Texas Supreme Court Issues Ambiguous Decision on Vote-By-Mail

Late Wednesday, the Texas Supreme Court issued an ambiguous decision on voting by mail. The Court said lack of immunity to Covid-19 is not a “physical condition” under the law – but left to voters to decide whether in-person voting represents a “likelihood of injury.”

Following a state district court ruling that held lack of immunity to the novel coronavirus indeed constituted a “physical condition” qualifying all voters to vote-by-mail under the “disability” provision of the election code, Attorney General Ken Paxton was granted a stay of the order, pending the SCTX review. Today the Court ruled, unanimously, that lack of immunity alone is not a “disability” under the law – but the justices also ruled, in four oddly concurring opinions, that “the decision to apply to vote by mail based on a disability is the voter’s.”

In doing so, the Court explicitly rejected Paxton’s request for a writ of mandamus that would not only reject any definition of “disability” that encompassed risk of infection by people otherwise healthy, but would prohibit county clerks and election officials from “misinforming the public to the contrary and improperly approving applications for mail-in ballots.” The Court found that there is no evidence that any of the election officials were doing what Paxton alleged, and the justices additionally found that election officials “do not have a ministerial duty … to look beyond the application to vote by mail.”

In other words, if a voter checks the “disability” box on an application for a mail ballot, the election officials are required by law to accept that claim on its face – as clerks and election administrators for the five counties Paxton dragged into court (Travis, Harris, Cameron, Dallas, El Paso) have indeed been doing.

In summation, wrote Chief Justice Nathan Hecht: “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. As we have said, 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.’”

Three concurring opinions by various justices quibbled over the precise meaning of "physical condition," with much hemming and hawing over dictionary definitions, but finally concurred with the unanimous opinion signed by Chief Justice Hecht.

The immediate reactions to the ruling highlighted the Court’s rejection of “lack of immunity” as a “physical condition” as rejecting any expansion of VBM. Paxton issued a victory statement that directly contradicted the Court’s direction for election officials.

“I applaud the Texas Supreme Court for ruling that certain election officials’ definition of ‘disability’ does not trump that of the Legislature …,” Paxton said in a press release. “Election officials have a duty to reject mail-in ballot applications from voters who are not entitled to vote by mail.” In fact, the Court explicitly rejected the notion that election officials must somehow attempt to verify a voter’s disability claim.

The Texas Democratic Party, which had filed the lawsuits that initiated the dispute did not issue an immediate response to the Court’s decision; the TDP was not a party in this decision, which directly concerned only the five county election officials. Ed Espinoza of Progress Texas said in a statement, “This out-of-touch ruling from the entirely Republican Texas Supreme Court is disappointing, but not surprising. Texans should not have to risk death or illness to vote – it's just common sense.” Yet the Court did not say Texans should risk their lives to vote – it left that the decision to the voters themselves.

This ambiguous decision is hardly the last word on the matter; separate lawsuits are pending in state and federal courts, and most observers believe the dispute will eventually rise to the U.S. Supreme Court. For the ongoing story, follow the Daily News and the print edition of the Chronicle.