Texas' state courts are in agreement with federal courts, for now at least: Mail-in voting, despite the ongoing novel coronavirus epidemic, remains available only to Texans older than 65, the physically ill or disabled, or those who will be out of the county in which they are registered to vote on election day and throughout early voting.
Late Wednesday afternoon, the Texas Supreme Court sided with Texas Attorney General Ken Paxton, ruling that fear of contracting COVID-19 is not a suitable reason to request a mail-in ballot.
"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. But the State acknowledges that election officials have no responsibility to question or investigate a ballot application that is valid on its face," the court wrote in its decision.
The court did not, despite a request for the attorney general, issue an order requiring county officials to comply with the law, saying that they were confident county officials would act in good faith as they evaluate requests for mail-in ballots.
In a statement after the ruling, Paxton leaned on election officials.
“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. 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.”
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The Texas Democratic Party, one of the plaintiffs seeking to expand access mail-in ballots, said Texas voters are now at the mercy of the federal courts. A suit similar to the one ruled on by the state Supreme Court ruled on Wednesday is making its way through the federal courts.
A U.S. District Court initially ruled that fear of contracting COVID-19 did amount to a disability. Paxton appealed and the 5th U.S. Circuit Court of Appeals stayed the lower court's ruling.
"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," said Texas Democratic Party Chairman Gilberto Hinojosa. "This is reflective of Texas Republican leadership that long ago failed to serve Texans’ needs and interests."