Texas: You Can Still Vote By Mail

The Texas Supreme Court makes it clear: any Texas voter can request a mail-in ballot to avoid risk of injury

The right to vote is the most fundamental right in a democracy. Texas Republicans want to suppress our vote by forcing us into a terrible choice: protecting our health or participating in our elections. They are waging a war against vote-by-mail. We can’t let them win.

If you’ve been following the news, you may know that five different courts — in three different lawsuits and six different decisions! — have chimed in to answer the question: Who can vote by mail during a coronavirus pandemic? Without reading the decisions and understanding legal procedure, you may not be aware:

ANY TEXAS VOTER CAN DECIDE TO VOTE BY MAIL.

No Court has stopped us from applying for a mail-in ballot. It is up to each of us to determine whether voting in-person would injure our health. Apply today.

A brief summary of the legal proceedings.

Five courts later, we are back at the beginning. It is up to each of us to determine whether we face risk of injury by voting in person.

Under the Texas Election Code, a person is “disabled” and can apply to vote-by-mail if appearing at the polling place presents “a likelihood . . . of injuring the person’s health.” The lawsuits this year resulted from the Texas Democratic Party asking for a clear ruling that this provision applies to every person who is not immune to COVID-19.

First in state court, and then in federal court, judges ruled that (1) COVID-19 presents a serious risk of injury to any person without antibodies, and (2) anyone can apply for a vote-by-mail ballot. A second state court also agreed.

Finally, on May 27, 2020, the Texas Supreme Court made what is likely the final ruling before the July 14 runoff election. The Court narrowed the reasons why a voter may request a mail-in ballot. The Court says: Lack of immunity to COVID-19, by itself, is not a disability. But then the Court says there are many factors that a voter could consider that might increase the risk of injury. If one or more of these factors apply, a voter can request a mail-in ballot.

Here are some factors that might lead you to request a mail-in ballot:

  • Specific health concerns that increase your risk, including any existing illness or injury or relevant personal health history. As the ACLU and Texas Civil Rights Project describe, this could include any number of conditions; and
  • Specific conditions at the polling places, including whether social distancing is observed, potential crowds, and potential unsanitary conditions.

Very importantly, the Court ruled that it is up to each voter to decide. No Elections Clerk may second-guess an individual’s determination of disability.

So we return to the plain text of the Election Code. Each of us can read the application form for vote-by-mail. If we can honestly say, “I am at risk of injury if I go to the polls,” based on any of the above factors, we can check the box for “disability” and request a mail-in ballot.

Countless experts agree: COVID-19 can kill us.

As I write this, Texas is still in a state of emergency. The CDC still recommends social distancing. And unfortunately, recent reports are that Texas will see a dramatic surge in COVID-19 infections, including a potential ten-fold increase in cases in Harris County.

And to that point: on May 29, Texas reported the largest single-day number of new coronavirus cases.

This is an extremely dangerous situation, and we need to take our health very seriously. Voting by mail is the way to protect our health and our democratic process.

Our applications will not be rejected if they are filled out properly.

Despite all the posturing and threats of the indicted Texas Attorney General Ken Paxton, he has no power or authority to reject our mail-in ballots. The key is to fill out the application exactly as it is presented, and not add any extraneous information.

Thus, to apply to vote by mail and avoid COVID-19 infection, you fill out the application and, for Section 5, check the box “Disability.”

At the Texas Supreme Court, this question came up. A Supreme Court Justice asked Texas how an election clerk might reject applications to vote-by-mail based on COVID-19 “disability.” The Texas Solicitor General — the leading appellate attorney for the State — made it clear: your application will only be rejected if you include additional information, beyond what is asked for by the Secretary of State.

So it is up to each of us. If we believe we will be injured by voting in-person, we check the box for “Disability” in Section 5, and we do not write anything else.

Once your application for a mail-in ballot is granted, your rights are secured.

This is an extremely critical point. The Attorney General would like you to believe that he can prosecute voters for “fraud.” But the Texas Supreme Court rejected the Attorney General’s demand that county clerks reject vote-by-mail applications submitted based on COVID-19 disability.

The Court wrote, on page 24 of their decision, that a county elections clerk may not look beyond your application to vote by mail. Thus, if you fill out the application correctly and get it to your local county clerk in a timely manner, you will receive a mail-in ballot without further questions.

And if your application has already been processed in your county, your rights are secured.

You decide whether you can vote by mail. Do it today.

The absurdity of this moment: Paxton and the Texas Supreme Court are in isolation, but they want us to vote in person.

On May 20, 2020, the Texas Supreme Court heard arguments about voting by mail during the coronavirus pandemic. And they did so via Zoom, from the safety of their non-public chambers.

Do you think Ken Paxton has kept his office open to the public? You can try yourself, but the AG is closed for business.

The only conclusion I can draw is that these folks care more about their power and influence than the lives of the people of Texas.

So it is up to us to protect ourselves and our democracy. Many people died so that we would have this precious voter franchise — but we don’t need to risk death to vote in 2020.

Apply to vote by mail today. And let’s make sure that the next time we have a health pandemic, we have representatives who will actively protect our health and our democracy.

Mike Siegel is a Democratic candidate for Congress in the Texas 10th Congressional District. He is also a civil rights lawyer who most recently served as Assistant City Attorney for the City of Austin, where he represented the people of Austin in multiple election law cases.

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