A Travis County judge issued an order Friday that essentially opens up Texas’ strict ballot-by-mail program to all voters during the coronavirus pandemic.
But local election officials say voters didn't have to wait for the courts to weigh-in.
Chris Davis, the elections administrator for Williamson County, said if voters want to vote by mail out of fear for their personal health and safety, they can apply at any time.
“Our takeaway is going to be the same as it has always been and that is simply this: If we receive an application for ballot by mail under the excuse of disability, the only thing we can do is process it and fulfill it,” he said.
By law, Davis said, local election officials don’t have the authority to “question the applicant on any of the excuses they use for ballot by mail.” He said that’s particularly true of the disability category.
“We have no authority to ask [a voter] to define what their disability is,” Davis said. “We take the application at face value – as we always have.”
Jennifer Anderson, the elections administrator for Hays County, said she – like most administrators – doesn’t have the medical or legal training to decide whether a voter qualifies for a mail-in ballot under current law.
“I am not a lawyer, so I wouldn’t go saying that certain items meet that criteria,” she said. “But if a voter feels like it does, and they feel like it’s valid qualification, then they would mark that and they would receive a ballot by mail.”
The Texas Democratic Party and civil rights groups filed a lawsuit in Travis County against state officials to get the court to clarify who can seek mail-in ballots in Texas.
Under state law, the program is open only to people who 65 or older, people who will be out of the county, people who are in jail and not convicted, and people who are sick or disabled.
According to the state election code, “disability” means “a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter's health.”
Voting groups have said that definition opens the door to all voters because voting at a polling site presents serious health risks as cases of COVID-19 increase in the state.
But Texas Attorney General Ken Paxton said in a statement this week that he disagrees.
“Mail ballots based on disability are specifically reserved for those who are legitimately ill and cannot vote in-person without needing assistance or jeopardizing their health,” Paxton said. “Fear of contracting COVID-19 does not amount to a sickness or physical condition as required by state law.”
Joaquin Gonzalez, a staff attorney at the Texas Civil Rights Project, said pushback from state officials like Paxton is part of the reason they sought clarity from a court.
“Probably some percentage of people would just not apply for ballot by mail because they were unsure,” he said.
Ultimately, Gonzalez said, what the court orders “trumps” Paxton’s opinion.
He said a court order creates a legal backstop for voters who apply for mail-in ballots, in case the attorney general tries to prosecute people for seeking them.
During the hearing before Travis County District Court Judge Tim Sulak on Wednesday, plaintiff attorneys expressed concern that Paxton could try to prosecute people for seeking a ballot by mail during the pandemic.
Paxton has a history of prosecuting voters for what he alleges are “voting crimes” or “fraud.” Attorneys who work on voting rights issues in the state have said his efforts has been intended to intimidate voters who make innocent mistakes while voting.
In his statement this week, Paxton said that his office “will continue to defend Texas’s election laws to ensure that our elections are fair and our democratic process is lawfully maintained.”
Whether to take Paxton’s opinion into consideration when deciding about mail-in ballots is entirely up to voters.
Austin resident Patrick Wenda said he’s been trying to figure out whether he can apply for a mail-in ballot ever since Wisconsin held its primary election earlier this month. Many voters there had to vote in person. He said he wouldn't feel safe voting in July's election at a polling site in Texas.
Wenda said he’s been told it’s up to him to figure out what to do.
“What they are saying is, ‘This is the law as it’s written, you make your choice if you think you are eligible and we will actually tell you yes or no,’” he said.
Wenda said he’s waiting for more information, because he's not sure he can seek a mail-in ballot, which he said is a shame.
“I think it’s the government’s responsibility to provide a viable and nonthreatening way to vote,” he said.
Yvonne Ramón, the election administrator for Hidalgo County and the president of the Texas Association of Election Administrators, said there’s only so much guidance local officials can give right now. They are all still waiting to see how this legal battle shakes out, she said, and what other state officials – like the Texas secretary of state – will advise.
Ultimately, election administrators “are not legal advisors,” Ramón said; legislators and judges make the decisions about what voting laws should be. Now, she said, voters have to weigh the information.
“The voter will have to make up his or her mind,” Ramón said.
This post has been updated.
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