In a blow to one-half of the Texas Democratic Party’s (TDP) legal efforts to expand vote-by-mail, the Texas Supreme Court (SCOTX) denied the state’s writ of mandamus on the mail-in ballot question.
A writ of mandamus is a request for a ruling on a lower court’s decision.
However, the court concurred unanimously that a “lack of physical immunity to COVID-19” does not qualify as a “disability” under the state’s election code which allows the use of a mail-in ballot.
Chairman of the TDP, Gilberto Hinojosa, reacted to the decision, saying, “Now, unless the federal court steps in, because of the Texas Republican Supreme Court, voters will have to either risk standing in line and contracting the coronavirus or they’ll risk prosecution by indicted Texas Republican Attorney General Ken Paxton and his grand juries for simply requesting a mail-in-ballot.”
Attorney General Ken Paxton, in turn, said, “I applaud the Texas Supreme Court for ruling that certain election officials’ definition of ‘disability’ does not trump that of the Legislature, which has determined that widespread mail-in balloting carries unacceptable risks of corruption and fraud.”
“Election officials have a duty to reject mail-in ballot applications from voters who are not entitled to vote by mail. 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,” he continued.
This episode began when the TDP filed two lawsuits — one in state court, one in federal — arguing that mail-in ballot access should be expanded to accommodate voters fearful of contracting COVID-19 at the polls.
Numerous parties filed amicus briefs with the Democratic Party including Harris County.
A state trial court ruled on April 17 that fear of contracting the virus does constitute a “disability” as defined in election law, further issuing a temporary injunction prohibiting Travis County election officials from rejecting such ballot requests.
After a stay to the injunction for appeal, a court of appeals reinstated the injunction. The state then filed the mandamus appeal to the Supreme Court, which stayed the trial court’s injunction again pending review of the mandamus petition.
The court’s opinion reads, “The trial court’s order remains superseded.”
All the while, various counties began encouraging voters to apply for an absentee ballot if they feel they qualify. Harris County approved $12 million in funding to expand mail-in ballot access while Dallas, Tarrant, Travis Counties began openly urging voters to apply if they had coronavirus-based concerns about voting in person.
Just whose mail-in ballot request to accept is not a responsibility of the state government, but rather the local election official. Typically, applications are accepted at face value.
However, the state plays a role after the fact in investigating and prosecuting potential instances of voter fraud. For example, the secretary of state’s office recently forwarded a formal fraud complaint within Harris County to the attorney general’s office for investigation — something it does with every complaint found to be passingly credible.
Earlier this month, Attorney General Ken Paxton warned localities about “spreading misinformation” and stated that voting by mail for an illegitimate reason may constitute voter fraud.
The State of Texas, in its writ of mandamus, requested the Texas Supreme Court (SCOTX) strike down the assertion that lack of immunity from coronavirus qualifies as a “disability” as defined in state election code. It also requested an injunction be levied on local officials “misleading” voters on acceptable protocols.
Providing its interpretation on the first question — stating the “disability” provision does not include fear of catching the virus — the court then punted on the injunction request.
The court’s opinion, written by Chief Justice Nathan Hecht, stated, “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.”
“Disability,” the court stated, “is defined as a sickness or physical condition preventing in-person voting…The ordinary meaning of ‘physical’ is ‘of or relating to the body.’”
Further, while acknowledging voter’s discretion, the opinion read, “But if ‘physical condition’ as used in § 82.002(a) meant ‘physical state of being’, it would swallow the other categories of voters eligible for mail-in voting. A voter’s location during an election period is certainly a physical state of being. So are age, incarceration, sickness, and childbirth, even participation in a program.”
Emphasizing how defining disability such a broad way would effectively remove all barriers, the court stated, “To give ‘physical condition’ so broad a meaning would render the other mail-in voting categories surplusage.”
The court then likened a broad definition to include “being too tired to drive to the polls” and that definition of physical condition “cannot be interpreted so broadly consistent with the Legislature’s historical and textual intent to limit mail-in voting.”
Therefore, according to the court, a lack of immunity does not qualify a voter to vote-by-mail. But actually having COVID-19 would, as other illnesses do.
Two separate concurring opinions from other justices agree with the court’s that lack of immunity to COVID-19 does not qualify a voter to vote-by-mail, but disagree with the court’s opinion that it does not qualify as a “physical condition.”
In summation, a third concurring opinion, stated, “[T]he Court is unified in holding that: (1) vote by mail is not available based solely on lack of immunity to COVID-19; (2) fear of contracting a disease is not a physical condition; (3) ‘likelihood’ of ‘injuring the voter’s health’ means injury is probable; and (4) voters can take their health and health history into consideration in determining whether to request a vote-by-mail ballot.”
This final point is important because it’s a reiteration of what many election officials have stressed from the beginning: that it’s up to the voters to decide, with valid interpretation of the code, whether they qualify.
Furthermore, the SCOTX avoids placing any responsibility on the local officials to determine the validity of absentee requests — rather, generically expecting them to promote the “correct understanding of the statutory definition of ‘disability.’”
That assertion is directly related to the other part of their ruling.
On the second aspect of the decision — more or less relating to enforcement — the court abstained from bringing down the gavel. Unlike the lower court, the SCOTX did not issue an injunction against local election officials.
Basically mirroring what the secretary of state’s office and county election officials told The Texan back in April, the onus of judgment falls on the voter, the local officials typically take vote-by-mail requests at face value, and the state’s role only comes after the fact.
“[T]he State acknowledges that election officials have no responsibility to question or investigate a ballot application that is valid on its face. 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.’”
While the state can investigate and prosecute — and is statutorily required to do so — instances of fraudulent voting, that only comes after the fact. In the meantime, voters decide if they qualify, but also should base that decision off of the state code’s allowances.
Ex post facto enforcement may also fall on local district and county attorneys, but that would depend on who has prosecutorial authority.
The other wrinkly to this is that prosecuting voters for fraudulent disability claims related to COVID-19 is both incredibly burdensome and politically arduous.
In the parallel federal lawsuit, a federal district court judge in San Antonio ruled in favor of the TDP, stating that refusal to approve COVID-related absentee requests hinders the ability to vote. Additionally, it ruled the prohibition violates the 26th Amendment on grounds of an arbitrary age cutoff at 65 years of age.
Anyone 65 or older is eligible to vote-by-mail.
This has been appealed by the state to the Fifth Circuit Court of Appeals which stayed the district judge’s order pending review.
Ultimately, the difference between the two lawsuits is where the federal case hinges upon whether the Constitution requires access to mail-in voting, the state centers on what the state code says.
Going forward, the federal lawsuit notwithstanding, voters and local officials are expected to follow the state’s statute — specifically, that lack of immunity to COVID-19 does not qualify as a disability.
The SCOTX opinion concluded, “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.”
A new study by Stanford’s Institute for Economic Policy Research found that neither major political party benefits more than the other from absentee ballot voting.
Early voting in Texas begins on June 29 for the runoff elections on July 14.
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Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad watching and quoting Monty Python productions.