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Jun 08

June 8, 2020 TML Coronavirus Update #59

Posted on June 8, 2020 at 4:36 PM by TML Staff

Urgent Updates


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 injunction.


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 82.002.  


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.


Keith Ingram

Director, Elections Division

Office of the Secretary of State

800-252-VOTE (8683)


Further Updates


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 economies.


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


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