With primary election runoffs scheduled for July and the November general election on the horizon, the Texas Democratic Party has expanded its ongoing fight for more widespread mail-in balloting to federal court, fearful that a Monday U.S. Supreme Court decision on the Wisconsin presidential primary signals a need to get federal litigation in the pipeline quickly.
In a federal lawsuit filed Tuesday in San Antonio the Texas Democrats argue that holding traditional elections within state and federal safety guidelines attempting to limit spread of the new coronavirus pandemic would impose unconstitutional and illegal burdens on voters unless state law is clarified to expand voting by mail.
Voting by mail is fairly limited in the state. Texans seeking an absentee ballot that they can fill out at home and mail to their county elections office must offer an excuse to qualify. To be eligible under typical circumstances, a voter has to be 65 years or older, have a disability or illness, be out of the county during the election period, or be confined in jail.
The Texas election code says voters have a disability if they have a “sickness or physical condition” that prevents them from appearing to vote in person without the likelihood of “injuring the voter’s health.”
In a recent advisory, the Texas Secretary of State’s office signaled that the state’s voting-by-mail qualifications could extend to voters affected by the pandemic, but provided no specific explanation of how eligibility could be expanded so more Texans can qualify for an absentee ballot.
In their lawsuit, the Democrats argue the advisory “unhelpfully” gave local election administrators “no material guidance” on who can qualify to vote by mail under the circumstances brought on by the pandemic.
“Left without Court intervention, the state will march toward upcoming elections with no plan in place,” the Democrats wrote in their complaint, in which they allege multiple violations of the U.S. Constitution and the federal Voting Rights Act.
The Democrats had previously filed a lawsuit in state district court asking a judge to declare that the portion of the Texas election code allowing voters to cast a mail-in ballot if they suffer from a disability applies to any voter in Texas "if they believe they should practice social distancing in order to hinder" the spread of the new coronavirus. The federal case, they argued, would put the court in a position to act if state court rulings “serve to harm” the rights of voters or are delayed.
In their lawsuit, the Democrats also said they were taking their fight to federal court to allow the case more time to proceed and be appealed if necessary after the U.S. Supreme Court on Monday issued a narrow ruling that blocked extended voting by mail in Wisconsin on the eve of that state's primary election. The Democrats argued the high court “served notice” that challenges to alter voting methods or election procedures should be filed early.
The state case is moving forward with a hearing scheduled for April 15.