On Friday, District Judge Tim Sulak (D) issued a temporary injunction enjoining Travis Co. Clerk Dana DeBeauvoir, and by extension any election official in the state, from “rejecting any mail ballot applications received from registered voters who use the disability category of eligibility as a result of the COVID-19 pandemic.”

Last month, the Texas Democratic Party filed the suit seeking a declaratory order holding that voters concerned about being infected by the coronavirus causing COVID-19 were eligible to request a ballot by mail. Other parties, including voting rights groups and an individual voter from Travis Co., intervened on the plaintiff’s behalf. The state intervened on DeBeauvoir’s behalf.

The case hinged on what constitutes a “disability” that makes a voter eligible to apply for a mail ballot. Section 82.002, Election Code provides that a voter “is eligible for early voting by mail if the voter has a sickness or physical condition that prevents the voter from appearing at the polling place without a likelihood of needing personal assistance or of injuring the voter’s health.”

Sulak wrote it was “reasonable to conclude that voting in person while the virus that causes COVID-19 is still in general circulation presents a likelihood of injuring [voters’] health, and any voters without established immunity meet the plain language definition of disability” under Sec. 82.002, Election Code.

“The League is pleased with the decision today that will life what could have been a massive burden for Texans in the upcoming elections,” said Grace Chimene, president of the League of Women Voters of Texas, one of the intervenor-plaintiffs, in a statement.

Sulak indicated he would likely issue the temporary injunction during a Wednesday hearing, which was held remotely.

The state is expected to appeal the decision. “I am disappointed that the district court ignored the plain text of the Texas Election Code to allow perfectly healthy voters to take advantage of special protections made available to Texans with actual illness of disabilities,” said Attorney General Ken Paxton (R) in a statement. “This unlawful expansion of mail-in voting will only serve to undermine the security and integrity of our elections and to facilitate fraud.”

In a letter to Rep. Stephanie Klick (R-Fort Worth) issued the day before Sulak’s hearing, Paxton said “fear of contracting COVID-19 unaccompanied by a qualifying sickness or physical condition does not constitute a disability under the Election Code for purposes of receiving a ballot by mail.” Klick chairs the House Elections Committee. Paxton’s letter constituted informal legal advice and not a formal opinion.

In the letter, Paxton called fear of contracting the virus “a normal emotional reaction” that does not is neither a sickness under that provision nor a physical condition. “It would at most amount to a mental or emotional condition and not a physical condition,” he wrote. He also advised that third parties’ efforts to encourage voters to apply for a mail-in ballot
based on a fear of contracting COVID-19 “could subject those third parties to criminal sanctions.”

Chimene said the League “will continue to do our part in educating voters on how to register to vote and inform voters that voting by mail will be safer both for those who choose that option and those who cast a vote at the polls on Election Day.”

Sulak scheduled a status conference on July 27, two weeks after the primary runoff elections, and a final trial on the matter to begin on August 10.

His ruling comes a little over a week after Wisconsin went forward with its primary elections as scheduled. More than 70% of voters cast ballots by mail, up from 27% in 2016. More than 200K ballots requested voters were not returned, and an unknown number of them were delivered to voters too late to be counted. Thousands of others were missing postmarks, which are necessary to have them counted.

Campaign Finance: We have updated our federal Crib Sheet with the latest campaign finance results from the April quarterly and any termination reports including part of the second quarter.

Early Voting begins tomorrow (Monday) for the May 2 general election in the few jurisdictions that have not postponed those elections to November 3. Early voting ends April 28.

State Conventions: The Green Party held the state’s first-ever online convention this weekend, attended by 32 delegates from eight counties. “We also had a lurker or two,” said David Bruce Collins, the party’s nominee for U.S. Senate in a blog post on his campaign site summarizing the convention. Nine candidates were formally nominated, though only HD92 candidate Brody Mulligan and CD36 candidate Hal Ridley Jr. would remain on the ballot if a lawsuit challenging a new filing fee law passed by the Legislature in 2019 fails. Kat Greene appears to have been nominated for Railroad Commission and HD51. Additional candidates were nominated at district conventions last month.

The Libertarian Party’s state convention, originally scheduled for this weekend, has been postponed to July 31-August 3 in McAllen. Gov. Greg Abbott suspended Section 181.061, Election Code, which requires parties not using primary elections to hold their state nominating conventions on the second Saturday in April, unless that falls on Easter weekend, in which case the third Saturday in April.

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