Chuck Lindell, Austin American-Statesman
Published 9:25 a.m. ET May 28, 2020 | Updated 4:53 p.m. ET May 29, 2020
Many states are planning on drastically different elections this year and mail-in ballots could be a big game changer.
Rejecting claims raised by state Democrats, the Texas Supreme Court ruled Wednesday that a lack of immunity to the coronavirus does not entitle voters to a mail-in ballot under state law.
Texas election law limits mail-in ballots to specific categories of voters, such as those with a disability that prevents them from safely traveling to a polling place.
Backing arguments made by Texas Attorney General Ken Paxton, the state’s highest civil court said the law’s definition of disability applies to a “sickness or physical condition,” not a generalized fear of contracting a deadly disease.
“Disabled” normally means being incapacitated by an injury or illness, Chief Justice Nathan Hecht wrote in an opinion joined by six other justices, including Justice Debra Lehrmann, who announced last week that she and her husband had contracted COVID-19 despite taking numerous precautions.
“In no sense can a lack of immunity be said to be such an incapacity,” he wrote. “Accordingly, we conclude that a lack of immunity to COVID-19 is not itself a physical condition for being eligible to vote by mail.”
The court, however, rejected Paxton’s request to order county election clerks to reject applications for mail-in ballots from voters who fear exposure to the coronavirus.
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County officials lack the authority to question or investigate claims of disability, Hecht noted, adding that clerks are expected to faithfully convey the ruling’s outcome to voters.
“The Clerks have assured us that they will fully discharge their duty to follow the law. We are confident that they will follow the guidance we have provided here,” Hecht wrote. “Accordingly, we conclude that (ordering) them to do so is unwarranted.”
The Texas Democratic Party, which has filed state and federal lawsuits to expand mail-in voting during the pandemic, criticized the ruling by the all-Republican court, noting that it followed oral arguments held in an online forum last week – instead of inside the Supreme Court’s Austin courtroom – over concerns about coronavirus exposure.
“This is reflective of Texas Republican leadership that long ago failed to serve Texans’ needs and interests,” state party Chairman Gilberto Hinojosa said. “Now, it is up to the federal court to ensure basic constitutional rights still exist in Texas and ensure that Texans have a right to vote safely and not put their health at risk.”
Paxton praised the ruling.
“Election officials have a duty to reject mail-in ballot applications from voters who are not entitled to vote by mail,” he said. “In-person voting is the surest way to maintain the integrity of our elections, prevent voter fraud and guarantee that every voter is who they claim to be.”
Fear of contracting COVID-19 is a normal emotional reaction, Paxton said, but it does not amount to an actual disability that qualifies a voter to receive a ballot by mail.
In addition to canceling in-person oral arguments, the Supreme Court issued an emergency order Tuesday extending requirements that most lower-court hearings be held remotely over concerns about the coronavirus. The order also banned jury trials until at least Aug. 1.
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