Wednesday, April 29, 2020

So, here's the thing

Microbiologists fret about bacteria on every surface of everything your come in contact with.  Well, a few do.  Lawyers are trained to assume the worst case and do everything they can to prevent it or prepare their client for it, just in case.  However, the analysis in this article about the November election starts off with the most unlikely scenario possible (the state legislatures decide to appoint electors for the Presidential election as they see fit), a true "Constitutional crisis" that no legislature would ever try to engage.  And then it plunges on to this:

One of the hottest issues now in litigation, which was not on the radar until about two months ago, is that in the one-third of states which require an excuse to be able to vote by mail, what counts as a valid excuse? Some states have said that if you're worried about getting the coronavirus and you don't want to be out in public, that's a good enough excuse. Others, like Texas, are fighting that. Their attorney general is threatening criminal prosecution against people who would claim fear of the coronavirus as a reason to want to vote by mail. So that's being litigated now. I actually think litigation is a good thing now, because it's better to have clarity about what the rules are well in advance.

To be fair to Ken Paxton, the link in the article provides information that directly refutes that statement about Texas and criminal prosecutions:

“We conclude that, 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 for purposes of receiving a ballot by mail.”

The very end of the threat from the Texas AG’s office says, “Please note that as discussed above this response is not an official opinion of the Office of the Attorney General issued under section 402.042 of the Texas Government Code, nor is it an exhaustive memorandum of law; rather, it is an informal letter of legal advice offered for the purpose of general guidance.”

Paxton wrote a letter to Stephanie Klick, chair of the Texas House Committee on Elections.  As AG he was giving an opinion on the statute, an opinion I disagree with.  But he wasn't, as he said in the letter, giving an official opinion of the Office of the Texas Attorney General.  Such opinions do not have the weight of law, but can give persons and entities, including government agencies, legal cover when there is a dispute about how Texas law should be applied absent a court precedent.  As I mentioned before, the issue of absentee ballots in the time of coronavirus is before a state court.  If that court rules against Paxton's interpretation, even an official opinion of the AG's office would fall to the court order.  So what Paxton wrote was literally nothing more than "an informal letter of legal advice." It's not even "threatening criminal prosecution," as it was portrayed in the media.  Not that Paxton is bothered by that misrepresentation, mind you.  Voter suppression is usually done by suggestion, not direct action.

But you know, if we're gonna run in circles, scream and shout, we should at least know what we're worried about, and have those facts right.  And I still hold with my opinion, and the opinion of Harris County Clerk (largest county in Texas, and deep blue now):  nobody is ever going to investigate someone who checks the box on the form that claims a "disability" means they need a mail-in ballot.  It's not really the same thing as insurance fraud on an injury claim, after all.

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