KSAT Explainer: Twists and turns in legal battle over mail-in voting in Texas

KSAT Explains breaks down the back-and-forth of the court battle for mail-in voting in Texas

The coronavirus pandemic brought the state to a screeching halt in March, and that immediately led to questions about the safety and health of Texans headed to the polls to vote.

SAN ANTONIOEditor’s note: This content was created exclusively for KSAT Explains, a new, weekly streaming show that dives deep into the biggest issues facing San Antonio and South Texas. Watch past episodes here and download the KSAT-TV app to stay up on the latest.

The coronavirus pandemic brought the state to a screeching halt in March, and that immediately led to questions about the safety and health of Texans headed to the polls to vote.

On March 20, Gov. Greg Abbott postponed the May runoff primary election until July 14 to further prevent the spread of COVID-19.

That same day, the Texas Democratic Party filed a lawsuit in Travis County District Court in an effort to expand who qualifies for mail-in voting in Texas. The ACLU of Texas and other civil rights organizations joined in.

“We sought a declaration, an injunction saying during the time of COVID-19, individuals who aren’t immune to it by the plain language of the statute that allows individuals to vote by mail where they have a disability, they should be allowed to vote by mail in this circumstance,” said Thomas Buser-Clancy, attorney for the ACLU of Texas.

Under current Texas Election Code, anyone can apply to vote by mail, but applicants have to list a reason.

To be eligible to vote early by mail in Texas, you must:

• Be 65 years or older

• Be disabled

• Be out of the county on Election Day and during the period for early voting by personal appearance

• Be confined in jail, but otherwise eligible

The list of pre-approved excuses does not account for the COVID-19 pandemic.

The argument worked in favor of democrats early on as State District Judge Tim Sulak issued a temporary injunction in mid-April allowing Texans to vote by mail.

“They heard expert testimony from epidemiologists and medical experts. That trial court ruled that yes, this was a valid excuse to vote by mail,” said Buser-Clancy.

But it was short-lived. On May 1, Texas Attorney General Ken Paxton sent a letter to local election officials saying his appeal of the ruling meant there were no changes to the state’s eligibility requirements.

Paxton also warned county judges and election officials they could be subject to criminal sanctions if they advise voters who normally aren’t eligible to apply for mail-in ballots.

Paxton and other critics have cited concerns about voter fraud being a primary factor to not allow an expansion of mail-in voting in Texas.

On May 14, a state appeals court upheld Sulak’s temporary order to expand mail-in voting, but Paxton asked the Texas Supreme Court to intervene.

The court ruled in Paxton’s favor, stating lack of immunity to COVID-19 does not qualify as a disability.

The decision was a significant blow to Texas democrats who requested that the lawsuit to be dismissed in the state courts.

Their fight continued in the federal courts with a separate lawsuit filed on April 7 in San Antonio by the party and individual voters.

In that case, Judge Fred Biery granted a preliminary injunction that allowed all registered voters to apply to vote by mail during the pandemic.

Biery found the state's existing election rules violated the Equal Protection Clause.

Paxton shut down the order on appeal and democrats have taken the case to the U.S. Supreme Court, asking the high court to remove the block on Biery’s ruling.

It’s unclear when the high court will examine the case, but it’s expected to go into recess until October.

Democrats may have to wait until the general election in November for a resolution.

On demand, in-depth perspective. It’s the goal of a new digital KSAT show. This week’s episode of KSAT Explains will focus on the battle brewing across Texas over the proposed expansion of mail-in voting. Watch the trailer below.

This week’s episode of KSAT Explains will focus on the battle brewing across Texas over the proposed expansion of mail-in voting.

About the Authors:

RJ Marquez is co-host of KSAT News Now and reports for Good Morning San Antonio. He's been at KSAT since 2010 and covered a variety of stories and events across the San Antonio area. He also covers the Spurs for on-air and digital platforms, including his Spurs newsletter. RJ has reported stories for KSAT Explains.

Valerie Gomez is the lead video editor and graphic artist for KSAT Explains. Before starting at KSAT in 2017, she worked as a video editor for KENS 5 and KVUE in Austin. She graduated from Texas State University in 2013 with a bachelor's in mass communication and is a product of SAISD and the South Side of San Antonio. She loves Jeff Goldblum.