Fight the Future (especially when that future is a purple Texas)

Texas Attorney General says that groups that encourage people to apply for a mail-in ballot solely because they fear contracting Covid-19 could face "criminal sanction." https://t.co/YCBrcT8Lz5 pic.twitter.com/NfirSPmgqV

— Sam Levine (@srl) April 15, 2020

You remember that.  Yeah, it wasn't so long ago.  And I mentioned the Harris County Clerk Diane Trautman (the official in charge of elections in the most populous county in Texas) had said people who wanted to vote by mail for fear of catching the coronavirus, could do so.  Here is exactly what she said:

“The procedure for mail ballot applications has always been to honor any request from a voter who checks the disabled box. We are not going to question someone's disability,” added Trautman. “Any ability to expand the Ballot-By-Mail program will need to be granted at the state level.”

That's some high-grade sneaky shit there, to be honest.  She agrees she must comply with state law, but she lets voters in on a secret:  nobody is going to investigate your claim of a "disability" that keeps you from appearing at a polling place.  Wink wink nudge nudge knowutImean? And she can do that because, as we shall see, Texas law puts the responsibility for approving applications for mail-in ballots on the Country Clerk.  Once approved they are, by law, assumed valid unless some government lawyer wants to investigate each and every mail-in ballot in all 254 Texas counties (or just a few in the most populous counties, but then we'd be back to court on the definition of "disability," so yeah, this is a circular process.).

Well, even that may not be necessary:

State District Judge Tim Sulak of the 353rd District Court in Travis County said he will issue a temporary injunction allowing voters who fear catching the new coronavirus to qualify for mail-in voting through the disability clause in the state’s election code.

The lawsuit was filed by the Texas Democratic Party and several voting rights groups who are concerned that voters in upcoming July elections, including the primary runoffs, could catch the virus if access to mail ballots is not expanded.

If you think you hear echoes of the Wisconsin case, you may.  But Texas law is not Wisconsin law, so the legal issues may be different.  And yes, I still think the law must be upheld over any expediency one party may claim suspends the law "this time."  Because next time may be a time you don't want the law suspended, but what about that precedent?  But what does Texas law require?  That's what the fight is gonna be about.

Texas Attorney General Ken Paxton said he was “disappointed” that the court had “ignored the plain text of the Texas election code to allow perfectly healthy voters to take advantage of special protections made available to Texans with actual illness or disabilities.”

“This unlawful expansion of mail-in voting will only serve to undermine the security and integrity of our elections and to facilitate fraud," Paxton said in a statement. "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... My office will continue to defend Texas’s election laws to ensure that our elections are fair and our democratic process is lawfully maintained.”

Which may well be true, but does every mail-in ballot have to include a notarized doctor's note that Suzy can't come to the polling place today because she's sick?  I looked up the application, and the answer is:  No, you don't.  It does say "giving false information is a crime," (more on that in a minute) but it doesn't define "disability."

Here is what the Texas Election Code does say:

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.

(b)  Expected or likely confinement for childbirth on election day is sufficient cause to entitle a voter to vote under Subsection (a).

It is, quite honestly, a helluva leap from section (a) to Paxton's conclusion, as stated in the news article:

“Based on the plain language of the relevant statutory text, fear of contracting COVID-19 unaccompanied by a qualifying sickness or physical condition does not constitute a disability under the Election Code,” Deputy Attorney General Ryan M. Vassar said in a letter to Fort Worth state Rep. Stephanie Klick.

I take it from that they have no court cases to stand on.  The plain reading of the statute, which includes a specific provision that pregnant women are "disabled" for purposes of the statute, is that one is eligible to vote by mail if the voter can't appear "without a likelihood...of injuring the voter's health."  I have no idea how that doesn't apply to people fearful of contracting coronavirus by standing in line to vote. I  also can't see how checking the "Disability" box on the form is a crime under Texas law.  Chapter 84 of the Election Code (sorry, I'm trained as a lawyer, the thouroughness can't be beaten out of me.) makes it a "state jail felony" to "(1)  knowingly provides false information on an application for ballot by mail," but I can't for the life of me see a jury prosecuting a voter for checking the "Disability" box for fear of contracting coronavirus.  More likely they'd prosecute the government lawyer who wasted their time.

As County Clerk Trautman said, the County Clerk's office is not going to investigate disability claims on ballot applications.  Chapter 86 of the Election Code puts the onus on the County Clerk to decide whether or not to accept the application for a ballot, and once done, that's pretty much the end of it.  Is Paxton really going to investigate every mail-in ballot application and determine who was "disabled" and who wasn't?

I think they know they don't have a leg to stand on, which is why they're insisting their interpretation of the statute is the only one that should be allowed.  They want to scare people, in other words, and get County Clerks to discourage, or even reject, applications where "disability" is checked just to be on the safe side.

I don't trust the Texas Supreme Court, but here's hoping Paxton's weak legal reasoning gets the treatement it deserves.