Will Vote-by-Mail Happen by July Elections?

Travis County Clerk Dana DeBeauvoir says she needs to know by May 1 whether all local voters will be allowed to vote by mail in the next election, set for July 14. A state district court said yes – but Texas Attor­ney General Ken Paxton says he'll appeal.

On April 17, Travis County District Judge Tim Sulak ruled that in the context of the COVID-19 pandemic, all Texas voters are eligible to apply for mail ballots under the "disability" provision of state election law. That same day, Paxton filed notice that he would take the matter to the 3rd Court of Appeals. That's where matters stand now – with a legal battle pending and the election-planning clock ticking away. (There's also a federal lawsuit covering the same ground; on Wednesday, as the Chronicle went to press, the Texas Democratic Party amended that suit to seek a preliminary injunction to speed up the process, writing in its filing that "The Rule of Law has broken down in the State of Texas, and it has become clear that the federal courts will have to ensure basic constitutional protections for the U.S. Citizens within."

DeBeauvoir is not alone. As TDP Election Coordinator Glen Maxey testified in Sulak's court on April 15, all 254 Texas counties need to know how best to prepare for whatever voting system the state and the courts allow. In response to a vote-by-mail petition organized by advocacy group Progress Texas, Secretary of State Ruth Hughs cited current election law defining "disability" as a condition that could risk a voter's health, adding, "If a voter believes they meet this definition, they can submit an application for ballot by mail." Hughs suggested there might be future "guidance," but left hundreds of officials to guess how they should plan for a process that is both efficient and safe for voters and election workers. Unless the courts act soon, there are likely to be different procedures all over the state, casting doubt on the reliability and equity of the outcomes.

DeBeauvoir was a named defendant in the lawsuit filed in state court by the TDP, but her own plans are dependent on the outcome. Without firmer official guidance, she told the Chronicle, she is planning (and budgeting) for three scenarios: 1) business as usual; 2) universal vote-by-mail; 3) a hybrid with predominantly VBM but some voters demanding to vote in person. But even "business as usual" is likely in practice to be very different from normal. Election workers will be hard to recruit and difficult to protect, and regardless of how the courts rule, there will be a VBM surge that calls for different resources and staffing.

At the April 15 hearing, medical experts testified that they expect pandemic conditions to persist throughout the summer months and into the fall. Texas law allows VBM for absentees (those who'll be away from home for all of early voting and on E-Day), voters 65 or older, and those with a "disability" that prevents them from voting in person. Lawyers for the TDP argued that what constitutes a "disability" is up to the individual voter, not county officials. Maxey said party chairs and county clerks have been given no state guidance on how to proceed, and they expect that no more than 20% of regular election workers (often elderly) will be willing to staff polls under pandemic conditions. (DeBeauvoir said that even on March 3, before COVID-19 had prompted local and state shelter-in-place orders, many election workers simply stayed home without notifying administrators, creating a scramble to cover the polls.)

Maxey cited the recent election debacle in Wisconsin and said, "In my opinion, waiting until July 14 to prepare would be the same as knowing there's a hurricane coming but waiting for it to hit."

The state's response, presented by Assist­ant Attorneys General Michael Abrams and Anna Mackin, was remarkably thin, arguing that the courts have no jurisdiction, that pandemic conditions might change by July, that Abbott might provide direction to protect voters and the public (his "Open Texas" plan is silent on VBM; see here for more), and that a decision can wait. Judge Sulak was unpersuaded, and on April 17 imposed his injunction through July 27.

Even as the hearing was concluding, Paxton fired his own shot, releasing an advisory letter to Rep. Stephanie Klick, R-Ft. Worth, chair of the House Elections Committee, threatening prosecution of any voter who voted by mail without a narrowly defined "physical condition" constituting a "disability." Paxton threatened "criminal sanctions" as well for any election official advising such a vote. We now wait to see if – and when – the 3rd Court may concur.