The question of whether Harris County Clerk Christopher Hollins has the authority to mail out ballot applications to every registered voter in the county continues to play out. On Friday a judge in Houston gave his ok to Hollins’ unprecedented plan.
State District Judge R.K. Sandill, a Democrat, rejected a request from Texas Attorney General Ken Paxton to halt the mass mailing of ballot applications. There are 2.4 million registered voters in Harris County. Hollins, a Democrat, plans to send mail-in ballot applications to every registered voter along with information explaining the requirements to qualify for such a ballot. Texas has specific requirements that must be met to qualify for mail-in voting. These include voters age 65 or older, disabled or ill voters, a voter who will be out of the county during the voting period or an incarcerated person who is eligible to vote.
It’s 2020 and everything must be upended due to the coronavirus pandemic, including voting. Never mind that Harris County has never been set up for mass mail-in voting and there is no guarantee that such voting will be handled in an efficient and competent way during the November election either. Hollins has only been in his position of Harris County Clerk since June, two months before the primary run-off elections were conducted. During that election, he sent out mail-in ballot applications to all registered voters aged 65 or older.
Judge Sandill, who is on the November ballot for his own re-election, denied Paxton a temporary injunction against the scheme. Hollins has the ok to pro-actively mail the applications to all registered voters for the general election. Sandill ruled against Hollins being outside his authority by doing so, as Paxton’s request claimed. The judge doesn’t think this will harm the voting process in Harris County. He blames it on the Election Code not being specific enough in the language.
“The Legislature has spoken at length on the mechanisms for mail-in voting. There are no fewer than 42 Election Code provisions on the subject,” Sandill wrote. “In those provisions, the Legislature has made clear that in order to vote by mail a voter first ‘must make an application for an early voting ballot.’ But, as to how the voter is to obtain the application, the Election Code is silent.”
The county clerk runs the elections in Texas. This ruling will likely be appealed by the state. Clashes between Democrats and Republicans over the process of mail-in voting during the coronavirus pandemic have led to legal battle after legal battle. Just yesterday I wrote about a ruling by the 5th Circuit Court of Appeals on mail-in ballots. The county has agreed to wait five days after Sandill’s ruling before mailing out ballot applications.
Attorney General Paxton filed a request for a temporary injunction due to concerns that such a mass mailing will produce confusion and clog up the voting system with applications from voters who do not qualify for mail-in ballots. However, his request specifically centered around the county clerk’s authority.
The mailing plan provoked a rare threat of litigation from the Texas secretary of state over concerns it could cause confusion among voters who receive the applications but are not eligible, and clog up the county’s vote-by-mail infrastructure to the detriment of voters who are eligible for absentee ballots. But the lawsuit filed by the Texas attorney general in Harris County actually centered on an argument that county clerks are only “expressly empowered” by the Texas Election Code to send out applications to voters who request them. By that standard, Hollins is trying to act beyond his authority, the state argues.
Sandill found that the requirement for a clerk to provide applications upon request does not “preclude the clerk” from proactively sending out the applications. And he described the state’s objection to the wider mailing plan — and not the mailing of applications to voters 65 and older — as ironic and inconsistent.
During a virtual hearing Wednesday, Hollins presented the proposed mailer and detailed to the judge how it would be accompanied with guidance on who is eligible to vote by mail. In fact, Hollins said, prospective voters would first see those instructions on the top flap of the packet before getting to the application.
And attorneys for the county also argued that there was no state law that prohibits a local election administrator from proactively sending out applications.
The attorney representing the county during the hearing said if the legislature wanted to be specific in a county clerk doing something extra for voters, it would be written in election code. State attorneys and the director of elections for the Texas secretary of state voiced concerns that the county is “walking” voters into “committing a felony by sending out applications to voters who may ultimately not be eligible.”
The director of elections points out that while fear of the coronavirus doesn’t qualify as a disability in order to receive a mail-in ballot, voters can consider that fear along with the rest of their medical history in order to claim disability. He said voters may be misled by the fact that a government official sent out the application and think they must be qualified for mail-in voting, perhaps even putting false information on the application. Sandill wasn’t convinced of the argument that this mass mailing will harm voters’ rights. He said it “rings hollow.”
“The Texas Supreme Court has instructed that the decision to apply for a ballot to vote by mail is within the purview of the voter,” Sandill wrote. “This Court firmly believes that Harris County voters are capable of reviewing and understanding the document Mr. Hollins proposes to send and exercising their voting rights in compliance with Texas law.”
A state attorney argued an unsolicited application would harm the state but Sandill said the act of the mass mailing in and of itself would not harm the state. He said he was of the understanding that misleading the voters was the harm being singled out. So, he ended up ruling against a temporary injunction that would prevent the Harris county clerk from mailing applications to all voters, not just those 65 years of age and older.
What a mess. Democrats are determined to create chaos and uncertainty in order to continue their attempts to turn Texas into a blue state. The coronavirus pandemic gave them the perfect excuse to pursue their get out the vote fever dreams – but instead of getting people to the polls on Election Day, they are encouraging voters to use mail-in voting. Texas Republicans and the state will likely appeal this latest decision. Election Day is growing closer and the legal battles continue.