AUSTIN, Texas – The battle over mail-in voting during the pandemic was back before the Texas Supreme Court Wednesday. This time, the court was considering whether all Harris County voters can receive mail-in ballots.

Justices heard arguments over Harris County's plan to send mail ballot applications to all 2.4 million registered voters. Attorney General Ken Paxton sued the county clerk last month. He says the clerk exceeded his authority because not everyone is eligible to get an application and because they didn't request one.

The state hit hard on that during Wednesday’s virtual hearing.

"We have never seen what we're seeing here, where applications to vote by mail are being sent en masse, hundreds of thousands or even millions, to people who have never asked for them and probably aren't eligible to vote by mail," said Kyle Hawkins, the Texas Solicitor General.

At issue is whether the Texas Election Code grants county clerks the power to send unsolicited applications.

The plaintiffs argue it provides easier access for high-risk populations due to the pandemic, and hit back when asked about the chance of fraud.

"Fraudulent votes aren't acceptable but the act of giving someone an application doesn't increase fraud," said Susan Hays, an attorney for Harris County.  

Texas is one of a handful of states that requires an excuse for voting by mail. Residents must be at least 65, disabled, out of the county or incarcerated during the voting period. During the primary, the Harris County Clerk only sent applications out to those 65 and older.  

“Given what’s going on in the country and the state with the COVID pandemic, this is a very reasonable step for the clerk to take to facilitate voting and to make it easier to administer the election,” said Max Feldman, counsel in the Voting Rights and Elections Program at the Brennan Center for Justice at New York University Law and who’s also been involved in this case.

The deadline to apply for a mail in ballot is October 23.