This is Part 2 of a series. To read the first blog reviewing the lawsuit, read Part 1.
We need to think about what the coronavirus means for our elections. The expansion of vote by mail has been temporarily squashed in the most recent of back and forth of vote by mail litigation, Texas polling places will need changes to accommodate social distancing guidelines.
On May 15, the Texas Supreme Court sided with Attorney General Ken Paxton and blocked Judge Tim Sulak’s ruling in mid-April, which stated that Texans who are not immune to COVID-19 can vote by mail under the disability category. The Texas Supreme Court disagreed with voting rights groups and ruled as a matter of law that individuals lacking immunity to COVID-19 is not a sufficient reason to vote by mail under the disabilities statute.
The recent ruling has left many voters to question what would qualify them to vote by mail under the disability statute. “They really leave it up to the voter,” said Thomas Buser-Clancy, Senior Staff Attorney with the ACLU of Texas. “What the supreme court says is that individuals can take into consideration aspects of his health and his health history that are physical conditions in deciding whether under the circumstances to apply to vote by mail under the disability. They very clearly state that lack of immunity alone is not sufficient but what is sufficient they turn to the voter to make a determination.”
Prior to the Texas Supreme Court ruling, election officials had released guidance on a county-by-county basis around whether voters can rely on Judge Sulak’s decision to apply to vote by mail under the “disability” category. As a result, voters have already applied for ballot by mail for the July 14 election under the disability statute solely based on the lack of immunity to COVID-19. Texas Civil Rights Project recommends that those individuals not submit the ballot by mail and instead vote in person, surrendering the ballot at the voting location.
There are four other Federal lawsuits related to Texas’s vote by mail system that might change the course of vote by mail for the November election. The Texas Democratic Party has brought forth a Federal lawsuit against the State, Travis County and Bexar County arguing that it’s unconstitutional to not allow everyone to vote by mail. Another federal case claims that Texas’ vote by mail is unconstitutional, regardless of any public health issue, because of the Legislature’s distinction of people over 65 and under 65 years old. An additional recent lawsuit was filed on May 11 against Texas Secretary of State Ruth Hughs, which argues that postage fees, deadlines, signature matching, and restrictions against assistance completing and returning a ballot by mail are unconstitutional during a public health crisis. The last and most recent lawsuit argues that Texas’ scheme allowing for voter 65+ is unconstitutional as it discriminates against those 64 and under.
According to Dr. Robert Stein, Professor of Political Science at Rice University, advantages of voting by mail includes higher rates of completion, lower costs, positive turnout effects and that there is “no evidence of partisan differences in voter use of mail assisted voting.” Advantages of voting by mail would have been amplified during this pandemic because it complies with social distancing and stay at home guidelines.
Yet fears of voter fraud and logistical challenges keep some opposed to expanding vote by mail during this pandemic and beyond.
In the last three years, Texas lawmakers have taken action on the perceived vulnerabilities of vote by mail by increasing restrictions and penalizations. This issue was brought up after high-profile voter fraud cases, including the 2017 Dallas County District Attorney race when Dallas residents received ballots in the mail that they did not apply for, causing many to believe that others were attempting to vote on their behalf.
President Donald Trump said that he is not in favor of using vote by mail as a backup in case people are prevented from going to the polls in November due to the pandemic. In a White House Press briefing on the coronavirus, Trump said, “I think a lot of people cheat with mail-in voting. I think people should vote with ID, voter ID. I think voter ID is very important, and the reason they don’t want voter ID is because they intend to cheat.”
Expanding universal vote by mail by November in Texas would take political will and logistical feats. Texas elections are run on a county-by-county basis. 254 counties control their own voting processes. Even among proponents of voting by mail, including Stein, there is concern around limited capacity to create systems to accommodate a significant increase in ballots by mail. Amber McReynolds, CEO of Vote at Home, has previously called for the centralization of voting processes across Texas, which would need a special Legislative session to accomplish centralized voting for the November election. Travis County Clerk Dana Debeauvior agrees that something needs to change. Rather than solving the problem by restructuring, she’s signed a letter to congress calling for additional funds to counties for safe and secure elections in the face of the public health crisis.
Even though Judge Sulak’s decision was struck down, Texas should prepare to receive a higher number of mail ballots from those who already qualified to vote by mail and elections officials should also prepare to make changes to their systems to respond to the public health crisis. According to Washington Secretary of State Kim Wyman, “Texas County election officials need to anticipate significant increase in vote by mail.” Harris County is proactively sending vote by mail applications to all registered voters 65+ and it is likely that more people 65+ in other locations who typically vote at the polls will decide to vote by mail due to the public health crisis.
Washington State is the national leader in voter participation and has had a state-wide universal vote by mail since 2010. Secretary Wyman advises that Texas officials think about how the higher number of ballots will be issued, how they will be received and processed, how to secure equipment, space and personnel, and how to build in checks and balances to ensure the security of the election.
Right now, election officials and organizations are working to ensure that in person voting is done as safely as possible. Stein recommends that election officials spread out voters in both time and space to curb the spread of COVID-19 at voting locations.
In addition to following CDC guidelines, Texas Civil Rights Project’s Voting Rights Outreach Coordinator Ali Lozano has made the following recommendations for counties:
- Select polling locations away from high risk populations (like nursing homes and senior citizens’ centers) that allow for social distancing
- Add additional early voting and election day polling locations to lower the number of voters that will congregate in a single location
- Boost curbside voting so that voters can be processed as they drive up without needing to enter the locations
- Ensure that voting locations have sufficient protective supplies for general public safety: hand sanitizer, gloves, disinfectant spray. Includes training election workers on how to use the supplies correctly
- Recruit and train an expanded pool of election workers that are not at all in the high risk category and train extra people to fill in for those who decline to serve or are unable to serve if they fall ill and use the student poll workers program in Texas.