Texas Democrats Are Trying to Expand Mail-In Voting For All Voters - What You Need to Know

There is an ongoing legal dispute between the Texas Democrat Party and Texas Attorney General Ken Paxton developing in the state and federal courts over whether to allow all Texas voters to vote by mail in the upcoming elections. Democrats have long advocated for the expansion of mail-in voting, and in the midst of the COVID-19 pandemic, they are seizing a new opportunity to do so. As President Obama’s Chief of Staff Rahm Emanuel once said, “You never want a serious crisis to go to waste.”

In two separate lawsuits, Democrats argue that Texas’ election code can be interpreted to allow for all voters who fear COVID-19 to qualify for mail-in voting and that Texas’ election code violates the Voting Rights Act and the 14th, 15th, and 26th Amendments of the US Constitution. Paxton argues the opposite and that the vast expansion of mail-in voting will lead to an increase in voter fraud and undermine election security and integrity.

According to the Texas Secretary of State’s website, under current law, to be eligible to vote by mail in Texas, you must:

  • be 65 years or older;
  • be disabled;
  • be out of the county on election day and during the period for early voting by personal appearance; or
  • be confined in jail, but otherwise eligible.

Texas Courts Case - Texas Democratic Party v. DeBeauvoir

The current legal battle over the expansion of mail-in voting began on March 27th when the Texas Democrat Party filed suit in a state court alleging that the Texas election code could be interpreted to allow voters who fear that their health is in danger due to COVID-19 to qualify for mail-in voting under the “disability” eligibility requirement.

Texas Democrats’ legal arguments in the state case hinge around the definition of “disability” in the Texas election code:

Sec. 82.002. DISABILITY. (a) 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.

On April 17th, Judge Tim Sulak of the 353rd District Court in Travis County issued a preliminary injunction to include fear of catching COVID-19 under the definition of “disability” in the Texas Election Code. He then ordered election officials not to reject any mail-in ballot applications based on the grounds that they use the disability category of eligibility as a result of COVID-19. This temporarily authorized all registered Texas voters to qualify for mail-in ballots.

“The evidence shows that voters and these Plaintiffs … are reasonable that voting in person while the virus that causes COVID-19 is still in general circulation presents a likelihood of injuring their health, and any voters without established immunity meet the plain language definition of disability thereby entitling them to a mailed ballot under Tex. Elec. Code 82.002,” Sulak said.

Shortly after Sulak’s ruling, Paxton filed an appeal. On May 14th, the 14th Court of Appeals of Texas allowed Sulak’s ruling to stand with a 2-1 vote split among party lines. The Court of Appeals' ruling came one day after Paxton filed a petition for writ of mandamus to the Texas Supreme Court asking them to immediately consider the case and issue a preliminary ruling to halt the expansion of mail-in voting.

On May 15th, the Texas Supreme Court issued a stay on Paxton’s petition, effectively halting the expansion of mail-in voting until the court has time to fully consider the matter and issues an official ruling. The court began hearing arguments in the case last week.

Federal Court Case - Texas Democratic Party v. Abbott

On April 7th, the Texas Democrat Party filed another lawsuit in a federal court in San Antonio alleging that Texas’ election laws violate section II of the voting rights act and the 14th, 15th , and 26th Amendments of the US Constitution.

On May 19th, US District Judge Fred Biery sided with Texas democrats on their claim that Texas’ election code violates the 26th Amendment and issued a preliminary injunction to re-expand mail-in voting for all of Texas’ registered voters.

“The Texas Election Code allows citizens over sixty-five without a disability to vote by mail. Thus, the Texas vote by mail statute provides for the health safety of mail ballots for those 65 years of age and older but not those 64 years, 364 days and younger. The Court finds no rational basis for such distinction and concludes the statute also violates the clear text of the Twenty-Sixth Amendment under a strict scrutiny analysis,” said Biery.

“IT IS ORDERED that during the pendency of pandemic circumstances: Any eligible Texas voter who seeks to vote by mail in order to avoid transmission of COVID-19 can apply for, receive, and cast an absentee ballot in upcoming elections during the pendency of pandemic circumstances,” he ruled.

The 26th Amendment, adopted in 1971, prohibits state and federal governments from using age as a reason to deny the right to vote for citizens who are at least 18 years old. It says:

Section 1. 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 the United States or by any State on account of age.

Section 2. The Congress shall have the power to enforce this article by appropriate legislation.

Almost immediately after Biery’s ruling to expand mail-in voting, Paxton filed an appeal. Then, one day after, on May 20th, the 5th US Circuit of Appeals issued a stay on Paxton’s appeal, effectively halting the expansion of mail-in voting again until it has time to fully review the case.

While this case could ultimately make it to the Supreme Court, it appears that the federal courts will likely choose not to take further action on their case until the Texas Supreme Court has finished its case in the state courts, due to precedent set by 1941 Supreme Court ruling in the Railroad Commission of Texas v. Pullman case. In this case, the high court decided not to rule on a case until after a similar case had finished making its way through the Texas courts.

The Texas Democrats' case in the federal courts, in particular, is important because it could ultimately end up in the Supreme Court and set precedent not only for Texas’ voting laws, but for the rest of states with mail-in voting laws similar to Texas. As of now, it appears there are no relevant Supreme Court cases setting precedent to explain how federal courts should rule on cases arguing that a state’s election laws discriminate on the basis of age, so this case could very well set the future precedent for 26th Amendment cases.

Colorado, Hawaii, Oregon, Utah, and Washington conduct all elections by mail, and California and North Dakota allow counties to conduct elections by mail at counties’ discretion. Several states like Michigan and Nevada have recently expanded mail-in voting due to the COVID-19 pandemic.

Conclusion

While the Texas Democrat Party is certainly in favor of expanding mail-in voting, Texas Republicans, including Attorney General Ken Paxton and Lt. Governor Dan Patrick, have fought and spoken against it.

When TexasGOPVote asked its Facebook followers, “Should Texans who fear COVID-19 qualify for mail-in ballots,” the overwhelming majority of responses were some form of the answer no.

President Trump has also spoken out against the expansion of mail-in voting. On May 26th he tweeted, “There is NO WAY (ZERO!) that Mail-In Ballots will be anything less than substantially fraudulent. Mail boxes will be robbed, ballots will be forged & even illegally printed out & fraudulently signed. The Governor of California is sending Ballots to millions of people, anyone..... living in the state, no matter who they are or how they got there, will get one. That will be followed up with professionals telling all of these people, many of whom have never even thought of voting before, how, and for whom, to vote. This will be a Rigged Election. No way!”

Twitter then “Fact Checked” him saying, “These claims are unsubstantiated, according to CNN, Washington Post and others. Experts say mail-in ballots are very rarely linked to voter fraud.” Perhaps certain parts of the president’s tweet can be interpreted as hyperboles, but the fact that Twitter considers CNN and the Washington Post to be expert sources providing facts is concerning.

President Trump is 100% correct that some mail-in ballots will be forged and fraudulently signed. There are many documented cases of voter fraud in Texas, at least 37 in the last ten years, almost all of which involved mail-in ballots. These are just the cases that we know about in Texas, a state that allows limited mail-in voting. The Heritage Foundation has documented 1285 proven instances of voter fraud in the US since 1991; again, the majority of them involved the fraudulent use of mail-in ballots. And these are just the cases where people got caught!

The result of the ongoing legal disputes in our state and federal courts is sure to impact Texas’ upcoming runoff elections on July 14th and the general elections in November. One thing is clear: A large expansion of mail-in voting in Texas will inevitably lead to an increase in voter fraud. What is not clear is how much fraud will increase and to what extent the fraud will impact the results of elections. Perhaps we will never know.

Therefore, the vast expansion of mail-in voting in Texas seems like a risk we should not take. Fatalities linked to COVID-19 are trending down in Texas and the US, and the flu still kills more Texans on average per year than COVID-19. The health risk that Texans face in voting at the booths is not much larger than going to the grocery store. Additionally, older people, who are widely considered by health experts to be most at risk to negative health outcomes due to COVID-19, are already eligible to vote by mail. Furthermore, it appears that Governor Abbott’s social distancing orders will be over by the time elections come around anyways.

If Texas Democrats want to try to change our election laws and expand mail-in voting, they should do it the way laws are supposed to be changed, through the state legislature. This would allow time for lawmakers to study and discuss the potential impacts and proper safe guards to combat against fraud.

Faith and belief in the legitimacy of our democratic process is crucial to our identity and success as a nation. We will tumble down a slippery slope towards anarchy if we reach a point in time when Americans widely believe our elections are rigged and begin disputing the results.

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