• Salient Strategies

So, what exactly is happening with mail-in ballots?

EDIT: And of course, only 24 hours after posting this "full" explanation, new updates are already happening! As of June 16th, Texas Attorney General warned county officials and election administrators that the court cases explained below do not allow voters to vote by mail solely based on lack of immunity to and fear of contracting COVID-19. He also warned third parties who advise voters that his office would seek criminal penalties against any who improperly advise voters to vote by mail for COVID reasons.

Also in an unsurprising move, the Texas Democratic Party filed their final appeal to the US Supreme Court to lift the stay issued by the 5th Circuit based on the 26th Amendment issues presented below regarding age limitations on voting. Now we wait to see if SCOTUS accepts the case or not...

"Just days after themselves obtaining an injunction intervening in forthcoming elections, the plaintiffs ambitiously suggest that we should now refrain from intervening ourselves, given “the proximity of a forthcoming election and the mechanics and complexities of state election laws.” That invocation 'reminds us of the legal definition of chutzpah: . . . a young man, convicted of murdering his parents, who argues for mercy on the ground that he is an orphan.'” - Excerpt of 5th Circuit opinion

If you had to guess right now, what would you say the current state of affairs is regarding mail-in ballots?

The easy answer is a probability that we can't use them based on COVID-19 fears. But the harder question is: can you explain why? Today, I'm going to try to break it all down as simply as possible.

Two Households, Both Alike in Dignity

What makes this whole thing confusing is that there are two simultaneous lawsuits proceeding through different court systems at the same time with judgments being handed down almost daily. But no one seems to know which one controls and what the judgments mean in practical terms.

The Texas Democratic Party filed two separate lawsuits against the state - one in state court and one in federal court with different but parallel aims - allow mail-in ballots.

The State Route

On March 20th, the Texas Democratic Party filed a lawsuit in Travis County district court asking the judge to interpret a portion of the Texas Election Code (82.002) which allows for mail-in ballots in circumstances where the person has a disability.

In the code, mail-in ballots are only available for voters who are 65 or older, have a disability or illness, will be out of the county during the election or are currently in jail.

"Disability" is defined as having a "sickness or physical condition" that prevents them from appearing in person to vote without the likelihood of "injuring the voter's health." The lawsuit asked the judge to rule that fear of contracting COVID-19 and the need to practice social distancing fits the definition of disability in the statute and allows any citizen in Texas to request a mail-in ballot and vote in that manner if they choose.

The district judge agreed with the plaintiffs (Texas Democratic Party) and the 14th Court of Appeals agreed as well in a 2-1 decision. However, the state appealed to the Texas Supreme Court, which ruled on March 25th that lack of immunity to the coronavirus is not a qualification for a claim of disability for a mail-in ballot.

“We agree, of course, that a voter 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 because of disability. We disagree that lack of immunity, by itself, is one of them.” - Chief Justice Nathan Hecht

Thus, the state route is closed on the issue. The courts in Texas declined to interpret the existing law in a way that would broaden the application of the definition of "disability" to include lack of immunity to and fear of contracting COVID. However, the court left open to interpretation by the voter herself whether or not she has a disability under the law.

The Federal Route

There is also a simultaneous federal lawsuit which alleges multiple constitutional concerns with the mail-in ballot statute language and guidance provided by the state via the Secretary of State, including:

  • Race and Language Minority Discrimination under Section 2 of the Voting Rights Act

  • Race discrimination under the 14th and 15th Amendments

  • Non-race discrimination under the 14th Amendment

  • Denial of free speech under the 1st Amendment as applied through the 14th Amendment

  • Abridgment of the right to vote based on age under the 26th Amendment

The U.S. District Judge in San Antonio agreed with the plaintiffs and granted their preliminary injunction preventing the state from enforcing the statute. His order stated that "voters would face irreparable harm if existing age eligibility rules for voting by mail remain in place for elections held while the coronavirus remains in wide circulation." As a result, his order allowed voters under 65 who would ordinarily not qualify for mail-in ballots to qualify.

Upon immediate appeal by the state, the 5th Circuit of Appeals based in New Orleans and covering Texas' federal lawsuits issued a temporary administrative hold on the district judge order while they received legal briefs and challenges from each party to review.

After review, a three-judge panel of the 5th Circuit issued a ruling on June 4th extending the stay placed on the lower court's opinion.

"In an order that will be remembered more for audacity than legal reasoning, the district judge intervenes just weeks before an election, entering a sweeping preliminary injunction that requires state officials, inter alia, to distribute mail-in ballots to any eligible voter who wants one. But because the spread of the Virus has not given “unelected federal jud[ges]” a roving commission to rewrite state election codes, we stay the preliminary injunction pending appeal." - 5th Circuit Judge Jerry Smith

In non-lawyer speak, here's what happened:

There are all kinds of procedural steps to get a case heard in front of a large appeals court like this. The first step for the state to appeal was to ask for an administrative hold on the lower court's ruling while they gathered up their appeal paperwork. This was the initial ruling by the 5th Circuit.

Now, the court's small panel has come back after reviewing the legal briefs from each side and the lower court's ruling in more detail to determine that the preliminary injunction that would have prevented the state from enforcing the existing law should be permanently prohibited from taking effect (and not just administratively "on hold") pending a more robust appeal hearing on the merits.

However, the opinion handed down on June 4th all but guarantees a victory for the state to fully strike down the lawsuit because the panel outlines all of the ways in which it expects the state to win in their arguments.

Where does that leave us?

At the moment, here's where this issue stands:

The state route is dead. They appealed it all the way as high as it can go, and they lost. So until/unless the Legislature decides to call a special session (don't count on it) and change the election code before the elections start up, the election code section in question isn't changing.

The federal route is going to have another hearing at the 5th Circuit level, but it's at least 99% certain the state will win that one as well. The only avenue left and the most likely end game by the TDP at this point is to appeal the 5th Circuit's ultimate decision to the US Supreme Court.

However, that appeal is almost certainly not going to happen, much less be resolved, in time for the elections coming up this Summer. And it may not even happen in time for the November election either. And even if it does, a spate of losses in a row in state and federal court doesn't look great coming into a Supreme Court argument.

For now and for the immediate future, the idea of mail-in ballots for everyone in Texas is dead. For the state, this means that they won't have to worry about widespread voter fraud on mail-in ballots as they had feared. For voters under 65, this means that you can't apply for a mail-in ballot simply because you're afraid of catching COVID.

Voters will just have to make a game-day decision when voting time comes around to either go vote in person or simply sit this one out.

©2020 by Salient Strategies