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Federal judge raises concerns over 'chilling effect' of new vote-by-mail rules created by Texas law

Voters drop off mail-in ballots in a drive-thru service at the Travis County Clerk’s Office in 2020.
Michael Minasi
Voters drop off mail-in ballots in a drive-thru service at the Travis County Clerk’s Office in 2020.

A federal judge heard arguments Friday in a legal challenge over provisions in Texas' new voting law that prohibit public officials from "soliciting" vote-by-mail applications.

Lawyers representing plaintiffs — including Harris County Election Administrator Isabel Longoria and Cathy Morgan, a deputy voter registrar in the Austin area — say the law, known as Senate Bill 1, violates their clients’ free speech rights under the First Amendment. They are asking the court to halt this part of the law.

Longoria told the court the provision prevents her from “recommending, advising, urging” voters to vote by mail, even if those voters are qualified to do so. Texas has one of the most restrictive vote-by-mail programs in the country; only Texans who are over 65, disabled, out of town or in jail but not convicted of a crime can vote by mail.

Longoria said voters often ask a lot of questions about voting by mail, but because of SB 1, she's now limited in what she can tell them.

“When it comes to voting by mail I have to stop; I have to be very careful about my words,” she said. “I stop mid-sentence sometimes at these town halls and say, ‘The law prevents me from saying much more.’”

During several parts of the hearing in San Antonio, U.S. District Judge Xavier Rodriguez said he shared concerns that the law could stop officials from talking to voters about important aspects of voting.

“It has a chilling effect,” he said. “People are afraid of talking because they don’t know when they are going to run afoul of this vague [provision].”

Lawyers representing Texas Attorney General Ken Paxton's office told the court they believed there was no real threat of criminal prosecution against Longoria or Morgan.

However, Longoria said Paxton’s office has a history of suing local election officials, including election officials in Harris County, specifically. She said the overall “tenor” of discussions of alleged election fraud concerns from his office also have made her office concerned.

“I think there is a heightened interest and scrutiny against … election officials for election crimes,” she said.

The deadline to apply to vote by mail in Texas ahead of the March 1 primary is Feb. 18.