Texas Supreme Court Rules Lack Of Immunity To COVID-19 Alone Isn't Enough For Mail-In Ballot

May 27, 2020

The Texas Supreme Court on Wednesday ruled that a lack of immunity to the new coronavirus does not qualify a voter to apply for a mail-in ballot.

In the latest twist in the legal fight over voting by mail during the coronavirus pandemic, the court agreed with Texas Attorney General Ken Paxton that the risk of contracting the virus alone does not meet the state’s qualifications for voting by mail.

“We agree with the State that a voter’s lack of immunity to COVID-19, without more, is not a ‘disability’ as defined by the Election Code,” the court wrote.

Texas voters can qualify for mail-in ballots only if they are 65 years or older, have a disability or illness, will be out of the county during the election period, or are confined in jail. The Texas election code defines disability as a “sickness or physical condition” that prevents a voter from appearing in person without the risk of “injuring the voter’s health.”

But the high court also rejected Paxton’s request to prevent local election officials from sending mail-in ballots to voters who were citing lack of immunity to the coronavirus as a disability. Those officials denied they were operating outside the law and argued they cannot deny ballots to voters who cite a disability — even if their reasoning is tied to susceptibility to the coronavirus.

"The decision to apply to vote by mail based on a disability is the voter’s, subject to a correct understanding of the statutory definition of 'disability'," the court said in its order. "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."

The all-Republican Supreme Court had previously put on hold a state appeals court decision that allowed voters who lack immunity to the virus to qualify for absentee ballots by citing a disability. That appellate decision upheld a lower court's order that would have allowed more people to qualify to vote by mail.

The justices had not ruled on the merits in that case. But they grappled with the question of who gets to decide if a voter has a disability under Texas election law while considering Paxton's request for them to weigh in on his interpretation of how voters can qualify for absentee ballots during the coronavirus pandemic.

A separate case is pending in federal court where a three-judge panel of the U.S. 5th Circuit Court of Appeals temporarily blocked an expansion of voting by mail ordered by a lower court. The appellate panel granted what's known as an administrative stay, which only stops the lower court ruling from taking effect while the court considers whether it will issue an injunction nullifying it during the entire appeals process.

The issue is being fought on multiple fronts now but is likely headed to the U.S. Supreme Court as Texas Republican officials continue to resist expanding voting by mail during the pandemic.​​​​​​​

This is a developing story.

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From The Texas Tribune