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Bexar County District Attorney Says Vote-By-Mail Requests Can Move Forward After Federal Ruling

San Antonio Mayor Ron Nirenberg and Bexar County Judge Nelson Wolff prepare for their nightly briefing to the public on COVID-19 as they are joined by Bexar County District Attorney Joe Gonzales.
Joey Palacios | Texas Public Radio
San Antonio Mayor Ron Nirenberg and Bexar County Judge Nelson Wolff prepare for their nightly briefing to the public on COVID-19 as they are joined by Bexar County District Attorney Joe Gonzales.

Fear of contracting the coronavirus is a legitimate reason to request a mail-in ballot for Texas elections, a federal judge ruled on Tuesday. In response, the Bexar County District Attorney said voters can begin requesting mail-in ballots now.

The suit was filed in San Antonio’s federal court by the Texas Democratic Party against Texas Gov. Greg Abbott, Attorney General Ken Paxton, the Travis County Clerk and the Bexar County Elections Office. Judge Fred Biery ruled that all voters can request a mail-in ballot regardless of age. Mail-in ballots can normally be requested for people over 65 or those with disabilities.  

Bexar County’s District Attorney Joe Gonzales said under the federal ruling, voters can apply for a mail-in ballot until a higher court intervenes.

“If they perceive that potential transmission is a concern to them by definition this ruling means that that is a disability and that does qualify them for a mail in ballot,” said Gonzales.

Last week, the Bexar County Commissioner’s Court passed a resolution supporting the use of mail-in ballots. On Tuesday night, Bexar County Judge Nelson Wolff praised Biery’s ruling

“Thank goodness somebody stood up to protect the vulnerable people in our community,” Wolff said.

The county judge made note of the many election judges — many that are elderly — who will staff the polls during early voting and on election days.

“We don’t know how long we’re going to be able to dance though,” Wolff said, alluding to how quickly a stay could be ordered.

In a statement, Texas Attorney General Ken Paxton said he plans to appeal to the Fifth Circuit.

“The district court’s opinion ignores the evidence and disregards well-established law,” he said. “We will seek immediate review by the Fifth Circuit Court of Appeals.”

The ruling by Biery made note of the fear voters may face at crowded polling sites when governments are encouraging people to avoid large groups of people during the pandemic.

"The Court finds the Grim Reaper's scepter of pandemic disease and death is far more serious than an unsupported fear of voter fraud in this sui generis experience," the federal judge said. "Indeed, if vote by mail fraud is real, logic dictates that all voting should be in person. Nor do defendants explain, and the Court cannot divine, why older voters should be valued more than our fellow citizens of younger age."

Paxton had frequently argued against mail-in ballots citing a risk of voter fraud and that fear of contracting COVID-19 does not amount to an actual disability.

“Mail ballots based on disability are specifically reserved for those who are legitimately ill and cannot vote in-person without assistance or jeopardizing their health. The integrity of our democratic election process must be maintained, and law established by our Legislature must be followed consistently,” Paxton said in a news release on May 1. “My office will continue to defend the integrity of Texas’ election laws.”   

Tuesday’s ruling is one at the federal level and only applies to Texas. There are many other complex cases in Texas’ judicial system regarding mail-in ballots during the pandemic. Texas’ 14th Court of Appeals recently allowed the use of mail-in ballots, however, the Texas Supreme Court intervened and put a stay on the state appeals court ruling.  

Joey Palacios can be reached at Joey@TPR.org and on Twitter at @Joeycules.

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