The coronavirus, we feared, would present an opportunity for state officials to restrict Texans’ access to the ballot box. Around the country, state and local authorities — leaders of all political stripes — have come together to expand voting by mail, recognizing this as a necessary step to protect our elections in the time of covid-19. These authorities recognize that it is wrong to ask citizens to choose between their health and their fundamental right to vote.
But not in Texas.
Under the leadership of Gov. Greg Abbott (R), the state is fighting tooth and nail in multiple lawsuits to limit Texans’ options for voting, particularly voting by mail. Texas Attorney General Ken Paxton has gone beyond the courtroom, using the weight of his office to scare people away from exercising their rights. In recent weeks, Paxton has released a letter threatening candidates and civic groups that encourage expanded voting by mail with criminal prosecution. It’s hard to believe the attorney general doesn’t know these proclamations lack the force of law. But they are effective at intimidating Texans who understandably don’t want to go head-to-head with a powerful state official threatening jail time.
Let’s be clear: Paxton is not actually enforcing the law. He’s trying to rewrite it. Our state law already allows mail-in voting for any Texan who “has a sickness or physical condition that prevents the voter from appearing at the polling place … without a likelihood of … injuring the voter’s health.” Because all Texans are at risk of contracting covid-19 — a highly contagious, deadly virus with no known cure or vaccine — all Texans face a risk of injuring their health by going to a crowded polling place. Therefore, all Texans are eligible to vote by mail under existing law.
National election-law and public health experts, attorneys for Texas’s largest counties, and political candidates and grass-roots organizations from across the ideological spectrum agree with this reasoning. One Republican congressional candidate in Houston even distributed vote-by-mail applications, saying she has a duty to give voters in her district “the tools they need to stay safe.”
Our organization is part of a coalition fighting in court to protect Texans’ voting rights during this crisis. After an extensive evidentiary hearing in April, a Texas trial court judge agreed with our side. On May 14, an appeals court upheld that position. After the trial court win, county officials began preparing for an increase in voting by mail. Texas voters began submitting vote-by-mail applications to exercise our civic duty.
In July, our state will hold runoff elections for the top federal and local candidates who competed in the Republican and Democratic primaries on Super Tuesday. In the court hearing last month, county officials testified that preparations needed to start no later than May 1 for those elections to run smoothly. Our entire nation saw in Wisconsin what happens when election officials are denied the time and resources they need: both democracy and public health suffer.
Yet Paxton’s team is resisting at every turn. On Tuesday, a federal judge ruled that Texas’s vote-by-mail restrictions violate the U.S. Constitution — and Texas filed its appeal of that decision immediately. Last week, the attorney general used an unusual procedure to go directly to the Texas Supreme Court to try to stop counties from extending mail-in voting to all Texans. Oral arguments in that case are being heard Wednesday.
The outcomes of these cases have nationwide implications. There are some 29 million Texans — almost 9 percent of the entire country’s population — which is a huge number of people to disenfranchise. And ours is not the only state where officials habitually look to deny voters their fundamental rights. If Abbott and Paxton succeed, you can bet authorities in places like North Carolina and Georgia will be watching.
Years ago, people in the highest levels of Texas’s government made a calculation. Faced with explosive population growth — fueled by people of color, immigrant families and young people — politicians like Abbott and Paxton decided that they would rather restrict access to the polls than hear what these communities have to say. In the coming days, the highest court in Texas will have an opportunity to reject the state’s cynical efforts.
For the sake of our democracy, I hope it does.