Has the Secretary of State’s Elections Division provided further
updates on the mail ballot lawsuits?
Yes, last Friday (June 5), the Elections Division sent the
following “SOS Update” to elections officials by email:
Dear Election Officials:
As you know, there is active litigation in federal and state
court involving eligibility to vote by mail in Texas elections. We are writing
to provide you an update on these proceedings, which do not alter the
established standards in the Texas Election Code for voting by mail.
On May 27, 2020, the Texas Supreme Court issued an order stating that “a voter’s lack of immunity to COVID-19,
without more, is not a ‘disability’” under Section 82.002 of the Texas Election
Code. Therefore, such a lack of immunity does not, by itself, render a voter
eligible to vote by mail within the meaning of Section 82.002(a).
In the federal litigation, the U.S. District Court for the
Western District of Texas entered a preliminary injunction on May 19, 2020,
providing that “[a]ny eligible Texas voter who seeks to vote by mail in order
to avoid transmission of COVID-19 can apply for, receive, and cast an absentee
ballot in upcoming elections during the pendency of pandemic circumstances.“
The next day, following an immediate appeal by the State, the U.S. Court of
Appeals for the Fifth Circuit entered a temporary administrative stay of the
On June 4, 2020, the Fifth Circuit issued an opinion staying the district court’s injunction pending the
State’s appeal. As a result, the May 19 preliminary injunction is not operative
at this time.
The Texas Supreme Court and Fifth Circuit rulings confirm the
established criteria for vote-by-mail eligibility in Texas. As the Texas
Supreme Court recognized, the Legislature has allowed voting by mail in “specific,
defined categories,” namely those voters who (1) will be absent from their
county of residence during an election period; (2) have a disability that
prevents them from appearing at the polling place; (3) are sixty-five years of
age or older; (4) are confined in jail; or (5) participate in the address
confidentiality program. (Sections 82.001-.004, .007). As noted above,
pursuant to the Texas Supreme Court’s ruling, a lack of immunity to COVID-19,
without more, does not qualify as a “disability” under Section
These rulings also make clear that your obligations in
processing mail-in ballot applications remain as set forth in the Texas
Election Code. The early voting clerk must “review each application for a
ballot to be voted by mail.” (Section 86.001(a)). If an applicant is “entitled
to vote an early voting ballot by mail,” the clerk must provide the voter a
ballot. (Section 86.001(b)). If an applicant is “not entitled to vote by mail,”
the clerk must reject the application. (Section 86.001(c)). The Texas Supreme
Court expressed confidence that “all election officials will comply with the
law in good faith” and follow the guidance provided in its ruling.
We will keep you apprised of developments in the ballot-by-mail
litigation and continue to provide guidance on your questions about specific
mail-in ballot applications.
Director, Elections Division
Office of the Secretary of State
Are there any updates relating to the spread of COVID-19 in the
state’s prison units?
Yes, according to a June 5th article in the The Texas Tribune, “the U.S. 5th Circuit Court of
Appeals tossed a lower court’s temporary ruling Friday that ordered Texas
officials to enact a slew of policy changes at a geriatric prison, including
providing inmates hand sanitizer and cloth face masks to slow the spread of
coronavirus. The appeals judges noted that many of the district judge’s orders
had already been met by the Texas Department of Criminal Justice.”
“The lawsuit claimed inmates were not adequately protected from
the coronavirus at the Pack Unit near Navasota, where 166 inmates actively had
the coronavirus on Thursday, according to data from TDCJ. At least five
have died from the virus, a state’s attorney said during a hearing in
front of the appeals court judges last week.”
The Texas attorney general issued a press release following the decision, in which he said that he is “pleased the
Fifth Circuit vacated the district court’s patently unlawful injunction and we
look forward to prevailing in further proceedings in district court…The TDCJ
has already gone above and beyond in its efforts to protect inmates from
COVID-19, and prison officials need flexibility, not immovable requirements
based on yesterday’s knowledge.”
What is the National League of Cities doing to help facilitate
conversations with Congress relating to virus response?
NLC is hosting the “Cities are Essential: Protecting and Growing America’s Economic
Recovery” webinar on June 11. According to NLC, local governments are
on the front lines of our nation’s health, safety, and economic response to the
coronavirus emergency. Communities need a strong local-federal
partnership to stabilize local government operations, keep workers on the
job, and maintain essential services to grow the economy.
Join a virtual Capitol Hill briefing on Thursday, June
11, to hear from federal leaders and local elected officials on how cities
are the essential building blocks of a national economic recovery, as well
as the big steps being taken by cities, towns and villages to restart local
Where can I find archived issues of the TML Coronavirus Updates?
TML Coronavirus Updates are archived by date here and by subject here.