The Austin Chronicle

Paxton Threatens Election Officials With Prosecution [UPDATE]

By Michael King, May 4, 2020, 9:00am, Newsdesk

Texas Attorney General Ken Paxton released a letter Friday afternoon, addressed to "County Judges and Election Officials," threatening prosecution of anyone who counsels mail ballots for those not "physically disabled."

Update May 4: The Attorney General's letter was distributed as a press release on Friday afternoon. Later that day, parties to the state and federal lawsuits concerning vote-by-mail responded to Paxton's letter. See below.

The letter, also distributed as a press release, presumably has been sent to officials in all 254 Texas counties. Asked to respond to the Attorney General's explicit threats of "criminal sanctions" in the letter and his interpretation of state election law, Travis County Clerk Dana DeBeauvoir said, "This is [Paxton's] opinion and he's stated it a couple of times previously. We are waiting to hear from the courts."

State District Court Judge Tim Sulak recently granted a temporary injunction, ruling that the risk of infection by the coronavirus that causes COVID-19 is sufficient to enable all Texas voters to apply for mail ballots for the July 14 elections (Congressional run-offs and a Senate District 14 election in Travis County, other contests elsewhere). Paxton appealed that decision to the Third Court of Appeals, and has adopted the position that while the appeal is pending, "the District Court's order is stayed and has no effect."

However, some election officials have said they are planning for a surge in voting by mail. Earlier this week, DeBeauvoir told the Chronicle that Travis County normally receives about two VBM applications a day for an interim election like the July run-off. "Right now they're running at about 200 a day," she said.

Paxton's letter argues that the "plain language" of election law requires a narrow, personal interpretation of "sickness" or "physical condition," but he arrives at that definition only by omitting some of the plain language of the law, and insisting that "fear" of infection does not qualify as a physical condition. But the District Court ruled that all voters are potentially at risk of infection during the pandemic, and therefore voting in-person represents (as the law states) the "likelihood … of injuring the voter's health."

An earlier, "advisory" Paxton letter to state Rep. Stephanie Klick – issued prior to the District Court's official ruling – made the same general argument about the disability provisions of state election law. The latest letter is addressed to County Judges as well as election officials. Travis County Judge Sarah Eckhardt told the Chronicle that Paxton's invocation of possible "criminal sanctions" is a "threat designed to suppress voter turnout."

Eckhardt added that Paxton's argument that the temporary injunction is "stayed" during the Third Court appeal is simply "one lawyer's opinion, and the higher court may have a different opinion."

As for the reiteration of Paxton's earlier advisory letter, DeBeauvoir said, "He wants to make certain his threat is being heard."

Update May 4: There are at least three lawsuits – two federal, one in state courts – requesting injunctions directing Texas election officials to allow universal vote-by-mail. In the state lawsuit filed by the Texas Democratic Party, the court ruled that due to the current risk of the Covid-19 pandemic, all Texas voters are eligible to vote by mail in the July 14 elections. Attorney General Paxton has appealed that ruling to the Fifth Circuit Court of Appeals, and argues that while that appeal is pending, the court's ruling is "stayed" pending the appeal.

A second TDP lawsuit, filed in federal court, makes similar claims but on broader constitutional grounds. A third federal suit, filed by several Texas voters, argues that the state election law restricting vote-by-mail to voters 65 and older discriminates on the basis of age. Those two suits are pending.

Attorney Chad Dunn, representing the TDP, responded to Paxton's letter in a press release. “The court already overruled Ken Paxton’s rehashed arguments. … Paxton can keep on stating his opinion over and over again for as long as he wants but the bottom line is he needs to get a court to agree with him. …" Dunn also rejected Paxton's assertion that District Judge Sulak's order is "stayed" pending appeal.

Intervenors in the lawsuit include the Texas Civil Rights Project, the ACLU of Texas, and the national ACLU, and also responded to Paxton's press release. Joaquin Gonzalez, staff attorney of the TCRP, said in part, "The fact is, a judge ordered that Texans qualify for vote by mail because voting in person while the virus is in circulation presents a likelihood of injuring the health of all voters, and there is no other authoritative legal opinion on this matter.”

Responding for the ACLU of Texas, senior staff attorney Thomas Buser-Clancy said, "Ken Paxton’s letter – which is not binding – gets the law wrong and serves no other purpose than to attempt to intimidate voters and county officials. The simple fact is that no Texan should have to choose between their health and exercising their fundamental right to vote."

Sophia Lin-Lakin, deputy director of the ACLU’s Voting Rights Project, added: “Ken Paxton’s non-binding letter does nothing to disturb the court’s legal opinion on whether Texans can vote by mail due to COVID-19. … It is a common sense solution to protect democracy and people's well-being during this public health crisis.”

This is an ongoing story: Travis County Clerk DeBeauvoir is scheduled to present her plan and budget for the July 14 election to Commissioners Court on Tuesday, May 5. For more news, follow the Daily News and the Chronicle's print edition.

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