(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.