Texas’ battle over mail-in voting could go to U.S. Supreme Court.
Abbott believes U.S. Supreme Court will rule on Texas’ contentious battle on mail-in vote
With early voting starting in just six weeks for primary runoff elections, it remains unclear whether Texas will expand the use of mail-in ballots to protect voters from contracting the novel coronavirus at the polls.
The Texas Supreme Court held its first hearing on the matter Wednesday, even as the federal 5th U.S. Circuit Court of Appeals blocked a San Antonio judge’s temporary order that made mailin voting more accessible during the pandemic.
The 5th Circuit’s intervention marked the fourth reversal in a week of ping-ponging rulings as judges in different venues overrule each other, and the availability of mail-in voting to most Texans has been widened, then contracted, then widened, then contracted again.
The cases are likely headed to the U.S. Supreme Court, which Gov. Greg Abbott predicted will happen “pretty quickly” on Tuesday in an interview with Austin ABC-affiliate KVUE.
In the meantime, Republican Attorney General Ken Paxton, who contends that more mail-in ballots means more chances for voter fraud, applauded the Fifth Circuit’s ruling.
“Protecting the integrity of elections is one of my top priorities, and allowing universal mailin ballots would only lead to greater fraud and disenfranchise lawful voters,” Paxton said. “Law established by the Legislature must be followed consistently, including carefully limiting who may and may not vote by mail.” But this is hardly the end. The cases now stand before appellate courts at the state and federal level that have taken opposite approaches to the issue so far: the New Orleans-based 5th Circuit, known as the most conservative circuit court in the nation; and the Texas 14th Court of Appeals in Houston, which has a Democratic majority.
The matter before the state Supreme Court on Wednesday was separate from the ongoing state and federal cases. It was prompted by Paxton who, in an unusual move, asked the court to order clerks in five counties, including Harris, not to accept mail-in ballot requests from those citing risk of COVID-19 infection as their reason.
The state-level case has not yet made it before the Texas Supreme Court. That means the justices are now in the awkward position of having to decide whether the county clerks are breaking a law before they’ve officially been asked to interpret the meaning of that law — though it’s possible they could use this opportunity to opine on both.
The justices waded into the politically charged debate over voting during the pandemic with a reality check.
When a voter fills in a box claiming a disability and requesting a mail-in ballot, Texas county clerks would have a very limited ability to determine whether the
voter is permanently disabled or simply fearful of the disease.
“Are you suggesting that the clerk would go out and investigate this claim?” Justice Debra Lehrmann asked Texas Solicitor General Kyle Hawkins.
Hawkins said no but the state expects clerks to reject such applications if additional information is provided indicating that COVID-19 was the reason for claiming a disability. He acknowledged that most mail-in ballot applications do not ask for that information.
“The Legislature has allowed only a small subset of voters to vote by mail and the language the Legislature chose in the disability provision of Chapter 82 does not include otherwise healthy individuals who would prefer to avoid going to a polling place,” Hawkins said.
Attorney Scott Brister, who represented most of the counties, called it ironic that the state was arguing remotely, via videoconference because of the pandemic, while saying voters need to go to polling places in person.
“We cannot ignore that this year the elections are different than they have been at any time since World War II. This is a different climate with a different kind of disease,” Brister said.
“We think the election code has been, for 85 years, broad enough to cover the once-in-a-century global pandemic.”
The justices did not take any action Wednesday.
Early voting in Texas primary runoffs begins June 29.
Nationally, the issue of mail-in voting has quickly become a major political battle with similar court cases in several states. Proponents, most often Democrats, say it's necessary for voting to occur safely during the ongoing pandemic. Many Republicans join Paxton in warning of voter fraud.
President Donald Trump threatened early Wednesday to "hold up funding to Michigan” where the Secretary of State there is sending absentee ballot requests to registered voters. It’s unclear what kind of funding Trump was referencing. He made a similar comment about Nevada.
“State of Nevada ‘thinks’ that they can send out illegal vote by mail ballots, creating a great Voter Fraud scenario for the State and the U.S.,” Trump wrote. “They can’t! If they do, ‘I think’ I can hold up funds to the State. Sorry, but you must not cheat in elections.”
Little evidence exists to support the claim that mail-in voting causes widespread fraud. Studies have shown that voter fraud, including with mail-in ballots, is exceedingly rare.
The issue doesn’t divide cleanly on partisan lines: Republican state officials in Iowa, Ohio and West Virginia have all moved to make it easier for voters to access mail-in ballots, heeding health officials’ advice.