Defining Disability

If you’re healthy, are you disabled? Before you answer, let me warn you that this is a trick question. The answer is … maybe.

In these weird times, it’s apparently a legitimate issue — in Texas, anyway. The Texas Supreme Court discussed the question last week in a ruling in a dispute over whether voters should be allowed to cast ballots by mail.

It seems that in Texas you can vote by mail if you have a disability. The Texas Democratic Party and a number of county clerks seemed to think that not having immunity to Covid-19 was a “physical condition” that amounted to a disability. The State of Texas (or at least the people running the state government) contended “that lack of immunity in an otherwise healthy person is not a ‘physical condition’ because it does not distinguish the person from the general populace.”

So it becomes a distinguishing physical condition once the general population gets sick?

The cynics among you may be thinking that the state (i.e. the Republicans in power) are saying this because encouraging actual democracy endangers our freedoms or something. But the law is the law. It’s kind of hard to think of not being sick as a disability.

So, if you haven’t read or read about the ruling, what do you think the Texas Supreme Court did? I’ll give you a hint: The state won and lost at the same time.

The court ruled that healthiness is not a disability — but any voter can claim they’re disabled and the clerks don’t have to question it. There may be a wave of disability coming in Texas.

Litigation over mail-in voting — that pesky easy-access democracy — may be a new trend. A federal judge in Nevada also last week ruled that state officials there “are not constitutionally prohibited from making voting easier.”

Oddly, one of the Nevada plaintiffs trying to stop mail-in voting was something called Nevada Right to Life. Just because you have a right to be alive doesn’t mean you have a right to vote.

According to the ruling, the plaintiffs claimed that a mail election “strips voter-fraud-prevention safeguards and unconstitutionally violates plaintiff’s right to vote due to purported vote dilution resulting in disenfranchisement.”

The more voting there is, the less voting there is.

Expect to see more fascinating exercises in logic in the coming months.

Theme litigation. A lawyer in Michigan has come up with a concept that could save lawyers and appellate judges a lot of subject review time: lawsuit seasons.

He didn’t exactly recommend that, but it’s the only explanation for his news release headline: “Despite April Being Child Abuse Prevention Month, Michigan Supreme Court Refuses to Hear Sexual Assault Case.”

Apparently, in any other month, the refusal would have been OK.

This makes a lot of sense. You don’t have to rehash all the background material on a topic if you deal with an entire year’s worth of that issue’s cases at once.

So we need a list of lawsuit theme months.

February — Black History Month — makes sense for civil rights lawsuits.

I’ll leave it to the Supreme Court to come up with the rest of the monthly topics — but I insist on commemorative calendars with portraits of justices in thematic attire.

Think of Ruth Bader Ginsberg in tennis shorts deadlifting 100 pounds for Sports Litigation Month.

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