Friday, February 3, 2023 | Back issues
Courthouse News Service Courthouse News Service

Texas Supreme Court Hears First Mail-In Ballot Case

The Texas Supreme Court heard arguments for the first time Wednesday in the ongoing debate as to whether Texas’ mail-in ballot eligibility rules permit voters to request absentee ballots because they lack immunity to Covid-19.

(CN) — The Texas Supreme Court heard arguments for the first time Wednesday in the ongoing debate as to whether Texas’ mail-in ballot eligibility rules permit voters to request absentee ballots because they lack immunity to Covid-19.

Ken Paxton, the state’s attorney general, filed for a writ of mandamus last Thursday asking the state’s highest court to stop five counties’ election officials from telling voters that they can tick the “disability” box on the absentee ballot application form if they fear catching Covid-19 at the polls.

According to Texas law, voters may lawfully request an absentee ballot if they will be away from their registered county during the voting periods, are older than 65, are jailed but eligible to vote or if they have a “disability.”

The statute under scrutiny defines a disability as “a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health,” noting only one qualifying example: a pregnancy near the end of its term.

Paxton’s office has repeatedly cited election integrity, voter fraud and the rule of law as reasons why the attorney general has threatened to prosecute officials and voters who apply for a mail-in ballot. But Wednesday’s hearing, hosted over a Zoom call that was broadcasted live to YouTube, largely centered on the statute’s wording.

“The language the Legislature chose … does not include otherwise healthy individuals who would prefer to avoid going to a polling place,” argued Solicitor General Kyle Hawkins, who represented the state. “If the voter has … written in extraneous information onto the mail-in application indicating that that voter is otherwise healthy but simply susceptible to disease or afraid of catching disease, then that application must be rejected.”

Scott Brister, of Hunton Andrews Kurth, defended the five counties before the Texas Supreme Court’s nine justices.

“It does seem a little more than ironic that judges and lawyers here are arguing today remotely about whether other people have to vote in person,” Brister began. “We cannot ignore where we are. We cannot ignore where we’ve been locked down for two months. We cannot ignore that this year, the elections are different than they have at any time since World War II. This is a different climate.”

According to the state, susceptibility to the coronavirus is neither a sickness nor a physical condition. If it were, then every Texas voter would qualify for the disability requirement because everyone is susceptible to diseases such as influenza, Hawkins argued.

Instead, “condition” should be understood as an event such as a broken leg — not a sickness, but a medical event that could keep a voter from attending the polls on election day, Hawkins said.

Brister replied that the flu is not so severe that susceptibility to it qualifies voters to vote by mail, arguing that Covid-19 poses much greater “likelihood … of injuring the voter’s health,” as written in the election code.

“What my clients want to say is, ‘The definition of ‘disability’ in the election code is — you don’t have to be in a wheelchair, you don’t have to be on Medicaid — you have to have a physical condition, which can include lack of immunity to Covid-19, that prevents you” from safely attending the polls, argued Brister.

Justice Jeffrey Boyd was skeptical.

“Are you asking us to ignore the language of the statute because of the current circumstances?”

“Not in your wildest dreams would I ever suggest that,” Brister replied.

During the state’s rebuttal, Boyd asked Hawkins about an amicus brief filed by healthcare workers, who wrote that lack of immunity to the coronavirus is a qualifying physical condition.


“You should give no credit to that,” Hawkins said. “The question is not what physicians think about how the Legislature might have written the statute. The question is what words did the Legislature choose, and what do those words mean?”

The justices also honed in on how clerks could vet the vote-by-mail applications — which do not leave room for applicants to write what sickness or condition qualifies them for a mail-in ballot.

“Isn’t it the voter in the first instance who’s going to make that decision about whether or not they have a disability because they’re completing this ballot?” asked Justice Eva Guzman.

“But of course the voter is constrained in completing that application” by threat of criminal penalty, Hawkins replied, noting that submitting false information on an application is a felony.

Wednesday’s hearing was the latest development in the state’s monthslong legal battle against county officials and the Texas Democratic Party's efforts to interpret the mail-in ballot eligibility rule to let able-bodied voters request absentee ballots to avoid exposure to the coronavirus.

In each of these legal actions, which have been filed in trial and appellate courts in both state and federal jurisdictions, state and federal judges have been asked to rule whether the absence of immunity to the coronavirus constitutes a “disability” under the state’s election code.

On March 20, the Texas Democrats first sued in Travis County, seated in Austin, to ensure the state’s 16.2 million registered voters could vote by mail in the May 26 primary runoff, which Texas Governor Greg Abbott delayed until July 14 explicitly to reduce spread of the virus, citing “large gatherings of people in confined spaces” as a public health danger.

The district judge sided with the Democrats and Paxton immediately appealed the decision, claiming the injunction was stayed throughout an appeal. Though a state appeals court disagreed with Paxton’s claim, the Texas Supreme Court ultimately sided with Paxton when it stayed the appellate court’s order.

The mail-in ballot regulations were also taken to federal court in San Antonio when the Texas Democratic Party asked U.S. District Judge Fred Biery, a Bill Clinton appointee, to keep state officials from enforcing the election law on April 7. Four days after Biery heard the arguments, he issued a lofty and erudite opinion in favor of the Texas Democrats.

Paxton’s office immediately appealed to the Fifth Circuit Court of Appeals, where the state argued that the federal judge jumped the gun by issuing an injunction before the Texas Supreme Court had the chance to first rule on the statute.

Late Wednesday afternoon, the Fifth Circuit issued an administrative stay on Biery’s order, effectively pausing it until the appellate court decides to uphold, vacate or amend the San Antonio judge’s ruling.

The Texas Democrats took Wednesday’s Supreme Court hearing as an opportunity to note that four of the Texas Supreme Court justices are up for re-election in November and that each is being challenged by a Democrat. Gilberto Hinojosa, chair of the Texas Democratic Party, admonished Paxton’s office in a press release sent after the hearing.

“One thing is clear, Texas law does not clearly and explicitly require citizens to endanger their health to vote,” Hinojosa said. “The Texas Supreme Court should stop Ken Paxton from trying to make criminals of people who simply wish to vote safely.”

This sentiment was echoed by senior ACLU Texas staff attorney Tommy Buser-Clancy in a statement sent to press before the hearing.

“Let’s hope the Texas Supreme Court upholds public safety and democracy and denies the Attorney General’s attempts to force Texans to choose between their health and their vote,” Buser-Clancy said.

Because the Texas judiciary websites remain largely shut down by a malicious ransomware attack on May 11, Don Cruse, appellate lawyer and author of SCOTXblog, compiled the briefs and documents filed in this mandamus action online.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.