Texas Supreme Court rules against citing COVID-19 exposure as a disability to vote by mail

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The Texas Supreme Court on Wednesday voted against citing fear of contracting COVID-19 as a “disability” in mail-in-ballot applications.

Under Texas law, only voters who have a disability, are over the age of 65 or are out of the country can apply to vote by mail.

“We agree with the State that a lack of immunity to COVID-19 is not itself a ‘physical condition’ that renders a voter eligible to vote by mail …,” read the opinion of the panel of nine Republican judges. 

The decision comes after months of litigation carried forward by Texas Democrats and civil rights groups.

The ruling is no doubt a win for Gov. Greg Abbott and Texas Attorney General Ken Paxton who had been fighting the expansion of vote-by-mail, both in litigation against Democrats and in threats to counties who were preparing for a surge in mail ballots when earlier rulings by lower courts had temporarily allowed it. 

Curiously, prior to the conclusion by the judges denying COVID-19 exposure as a disability, the judges make an interesting point about how checking these mail-in ballots is somewhat unenforceable:

“The State has conceded that ‘Respondents have no discretion to do anything but determine whether the voter is entitled to vote by mail and process the application accordingly.’ The State acknowledges that the Election Code does not require election clerks to “investigate each applicant’s disability.’ Indeed, the Legislature rejected the requirement of a physician’s proof of disability for mail-in voting applications when it amended the Election Code in 1981. And the application form provided by the Secretary of State requires only that voters check a box indicating whether the reason for seeking a ballot by mail is a disability. The voter is not instructed to declare the nature of the underlying disability.

In a press release reacting to the news, Texas Democrats blasted the Texas Supreme Court judges directly, naming them and the dates they are facing re-election. 

“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 — even after one of the Supreme Court justices under the age of 65 contracted coronavirus last week,” Texas Democratic Party Chair Gilberto Hinojosa said in a statement. “This is reflective of Texas Republican leadership that long ago failed to serve Texans’ needs and interests.”

Photo: Jennifer Cappuccio Maher/Digital First Media/Inland Valley Daily Bulletin via Getty Images

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