“Public officials shall not advise voters who lack a qualifying sickness or physical condition to vote by mail in response to COVID-19,” said Atty. Gen. Ken Paxton (R) in a letter to county judges and county election officials (PDF). Further, third parties advising voters to apply for a ballot by mail out of fear of contracting COVID-19 without a qualifying disability “could subject those third parties to criminal sanctions.”

The letter follows District Judge Tim Sulak’s (D) decision last month to grant a temporary injunction enjoining Travis Co. Clerk Dana DeBeauvoir 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.” The state immediately appealed that decision to the Third Court of Appeals. Paxton said Sulak’s injunction is stayed during the appeal.

Paxton’s argued that fear of contracting COVID-19 is an “emotional condition and not a physical condition” under Sec. 82.002, Election Code and this “not, by itself, sufficient to meet the definition of disability for purposes of eligibility to receive a ballot by mail.” In his ruling, Sulak determined 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.” Paxton’s letter does not appear to address this reasoning.

Appellate briefs in the case are due by May 29.

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