Texas High Court Blocks Expansion of Mail Voting During Pandemic

The Texas Supreme Court in Austin. (Courthouse News photo / Kelsey Jukam)

(CN) — One week after the Texas Supreme Court heard arguments in an ongoing legal battle over Texas’ mail-in ballot eligibility rules, the state’s high court nearly unanimously declared that a Texan’s lack of immunity to Covid-19 does not constitute a “disability” permitting eligible voters to vote by mail.

“‘Disabled’ normally means ‘incapacitated by or as if by illness, injury, or wounds,’” wrote Chief Justice Nathan Hecht for the majority. “In no sense can a lack of immunity be said to be such an incapacity.”

On May 14, Texas Attorney General Ken Paxton asked the nine justices for a writ of mandamus directing officials in five Democratic-leaning counties to bar voters fearful of catching coronavirus at the polls from claiming a disability to vote by mail.

“Because we are confident that the clerks and all election officials will comply with the law in good faith, we deny the state’s petition for writ of mandamus,” wrote Hecht in the majority opinion, which denied Paxton’s request even as it tamped down on activists’ aspirations to broaden the state’s vote-by-mail law.

Though Paxton’s petition was denied, the high court’s ruling was a win for the Republican official, who praised the court in a statement Wednesday evening.

“I applaud the Texas Supreme Court for ruling that certain election officials’ definition of ‘disability’ does not trump that of the Legislature, which has determined that widespread mail-in balloting carries unacceptable risks of corruption and fraud,” Paxton wrote.

According to Texas’ election code, eligible voters can vote early by mail if they have a “sickness or physical condition” that keeps them from voting in person on election day without a “likelihood” of needing personal assistance or of “injuring the voter’s health.”

Additionally, voters who are older than 65, who are incarcerated, who participate in the state’s address-confidentiality program or who will be absent from the county during the election period are allowed to vote early with a mail-in ballot.

The attorney general has been fighting the Texas Democratic Party and civic organizations in state, federal and appellate courts over which Texans may lawfully apply for an absentee ballot.

In repeated releases sent to the press, Paxton’s office has held steadfast that the measure is intended to help people with “actual disabilities,” and warned that expanding the eligibility for mail-in ballots would cause an increase of voter fraud and vote harvesting.

The Texas Democrats sued first in state court, asking a Travis County judge to declare that any registered voter could vote by mail as a social distancing measure to halt the virus’ spread.

Then the battle moved to a separate action in San Antonio federal court, where the Texas Democratic Party asked a judge to block state officials, including Paxton and his attorneys, from enforcing restrictions on absentee voting.

After the San Antonio judge sided with the Democrats, Paxton appealed the federal suit to the Fifth Circuit.

Gilberto Hinojosa, chair of the Texas Democratic Party, slammed the court’s decision in a statement Wednesday evening.

“Leave it to the all-Republican Texas Supreme Court to put out 45 pages of opinion and give no guidance to voters about who can vote by mail during a pandemic,” Hinojosa wrote. “Now, unless the federal court steps in … voters will have to either risk standing in line and contracting the coronavirus or they’ll risk prosecution by indicted Texas Republican Attorney General Ken Paxton and his grand juries for simply requesting a mail-in ballot.”

Concurring opinions were issued by Justices Eva Guzman, Jeffrey Boyd and Jane Bland — whose ruling was the only one that argued a lack of immunity to Covid-19 can constitute a “physical condition” that qualifies a voter to lawfully apply for an absentee ballot.

“When coupled with the voter’s health history and the level of active infection in the voter’s community, a lack of immunity may or may not lead the voter to conclude that in-person voting is likely to injure the voter’s health,” Bland wrote in her concurring opinion.

Justice Guzman issued a short concurring opinion, co-signed by Justices Debra Lehrmann and Brett Busby, making clear the three justices agree that a lack of coronavirus immunity alone, “in and of itself, does not constitute a disability” under the election code.

Justice Lehrmann and her husband tested positive for coronavirus the week of May 21 despite their proclaimed adherence to stay-at-home orders.

“Voters who claim to have a disability under [the vote-by-mail eligibility law] merely because they lack immunity to Covid-19 or have a fear or concern about contracting the virus would do so in violation of the statute,” Boyd wrote in his own concurring opinion.

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