Ken Paxton’s Empty Threat

The fight to vote safely continues. 

Three weeks ago, a Texas judge ruled we can all vote by mail during the COVID pandemic. This is the law of Texas right now. Any of us can request a mail-in ballot.

Unfortunately, we have an Attorney General who doesn’t concern himself with the law or public safety. Indicted Ken Paxton—the Texas AG who is awaiting trial for securities fraud—does not want us to vote. And he’s willing to lie and threaten us to get his way.

So you’ve seen competing headlines in recent weeks. Some explained we can all request a vote-by-mail ballot to avoid coronavirus exposure. Others broadcasted Paxton’s threat to prosecute fraudulent voters.

Because this is such an important issue—and I know some of you are following it very closely—I’ve written a detailed explanation of what is happening below. 

I’ve practiced civil rights law for ten years, and can’t see a better use of my training and skills than to fight the Texas Attorney General and protect our right to vote.

The take-home message is this: the April 17, 2020 order of the Travis County District Court, by Judge Tim Sulak, is the law of the land. Any person in Texas can request a mail-in ballot for as long as this emergency continues. Ken Paxton is an elected official who can use the airwaves to share his lies and threats, but the fact remains: vote by mail is available to everyone.

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Here’s the deeper explanation.

I. The District Court says we are all “disabled” and can request a mail-in ballot.

The heart of the legal dispute is who qualifies for a mail-in ballot. In Texas, the Legislature limits vote-by-mail to seniors, travelers, and persons who have a disability. 

The Election Code defines “disability” broadly, which led the Texas Democratic Party to file suit. Section 82.002 says: 

A qualified voter is eligible for early voting by mail if the voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health.

Judge Sulak ruled that every voter risks injury to health by appearing in person at a polling place, for as long as the COVID-19 pandemic continues. Thus, any voter can vote by mail.

II. Judge Sulak’s Order applies across Texas.

The order entered by Judge Sulak says five key things:

  1. If you are concerned about COVID-19 exposure, Travis County must grant your application to vote by mail.
  2. Travis County must count your vote. 
  3. Texas cannot stop any county from counting your vote. 
  4. Texas cannot stop you from voting. 
  5. Texas must share Sulak’s order with every country.

The lawsuit was filed against the Travis County Elections Clerk, which is why the first two parts apply to Travis County. But the rest of the order applies statewide. 

This is the only court decision to interpret who is “disabled” during COVID-19. Many counties—including Harris County—are already telling voters they can apply to vote by mail, even though they were not a part of the lawsuit.

III. Ken Paxton’s “opinion” is not worth the paper it is printed on.

Paxton made headlines by issuing multiple Attorney General “opinions” that threaten to prosecute voters who request mail-in ballots. But his public statements have been very careful to hide a key flaw: he has no power to enforce his agenda. It’s all hot air.

The “opinion” of a Texas Attorney General is only advice and does not outweigh a court opinion. Judge Sulak’s order is the only court decision interpreting “disability” during COVID-19, and thus remains the law of Texas.

IV. Paxton’s false claim that Judge Sulak’s order has been “stayed.”

Paxton’s core lie is that Judge Sulak’s order was “stayed” (i.e., no longer in effect) when Texas filed an appeal. This is false. No stay has been issued.

The lawyers who are part of the lawsuit say the same thing. ACLU of Texas, Texas Civil Rights Project, the Texas Democratic Party — they all say that Paxton is full of it.

Here’s the technical explanation. The key part of Judge Sulak’s order on April 17 is a “temporary injunction.” The temporary injunction will remain in effect until an August trial date. Texas appealed the order, but did not get Judge Sulak or the Court of Appeals to issue a stay. 

Under the relevant Texas law—Texas Civil Practice & Remedies Code Section 51.014—there is no automatic stay. So Judge Sulak’s order remains in force.

V. Take-home: we have to keep fighting.

We live in an era when the top law enforcement official in Texas would rather lie and put people’s health at risk than open the door to voting by mail. Neither the AG, nor the Governor, nor the Secretary of State have the integrity to do the right thing for public health and democracy.

So we have to keep getting out the word. Any of us can apply to vote by mail. 

Texas is the voter suppression capital of the United States. We need strong advocates to protect our most essential right in a democracy, the right to vote. I’m counting on your support to make sure we win this fight.

Thank you for your commitment to democracy. 

Fighting for you, 
Mike Siegel

P.S. If you, or anyone you know, want to vote by mail in Texas, here is the relevant information — please apply today.

Footnotes:

  1. April 17, 2020 Order of Judge Sulak
  2. Chapter 82 of the Texas Election Code.
  3. Chapter 51 of the Texas Civil Practice and Remedies Code.