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A Texas court battle could decide if millions are disenfranchised during the pandemic

The state attorney general is threatening criminal prosecutions against pro-voting activists.

Texas Attorney General Ken Paxton (right) speaks outside the US Supreme Court on September 9, 2019.
Mandel Ngan/AFP via Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

On Tuesday, Texas Attorney General Ken Paxton’s (R) office released a letter arguing that a Texas law governing who may obtain an absentee ballot must be read very narrowly — so narrowly that it could potentially disenfranchise millions of voters during the coronavirus pandemic.

The letter went even further than that, threatening criminal prosecutions against activists who encourage many younger voters to vote absentee.

The next day, a state trial judge in Austin rejected Paxton’s reading of this absentee ballot law, holding that Texas voters should have broad access to absentee ballots during the pandemic. But it is far from clear that Judge Tim Sulak’s order will survive contact with higher Texas courts.

That case is called Texas Democratic Party v. Debeauvoir.

All nine justices on the Texas Supreme Court are Republicans, so there is a very high likelihood that Paxton’s narrow reading of the law will prevail if Texas Democratic Party reaches the state supreme court. Paxton is widely expected to appeal Judge Sulak’s decision.

Texas is one of a minority of states that does not permit voters to obtain an absentee ballot for any reason they choose. In Texas, voters over the age of 65 may obtain such a ballot merely by requesting one, but younger voters may only obtain an absentee ballot under a limited set of circumstances.

The law does permit voters under the age of 65 to obtain an absentee ballot if they have a “sickness or physical condition,” but Paxton’s office claims that voters under the age of 65 have to actually be ill in order to obtain a ballot. As they read the law, it’s not enough if a voter is stuck at home in order to avoid becoming infected.

Because older voters tend to favor Republican candidates, Texas’s odd legal regime, where older voters may have an easy time voting from home while younger voters could struggle to obtain a ballot, could provide a significant unfair advantage to Republicans if the coronavirus pandemic still requires most Texans to remain at home on Election Day.

Moreover, the Texas law can plausibly be read in one of two ways — meaning that the Republican-controlled state supreme court could easily choose the reading that is best for the GOP.

Texas’s law is ambiguous

The specific law at issue in the Texas Democratic Party case provides that “a qualified 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 on Election Day without a likelihood of needing personal assistance or of injuring the voter’s health.” The case turns on the proper reading of the words “physical condition.”

A team of civil rights lawyers led by the ACLU proposed reading this law broadly in a brief filed in the Texas Democratic Party case. They argue that the words “physical condition” include the physical condition of being susceptible to the coronavirus. Thus, during a pandemic that requires massive social distancing to control infections, everyone has a “physical condition” that should enable them to obtain an absentee ballot.

Paxton’s office, meanwhile, argues in a letter signed by Deputy Attorney General Ryan Vassar, that “a reasonable fear of contracting the virus” is not a legitimate reason to receive an absentee ballot because “an individual’s fear of contracting COVID-19” is merely a “mental” condition — not a “physical” one.

Vassar’s argument rests on a false distinction, and it is not an especially plausible way of reading the state law: The same person can simultaneously have the physical condition of being susceptible to the coronavirus and the mental condition of being afraid of contracting the coronavirus.

That said, there is a more plausible way to read the statute narrowly. Because the words “physical condition” appear in conjunction with the word “sickness,” and because the statute states elsewhere that this provision deals with cases of “disability,” a judge could rule that the words “physical condition” are meant to refer to a disabling condition that is not shared by the public at large. Often, when a law uses a general term in the context of other, more specific terms, courts will assume that the general term should be given a narrow reading — one similar to the specific terms.

Given that this statute could fairly be interpreted in one of two ways, there’s a very good reason for courts to choose the more expansive reading. The right to vote, the US Supreme Court recognized more than a century ago, “is regarded as a fundamental political right” because it is “preservative of all rights.” Often, when there are two plausible ways to read a statute and one of those readings undermines a fundamental constitutional right, courts will choose the reading that leaves that right intact.

But it is far from clear that the Texas Supreme Court, with its entirely Republican membership, will choose to uphold voting rights here.

Paxton is determined to attack the right to vote

Texas’s attorney general, meanwhile, appears determined to fight for a narrow reading of the state’s absentee voting law. In a statement released shortly after Judge Sulak’s decision, Paxton claimed that “this unlawful expansion of mail-in voting will only serve to undermine the security and integrity of our elections and to facilitate fraud.”

In reality, however, the overwhelming majority of states permit voters to obtain an absentee ballot without having to justify that request. Only seven states — Texas, Louisiana, Mississippi, Tennessee, Kentucky, Indiana, and South Carolina — have laws restricting access to absentee ballots for people under a certain age, according to the advocacy group Vote at Home.

So Paxton is effectively arguing that the legal regime that exists in the vast majority of states is a threat to election security and an invitation to fraud.

And Paxton isn’t simply relying on phantom fears of voter fraud. Vassar’s letter — the one offering the attorney general’s office’s idiosyncratic reading of the state law — also claims that “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.” The attorney general’s office, in other words, appears to be threatening criminal prosecutions against any organization that encourages healthy voters to seek an absentee ballot.

In the likely event that Paxton prevails before Texas’s Republican Supreme Court, moreover, the stakes are simply enormous. If voters remain on lockdown this November, millions of Texans could be disenfranchised if they cannot obtain absentee ballots.