By Sikander Zakriya

There is a battle raging in the Lone Star State. No, not the one with COVID-19 – although it was the virus that gave this conflict new life. 

A fight over mail-in-voting emerged between the Republican state officials in Austin and the Democratic clerk’s office in Harris County over whether the county can mail all of its residents an application to receive mail-in-ballots. The secretary of state and the attorney general sought to restrain the Harris County clerk from sending all residents of the county an application for a mail-in-ballot because the Republicans claim it will lead to mass voter fraud. 

Harris County already sent applications for mail-in-ballots to voters over the age of 65 because Texas law permits those voters to automatically qualify for mail-in-ballots. However, the state of Texas filed suit against Harris County seeking an injunction prohibiting the clerk’s office from sending out the mail-in-ballot applications to all voters because they allege the move would violate Sections 31.005 and 84.012 of the Texas Election Code. 

Section 31.005 allows the secretary of state to “order the person to correct the offending conduct” if an individual “impedes the free exercise of a citizen’s voting rights” while “performing official functions in the administration of any part of the electoral processes.” It also permits the secretary of state to seek an injunction on the activities of that individual through the attorney general. 

Section 84.012, on the other hand, states that “[t]he early voting clerk shall mail without charge an appropriate official application form for an early voting ballot to each applicant requesting the clerk to send the applicant an application form.” The state claims this statute limits the clerk to only send out applications to an individual if a voter specifically requests one. 

Texas state courts have taken up the issue and it does not look good for the attorney general’s office. A state district judge permitted Harris County to continue with its plan to send out the applications for mail-in-ballots. The district judge held that the application did not impede the free exercise of a citizen’s right to vote and that the Election Code grants broad powers to the clerk and is limited only by the Legislature. He went on to note that while the Legislature has specified that a voter must complete an application before she may vote by mail, it has not stated how the voter may obtain the application and thus Harris County may proceed with its initiative.

However, on September 15th, the Texas Supreme Court stepped in and blocked the clerk from sending out applications until the case completes its journey through the appeals process. Meanwhile, the attorney general appealed to the 14th Court of Appeals. The court affirmed the district court below and held that the “State failed to meet its burden to prove ‘probable, imminent, and irreparable injury.’” The court rejected the state’s claims that Harris County would assist in felony voter fraud as “a voter would be less likely to engage in fraud using the application sent by the county clerk because it has an official imprimatur, contains extensive explanations for what qualifies a voter to receive a mail ballot under the law, and is accompanied by text and red-siren graphics traditionally associated with danger and caution in general.” 

The case is likely headed for the Texas Supreme Court, but the October 23rd deadline to request a mail-in-ballot is fast approaching. While the case awaits final review from the state’s highest court, it has sparked a broader conversation about universal mail-in-voting in Texas given the current COVID-19 pandemic. 

Currently, Texas is one of six states that still requires an excuse beyond fear of contracting COVID-19 to request a mail-in-ballot. Voters must be over the age of 65, be sick or disabled, or be in jail in order to request a mail-in-ballot in the state. Recently, the Fifth Circuit Court of Appeals rejected an attempt by the Texas Democratic Party to expand mail-in-voting to all individuals by mounting a 26th Amendment challenge to the existing law and claiming it abridged the right to vote based on age discrimination. As such, it is unclear what Harris County officials hope to achieve by mailing in ballots to all registered voters. They could be hoping to challenge the state’s authority over county run elections or simply hoping that individuals will take the initiative and claim they are “sick or disabled” and thus request a mail in ballot. 

The Texas Supreme Court’s ruling in this pending case will determine whether Texas will follow states like Montana and New Mexico, which allow county clerks to mail applications to all registered voters given the current coronavirus pandemic. While the case pends review, advocates on both sides of the issue have dug their battle lines. Opponents of the measure echo President Trump and argue that the expansion of mail-in-voting will lead to large amounts of voter fraud and is simply a way to circumvent voter ID laws. On the other hand, fans of mail-in-voting note that numerous studies have shown that the threat of voter fraud from mail-in-ballots is miniscule at best. Proponents also contend that it is unreasonable and dangerous to force individuals into packed lines and crowded voting areas in the middle of a deadly global pandemic. 

With around 16 million registered voters in the state, the decision of the Texas Supreme Court could have far reaching ramifications for whether the county clerks may usurp the will of the state government in Austin and send their residents applications for mail-in-ballots. However, given Texas’s stringent mail-in-voting requirements, it is unclear what effect simply sending applications would have on voter turnout because most who receive the applications would be ineligible to request a mail-in-ballot anyway under current Texas law. 

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