There’s very little chance most Texans will get the right to cast mail-in ballots during July party primary runoff elections after a three-judge panel of the Fifth U.S. Circuit Court of Appeals overruled a district court decision.
The appeals court ruling didn’t necessarily kill the option for most voters during the November General Election, but Texans shouldn’t expect to be clearly able to vote by mail even then.
The word “clearly” is important because some lawyers argue the state’s mail-in voting statute is so porous it might as well apply to all. It’s apparently easy to game a system ostensibly designed to prevent gaming the system.
The lawsuit at issue, filed by voting rights advocates and Texas Democrats, argues the state’s some-can, some-can’t mail-in voting law discriminates against people at risk of contracting COVID-19.
The law allows mail-in voting by residents who claim to be disabled, are 65 or older or will not be in the county where they are registered during the election.
The lawsuit argued lack of immunity to the coronavirus constituted a disability qualifying almost all Texans to avoid the possibility of infection by casting ballots by mail, rather than going to the polls.
A U.S. District Court judge agreed, but the appeals court panel ruled the state was likely to prevail in the case on merit and blocked the lower court decision from taking effect.
The full court is supposed to take up the issue eventually, although there’s doubt that will happen in time to influence voting during the July runoffs. Whether the court will act soon enough to affect voting in November remains to be seen.
The word “merit” also is important because it’s mostly a term of art in this case, relevant only in the narrow context of an argument among lawyers.
There is very little broad merit in the state’s current law, which discriminates against most Texans in every election on the thinnest of pretexts.
The main rationale for restricting the right to cast ballots by mail is to reduce the possibility of fraud, which was the main argument against expanding the right to Texans who fear COVID-19.
That’s an argument for disallowing everybody except those who truly cannot get to the polls. The current law doesn’t do that.
For one thing, it allows people to claim a disability and receive a mail-in ballot but provides no system for verifying the disability. Because of that, the law benefits the disabled, which is valid, but also those willing to lie, while penalizing the scrupulously honest. That’s hardly a check on fraud.
A bigger problem, however, is the age allowance, which assumes mobility is mostly a matter of age. That’s a false assumption, and increasingly so.
We all know people 65 and much older go and do all sorts of things all the time. Some run marathons and a bunch of them drive RVs all over the country.
On the other hand, many younger people face legitimate obstacles to voting in person. Single parents, for example, and people with jobs, especially since employers aren’t compelled to give people time off to vote, and many don’t.
People who don’t own cars and live in places without public transit, which is most places in Texas, are especially penalized by the current law.
There is no hard correlation between simple age and lack of mobility, and the law actually benefits a demographic with more free time than younger people working and raising children.
Interestingly, almost all, apparently 95 percent, of mail ballots cast in Galveston County typically are not “absentee” or disabled voters, but people 65 or older, Bill Sargent, former director of the elections division, argued in a recent letter to the editor (“Democrats move to disenfranchise elderly voters,” The Daily News, June 2).
So, the people with the least substantial claim to the special right make the most use of it.
If the fear is about voter fraud, the only fair and rational method is to limit mail-in voting to people with proven mobility problems. A good place to start would be forbidding anyone with an active Texas driver license from casting a ballot by mail and extending that right to people without licenses.
But of course fraud is just a bugbear Texas Republicans have whipped up to justify a law they calculate benefits their voters and candidates.
The law also puts Texas out of step with most other states, 38 of which allow anyone to vote by mail, and the American people, 70 percent of whom favor allowing anybody to vote by mail, according to a Pew Research Center poll published in April. Even 49 percent of Republicans support expanding mail-in voting, according to the poll.
The state’s mail-in voting law, as it’s written, is clearly meant to encourage some voters and suppress others, but Texans should not expect to get justice in the courts.
As we’ve argued before, voter suppression techniques work only when voters allow them to. If the situation makes you mad, stay that way and go vote no matter what.
• Michael A. Smith