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Controversy over mail-in ballots looms over Texas primary

The elections office in Bexar County is the online site where voters can hand deliver a mail ballot
Jolene Almendarez
Texas Public Radio
The elections office in Bexar County is the online site where voters can hand deliver a mail ballot

A federal judge in San Antonio temporarily blocked a provision in Senate Bill 1, known as the Texas voter restriction bill, last Friday. Judge Xavier Rodriguez’s ruling grants public officials more freedom to inform the public about voting by mail. But the fallout from the bill and the impacts of the ruling are still unclear.

Related: Judge temporarily halts part of Texas’ voting law that bans officials from encouraging mail-in voting

Last month, Bexar County Elections Administrator JacqueCallanen explained to the County Commissioners Court the problem she was having with vote by mail applications under restrictions of the new election law. She said her department was prohibited from sending out an application for a mail-in ballot, except on a one-on-one basis.

“So we’ll have someone say, ‘Will you send my husband and myself one?’” Callanen told commissioners. “Well if it’s the female voice, we can only send it to her. We have to contact her and say, ‘We have to hear it from him before we can release it.’ I mean it’s just ridiculous.”

The frustration was evident in Callanen’s voice and she wasn’t alone.

County election officials across Texas have been trying to do their jobs while not breaking the new election law and solicit someone to vote by mail – because they didn’t want to go to jail.

“Essentially it was a crime and, and it was also something that was subject to civil penalties for election officials and public officials to encourage Texans, to vote by mail or to apply, to vote by mail,” said Sean Morales Doyle, Director of Voting Rights and Elections at the Brennan Center for Justice. It represents Harris County Election Administrator Isabel Longoria in a federal lawsuit.

Longoria sued to block the provision of SB1, arguing that it violated her First Amendment right to free speech.

On Friday U.S. District Judge Xavier Rodriguez agreed and granted a preliminary injunction, which applies to the three counties in the lawsuit Harris, Travis and Williamson. But Doyle said the other 251 counties should recognize this law shouldn’t be enforced.

“The court ruled that this law was likely unconstitutional that it was viewpoint discrimination, which is sort of the ultimate sin under the First Amendment,” he said. “ A federal court has said that a piece of Texas' law is likely violating the first amendment of the constitution. I sure hope that's long as that order remains in place, district attorneys, in other parts of the state, aren't gonna be looking to prosecute under this law either.”

But Doyle admits that county election officials don’t typically like to test laws, which was another problem with this provision of SB1. It is vague. It isn’t clear in who it applies to, what solicitation means in this context and what the law is trying to prevent.

“Our client, Kathy Morgan testified that she wanted to go talk to her 88-year-old neighbor Zelda and tell her she could still vote, even though she couldn't make it to the polls because she could vote by mail. And she was scared to do that because she might be prosecuted and put in prison for a minimum of six months for urging her neighbor to vote by mail,” said Doyle.

Grace Chimane, President of the League of Women Voters of Texas, welcomed the temporary injunction.

“Now with this most recent ruling, county election officials will be able to explain how vote by mail works to the voters in their county that they're serving,” Chimane said. “And that is a fantastic thing, especially with all these new election laws.”

Under the demands of SB1, counties have reported rejecting up to 40% of applications for mail-in ballots. And because of the chilling effect of the law, officials were reluctant to inform voters what exactly was wrong with their applications.

“That's been a huge debacle. Vote by mail has been a real mess in this election because of the new application,” Chimane said. “What this ruling does is it allows people to explain the new process to the voters in their community, which I don't believe they were able to do before.”

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David Martin Davies can be reached at dmdavies@tpr.org and on Twitter at @DavidMartinDavi