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Judge cites ‘disability’ clause in state law to justify order for expanded mail-in voting during pandemic

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A state judge in Texas says he’ll issue a temporary injunction that will greatly expand mail-in voting throughout the state as a result of the coronavirus pandemic in a decision that will no doubt be challenged by Republicans.

The Texas Tribune reports that Judge Tim Sulak told lawyers Wednesday during a videoconference hearing involving a lawsuit filed by state Democrats that he was prepared to issue the order as a way of protecting voters who feel they may be risking their health to cast an in-person ballot during elections over the summer.

Sulak said his decision is based on a portion of Texas election law that allows voters who claim a disability to vote using an absentee ballot.

“His ruling, which is almost certain to be appealed by the state, could greatly expand the number of voters casting ballots by mail in the upcoming July primary runoff elections,” the Texas Tribune reported.

The news site further notes:

Until now, voting by mail has been limited in the state. Texans seeking an absentee ballot that they can fill out at home and mail in had to be 65 years or older, have a disability or illness, be out of the county during the election period, or be confined in jail.

Under Texas election law, a disability is defined as a “sickness or physical condition” that does not allow someone to show up to a polling station and cast a ballot in person without a risk of “injuring the voter’s health.”

Sulak said the law was ambiguous regarding what actually qualifies for a disability, thus the exemption could actually apply to anyone in the state.

The ruling is seen as a temporary victory for state Democrats, who — like Democrats in Congress — have been keen to expanding mail-in voting by claiming the coronavirus pandemic would put people’s lives in danger needlessly.

“Much like the public health experts tell us we have to reduce the curve, reduce the demand on hospital beds and ventilators, we too have to reduce the demand on in-person voting as a matter of practicality, as a matter of public health, and fortunately state law allows for that,” Chad Dunn, a lawyer for the plaintiffs, said in opening arguments, according to the Tribune.

The Texas attorney general’s office argued against the expansion, noting — correctly — that fear over contracting coronavirus did not amount to a “disability” under state election laws and such fears were no different than concerns over contracting any other illness such as the flu.

“Mail ballots based on disability are specifically reserved for those who are legitimately ill and cannot vote in-person without needing assistance or jeopardizing their health,” Attorney General Ken Paxton said in a statement Wednesday evening. “Fear of contracting COVID-19 does not amount to a sickness or physical condition as required by state law.”

Democrats on the national level have attempted to use various coronavirus funding measures to advance a nationwide expansion of mail-in balloting. Republicans have opposed the expansion on grounds it could dramatically increase the potential for vote fraud.

Writing at Fox News, Republican National Committee Chairwoman Ronna McDaniel argued that what Democrats really want to do is legalize a concept born in California known as “ballot harvesting.”

She writes:

Any person would be allowed to return an unlimited number of absentee ballots for voters, opening the door for political operatives to deliver ballots in bulk. They could even be paid as long as he or she is not paid based on the number of ballots returned.

All voters “eligible to cast a vote” would receive a ballot. The problem: many states do not clean up their voter registration lists unless forced to. California had to remove up to 1.5 million ineligible voters due to a court settlement last year after its rolls showed registration of 112 percent. In other words, there were more registered voters than adults living in the state.

That’s true. In fact, legal watchdog group Judicial Watch has been hard at work filing lawsuits against states and local jurisdictions that have failed to clean up voter registration rolls as required by federal law.

In a January press release, the organization said it had uncovered millions of “extra” registrations on voter rolls in a number of states including California, Colorado, Pennsylvania, North Carolina, and Virginia.

Jon Dougherty

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