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U.S. District Judge Fred Biery has ordered a hearing on expanding vote-by-mail to all Texas voters in advance of the July 14 Democratic Party runoff election, due to fears of coronavirus transmission should in-person voting be required.
The hearing, set for 9 a.m. May 15, will allow only one lawyer and one staff person from each side of the case, essentially the Texas Democratic Party (TDP) vs. the State of Texas, to make their arguments.
Because of the coronavirus pandemic, the public will not be allowed to attend and the number of journalists will be limited, though Biery’s order states that “to give due respect to our tradition of open courts and the public’s right to know, the Court will try to provide audio live streaming through the Court’s website.”
Voting by mail has become a contentious issue in Texas and nationally, with Republican party representatives generally against expansion and Democratic party members generally in favor, though party affiliation does not predetermine a position on the matter. The Wisconsin State Supreme Court and U.S. Supreme Court ruled against expansion of vote-by-mail in the April 7 Wisconsin primary election, forcing thousands of voters who had not received their requested mail-in ballots to line up outside a limited number of open polling stations.
Current Texas rules for mail-in ballot eligibility stipulate that a voter must be age 65 or older, disabled, be out of the county on election day and during the early voting period, or be in jail but otherwise eligible.
A lawsuit brought by the TDP against representatives of the State of Texas, Travis County, and Bexar County, including Gov. Greg Abbott, Attorney General Ken Paxton, and Bexar County Elections Administrator Jacquelyn F. Callanen, claims all eligible voters fall under the disabled category due to the risk of contracting COVID-19, the disease caused by the novel coronavirus.
The TDP won a temporary injunction in the suit, with an April 17 ruling by Judge Tim Sulak of Texas’s 353rd District Court, stating that no application for mail-in ballots that use the fear of contracting COVID-19 as a disability shall be denied by Travis County Clerk Dana DeBeauvoir. The State of Texas has appealed the ruling, stating that it is being asked to apply Texas Election Code “in an unspecified geographic area” and in its initial intervention claiming that responsibility for determining eligibility of mail-in ballot applications lies with clerks in each county.
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Sulak’s injunction states that the “TDP and its members are harmed by the lack of clarity in the election law at issue in this case and the probable lack of uniformity in its application throughout the State.” The injunction further notes the State’s inconsistency in affirming its “strong interest in the uniform, consistent application of its election laws” while placing separate responsibility with each county.
The injunction further notes the high risk of coronavirus transmission and quotes a provision in Texas Election Code 273.081: “A person who is being harmed or is in danger of being harmed by a violation or threatened violation of this code is entitled to appropriate injunctive relief to prevent the violation from continuing or occurring.”
An estimated 52 voters and poll workers in Wisconsin contracted coronavirus during the election, out of 18,803 voters and more than 400 poll workers.
Biery’s order acknowledges that instituting statewide universal mail-in balloting might not be effective, given the likelihood that appeals in the case might take the final decision past the July 2 deadline for requesting mail-in ballots for the runoff.