Given its political makeup, it’s no surprise the Texas Supreme Court last week unanimously agreed that lack of immunity to the novel coronavirus is by itself no legal rationale for seeking to vote by mail — enough that Republican Party leadership including Texas Attorney General Ken Paxton did a victory lap. Yet the court checked Paxton in another way: It basically ruled that when a voter requests a mail-in ballot because of a disability, the state has no business pressing that voter about his or her disability.
Assuming citizens are consistent in their principles, the ruling should please both those currently protesting face masks and contact tracing as intrusions on the privacy of the individual as well as those with underlying physical conditions who have more reason to fear SARS-CoV-2 than a younger person in perfect physical condition.
Yes, it’s a very fine point, itself open to interpretation, but enough that more worried Texans may well be able to vote by mail with little fear of being legally challenged. Perhaps this is a consequence of an all-Republican high court that doesn’t want to be portrayed as out of touch during a pandemic that last week surpassed 100,000 U.S. dead in four months. Maybe it’s a consequence of one of the justices being stricken with COVID-19. Or maybe it’s the fact that the justices’ hearing arguments remotely to lessen the risk of contracting COVID-19 themselves might open them up to charges of elitism and hypocrisy in the matter.
“Indeed, the Legislature rejected the requirement of a physician’s proof of disability for mail-in voting applications when it amended the Election Code in 1981,” Chief Justice Nathan Hecht wrote. “And the application form provided by the Secretary of State requires only that voters check a box indicating whether the reason for seeking a ballot by mail is a disability. The voter is not instructed to declare the nature of the underlying disability. The elected officials have placed in the hands of the voter the determination of whether in-person voting will cause a likelihood of injury due to a physical condition.”
In short, while agreeing with Paxton that lack of immunity to COVID-19 is not itself a physical disability that renders a voter eligible to vote by mail, Hecht notes that the Election Code “does not require election clerks to ‘investigate each applicant’s disability.’”
All of which may be moot. If our readers are utterly confused by the abundance of back-and-forth rulings on this matter lately, we sympathize. The confusion comes because the question of mail-in ballots in Texas is being debated in federal as well as state courts and is almost certainly bound for the U.S. Supreme Court. Meanwhile, for runoff elections this July, voters should fear little: Few of us bother to vote then anyway.