There’s been a lot of confusion and misinformation going around about voters under the age of 65 being able to vote by mail because of the pandemic. This is a relatively fast moving and changing situation. We’ll try to clarify the current status for you as of today, knowing that by the time this is published it may have changed yet again.
We do want to first make it clear that because the Texas Democratic Party is pursuing legal action in this matter, the CCDP is not advising otherwise ineligible voters to apply to vote by mail. On the other hand we’re not discouraging them either. Likewise we do not here presume to offer legal advice; we are providing our understanding of the current facts of the matter.
As a starting point, any Texas voter aged 65 or over or who claims a disability may apply annually to vote by mail for all elections that year. When applying the applicant simply checks a box indicating they have a disability. They are not required to specify the nature of the disability, nor are they required to present a physician’s statement or other evidence of a disability. Election Administrators are required to approve such applications without question. Here’s the specific provision:
“Sec. 82.002. DISABILITY. (a) A qualified voter is eligible for early voting by mail if the voter has 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.”
Most violations of Texas Election Code are considered Class A misdemeanors, punishable by up to one year in jail, a fine of up to $4,000, or both jail time and a fine. If prosecuted, fraudulently submitting an application for a mail-in ballot might be handled this way. However, no one we talked with knew of a single case where an application had even been investigated to see if the disability was genuine, let alone the applicant being prosecuted. And if there was an investigation it would not be carried out by the Elections Administrator, it would be carried out by the Texas Attorney General’s office. There aren’t resources for the state to seek wholesale prosecutions, but it wouldn’t be unheard of for the AG to selectively prosecute a few individuals or organizations to make examples of them.
After the pandemic became serious late in the spring, guidance from the Texas Secretary of State’s Election Division regarding the ability to obtain a ballot by mail due to the pandemic was unclear to many voters. The Texas Democratic Party joined with other plaintiffs to bring suit in state District Court in Travis County to force acceptance of applications for ballot by mail based on a declaration of disability due to concerns over being infected with the virus while voting. Judge Tim Sulak of the 201st District Court issued a Temporary Injunction on April 17 effectively ordering Election Administrators across the state to accept such applications. His order set a follow-up conference date for July 27, after the July 14 Primary Runoff.
Indicted Texas Attorney General Ken Paxton has issued various statements and opinions disagreeing with the ruling, but they do not hold the force of law. The District Court ruling may only be overturned by a higher court, and as expected the state has appealed. The state’s brief is due in the 3rd Court of Appeals in Austin by May 29. The Plaintiff’s typically would be allowed up to thirty days to file their response, pushing things out to the end of June. Therefore the earliest that the Appeals Court would be likely to issue a ruling is early July, and that’s probably too late to have any impact on the runoff. The next step would be the Texas Supreme Court, where the state will probably prevail due to that court being run by Republicans. But that would almost certainly be after the runoff.
Voters should also be aware that the TDP is also pursuing this matter in federal court. A preliminary hearing is set for Federal Court in San Antonio May 15. Hunches are that the most that might come out of that hearing is an order that the Texas Attorney General stop threatening voters with criminal prosecution if they claim disability due to lack of immunity to COVID-19. We’re advised that the federal court will probably wait until the issue is settled in state courts before considering it in detail. Our best guess is that this would be after the runoff but before the November 3 general election.
All of that said, as of the time this is being written Judge Sulak’s order stands, and it is legal to apply for a ballot by mail claiming a disability due to lack of immunity to COVID-19. Though unlikely, that could change just about any time. We plan to keep you informed as things progress.
Voters also need to be aware that the CCDP is actively working with the Collin County Elections Department to make polling places as safe as they can be for those who choose to vote in person.
Finally, we strongly encourage any voters aged 65 or over or with permanent medical disabilities to apply to vote by mail now if they have not already done so.