Texas Dems Sue For Remote Voting During COVID-19

By Katie Pohlman
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Law360 (April 8, 2020, 7:47 PM EDT) -- Texas Democrats have called on a federal court to help determine what elections will look like during the coronavirus pandemic, saying the state's current approach is vague and could lead to a mirror image of the issues surrounding this week's Wisconsin primary election.

The Texas Democratic Party asked a Western District of Texas judge to declare that the Lone Star State's election code allows for residents following social distancing orders to vote by mail in the upcoming July primary runoff election and potentially in the November presidential election as well, according to a complaint filed Tuesday that names Texas Republican Gov. Greg Abbott along with other officials as defendants. This federal lawsuit is essentially a backup plan for a related pending Travis County District Court suit the party filed March 20.

The party wants to get a head start on preparing for elections in light of the U.S. Supreme Court's decision on the eve of Wisconsin's primary election to toss a district judge's order extending the deadline for voters to submit absentee ballots by mail. The Supreme Court's five conservative justices said allowing voters to mail in ballots for six days after in-person voting "fundamentally alters the nature of the election."

Texas Democrats said they want to prevent a similar situation and the state's potential "march toward upcoming elections with no plan in place."

"Texas has an extensive history of disenfranchising voters and in this moment of national crisis, it appears poised to do so again without this court's intervention," the party said.

There is confusion among Texas government officials over who qualifies as a person with disability under the state's election code, Texas Democrats said.

On April 2, Texas' Republican Secretary of State Ruth Hughs issued an advisory that cautioned local election officials of more voters using the vote-by-mail system this year than in the past and included a list of qualified voters who could use the system. That list includes voters who will be out of the country at election time, sick or disabled voters, voters 65 years or older and voters confined in jail who are still eligible to vote, according to the lawsuit.

But Texas Democrats pointed to two opinions by Texas Attorney General Ken Paxton, also a Republican, that they claim allow for a wider category of voters to vote by mail.

In a 2015 opinion, Paxton said a person is not required to satisfy any specific definition or standard to be qualified as "disabled" and to vote by mail.

The party also referenced a 2017 opinion that states an individual civilly committed to a center under the state's health and safety code Chapter 841 would be eligible to vote by mail. That specific chapter relates to civil commitment of "sexually violent predators."

Texas Democrats said Paxton's opinions show that citizens confined to their homes to avoid the spread of the coronavirus are eligible to vote by mail. If not, those voters could experience an increased burden on their voting rights, the party said.

"Thus, if Texas courts and the Texas secretary of state do not find that 'disability' under this statute includes people who are socially distancing, then effectively every voter under the age of 65 faces a legally significant increased burden on the voting rights in the current pandemic circumstances," the party said.

Gilberto Hinojosa, chair of the Texas Democratic Party, said in a statement that voters and officials need "concrete guidance" on the vote-by-mail system during the coronavirus pandemic.

"As our city and county leaders issue shelter-in-place orders and our residents are urged to stay inside, we must protect Texans' ability to cast a ballot without jeopardizing their health or safety," he said.

The party names Abbott, Hughs, Travis County Clerk Dana Debeauvoir and Bexar County Elections Administrator Jacquelyn F. Callanen as defendants.

In its lawsuit, the Texas Democratic Party claims the current election conditions violate the Voting Rights Act of 1965 as well as the 14th, 15th and 16th amendments.

Counsel for the party and the governor's office did not immediately respond to requests for comment Wednesday.

The Texas Democratic Party is represented by Chad W. Dunn and K. Scott Brazil of Brazil & Dunn LLP, Dicky Grigg and Martin Golando.

Counsel information for the government officials was not immediately available Wednesday.

The case is Texas Democratic Party et al. v. Greg Abbott et al., case number 5:20-cv-00438, in the U.S. District Court for the Western District of Texas.

--Additional reporting by Jimmy Hoover. Editing by Stephen Berg.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

Texas Democratic Party et al v. Abbott, Governor of Texas et al


Case Number

5:20-cv-00438

Court

Texas Western

Nature of Suit

Civil Rights: Voting

Judge

Fred Biery

Date Filed

April 07, 2020

Government Agencies

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