State Supreme Court rules against expanded mail-in voting.

Texas’ top court sides with AG, rules against expanding option

The Texas Supreme Court ruled Wednesday that lack of immunity to the new coronavirus would not qualify voters to claim a disability and vote by mail, dealing a major victory to Attorney General Ken Paxton, who opposes expansion of mail-in voting.

Chief Justice Nathan Hecht wrote in a majority opinion, joined by six other justices on the nine-seat court, that fear of contracting a disease is not a physical condition and broadening the definition would render the disability category useless.

The all-Republican court said that the definition as interpreted by the Texas Democratic Party, which had filed lawsuits in both state and federal court on this matter, would be overly broad and 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 mailin voting,” the opinion states. “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.”

Texas is one of the few states that still require voters younger than 65 to have an excuse to cast a ballot by mail, such as being disabled, out of the county during the election period or confined in jail. Fewer than 7 percent of Texas voters mailed in ballots in 2018, but county clerks in some of the state’s largest counties have said they’re seeing higher levels of interest since the pandemic.

A similar case launched by the party will continue in federal

court and now sits before the 5th Circuit Court of Appeals. The case is very likely to land in front of the U.S. Supreme Court.

“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, a Republican, said in a statement Wednesday.

“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.”

The battle in Texas is one of many playing out across the country as Democrats and civil rights groups seek to expand voting access, especially during a pandemic that threatens to hamper turnout. Other states, including some with Republican-controlled legislatures, such as South Carolina, Kentucky and West Virginia, have moved to expand mail-in voting amid the health crisis.

President Donald Trump and other top Republicans have railed against those moves, claiming it would lead to more instances of voter fraud, though studies have shown that voter fraud, including mail-in fraud, is extremely rare.

Texas’ primary runoff elections are set for July 14, pushed back from May because of the pandemic, and early voting begins June 29. Such elections normally draw low turnout, but the resolution to the mail-in ballot suit could have big implications for the November election, which is expected to draw large crowds.

The highest civil court in the state issued the opinion Wednesday in response to a request by Paxton to order county clerks in five Texas counties to abide by his interpretation of the law and not accept mail-in applications from voters whose only reason was fear of contracting COVID-19.

The court declined that request Wednesday, saying the justices believed their opinion would be sufficient clarification and that they were “confident that election officials will comply.”

Texas Democratic Party Chair Gilberto Hinojosa expressed his disappointment with the decision and said Texans’ safety at the polls depends on the federal case.

“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,” Hinojosa said in a statement.

The decision also comes a day after the Secretary of State’s office released guidance with its minimum recommended health protocols for Texas voters. Recommendations included voters maintaining 6 feet of distance between each other at polling locations, bringing their own pen, pencil or stylus for checking in to vote and marking a ballot, as well as their own hand sanitizer, and staying home or voting curbside if possible COVID-19 symptoms arise.

While the guidance recommended voters wear a face mask, it warned that an election judge unable to determine a voter’s identity may ask for it to be removed.

Voters age 65 and up who are at a higher risk of serious complications from COVID-19 should consider voting by mail, the guidance said.

Election workers should consider providing markings for people standing in line delineating 6 feet of separation, making hand sanitizer and disinfecting wipes available and regularly cleaning surfaces that are frequently touched.

Justice Debra Lehrmann had announced last week that she and her husband were positive for COVID-19. Lerhmann joined the majority opinion Wednesday.