AUSTIN — A state judge said Wednesday afternoon that all voters in Texas afraid of contracting COVID-19 through in-person voting should be allowed to vote by mail during the pandemic.
State District Judge Tim Sulak of the 353rd District Court in Travis County said he will issue a temporary injunction allowing voters who fear catching the new coronavirus to qualify for mail-in voting through the disability clause in the state’s election code.
The lawsuit was filed by the Texas Democratic Party and several voting rights groups who are concerned that voters in upcoming July elections, including the primary runoffs, could catch the virus if access to mail ballots is not expanded.
“Today is a victory for all Texans. The right to vote is central to our democracy,” the party’s chairman Gilberto Hinojosa said in a statement. “Voters should not have to choose between their lives or their right to vote.”
The decision came in the same hour that Texas Attorney General Ken Paxton’s office said that fear of contracting COVID-19 does not qualify voters in upcoming state elections to vote by mail ballots.
“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,” Deputy Attorney General Ryan M. Vassar said in a letter to Fort Worth state Rep. Stephanie Klick.
Paxton’s office is expected to appeal Sulak’s decision, but the office did not immediately respond to a request for comment on the ruling. Paxton and Klick are both Republicans. The GOP has been hesitant to expand mail-in voting or make any other changes to election laws during the pandemic.
Texas Republicans have long opposed the expansion of mail-in voting, saying it is a system ripe for voter fraud. In 2017, the GOP-dominated state Legislature stiffened penalties for election fraud at the request of Gov. Greg Abbott.
But Democrats say those concerns are overblown and have advocated for the expansion of mail ballots, saying it extends the franchise to people who would otherwise not have access to the polls.
“Our state is better off when more Texans participate in our democracy,” Hinojosa said. “Voting by mail is safe, secure and accessible. It allows more voters to participate in our democracy, and it’s a common sense way to run an election, especially during a public health crisis.”
The Texas Democratic Party and voting rights groups have asked the state and judicial system to expand the use of mail-in ballots for the upcoming primary runoffs on July 14 and the November general elections. Without such an expansion, and the additional use of other techniques such as curbside voting, voters and poll workers who administer the elections could be exposed to the novel coronavirus.
Currently, people over 65, military members, those who will be away from their residence during voting and people with disabilities can request mail-in ballots.
Democrats argue that a disability, which is defined as a “sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring voters’ health,” covers all Texas voters under the age of 65 who are afraid to catch the virus.
In his letter, Vassar disagreed, saying that a fear of contracting the virus was not a sickness or a physical condition, but rather an emotional reaction to the pandemic that is not “sufficient to meet the definition of disability” for the purposes of requesting a mail-in ballot.
Vassar warned that “third parties” who advise voters to apply for mail-in ballots because they fear catching the virus could be punished for election fraud.
“Threatening to prosecute Texans who simply want to vote without endangering themselves, their families or their neighbors is just cruel,” said Anthony Gutierrez, executive director of Common Cause, a nonpartisan government watchdog group. “Everyone who works on voting rights or elections in Texas, including the secretary of state, has said this is a piece of law that is not clear, hence the litigation, and the judge made what we believe is the right call today.”
The Texas Democratic Party has also filed suit in federal court seeking the expansion of mail-in voting and other changes to election law in time for the July 14 primaries.