Texas Attorney General Asks State Supreme Court to Stop Expansion of Voting by Mail

After his threats fail, Ken Paxton heads to court

Attorney General Ken Paxton
Attorney General Ken Paxton (Photo by John Anderson)

Frustrated by the failure of his threats of prosecution, Texas Attorney General Ken Paxton asked the state Supreme Court Wednesday to stop county election officials from accepting “illegal” mail ballot applications. If the court agrees … it’s not clear what would change.

On April 17, state District Judge Tim Sulak ruled that under pandemic conditions – certain to persist at least through the July 14 election – all in-person voters would bear the risk of contracting the novel coronavirus and COVID-19. Under the court’s reading of state election law, the risk of infection constitutes a “physical condition that prevents the voter from appearing at the polling place on election without a likelihood … of injuring the voter’s health.” Paxton’s interpretation – that “physical condition” can mean only a personal health disability of some kind – lost the argument, and his appeal will be heard (according to his filing) by the 14th Court of Appeals sometime in June.

Paxton has insisted that his appeal had automatically stayed the Sulak order. This afternoon, a three-justice panel of the Court of Appeals handed him another loss. The court ruled that “the trial court’s temporary injunction remains in effect until disposition of this appeal” – meaning county officials should continue accepting mail ballot applications from all voters requesting them. (Justices Margaret Poissant and Jerry Zimmerer voted to maintain the injunction; Chief Justice Kem Frost dissented.)

Staff attorney Thomas Buser-Clancy of the ACLU of Texas (representing intervenors in the lawsuit) released a statement: “The Court of Appeals has recognized the need to allow efforts to ensure Texans have the ability to vote by mail during this pandemic to proceed while the full appeal is heard. We appreciate the Court of Appeals’ realization that the Attorney General’s attempts to override judicial decisions are improper, and directly impact voters who are trying to participate in our democracy without having to risk their health.…”

Two related federal lawsuits addressing Texas voting by mail are pending, and a criminal complaint against Paxton has been filed in Dallas County, accusing the AG of “felony election fraud” for providing “misleading statement(s), representation, or information” to an election official. (“Legal Heat Rises on Vote By Mail,” May 15)

The Dallas complaint refers to the AG’s repeated threats of “criminal sanctions” against election officials who counsel voters to apply for mail ballots (and by extension, against those voters as well), as constituting and promoting “election fraud.” But the standard ballot application asks prospective voters only to choose between absentee, age 65 or older, or “disability” as their sworn grounds for requesting a mail ballot. Election officials have pointed out that they have neither the authority nor the resources to investigate voters’ claims of disability, and Paxton’s brief to the Supreme Court quotes Travis County Clerk Dana DeBeauvoir telling the Austin American-Statesman: “If the voter swears [to be disabled], I believe the voter.” (The election officials also note that standard Secretary of State guidance is to accept ballot applications at face value.)

Paxton’s filing to the Supreme Court accuses DeBeauvoir and the election officials of four other counties – Cameron, Harris, Dallas, and El Paso – of misrepresenting the legislative intent of the law concerning voting by mail, and asks for a writ of mandamus “compelling [the officials] to perform their duties as early voting clerks in accordance with law.”

By this new filing, Paxton is attempting to leapfrog the lower courts and evoke a Supreme Court ruling that would obstruct further expansion of mail balloting. But even if he persuades the all-Republican court to issue a favorable ruling, it’s not clear what would happen. Would county clerks be expected to challenge the many thousands of voters who have already applied for July 14 mail ballots on disability grounds, demanding that they provide specific, confirming documentation?

Chad Dunn, attorney for the Texas Democratic Party, told the Chronicle in April he believed the district court ruling would be upheld on appeal, and that the alternative is unclear. Would the state try to convene “boards of inquiry” into all mailed ballots? As of this writing, Travis County alone – one of 254 Texas counties – is estimating it will need between 25,000 to 30,000 mail ballots (under all categories) for the July 15 election, based on current requests.

Sophia Lin Lakin, deputy director of the Voting Rights Project of the national ACLU, represented independent intervenors in the state lawsuit. She told the Chronicle, “It's very disappointing that Paxton is continuing to disregard the normal judicial process and taking yet another improper course of action, all to advance a position that will force Texas voters to make an unconscionable choice between their health and their right to vote. A court has already ruled that Texas law allows Texans to vote by mail during this public health crisis. That is the correct interpretation of the law; it's also just common sense, and that's why officials from both parties have supported voting by mail for all eligible voters.”

Paxton has asked the Supreme Court for a ruling within two weeks. Tomorrow (Friday, May 15), Judge Fred Biery of federal district court in San Antonio will hear a motion by the Texas Democratic Party for an expedited order enabling all Texan voters to do so by mail, and to end any further threats by Paxton against election officials and voters.

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Vote-by-Mail, Voting by Mail, Primary Election 2020, Ken Paxton, Texas Democratic Party, Dana DeBeauvoir

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