On April 15, a state district judge issued a temporary injunction expanding who can use vote-by-mail in Texas during the COVID-19 pandemic. The Texas Civil Rights Project was among the civic groups arguing on behalf of all Texans so that we can exercise our right to vote without risking our physical health and the physical safety of our families and neighbors.
Until now, Texas has utilized one of the most restrictive mail-in ballot systems in the country, allowing only four specific groups of Texans to apply for an absentee ballot. Vote-by-mail has been shown to increase overall turnout with zero demonstrable benefits to either political party, and it’s also been deemed the CDC’s number one recommendation for moving forward with elections that will keep people safe.
This judicial decision has the potential to greatly expand mail-in voting, which is beneficial for both democracy and public health. Yet, Ken Paxton, the Texas attorney general, appealed this decision almost immediately, therefore putting the order on hold. The case is now in the hands of the Third Court of Appeals in Austin.
In addition to the Office of the Attorney General’s (OAG) callous legal appeal, the OAG has demonstrated premeditated malicious intent around this case by threatening Texans with criminal prosecution for requesting a mail-in ballot mere minutes before they lost in court. As recently as last week, they doubled down on this threat through a letter with inaccurate legal information and complete disregard for the court order, sent to county leaders who are choosing to follow the law correctly.
It’s no shock then that less than 24 hours after the court decision— and especially when county leaders in Harris and Travis counties announced they would operate under the rules of the court order— TCRP was inundated with questions.
Milwaukee resident Jennifer Taff requested an absentee ballot almost three weeks ago, never got it. She has a father dying from lung disease and then waited hours in line to vote at Washington High School. Photo from Patricia McKnight. More: https://t.co/i7weo2xdfv pic.twitter.com/ceHb2i8zpC — JR Radcliffe (@JRRadcliffe) April 7, 2020
Grasstop leaders, community members, and even our staff’s own friends and family expressed confusion and genuine fear about being criminally prosecuted for simply wanting to rely on advice from their own county based on a legal court order from the only judge who has officially ruled on the matter thus far.
Let that sink in: Texans, who are eligible to vote, were immediately afraid of being criminally prosecuted by their own state government simply for wanting to vote safely by mail to avoid contracting a highly-contagious virus for which there is no vaccine for yet.
Attorney General Ken Paxton argued in his letter that the fear of contracting COVID-19 is an “emotional” condition, and therefore is not covered by Texas Election Code’s “physical” condition criteria for a disability that would allow a voter to use the vote-by-mail option.
Considering the fact that there is no vaccine for this virus, the “physical” condition most of us share, regardless of political party, is a lack of immunity to COVID-19.
It’s important to note that for Black and Latinx Texans the fear of selective and over-zealous voter prosecution is not that new at all. The Texas Election Code contains 103 criminal violations, which includes “running afoul of mail ballot regulations.”
In 2017, the OAG formed the “Election Fraud Unit” of his office. Soon thereafter, prosecutions began to spike. Of 33 completed cases in 2018, only three resulted in significant penalties and the racial disparity here is crystal clear:
Rosa Ortega, a Latina, in 2017 received eight years in prison for voting five times between 2004 and 2014 as a non-U.S. citizen (including once for Ken Paxton, the Texas Attorney General who ultimately prosecuted her, according to her attorney). She had no idea she was ineligible.
Crystal Mason, a Black woman, in 2018 received five years in prison for casting a provisional ballot that was rejected and never counted while on supervised release for a prior felony conviction. She had no idea she was ineligible.
Russ Casey, a White man, in 2018 received no jail time and only five years probation for intentionally forging nearly 100 signatures on a petition in support of his own reelection as a Justice of the Peace in Tarrant County. He knowingly violated the law.
Paxton’s intentional endeavor to mislead and confuse Texas voters about their eligibility to vote by mail and saddle them with fear is an insidious attempt to discourage civic participation and is an abhorrent abdication of the duties of his office.
TCRP and the plaintiffs in the vote-by-mail lawsuit are not demanding that in-person voting be abolished, only that Texas voters be given a choice that does not require sacrificing the health of their lungs, at best, or their lives, at worst.
Our only demand is that our state leaders do better by the people they were elected to serve.
Ali Lozano is the outreach coordinator for the Voting Rights program at Texas Civil Rights Project. @alirlozano