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Sick Texans seeking late absentee ballots still need a doctor’s note, Texas appeals court rules

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Starting Saturday, Texas voters who become too sick to go to the polls must seek emergency absentee ballots to vote in the election. Credit: Charlie Pearce for The Texas Tribune

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Texas voters who get sick shortly before Election Day and can't go to the polls will still need a doctor’s note before they can get an emergency absentee ballot, a state appeals court ruled Friday.

It’s unknown if the decision will be appealed by voting rights group MOVE Texas, which, as a fallback, is establishing a free telehealth service with volunteer physicians to provide the necessary documentation for sick voters seeking an absentee ballot starting Saturday, the executive director said earlier this week.

The Texas 3rd Court of Appeals' ruling, overriding a state district court order, said implementing the lower court's ruling "would change the longstanding requirements governing late mail-in ballots and risk voter confusion."

MOVE Texas first challenged existing election law in a Travis County court after reports this summer detailed voters who tested positive for the coronavirus in the days before the primary runoff election struggling to cast a ballot.

Unlike applications for absentee ballots received before the general deadline, which was Friday, Texas law dictates that voters submitting applications for emergency absentee ballots must provide certification from a doctor that the voter has developed an illness that would keep them from being able to vote in person.

In the July primary runoffs, two Austin voters tested positive for the new coronavirus and were put under self-quarantine orders shortly after the cutoff date for mail-in ballot applications. They asked a Travis County district judge to waive the requirement for a doctor's note, but lost their case.

On Oct. 2, MOVE Texas filed a challenge in court, arguing that the state’s criteria for applying for emergency absentee ballots is unconstitutional and imposes an undue burden on the right to vote. Travis County District Judge Tim Sulak agreed, ruling against the requirement for a doctor’s note last week.

Sulak said in his ruling that the deadline for when a doctor’s note is needed creates an arbitrary distinction between voters depending on when they get sick, and that, especially during the pandemic, many people who test positive for the coronavirus don’t interact with a physician.

“The requirement to obtain a physician’s certificate places a severe burden on the right to vote, and this is likely to burden primarily low-income and uninsured voters, and minority voters, effectively requiring a pay-to-play voting procedure,” he wrote.

The Texas secretary of state quickly appealed, halting the order as the appeals court reviewed it.

The state argued in its filing that the lawsuit tried to skirt Texas lawmakers’ “carefully crafted framework for facilitating voting by Texans with disabilities, while also protecting the State’s interests in election integrity, ballot security, voter confidence, and efficient election administration.”

Unlike other states, Texas has declined to expand eligibility for mail-in or absentee voting during the coronavirus pandemic, with state Republican leaders successfully fighting off Democratic and civil rights groups' push for that in court.

Voting by mail is not widely used in Texas as strict eligibility criteria generally reserves the option only for voters who are 65 and older, those who cite a disability or an illness, and those who will be out of the county they’re registered in during the election period. If a voter tries to get an absentee ballot after the deadline to apply for a mail-in ballot, 11 days before Election Day, they also need documentation from a doctor.

“It’s so much easier on Friday to get a mail-in ballot versus on Saturday,” MOVE Texas Executive Director Drew Galloway told The Texas Tribune earlier this week.

The Texas Attorney General’s Office also noted in its appeal that changes to the ongoing election would “inject confusion into the ongoing voting process.” The Texas Supreme Court has recently referenced voter confusion in rejecting late Republican challenges to limit voting access.

Preparing for a loss in the 3rd Court of Appeals or an emergency appeal to the Supreme Court, Galloway said the group has designed a fallback program to connect sick voters to volunteer physicians who will meet via video-conference.

“It’s completely up to the physician if they want to issue the waiver or not,” Galloway said. “If so, they can do it digitally. That voter is then set and it’s at no cost to them to be able to complete the application and turn it into the elections department.”

Disclosure: MOVE Texas and the Texas secretary of state have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.