Harris County can’t send mail-in ballot applications to all registered voters, Texas Supreme Court rules

A mail-in ballot application. (Credit: Miguel Gutierrez Jr./The Texas Tribune)

AUSTIN, Texas – The elections administrator of the state’s most populous county, an important Democratic stronghold, may not send out applications for mail-in ballots to all 2.4 million of the county’s registered voters, the all-Republican Texas Supreme Court ruled Wednesday in a rebuke of County Clerk Chris Hollins, whose office has worked to expand voting options beyond what is available in a typical year.

The state of Texas sued in August to block Hollins from mailing out the applications, arguing that doing so exceeded his legal authority and would cause confusion among voters, some of whom are not eligible for absentee ballots under Texas’ unusually strict criteria. But Hollins argued that the planned mailers gave clear guidance on eligibility, and that encouraging absentee ballots where appropriate was integral to holding a safe election during the pandemic. Lower courts with Democratic judges took Harris County’s side, ruling that Hollins could send applications to voters who would otherwise have to request them or find them online.

But the state’s highest civil court ruled Wednesday that Hollins may not put the applications in the mail. The documents can be accessed online, and are often distributed by political campaigns, parties and other private organizations. But for a government official to proactively send them oversteps his authority, the court ruled.

“We conclude that the Election Code does not authorize the mailing proposed by the Harris County Clerk,” the court wrote in an unsigned per curiam opinion.

The Republican justices sent the case back to a lower court in Harris County to issue an injunction blocking Hollins from sending the mailers.

The county has already distributed the applications to voters who are at least 65, who automatically qualify for absentee ballots, and has also begun sending out the applications to other voters who requested them. An attorney for Hollins estimated last week that the county would send out about 1.7 million more applications if the court allowed.

Turnout in Harris County, both major parties acknowledge, will have major impacts on races at the top of the ticket and the bottom of the ballot. In 2018, 17% of the Democratic votes for Beto O’Rourke were cast in Harris County. Applications for mail-in ballots have already gone out to voters in Harris County who are 65 or older.

Throughout the coronavirus pandemic, Texas’ Republican leadership has fiercely fought efforts to expand the state’s limited vote-by-mail eligibility requirements, which limit those ballots to voters who are 65 or older, those who will be out of the county during the election period, voters confined in jail but otherwise eligible and voters who cite a disability. But the matter of who counts as disabled has recently been politicized and litigated, with the Texas Supreme Court ruling that lack of immunity to the coronavirus does not alone qualify a voter for a mail-in ballot. The court said voters can consider that along with their medical history to decide if they meet the requirement, and election authorities do not have the power to independently verify voters’ disability status, though providing false information is a crime.

During oral arguments in the case Sept. 30, many justices had sounded skeptical of Hollins’ plan, asking whether it would facilitate voter fraud and where in the law he derived the authority.

Solicitor General Kyle Hawkins called Hollins’ effort a “serious affront to electoral integrity on the eve of a national election.” There are documented cases of mail-in ballot fraud, but like all instances of voter fraud, it is rare, experts say. Several states, including Republican Utah, vote entirely by mail, and officials there said absentee ballots have not caused more election fraud.

Meanwhile, the clock is ticking. Harris County voters could start dropping off completed absentee ballots in person starting Sept. 28. The deadline for requesting a mail-in ballot is Oct. 23, but the U.S. Postal Service recommends voters submit their requests by Oct. 19.

Wednesday’s ruling was just the latest in a long list of legal battles ping-ponging back and forth in state and federal courts as the state’s Republican leadership and its largest cities’ Democratic officials gear up for an election unlike any other.