Texas Attorney General's Office Says It Can Toss People In Jail For Suggesting Coronavirus Fears Are A Legit Reason To Vote From Home

from the do-you-want-the-virus-or-jail-time-(which-also-has-the-virus) dept

Just when we need our elected representatives to step up and get their collective shit together, they seem to be disintegrating as quickly as possible. I understand a pandemic isn't on the list of "Things I Expected To Deal With During My Tenure," but this is why we give them so much power and the trust that's implicitly packaged with it.

Not every decision made or mandate handed down needs to be solid gold. But it needs to be much better than what we're getting, which often seems to have been generated by a "COVID response" dartboard filled with ideas that shouldn't have made it past a cursory room read.

Here's the thing about voting: it's important. And it needs to be secure. And, yes, we need to limit voter fraud but that shouldn't be the overriding concern since there's been so little of it observed during the numerous elections we've held in this nation.

Sending voters out to gather in groups at polling places may cut down on fraud and (depending on the vote-taking tech) make things a bit more secure than relying on mail-in votes, but you have to factor in the exposure to a deadly virus -- both for voters and those forced to staff these disease vectors of attack.

The lawyers speaking for the Texas Attorney General's office have issued one of the most tone deaf responses to worried state residents wondering if it might be OK to vote from home this year, given the spread of the virus. (h/t Sam Levine)

The letter [PDF] starts off officially and non-stupidly enough by explaining the letter of the law does not support treating attempts to avoid infection as equivalent to established definitions of disability.

We conclude that, based on the plain language of the relevant statutory text, 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.

Fair enough, but given the extraordinary circumstances presented by COVID-19, perhaps the state could relax the definition to keep state residents safe during the upcoming election?

LOL no. That's not what's going to happen. According to the state's counsel, it's far more likely people are going to be treated as criminals for telling others to stay COVID-free by using a mail-in ballot.

Finally, to the extent third parties advise voters to apply for a mail-in ballot based solely on fear of contracting COVID-19, such activity could subject those third parties to criminal sanctions imposed by Election Code section 84.0041. TEX. ELEC. CODE § 84.0041 (providing that a person commits an offense if the person "intentionally causes false information to be provided on an application for ballot by mail"); see also id. § 276.013 (providing that a person commits election fraud if the person knowingly or intentionally causes a ballot to be obtained under false pretenses, or a misleading statement to be provided on an application for ballot by mail).

So, these are your options: tell people to vote in person and risk contracting the virus. Or advise them to dodge the virus by voting from home and go to jail... where you'll risk contracting the virus.

An offense under this section is a state jail felony.

And a state jail felony can net someone anywhere from six months to two years in jail, along with a fine of up to $10,000.

The state's top prosecutor then tries to blunt this threat with a half-assed promise to engage in some prosecutorial discretion.

However, whether specific activity constitutes an offense under these provisions will depend upon the facts and circumstances of each individual case.

Roll the dice, I guess. The state's counsel signs off by noting this is "not the official opinion" of the AG's office, which further adds to the mess being made by this response to a legitimate question. All we know for sure is dodging the corona is not a legal reason to vote by mail, and it may or may not result in criminal charges and jail time if you're telling people it's something they can try. Hopefully, this will be clarified in the near future. And hopefully that clarification will recognize the health risks the state is asking voters to take by threatening to jail them for encouraging voting by mail.

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Filed Under: absentee ballots, covid-19, criminal, elections, texas, vote-by-mail, voting