Take action: Election officials offering mail ballots during COVID-19 could face criminal punishment
Article published on The Dallas Morning News on 5/1
Attorney General Ken Paxton on Friday said that election officials in Texas who offer mail ballots to people who normally wouldn’t qualify but are afraid of catching the coronavirus could be subjected to criminal punishment.
Paxton’s guidance to county election officials comes two weeks after a state judge in Travis County ruled that Texas voters who fear catching the coronavirus could vote by mail.
In his letter to county officials Friday, Paxton, a Republican, said he had appealed that decision by State District Judge Tim Sulak, a Democrat, and therefore the order was stayed and has no effect.
Several local officials, including the county judge and clerk in Harris County, have told voters that Sulak’s decision qualifies them to vote by mail under the disability clause in the state’s election code. Paxton said such claims were “misleading."
“Mail ballots based on disability are specifically reserved for those who are legitimately ill and cannot vote in-person without assistance or jeopardizing their health," he said in a statement. "The integrity of our democratic election process must be maintained, and law established by our Legislature must be followed consistently. My office will continue to defend the integrity of Texas’ election laws.”
The Texas Democratic Party, which filed the lawsuit that led to Sulak’s decision, dismissed Paxton’s letter as a repetition of an argument that Paxton had already lost in district court.
“Paxton can keep on stating his opinion over and over again for as long as he wants, but the bottom line is he needs to get a court to agree with him,” said Chad Dunn, the party’s lawyer. “We all have opinions. In our constitutional system, what courts say is what matters.”
Dunn said the party disagreed with Paxton’s claim that Sulak’s order was stayed.
“The attorney general is granted authority to give his prediction on how a court would rule on a subject but it is up to the court to decide the law," he said.
Still, Paxton told local officials that Texans may not claim disability based on fears of contracting COVID-19, the disease caused by the virus. That means they would be ineligible to vote by mail unless they met other requirements.
Currently, people over 65, military members, those who will be away from their residence during voting and people with disabilities can request mail-in ballots.
Any “third parties” telling voters who do not meet those requirements that they can apply for mail-in ballots could be subject to criminal sanctions, Paxton said.
Joaquin Gonzalez, a staff attorney with the Texas Civil Rights Project, which represented plaintiffs in the suit, said Paxton was “purposefully misstating” the law and the court’s interpretation.
“The fact is, a judge ordered that Texans qualify for vote by mail because voting in person while the virus is in circulation presents a likelihood of injuring the health of all voters, and there is no other authoritative legal opinion on this matter,” he said in a statement. “It seems like Ken Paxton would rather let voters die than let counties follow existing Texas election law.”
Republican officials have long opposed mail-in ballots saying the system is ripe for abuse. Democrats say it extends the franchise to groups that don’t always have access to the ballot.
But the issue has gained more urgency during the COVID-19 pandemic. In March, Wisconsin held its presidential primaries in the thick of the pandemic, which led to voters standing in long lines where social distancing was difficult.
Since then, at least seven coronavirus cases in the state appear to have been linked to those elections.