Fear of Catching COVID-19 Does Not Meet Vote-by-Mail Eligibility, Texas AG Says

By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
April 16, 2020Updated: April 17, 2020

The fear of contracting COVID-19 is not a qualifying reason for state voters to apply to receive a ballot by mail, Texas Attorney General Ken Paxton said on Wednesday.

His statement comes after a state district judge signaled that he would grant Democrats a temporary injunction to expand on who would qualify for absentee voting for upcoming elections. State officials, who are defending the case, are expected to appeal.

Paxton said he was “disappointed” that the court had ignored the plain language of the Texas Election Code by allowing “perfectly healthy voters” to “special protections made available to Texans with actual illness or disabilities.”

Texas Attorney General Ken Paxton speaks during a hearing in Austin, Texas, July 29, 2015. (AP Photo/Eric Gay)
Texas Attorney General Ken Paxton speaks during a hearing in Austin, Texas, July 29, 2015. (AP Photo/Eric Gay)

Under the Texas Election Code, absentee voting is limited to voters who are aged 65 and over, disabled, absent from the country, or confined in jail, but are eligible to vote. In the case, The Democrats argued that the pandemic and the need for social distancing meets the disability requirement under the law.

“The Texas Legislature provided for these circumstances by statute allowing voters to vote by mail when they have a physical condition that makes it dangerous for them to do so. That’s why we fought in court on behalf of voters,” Gilberto Hinojosa, chairman of the Texas Democratic Party, said in a statement. The Texas Democratic Party brought the lawsuit against the state officials.

Disability is defined under the code 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 the voter’s health.”

Paxton said absentee ballots are “specifically reserved” for voters who are “legitimately ill and cannot vote in-person without needing assistance or jeopardizing their health.”

“Fear of contracting COVID-19 does not amount to a sickness or physical condition as required by state law,” he said.

He added that the court’s expansion of the definition would “only serve to undermine the security and integrity of our elections and to facilitate fraud,” while adding that his office would continue to defend Texas election laws.

The Texas Democratic Party and several voters have also filed a similar lawsuit in a federal court (pdf), asking it to extend mail-in eligibility amid the virus and to clarify what elections would look like during the pandemic in the state. The lawsuit names Texas Governor Greg Abbott and other state officials as defendants.

The Democrats said they filed the lawsuit at the earliest moment possible in order to avoid repeating the same events that occurred during the Wisconsin election. In that case, the Supreme Court threw out a district court decision to allow voters to complete absentee ballots after the election deadline on the eve of the state’s primary election.

“Recent events pertaining to elections scheduled this week in Wisconsin demonstrate the disarray and voter confusion that results from inadequately planned elections held during a pandemic,” the Texas Democrats argued.

This comes as Democrats and Republicans in Texas and across the country lock horns over the issue of expanding mail-in voting amid the CCP virus pandemic.

President Donald Trump and Republicans have rebuked the idea of the blanket expansion of mail-in voting, citing concerns of voter fraud. Meanwhile, Democrats argue that mail-in voting options are necessary in order to comply with public health recommendations to reduce gatherings due to the pandemic.

On April 8, President Donald Trump called on Republican lawmakers to “fight very hard” against the push for mail-in voting in states. “Tremendous potential for voter fraud, and for whatever reason, doesn’t work out well for Republicans,” he wrote on Twitter.

Voter Fraud

Voter fraud, which has gained more media attention in recent years, and is a contentious issue that often falls within political ideological lines.

Proponents of mail-in voting and some researchers are arguing that the phenomenon is so rare that it is not an issue.

“While there can be some accusation of voter fraud in any election, the number of cases are typically countable on one or two hands,” Benjamin Clark, an associate professor and the co-director of research for The Institute for Policy Research and Engagement at the University of Oregon, told The Epoch Times.

“Claims to the contrary are purely for politics, and are not based in the real world,” he said.

The Brennan Center for Justice, a think tank that advocates for liberal causes, documented a number of studies and research in 2017 that purports that voter fraud is “vanishingly rare, and does not happen on a scale even close to that necessary to ‘rig’ an election.”

The think tank has been arguing that absentee voting is necessary in order to protect voters and poll workers from the pandemic.

“At many polling places, voters—particularly of color and from poorer communities—already wait in long, crowded lines to vote. During a pandemic, such lines would force citizens to choose between their health and their right to vote,” the organization argued in a recent article.

Presidential primary election in Illinois
A voter fills out his ballot during the primary election in Ottawa, Illinois, on March 17, 2020. (Reuters/Daniel Acker)

Meanwhile, The Heritage Foundation, a conservative think tank, argues that voter fraud isn’t just real, but bipartisan.

“Heritage Foundation experts have long pointed out that voter fraud is not particular to one party or ideology. At its core, people cheat in elections to further their preferred causes or to advance their own careers, and there’s nothing inherently conservative or liberal about the desire to win,” Jason Snead, a former policy analyst at the foundation, wrote in August 2019.

Snead cited a case where a Mexican citizen was convicted of identity theft and voter fraud after he took on the identity of a deceased U.S. citizen and voted in a number of U.S. elections. The surprising twist in the case is that the man is a Republican and voted for President Donald Trump in 2016.

Hans von Spakovsky, a former member of the Federal Election Commission and manager of the foundation’s Election Law Reform Initiative, previously told The Epoch Times that he believes absentee ballots are a particular fraud risk because “they are the only kind of ballots voted outside the supervision of election officials.”

“There’s no way to properly supervise and make sure that voters aren’t being intimidated, their votes aren’t being stolen, ballots aren’t being forged—signatures forged—or otherwise altered, so you have to handle them very carefully,” he said.

The foundation maintains a database that provides a sampling of election fraud cases from across the United States. The database, which contains 1,277 proven instances of fraud, is not comprehensive, the foundation said.

Currently, five states—Utah, Hawaii, Oregon, Washington, and Colorado—conduct elections primarily by mail. Meanwhile, about two-thirds of the states allow voters to request an absentee ballot without needing an excuse.

Petr Svab and Tom Ozimek contributed to this report.