Texas Judge Set To Order State To Allow All Voters To Request Mail-In Ballots

KUT 90.5 | By Ashley Lopez

Published April 15, 2020 at 3:01 PM PDT

Election officials carrying equipment during last month's presidential primary in El Paso. A Texas judge says he will allow all voters to apply for absentee ballots in light of the coronavirus pandemic. The state typically makes it difficult to cast such ballots.

A version of this story was first posted by member station KUT in Austin.

A Texas judge said Wednesday he will clarify that voters fearful of contracting COVID-19 will be allowed to use mail-in ballots during elections in July and November.

If the Travis County district court judge's order is upheld, it would make all of the state's approximately 16 million registered voters eligible to apply for an absentee ballot.

Texas, the country's second largest state by population, has one of the strictest vote-by-mail programs in the country. Only people over 65, people who are in jail and not convicted, people who will be out of the county, and people who are sick or disabled can get a mail-in ballot.

There are legal fights popping up around the country to make mail-in voting easier due to the pandemic. While President Trump has said he opposes expansions in mail-in voting, in recent days Republican governors in states such as Nebraska and New Hampshire have said they will expand the practice for the remainder of this year.

The Texas Democratic Party sued state and local election officials last month in an effort to get a district court to clarify state law.

Attorneys representing Texas Democrats argued during a remote hearing in Austin that because people could be exposed to the coronavirus while voting in person, they should be allowed to apply for a mail-in ballot under the "disability" category.

Chad Dunn, who represents the party, said without clarity people will forego voting in an effort to avoid getting sick.

"It cannot be the situation – and is not the fact – that the Texas Legislature provided a situation that in a pandemic circumstance the right to vote is in conflict with public health," he said in court.

Judge Tim Sulak said he was "inclined" to side with plaintiffs in the case because voters were being put in a situation where they had two bad options.

Texas Democratic Party Chair Gilberto Hinojosa said the judge's decision to open up the state's ballot by mail program "is a victory" for all voters in Texas.

"Our state is better off when more Texans participate in our democracy. Voting by mail is safe, secure, and accessible," he said in a statement. "It allows more voters to participate in our democracy, and it's a commonsense way to run an election, especially during a public health crisis."

Lawyers defending state officials argued, however, that there are too many unknowns at this point. Anna Mackin, who represented the state, said expanding ballot-by-mail may not even be necessary during upcoming elections.

Attorneys representing state officials said they planned to appeal Sulak's order, once it's submitted.

While attorneys argued in court, Texas Attorney General Ken Paxton weighed in on the matter, saying fear of contracting the deadly coronavirus does not qualify someone for a mail-in ballot.

"Mail ballots based on disability are specifically reserved for those who are physically ill and cannot vote in-person as a result," he said in a statement. "Fear of contracting COVID-19 does not amount to a sickness or physical condition as required by the Legislature."

In a sign of how widely vote by mail could be adopted so long as the public is concerned about the coronavirus, results from last week's election in Wisconsin showed that about 70% of votes cast were mailed in, up from 20 to 30% in past elections.