Texas AG Ken Paxton says fear of COVID-19 is no excuse to...

WASHINGTON — Just as a Texas judged opened the door to more voting by mail amid the coronavirus outbreak, the state’s attorney general is trying to slam it shut.

Voters cannot cast ballots by mail just because they are afraid of getting the coronavirus at polling places, Republican Attorney General Ken Paxton said on Wednesday, even as a state district judge in Austin said he will rule that voters can vote by mail if they believe doing so in person puts their health at risk.

The judge’s apparent decision was an early victory for the Texas Democratic Party and a slew of civil rights and voter advocacy groups seeking to expand voting by mail in Texas, but it will almost certainly be appealed and Paxton’s pronouncement makes it clear the state has no plans to open up 2020 elections to more voting by mail.

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“Our voting rights have been under attack for decades, long before the coronavirus pandemic reached the borders of our state,” Texas Democratic Party Chair Gilberto Hinojosa said in a statement. “We cannot allow this public health crisis to be the death of our democracy when it is taking so many of our loved ones.”

Texas is one of the few states that still require voters younger than 65 to have an excuse to cast a ballot by mail. Fewer than 7 percent of Texas voters mailed in ballots in 2018.

The issue has emerged as a major political fight amid the coronavirus outbreak. Democrats and voting rights advocates have pushed for states to expand voting by mail, arguing that forcing people to show up to polling places during the largest public health crisis in a century is tantamount to vote suppression.

They point to the long lines at polling places in Wisconsin, which held its primary last week. Voters had to wait hours in some areas, such as Milwaukee, which had only five polling places open amid a shortage of poll workers.

Republicans, including President Donald Trump, have pushed back, however, arguing mail-in ballots are less secure than those cast in person.

“Republicans should fight very hard when it comes to state wide mail-in voting,” the president tweeted last week. “Democrats are clamoring for it. Tremendous potential for voter fraud, and for whatever reason, doesn’t work out well for Republicans.”

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State law currently allows voters to claim “disability” and apply for an absentee ballot if showing up at a polling place risks “injuring the voter’s health.”

“Mail ballots based on disability are specifically reserved for those who are physically ill and cannot vote in-person as a result,” Paxton said on Wednesday. “Fear of contracting COVID-19 does not amount to a sickness or physical condition as required by the Legislature … The integrity of our democratic election process must be maintained, and law established by our Legislature must be followed consistently.”

The state’s elections director earlier this month issued guidance to elections officials in all 254 counties pointing to the election code’s disability clause, apparently giving the green light to county officials to take a lenient approach in approving requests for mail-in ballots. Voting rights advocates had claimed that guidance was a victory.

Paxton’s statement wasn’t an official opinion, but it makes clear the state isn’t planning to expand voting by mail anytime soon, unless it is forced to do so.

Attorneys for the Democratic Party argued in court on Wednesday that the disability clause “plainly provided for circumstances such as this, when public health makes it dangerous to vote in person.”

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But they said the courts need to make that clear as county officials are currently wrestling with how to conduct the upcoming runoff elections in July, when voters will pick a Democrat to challenge U.S. Sen. John Cornyn.

“This is a total muddled mess," said Glen Maxey, the Texas Democratic Party's primary director, who administers elections in dozens of counties, as he testified about state guidance on the matter in court on Wednesday. “We’re going to have a mishmash of who can vote and who cannot vote by mail in this election.”

State district judge Tim Sulak said on Wednesday he was will issue a temporary injunction allowing voters worried about coronavirus to vote by mail through November.

County officials have said they are waiting for either the courts or the state to offer them definitive guidance. For now, many are urging those who clearly can vote by mail — such as people over 65 years of age — to apply for a ballot.

“We don’t have any clear direction on if we’re going to open it up for anyone,” said Jacquelyn Callanen, Bexar County’s elections director.

Callanen said she’s being “very cautious,” especially as the issue is fought out in court.

“I don’t want people to rush into this and have a false sense of security that they’ll be mailed a ballot and then someone has pulled it back,” she said. “I don’t want to have them get caught in some sort of a crossfire.”

Harris County, the state’s largest, suggested on Monday that any voter could request a mail-in ballot by claiming a disability.

“We are not going to question someone's disability,” Trautman wrote at the bottom of a notice urging seniors to request mail ballots for the July runoff, as a precaution against contracting the virus.

Trautman on Wednesday declined to elaborate further, and said she was reviewing both the state court ruling and Paxton’s advisory.

Health experts, including Cathy Troisi, an epidemiologist at the University of Texas Health Science Center Houston, testified on Wednesday that there’s no way to make polling places as safe as someone mailing in a ballot, and said poll workers are especially at risk without personal protective equipment that’s currently in short supply.

“As we’re finding in grocery stores … it’s very difficult to maintain that six feet of distance,” Troisi said.

Maxey, meanwhile, said many county elections officials have told him they expect they’ll only be able to get as many as 20 percent of their usual poll workers to show up in the midst of the outbreak.

And the chances this all will actually be cleared up by November’s elections are slim, Troisi said.

“The risk of it reappearing in the fall is very, very high,” she said. “Until we have a vaccine … I hate to say this, it’s bad news, but the chances of successfully containing this virus are very small.”

An appeal, which is likely, would send the case to the states 3rd Court of Appeals in Austin.

Benjamin Wermund reported from Washington; Zach Despart reported from Houston.

ben.wermund@chron.com