who lack immunity to the virus to be eligible for mail-in ballots for upcoming elections. The state’s highest court sided with Paxton late Friday evening, temporarily halting the efforts to extend absentee voting privileges to all Texas voters.
Currently, voters can apply for a mail-in ballot only if they are over 65, have a disability, will be absent from the county they vote in during the election period, or are imprisoned. Paxton said fear of contracting the virus does not qualify as a disability and has threatened voters and voting rights groups with felony charges if they request mail-in ballots for that reason.
The state election code defines disability as a “sickness or physical condition” that prevents someone from voting in person without the risk of “injuring the voter’s health.”
“Every day that passes, more applications are submitted, and it becomes increasingly challenging to disentangle voters who meet the statutory definition of ‘disabled’ from those who do not,” Paxton’s petition read.
State District Judge Tim Sulak’s temporary injunction, upheld Thursday by the 14th Court of Appeals, was set to allow Texans to check the disability box in order to vote by mail before Friday’s intervention by the Texas Supreme Court.
During Friday’s federal court hearing, Texas Democratic Party General Counsel Chad Dunn argued that concerns about coronavirus should not disqualify someone from exercising their right to vote. Doing so discriminates against classes of voters, such as voters under the age of 65.
Requiring people under the age of 65 to vote in person creates a “survival of the fittest election,” Dunn said via videoconference, and an impossible choice between protecting their health and exercising their right to vote. In the meantime, voters will be left in a “twilight zone,” unclear if they can apply for a mail-in ballot or not, Dunn said.
The Texas Democratic Party named Gov. Greg Abbott, Secretary of State Ruth Hughs, Travis County Clerk Dana DeBeauvoir, and Bexar County Elections Administrator Jacquelyn F. Callanen as defendants in the suit. Other plaintiffs include the League of United Latin American Citizens (LULAC) and other individual voters Joseph Daniel Cascino, Shandra Marie Sansing, and Brenda Li Garcia.
They are seeking a preliminary injunction for the finding that the current election conditions violate tenets of the First, 14th and 26th amendments as well as some provisions of the Voting Rights Act. The suit also requests that the defendants stop issuing threats of criminal or civil sanctions for helping voters vote by mail.
Biery said he could not estimate when he would issue a ruling in the case. “All I can tell you is it will be forthcoming,” he said. “No guarantee as to when.”
Robert Green, an attorney representing Bexar County and Callanen, said the county “is not here to take a position” on the various legal arguments presented by the Democratic Party or by the State. However, Green stated that counties have no mechanism or authority to investigate what “disability” a voter cites in an application for a mail-in ballot.
“A voter who believes that they are eligible … is permitted to indicate that solely by checking a box,” he said. “If a court were to order or if the Secretary of State were to issue guidance that local officials should reject certain disability applications if they’re premised on some COVID-related fear or lack of immunity, it’s not clear at all that local officials would be able to do that because the application does not allow voters” to explain their disability, he said.
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Lack of immunity to COVID-19 is a physical condition, Green said. “A voter lacking that immunity is endangered by in-person voting. I think that that’s an inescapable reality.”
State Assistant Attorney General Michael Abrams argued that election officials across the state are preparing to provide safe and socially distant polling locations and that the Texas Supreme Court should rule on the issue before it’s challenged in federal court.
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“There is a significant unresolved issue of state law that will have significant impacts on this legislation, whichever way the Texas courts ultimately rule,” Abrams told the judge in a courtroom at the John H. Wood Federal Courthouse. “It’s very likely that in short order the Texas Supreme Court will resolve that issue one way or the other.”
Even if the legal issues get resolved at the state level, there are still constitutional issues for the federal court to consider.
“And it ultimately is the job of federal district courts to ensure that states’ executive officials can’t play fast and loose with constitutional rights like is existing here,” Dunn said.
Early voting begins June 29 for the July 14 runoff elections. Voters in Bexar County can apply for mail-in ballots year-round, but no later than until 11 days before an election.