As a growing number of states loosen restrictions on vote-by-mail to prevent coronavirus transmission at polling sites, Texas Democrats have filed a petition urging the U.S. Supreme Court to allow all Texans to cast absentee ballots, not just voters over age 65.
Current law prohibits younger voters from voting by mail unless they are incarcerated but eligible to vote, disabled or plan to be overseas on election day, while those over 65 can send mail-in ballots without exception. The plaintiffs in ‘Texas Democratic Party vs. Abbott’ claim the law constitutes age discrimination against younger voters, directly violating the 26th Amendment.
“In-person voting provides the perfect transmission for this disease to spread — quickly and to thousands of people,” Brenda Li Garcia, a registered nurse in San Antonio and one of six civilian plaintiffs in the suit, said in a virtual news conference Tuesday. “You have thousands of people [in] close quarters, touching the same objects and it’s difficult to maintain [distance], and that is exactly the catalyst for this virus.”
Prior to the pandemic, support for vote-by-mail was split along party lines, with Republicans insisting mail-in ballots open the door to voter fraud. However, the coronavirus has upended business-as-usual. After the primary election fiascoes in Wisconsin and Georgia involving hours-long lines, defective voting machines, a shortage of poll workers and absentee ballots that were never delivered, 16 states postponed their primaries, while others — including Ohio, Kansas, Oregon and Hawaii — switched to vote-by-mail with extended deadlines.
“Many states under Democratic and Republican leadership over the last few months have recognized the critical effect the pandemic will have on voting this Fall and have begun to loosen those restrictions in one way or another,” said Chad Dunn, general counsel to the Texas Democratic Party.
A federal district court in San Antonio ruled in May that all Texas voters could vote by mail during the pandemic, with state district judge Tim Sulak ruling that susceptibility to COVID-19 counts as a disability under state election code. The Texas Supreme Court put that ruling on hold later that month, concluding that “a lack of immunity to COVID-19 is not itself a ‘physical condition’ for being eligible to vote by mail.”
The petition filed by Texas Democrats asks that the block be lifted.
Meanwhile, Texas attorney general Ken Paxton has railed against vote-by-mail, claiming concerns of illegitimate voting and threatening to prosecute voters who improperly request absentee ballots due to the coronavirus pandemic. Studies show that allowing mail-in ballots does not result in statistically significant voter fraud, nor does it afford advantages to either political party.
Permitting Texans of a protected age group to vote by mail means younger voters will have to risk their health to cast their ballots and undermines the rhetoric against voter fraud, said Dunn.
”It’s a matter of equality here. If voting by mail is a bad idea and introduces fraud into the process, then nobody should be able to do it.”
However, county clerks and election administrators “don’t have jurisdiction to do any investigation” if a voter falsely claims a disability, Travis County attorney David Escamilla told The Austin Bulldog, a nonprofit online news site for investigative reporting.
Recognizing the uncertain circumstances, the Travis County clerk’s website states: “A voter who requests a mail ballot on the grounds of disability will be accepted as eligible for a mail ballot. Our office has no legal authority to administratively require voters to substantiate their disability at the time the application is submitted.”
Texas Democrats are hoping the U.S. Supreme Court will respond in advance of the July primary runoff on July 14 to finalize which Democratic and Republican primary candidates will be on the ballot for the November election. The deadline to apply for vote-by-mail in Texas is June 2.
”Election officials all around the state have made clear in other briefings they’re prepared for an election that’s largely vote-by-mail,” said Dunn. “We’ve already seen a significant increase in vote-by-mail applications and counties are preparing for that.”