Texas’ first election since the public health crisis in the US will be a run-off election on July 14 and many are questioning how to safely vote.

While the coronavirus is a threat to our health and economy, it also threatens our elections. Texas polling places as we know them do not accommodate social distancing guidelines and the act of voting in person would force many voters to break the guidance of staying at home. The COVID-19 threat to our elections is based on voting in person at specific locations. Yet there are already people voting in the US who aren’t at risk by voting because they’re voting by mail.

Over a quarter of Americans currently vote by mail; 5 states send ballots by mail to every registered voter and 25 states allow voters to request a ballot by mail for no reason. In Texas, vote by mail has been an option for generations but only for voters aged 65 years and older, those out of the county during the voting period and voters with disabilities. The section of the Texas Election Code that allows voters to vote by mail based on physical condition and disability offers the opportunity for safer elections via vote by mail without change in legislation. 

In early April, civil rights and political groups filed a lawsuit against the State that claimed that the “disability” should encompass all registered voters based on the public health crisis. This group includes the American Civil Liberties Union of Texas, Texas Civil Rights Project and the Texas Democratic Party. 

Texas District Judge Tim Sulak ruled that “while the virus that causes COVID-19 is still in general circulation” without a vaccine or herd immunity, all voters meet the definition of “disability” under law, because no one can go to the polls in person without a likelihood of injuring their health.
 Judge Sulak is the only judge that has ruled on this matter, and therefore, this is the only credible legal opinion.

This injunction has been appealed by the State of Texas and is currently pending in the Fourteenth Court of Appeals in Houston.

The injunction is also being fought by Texas Attorney General Ken Paxton. The Texas Attorney General Office issued a non-legally binding letter in response, which has created confusion among some local officials and community groups. Attorney General Paxton stated that “fear of contracting COVID-19 does not amount to a sickness or physical condition as required by the Legislature.” The letter attempts to create a distinction between a “physical condition” and the “fear of contracting COVID-19” as an emotional condition that he claims does not qualify as a disability. Attorney General Paxton’s Press Release shared that the latter type of request would “diminish” the voting protections that are available for “Texans with actual illness or disabilities.”

Edgar Saldivar, Senior Staff Attorney at the American Civil Liberties Union of Texas, said that Attorney General Paxton’s response is the “wrong interpretation” of Judge Sulak’s order. He clarifies that Judge Sulak’s order is not based on emotional or related conditions but instead “really based on the physical condition that we all face and that experts testified to and the Judge relied on” when making his decision.

Attorney General Paxton’s letter adds that giving misleading information about or intentionally sharing false information on an application for ballot by mail is in direct violation of the Texas Election code.

President of the Texas Civil Rights Project, Mimi Marziani said that Attorney General Paxton’s letter of opinions, taken in light of his high-profile prosecutions, particularly to people of color, is creating anxiety to the community. “These letters are not legally binding documents. They appear to be PR moves targeted to appeal his base and incite fear… It has the same legal weights as a tweet.”

Four counties, Harris, Travis, Tameron and Dallas, have released guidance in response to Judge Sulak’s ruling. These county officials give voters confidence that they can rely on Judge Sulak’s guidance to apply to vote by mail under the “disability” category. At the time of publication, these are the only counties to offer this specific guidance.

Marziani said “We feel comfortable saying that Texas voters and organizations helping Texas voters can officially rely on written orders of county leaders.” Dallas County Elections Administrator Toni Pippins-Poole confirmed that Dallas County does “not investigate the reason for disability for any ballot application marked disability.”

Stay tuned for Part 2 of our Stay at home, vote at home? series.

To register to vote visit register2vote.org. To update your address or name in Travis County print, sign and mail the forms from the Travis County Clerk