Vote By Mail in Texas? It's Up to You.

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Vote by mail is still a hot button issue in Texas, especially as the date for the primary runoffs rapidly approaches. In case you haven’t heard, in April, a district court judge in Travis County entered a temporary order enjoining the Travis County Clerk from rejecting any applications for mail-in ballots from individuals claiming a disability as a result of the COVID-19 virus or from tabulating ballots submitted by those claiming such disability.

A lot has happened since we last wrote about that April 17 district court order. Let’s review some of the key actions and decisions:

  • Soon after the district court’s order, the State appealed, effectively staying the temporary order issued by the district court.

  • The Texas Attorney General published a letter on May 1, 2020, offering guidance on the mail-in ballot issue by stating that “fear of contracting COVID-19 unaccompanied by a qualifying sickness or physical condition does not constitute a disability under the Texas Election Code for purposes of receiving a ballot by mail.”

  • On May 5, appellees filed an emergency motion to enforce the original temporary injunction.

  • On May 14, the Fourteenth Court of Appeals agreed with the expansion of mail-in ballot rights, at least temporarily. The appellate court concluded that the temporary order was necessary to preserve the parties’ rights and held that the temporary injunction issued by the district court would remain in effect until the matter was officially disposed.

  • The Supreme Court of Texas disagreed, however. In an opinion delivered on May 27, 2020, the Court held that a voter’s lack of immunity to COVID-19 did not satisfy the disability requirement of the Texas Election Code. Plaintiffs have since filed a motion to have their interlocutory appeal dismissed. The motion came on the heels of a notice of nonsuit that was filed with the Fourteenth Court of Appeals after the Supreme Court of Texas rendered its decision. (To see some other key documents relating to the vote by mail litigation, click here.)

As this issue was winding its way through the state judicial system, there was a parallel case pending in the federal court. The Texas Democratic Party and interested voters filed an action in the United States District Court for the Western District of Texas, alleging among other things that the denial of the right to vote by mail for eligible voters under the age of 65 during the COVID-19 pandemic amounted to a violation of federal constitutional rights. The federal court ordered that any eligible voter seeking to vote by mail to avoid transmission of the coronavirus was entitled to do so. Furthermore, the court issued the requested preliminary injunction. Upon motion by the State, the preliminary injunction was stayed pending appeal by the United States District Court for Fifth Circuit in an opinion filed on June 4, 2020.

So, where does this leave Texas voters? It seems that they might be on their own to decide.