Texas Supreme Court Rules Lack of Immunity to COVID-19 Not Enough to Qualify for Mail-In Voting

Election workers sort vote-by-mail ballots for the presidential primary at King County Elections in Renton, Washington, on March 10, 2020. Jason Redmond/AFP via Getty Images

The Texas Supreme Court ruled on Wednesday that “a voter’s lack of immunity to COVID-19” is not a physical disability that qualifies people to vote by mail.

The court agreed with Texas Attorney General Ken Paxton, who has argued that only a physical illness or disability that prevents voters from going to the polls should qualify an individual to vote by mail.

Judges decided that the risk of contracting the virus alone does not meet the state’s qualifications for voting by mail, noting that the decision to apply to vote by mail based on a disability is the voter’s and that they were confident clerks “will comply with the law in good faith.”

“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 (pdf). “But the state acknowledges that election officials have no responsibility to question or investigate a ballot application that is valid on its face.”

The decision is a loss for the Texas Democratic Party and voting rights groups who had pushed for expanded mail voting during the CCP virus pandemic and filed lawsuits in both state and federal courts on the matter, winning temporary victories in lower courts.

In its ruling on Wednesday, the court said the Texas Democratic Party’s definition of disability was overly broad and such an interpretation would enable things like “being too tired to drive to a polling place” to count as a physical condition.

“It would swallow the other categories of voters eligible for mail-in voting,” the judges said. “We agree, of course, that a voter can take into consideration aspects of his health and his health history that are physical conditions in deciding whether, under the circumstances, to apply to vote by mail because of disability. We disagree that lack of immunity, by itself, is one of them.”

Empty envelopes of opened vote-by-mail ballots for the presidential primary are stacked on a table at King County Elections in Renton, Washington, on March 10, 2020. Jason Redmond/AFP via Getty Images

Paxton applauded the court’s decision in a statement issued on Wednesday, noting that, “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.”

“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,” Paxton said. “Election officials have a duty to reject mail-in ballot applications from voters who are not entitled to vote by mail.”

Following the ruling from the Supreme Court, President Donald Trump, who has previously said mail-in voting is particularly susceptible to fraud tweeted, “Big win in Texas on the dangerous Mail In Voting Scam!”

Election law established by the Texas Legislature generally requires in-person voting, and allows mail balloting only for certain limited groups, including those who are 65 or older, have a disability or illness that render them unable to vote in-person, those who will be out of the county on election day, and those who are confined in jail but otherwise eligible.

The Texas election code defines disability as a “sickness or physical condition” that prevents a voter from appearing in person without the risk of  “needing personal assistance or injuring the voter’s health.”

A voter ill with COVID-19 and who meets those requirements may apply for a ballot by mail.