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May 04

May 4, 2020 TML Coronavirus Update #36

Posted on May 4, 2020 at 4:00 PM by TML Staff

Urgent Updates


Who is eligible to apply to early vote by mail on the grounds of disability?


On April 20, the League reported the following related to “who is eligible to apply to early vote by mail on the grounds of disability?”


Section 82.002 of the Texas Election Code provides that 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.” (Note: qualified voters 65 years of age or older are also eligible for early voting by mail pursuant to Election Code Section 82.003.)


On April 14, 2020, the attorney general issued an “informal letter of legal advice” indicating his opinion that “fear of contracting COVID-19 unaccompanied by a qualifying sickness or physical condition does not constitute a disability under the Election Code for purposes of receiving a ballot by mail.” In other words, the attorney general’s opinion is that, under state law, an otherwise healthy voter is not eligible to receive a ballot to vote early by mail just because the voter is concerned with possibly contracting COVID-19 by voting in-person at a polling place.


Shortly after the attorney general’s informal guidance was released, Travis County District Judge Tim Sulak took the opposite position. The judge ordered a temporary injunction preventing the Travis County clerk from rejecting any mail ballot applications received from registered voters who use the disability category of eligibility as a result of the COVID-19 pandemic as the justification for submitting the application. According to the judge, it was reasonable for plaintiffs “to conclude that voting in person while the virus that causes COVID-19 is still in general circulation presents a likelihood of injuring their health, and any voters without established immunity meet the plain language definition of disability thereby entitling them to a mailed ballot under Tex. Elec. Code § 82.002.”


It is possible, if not likely, that the judge’s order will be appealed. But unless and until an appellate court overturns the judge’s determination, the safest approach for future city elections will be for city election officials to accept applications for ballots to early vote by mail at face value and process them. The Secretary of State’s Elections Division will probably issue guidance as well.


Last week, on May 1, the attorney general doubled-down on his advice above when he issued a memo to “County Judges and County Election Officials” regarding “Ballot by Mail Based on Disability.”  His press release stated the following verbatim:


AG Paxton Advises County Officials to Avoid Misleading the Public on Vote by Mail Laws


Attorney General Ken Paxton?today issued a letter to Texas county judges and election officials, providing guidance that, under the Texas Election Code, Texans may not claim disability based on fears of contracting COVID-19 and receive a ballot to vote by mail in upcoming elections. Several county officials throughout the State, including the Harris County judge and clerk, are misleading the public about their ability to vote by mail, telling citizens that in light of COVID-19, anyone can claim a ‘disability’ that makes them eligible for ballot by mail.  


Disability, as that term is used in the Texas Election Code’s provisions allowing voting by mail, must involve a ‘sickness or physical condition’ that prevents a voter from voting in person on election day without a likelihood of needing personal assistance or of injuring the voter’s health. A voter ill with COVID-19 and who meets those requirements may apply for a ballot by mail. Fear of contracting COVID-19, however, is a normal emotional reaction to the current pandemic and does not amount to an actual disability that qualifies a voter to receive a ballot by mail.  


‘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,’ said Attorney General Paxton. ‘My office will continue to defend the integrity of Texas’s election laws.’  


The lawsuit recently filed in Travis County District Court does not change or suspend the disability requirements required by the Texas Legislature. Pursuant to Texas law, the District Court’s order is stayed and has no effect during the ongoing appeal.”


The Secretary of State had previously and informally advised in an email the opposite of what’s in the attorney general’s memo. The SOS position may change, but the whole issue raises some interesting questions about which attorney to rely on for advice: a city’s or the attorney general’s office. 


Even formal attorney general opinions aren’t binding on anyone. Attorneys frequently defer to them because courts sometimes, but not always, use them as guidance. But we aren’t aware of any statutory provision providing that an informal memo from the attorney general, whether right or wrong, has any legal weight whatsoever or is binding on anyone in light of ongoing litigation where a judge has already opined on the issue (typically the attorney general refrains from opining on issues that are subject to pending litigation). 


As is always the case, city officials should consult with their own attorney for legal advice. 


Further Updates


Has the National League of Cities provided new national updates?


Yes, last Friday (May 1), NLC provided the following updates reprinted here verbatim:


-Five Senators Send Letter to Trump Calling for Rejection of State Bailouts

Yesterday, five senators sent a letter to President Donald Trump asking the Administration to ensure any money to states and local governments is not used as a blank check.


Future coronavirus response measure should not be "used as a piggybank for unrelated expenses that have nothing to do with responding to the Coronavirus," wrote Senators Rick Scott of Florida, Ted Cruz of Texas, Mike Lee of Utah, Mike Enzi of Wyoming, and Ron Johnson of Wisconsin. "Americans expect that their tax dollars will be used for Coronavirus response, not to backfill decades of bad fiscal policy. As we continue to work to help families across the nation, we respectfully ask that you to oppose bailouts for states."


NLC is working hard to counter this narrative that states and local governments would be receiving a "bailout" if they receive additional fiscal help.


-Republican House Members Send Letter to Trump

GOP House members from districts with smaller cities, towns, and villages are beginning to feel the pressure of being left out of the CARES Act's Coronavirus Relief Fund. A letter sent on Friday by 19 House Republicans to President Donald Trump asked for fixing the definition on the CARES Act of units of local government.


In the letter, the 19 GOP members write that the statutory definition of a local government should be changed "to protect our counties, cities, and municipalities with fewer than 500,000 residents and incorporate retroactive relief to assist these struggling smaller communities offset unforeseen COVID-19 related expenses."


This represents a breakthrough as rank-and-file Republicans begin to understand and advocate for direct funding for their communities as well as for offsetting "unforeseen COVID-19 related expenses."


-Rep. Bacon of Nebraska Introduces Bill to Alter CARES Act's Use of Funds

Another crack appeared today in the Republican wall on state and local government funding. Rep. Don Bacon (R – Nebraska) introduced a bill to modify the CARES Act. The bill, the FLEX Act (HR 6652), would allow states, tribal governments, and local governments to access funds provided under the CARES Act to offset lost tax revenues caused by the loss of taxes and other sources of revenue. The FLEX Act would also allow for local governments with a population of less than 500,000 residents to have access to these funds to address revenue shortfalls. Finally, the FLEX Act covers the period of revenue shortfalls from March 1, 2020 to December 30, 2020. The League of Nebraska Municipalities worked to develop this bill with Rep. Bacon's office.


The bill had five Republicans and seven Democrats join as original cosponsors, making this a bipartisan piece of legislation. A bipartisan bill will help remove the rhetoric that this is a Democrat or Republican issue.


Where can I find archived issues of the TML Coronavirus Updates?


TML Coronavirus Updates are archived by date here and by subject here.