What’s Going on with Texas Mail-In Ballots?

Conflicting rulings from a district court and the attorney general have caused confusion as to the role mail-in ballots will play in this year’s elections.

Democrats Support Expanded Mail-In Voting, Republicans are Skeptical

Amidst the Chinese Coronavirus pandemic and shutdown, Texas Democrats have been calling for all voters to vote in this year’s election by mail-in ballots. Republicans, including President Donald Trump, have expressed concern that mail-in ballots are subject to fraud. They are also worried that state election administrators may not be equipped to handle a massive increase in mail-in balloting, which is typically reserved for the elderly.

Mail-In Ballots Have Been Subject to Fraud

The largest voter fraud investigations in Texas history have involved illegal mail-in ballot harvesting schemes in the DFW metroplex, Rio Grande Valley, and elsewhere. Indeed, in fighting against Voter ID laws, aimed at combatting in-person voter fraud, Texas Democrats themselves have repeatedly argued that the significant fraud in Texas elections occurs with mail-in ballots.

The Texas Secretary of State Implied that Mail-In Ballots Could Be Widely Accessed

In an advisory issued on April 2nd, the Texas Secretary of State’s Office discussed voting by mail as a means for voters affected by the Chinese Coronavirus to vote in upcoming elections. While voting by mail is typically reserved for voters who are over 65 years of age, the Election Code also allows those who are “sick or disabled” to request a mail-in ballot. The Secretary of State noted that “disability” includes a “physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of … injuring the voter’s health.” Some experts interpreted this to mean that any person who feared contracting the Chinese Coronavirus could qualify as having a disability making them eligible to vote by mail; indeed some election administrators have advised that all voters can request a ballot by mail.

The Application to Vote by Mail Doesn’t Ask for a Detailed Explanation or Documentation

The question of how wide the disability clause can be interpreted is compounded by the fact that the application for ballot by mail only requires the applicant to check a box for “disability” and does not require them to add any explanation or supporting documentation for the type of disability. This means that election administrators may be unequipped to question those who request a ballot by mail as to whether they genuinely have a disability.

The Attorney General’s Office Has Opined that “Fear” of Contracting the Virus is not Enough

On April 15th, in a letter to Texas House Elections Committee Chairman State Rep. Stephanie Klick (R–Fort Worth), Attorney General Ken Paxton stated that “fear” of contracting Chinese Coronavirus would not be a “physical condition” that would qualify voters to request a ballot by mail. Moreover, to the extent third-parties advise voters to apply for a mail-in ballot based solely on fear of contracting the virus, the AG advised that such activity could be subject to criminal sanctions. However, the letter was an “informal letter of legal advice” and it did not address the issue of whether those who have an underlying physical condition, such as high blood pressure, obesity, or diabetes, that could worsen the health consequences of contracting the virus, would be eligible to apply for a mail-in ballot. So even the extent of the AG’s opinion is less than clear.

A Travis County Judge Has Disagreed, Though the Scope of the Ruling is Not Clear

Later that same day though, directly countering the Attorney General’s advice, Travis County District Judge Tim Sulak announced he would grant a temporary injunction allowing all Travis County voters to request a ballot by mail using the “disability” category. The ruling was the result of a lawsuit brought by the Texas Democratic Party and several liberal groups against Travis County Voter Registrar Dana Debeauvoir and Texas Secretary of State Ruth Hughs. The plaintiffs sought a temporary injunction to force Travis County to accept applications for ballot by mail from everyone and to enjoin the state from issuing further advisories (like the letter from Paxton) stating anything to the contrary. It is unclear how exactly this ruling applies to elections and voters outside of Travis County, and Paxton has vowed to appeal.

This Issue May Set Off an “Arms Race” for Mail-In Ballots Between Democrats and Republicans Headed into November

Although those who are currently sick with the Chinese Coronavirus are expected to recover long before the November elections, and all hope the pandemic will have abated by then, Texas’ method of providing mail-in ballots means this current issue could have long-reaching effects:

How so? Because those that apply for a ballot by mail for one election in a two-year election cycle are presumed to have requested one for future elections. This means that voters who apply this month for upcoming elections can expect to receive a mail-in ballot for the November Presidential election as well.

And that’s why Democrats are so excited about the opportunity to expand mail-in ballots—they believe it is an opportunity to bank likely votes for November. That’s how a campaign “arms race” could begin: any expansion of mail-in ballot eligibility will trigger Republicans and Democrats to encourage likely supporters to qualify for a mail-in ballot in the hopes of increasing those groups’ turnout in what is already expected to be a hotly contested general election.