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'Failed By The Courts': Texans Hoping To Vote By Mail Have To Hit The Polls Instead

Early voters line up in West Lake Hills, Texas, during the first hours of early voting on Wednesday.
Early voters line up in West Lake Hills, Texas, during the first hours of early voting on Wednesday.

Many Texans who were hoping to vote by mail during this election are instead having to vote in person.

So far, about a million Texans have cast a ballot during the state's extended early voting period, which started Tuesday.

Texans were put into this position thanks to a confluence of events that includes the solidly Republican state becoming more competitive and the nation's federal courts becoming more conservative.

This year's presidential election is the first one Joe Cascino, a 20-year-old junior at the University of Texas at Austin, is eligible to vote in. He says he's been looking forward to this for a long time.

"I was always really, really interested in politics," he says, "and really after [President] Trump's election I got energized to get more involved, more active."

But Cascino was also a little freaked out about voting this year.

His roommate is immunocompromised, so the pandemic made Cascino worry about voting in person.

"Living with someone who is immunocompromised, I wanted to do whatever I could to not risk my contact with that person," he says.

Cascino says he wanted to vote by mail, but Texas has strict rules about who can do that. Mostly only people who are over 65 and people with disabilities can vote that way.

And while most other states decided to expand mail-in ballots to more voters, Republican state officials have refused.

Texas Attorney General Ken Paxton said during a recent online event with a conservative think tank in Austin that he thinks mail-in ballots make elections less secure.

"There are people out there who clearly want mail-in ballots because they know it's easier to change election results and get what they want as far as who they want in office," he said. "I think it's a concern that a lot of leaders have."

There has never been evidence of widespread absentee ballot fraud in U.S. elections.

Cascino says it's not right that the state is forcing people under 65 to vote in person during a pandemic. He says Texas officials are discriminating against younger voters.

That's why he and others sued the state in federal court earlier this year.

The case is just one of a slew of voting lawsuits filed in Texas leading up to the election.

Andre Segura, the legal director with the ACLU of Texas, says the stakes and the number of these voting cases have gotten higher as the state has become more politically competitive.

"With each election here in Texas we have seen increasing voter turnout, particularly in brown and Black communities around the state," he says.

And that increase in voter participation has had some bad political outcomes for Republicans in Texas.

In 2018, Democrats flipped two congressional seats, 12 state House seats and came within less three points of winning a U.S. Senate race. It was the closest Senate race in the state in decades.

And Segura says now that the current presidential race is also tightening in the state, Texas officials are pulling out all the stops.

"It seems like our state officials are getting more desperate," he says.

A good example of this, Segura says, is Gov. Greg Abbott's recent order limiting all counties to one mail-in ballot drop-off site per county. He says it was a transparent attempt to limit voter participation in the state's most populous counties, which are also mostly majority-Democratic.

"I have never received as many texts or calls or emails about something," Segura says, "because I think it was so obvious what they were trying to do. There was no logical reason to why these drop-off locations ... should be taken away."

But the courts saw no problem with Abbott's order.

The 5th Circuit Court of Appeals sided with Texas officials when voters and civil rights groups sued the state following the decision.

And this is something that has happened in a slew of voting cases in Texas over the past few months.

"I don't think there is any question that the federal appeals courts across the country — but especially here in Texas — have really been pushing back against efforts to ensure broader, easier access to voting," says Stephen Vladeck, the Charles Alan Wright chair in federal courts at the University of Texas School of Law.

Vladeck says the 5th Circuit, as well as other federal appellate courts, has gotten more politically conservative under the Trump administration.

"If anything I think the appellates have become more conservative than the Supreme Court has," he says. "President Trump has made no secret of his goal of reshaping the lower federal courts — and I think we have seen that especially on the 5th Circuit."

As a result, Texas voters and civil rights groups have lost a lot of cases.

Vladeck says these losses pose a larger problem. Since the U.S. Supreme Court struck down key provisions of the Voting Rights Act in 2013, he says it has been largely left up to the courts to protect voting rights in the country.

"I think that unfortunately that leaves folks — at least with the impression, if not the reality — that, you know, the courts really are picking sides when it comes to elections," he says. "When in fact we should be able to rely on courts to be the one neutral arbiter that stays above it all."

Several voting cases in Texas have been appealed to the U.S. Supreme Court, but voting rights groups have said that the damage has already been done because Texans are already voting.

Earlier this year, the 5th Circuit Court of Appeals also sided with Republican Texas officials in the lawsuit filed by Cascino and others.

Cascino says he was disappointed but decided to vote on the first day of early voting in Texas.

"I felt failed by the courts when I voted," he said. "I couldn't help but think about how much easier this could have been and how much less risk it could have been for myself and others who I live with."

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