Atty Gen. Ken Paxton
Texas Attorney General Ken Paxton. Credit: Bonnie Arbittier / San Antonio Report

Come and get me, Ken Paxton. In your anti-democratic world I’m about to commit a felony. In the real world I’ll take my chances with the courts and jurors. 

What’s more, I’ll only be doing what you’ve done in the past. I’ll explain below, and I’ll show how Gov. Greg Abbott could put a stop to the state attorney general’s mean-spirited nonsense. 

On Friday Paxton sent a letter to county judges and election officials warning them that Texas voters could not be allowed to vote by mail if they were under 65 and their only concern was that by voting in person they could put themselves and thus their families in danger of contracting the coronavirus. 

Paxton says that worrying about putting your lives and the lives of your loved ones in danger is not a “disability” under Texas law, so unless you are in jail, over 65, or will be out of town on election day, you must take your chances if you want to exercise your right to vote.

Two weeks earlier a state district judge in Austin ruled that fear of the coronavirus was a substantive enough disability that Texas voters claiming it as such could vote by mail in July’s primary runoff elections and in the general election in November.

It’s hardly a radical notion. Out of fear of the virus the nation has shut down schools, shops, restaurants, factories, church services, and even professional sports. The plaintiffs in the lawsuit, led by the Texas Democratic Party, aren’t asking that the in-person polls be shut down, only that voters be given a choice.

Paxton has appealed the Austin state judge’s order. The Democrats have also filed a federal suit in San Antonio. On Sunday U.S. District Judge Fred Biery set a hearing for May 15. Paxton will consider Biery biased, since his order shows that he takes the virus seriously. It provides that only one lawyer and support staff will appear for each side, that only four members of the press will be allowed in the courtroom and will be expected to share what they learn with other reporters, and that the public will be excluded but may listen to an audio livestream on the court’s website. Also, everyone in the courtroom will be required to wear a mask, except when talking, and to keep social distance. 

Election officials, especially those in big cities, want to promote mail ballots. The majority of people who staff election sites are over 65, and therefore especially vulnerable to the virus’s assault. Despite efforts to protect election staff, the more people who vote in person, the more chances of these patriots getting infected. Officials are concerned about getting many volunteers to take the job this year.

Paxton doesn’t care about the sort of patriotism that impels thousands of people across the state to work more than 12 hours on election day for an hourly rate about one-twentieth of what his lawyer friends charge. His notion of patriotism is working to keep the “wrong kinds” of people from voting.

In his letter the attorney general also writes that “third parties [who] advise voters to apply for a ballot by mail” because of fear of the coronavirus could face criminal charges under a Texas Elections Code provision that makes it a state jail felony if he or she “intentionally causes false information to be provided on an application for ballot by mail.”

In Paxton’s view I am such a third party, but here goes: I hereby advise anyone who feels the need to protect themselves and their loved ones to vote by mail. Please download the mail ballot application that can be found here, print it, and check the box for disability. It asks for no further information. Then check the box that says “annual” just below so the application will cover all this year’s elections, sign the form, and mail it in.

In giving this advice I’m doing exactly what Paxton himself did five years ago. When the U.S. Supreme Court ruled in favor of marriage equality for same-sex couples, Paxton put out an opinion telling county clerks that if they objected on religious grounds they could refuse to issue marriage licenses to same-sex couples. 

He also told them the AG’s office could not defend them but he was sure they could get pro bono representation.

So if your conscience tells you it would be immoral to put your loved ones in jeopardy either by taking them on a cruise or by voting in person, I say follow your conscience. Skip the cruise and vote by mail. I only wish Paxton were on the ballot this year. 

The governor could end this madness tomorrow. Section 418 of the Texas Government Code on emergency management cites as one of its purposes to “reduce vulnerability of people and communities of this state to damage, injury, and loss of life and property resulting from natural or man-made catastrophes …”

The list of such catastrophes specifically mentions epidemics. 

Section 418 gives the governor extraordinary powers, including to “suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster.”

If the governor can determine when and how private businesses can operate, this provision clearly gives him the power to order that any concerned citizen can vote by mail during a lethal pandemic. He could save some lives.

I won’t hold my breath. In 2006 then-Attorney General Abbott declared there was an “epidemic” of voter fraud and embarked on a $1.4 million federally funded campaign to root it out. 

Apparently it was no pandemic. By mid-2008 he had prosecuted all of 26 cases, none of which involved numbers that could sway even a local election. Of these, 18 involved mail ballots in which the voters were legal and their ballots were properly cast, but people who assisted them were found guilty of technical violations such as failing to put their names and addresses on the backs of the envelopes. Those convicted were given modest fines and no jail time. Three cases were dismissed by a judge.

Abbott did send two people to prison: a former Port Lavaca City Council member who lied to a grand jury about registering noncitizens to vote and a Refugio County commissioner who gave mail ballots to voters to mark in his presence.

The paltry numbers didn’t change Abbott’s tune. In 2017 as governor he wrote an op-ed piece saying, “When I was attorney general, I prosecuted countless cases of voter fraud across the state, but the problem continues to exist today.” 

Rick Casey's career spans four decades of award-winning reporting on San Antonio. He previously worked as a metro columnist for the former San Antonio Light and, later, the San Antonio Express-News.