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Who Has The Final Say On Whether A Texan Can Vote By Mail? Courts? Politicians? Try Voters.

Julia Reihs
Voting lines for elections this summer and fall could look very different in Texas as the coronavirus pandemic still necessitates social distancing and wearing face coverings. The potential health risk of voting in public this year has fueled lawsuits.

The Texas Supreme Court has ruled that the absence of immunity to COVID-19 does not qualify a voterto use the disability category to request a mail-in ballot during the coronavirus pandemic. The court also says it will not make election officials investigate – or deny – applications to vote by mail.

Confused by the back and forth over mail-in ballots in Texas? OK, let's sort some of that out.

Most voters might be thinking ahead to 2020 presidential election this fall. But Texans have another election before then: The March primary runoffsare in July, having been postponedbecause of the pandemic. And it's that pandemic that has some people worried about going out to vote in public.

The concern has prompted lawsuits in state and federal courts over the possibility of expanding Texas' system for voting by mail.

Right now, to qualify for a mail-in ballot, a voter must meet one of four criteria:

  • be 65 years old or older
  • be in jail (but not convicted)
  • be out of the county
  • be sick or disabled

That last provision – about being sick or disabled – has been the focus of attention in the courts. Some voters are concerned about the risk of infection by going out to potentially crowded polling places and waiting in long, jammed lines.
KUT's Ashley Lopezcovers voting and elections and took some time recently to explain via Zoom just how the mail-in ballot system in Texas works. She also lays out the basics of the different tracks of lawsuits currently underway. And Lopez says that while the system may seem complicated right now, there is a basic truth at play: In Texas, it is up to voters to decide if they qualify for a mail-in ballot or not.

Listen to the interview below or read the transcript to hear what voting groups and election officials are suggesting voters do as the court cases continue and the clock counts down to Election Day:

This transcript has been edited lightly for clarity:

KUT’s Ashley Lopez: For the most part, something like between 6 to 10% of people who qualify under those four categories even use the program. So, mail-in ballots are something that have been around for a while, but are very underutilized and very restricted in terms of who qualifies in Texas.  

KUT: There have been several lawsuits now filed over the past few months as the pandemic has continued related to mail-in voting in Texas. Run us through the lawsuits and what has been going on in court about this.

Lopez: On the district court level, plaintiffs really just sought a state judge to clarify what the law says. Like the disability category for mail-in ballot: Under the election code, plaintiffs in the case have pointed out that it says this is available to anyone who will face physical harm from going to a polling place. And their argument is, that very clearly would pertain to basically anyone without immunity, basically the general population. They just wanted a judge to weigh in and say that. And a lower court judge did. And now that's been appealed. And it's gone to the Texas Supreme Court.

And then the other lawsuits on the federal court level are doing what a lot of federal court voting rights lawsuits have done in Texas for the past few years, which is say: The way Texas law is right now is inadequate to meet constitutional guidelines for what should be available to voters. The federal court lawsuits are seeking to remedy a situation that Texas law just doesn't have enough protections for voters during this time.   

KUT: Looking at those parameters right now for who is eligible to vote by mail in Texas, you mentioned one of them has really been getting a lot of attention: if you are sick or disabled. Talk about the arguments that have been going on around that specific part of who's eligible to vote by mail.  

Lopez: State officials would say that sick or disabled means you literally cannot make it to a polling place, so you have to vote by mail. You are physically unable to go to a voting place. On the other side of that argument, voting rights groups say, well, the election code says if you will be physically harmed by going to vote in person then that allows you to have access to mail-in voting.

Right now, local election officials don't really have the authority to ask someone to prove that they're disabled. So, it kind of has always been left up to the voter to decide whether or not they fit into that category. And to an extent, it still does.

State officials don't want – and I'm thinking specifically here about our Attorney General Ken Paxton– this to become a situation where everyone who does not feel safe going to a polling place seeks a ballot under that category. Voting rights groups say that this is absolutely what mail-in ballot under Texas law was created for. And if not, then the law needs to change in Texas.

KUT: Who ultimately decides if a voter is eligible for a mail-in ballot? Is that a decision by local elections officials or is that something that the state determines?

Lopez: It's actually something that the voter determines. When a voter seeks a mail-in ballot they're asked to check one of those four boxes that I mentioned before, and that's a legal document. It's binding if you lie on that document. You could potentially be prosecuted for that, although that's very rare.

But local election officials just take the ballot application; look at it; make sure everything - that all the information that is needed is provided on the form; and then they send the ballot. They don't vet whether or not someone is truly eligible. I think it might be different for over 65, because they could just check the birthday that's listed there on the form. For the most part, it is on the voter to decide whether or not they qualify for one based on the provisions there on the ballot – the language that tells you what category applies to whom.

We don't have state-regulated elections here. We have a very decentralized system. It has always been up to local election officials to administer these ballots. So the state doesn't really weigh in in any way; voters get to decide what category they belong in if they belong to any at all.  

KUT: So, what are voting advocates and local elections officials telling voters to do while all of this is still up in the air? 

Lopez: Everyone's being very careful to say – not to give their opinion on the legal situation at hand, but just say, "If you think you qualify, you should seek a ballot." And they're not saying, "Oh, if you think, you will get the coronavirus and get very ill." They're just saying, "Read everything you can. This is up to you in the end anyway. And if you think you qualify, then seek a ballot."

A local election official is not going to step in because one, that is not their job – especially under the disability category. I heard a lot of local election officials say, "I'm not a doctor. I don't know what a physical disability would be even if someone were to describe it to me. That is not my job." They're also not investigative authorities.

So, they're basically telling voters: Do your research, take this into your own hands.

I feel most in this situation for voters because it is so complicated. And I think even lawyers can't really say outright what anyone's rights are here now, because it's still getting worked out.

Correction: An earlier version of this transcript said one of the criteria for the ability to vote by mail is being out of the country, instead of county. 

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Jennifer Stayton is the local host for NPR's "Morning Edition" on KUT. Got a tip? Email her at Follow her on X @jenstayton.
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