Travis County judge expands mail-in vote, but ruling may be overturned

AUSTIN, Texas - A Travis County judge issued a ruling Wednesday that opened the possibility all registered voters in Texas could qualify for a mail-in ballot. The decision was based on the argument that being in fear of the virus can be considered a disability under current state law.

The vote by mail lawsuit was filed at the Travis County Courthouse, but the hearing before District Court Judge Tim Sulak was done online. The case was filed on behalf of a University of Texas student and several progressive organizations like the ACLU. It was argued that anyone should be able to vote by mail by claiming a disability based on their fear of catching COVID-19 at a polling place.

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"It's not necessarily fear as much as it is people knowing that this virus is highly contagious and being in areas with other people in compact areas is a risk to one’s health and in fact, the way the law is written, the vote by mail law in Texas, the cause says that if there is a likelihood of injuring the voters' health they have a remedy and that remedy is to vote by mail,” said Ed Espinoza with Progress Texas.

The Texas Secretary of State's office earlier this month issued an Advisory to county election officials. The Advisory restated state law and who qualify for mail-in ballots:

• Those who will be away from their county on election day and during early voting
• Those who are sick or disabled
• Those who are 65 years of age or older on election day
• Those who are confined in jail, but eligible to vote

It’s expected that many local voting authorities will provide mail-in ballots to those with underlying health issues, but it’s argued that healthy people who are just worried should not get a mail-in ballot. Changing the rules for mail-in voting, the judge was told, can only be done by state lawmakers.

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The lawsuit comes as people are going to grocery stores and stand in line, with social distancing, to get inside and shop. Espinoza didn’t agree going to a polling place is like going to the grocery store.

"Well, I think the difference is that you have many stores to choose from when you go shopping. There are hundreds of grocery stores in Austin alone, whether it's the big ones or the small ones but with polling places, we don't know if we're going to have enough polling workers that want to volunteer to work in close proximity of each other,” said Espinoza.

Travis County GOP Chairman Matt Mackowiak has a different perspective on the lawsuit and the claim that it's being done to address the fear some voters may have.

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"Part of what I don't understand about this lawsuit is if you are truly afraid of having any type of human contact when you vote, you have two weeks of early voting when you can do that,” said Mackowiak.

In opening statements, the attorney for the Texas Democratic Party also said they're not trying to ban in-person voting. They argued expanding will take time but can be done in time for the upcoming elections. Mackowiak disagreed.

"No, I don't think it can. You do have some states where you only have mail-in voting, I think Colorado and Oregon are states that for years and years and years they've had a mail ballot only election system," Mackowiak said. "So they know what they're doing, they know how to scale, they know how many to print, they know how to find people. We don't know how to do all of that and we would have to develop our own system and you don't have six months, you have two or three months."

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Officials with the Texas Secretary of State's office says that in the 2018 general election almost eight million people voted. Of that number, nearly 530,000 voted by mail. The office was anticipating the mail-in vote would increase this year because of the virus, and those who do have underlying health problems that increase their risk of getting sick.

Before the hearing even began, Judge Sulak, who is a Democrat, said he expects any ruling he makes will be appealed to a higher state court. If the case gets to the State Supreme Court, where all the justices are Republican, the ruling faces a possibility of being overturned.

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