As Democrats and civil rights groups sue to expand mail-in voting during the pandemic, a recent decision by the Texas Supreme Court has left it up to voters to decide for themselves whether they qualify for vote-by-mail.
In its decision in late May, the highest civil court in the state ruled that lack of immunity to COVID-19 alone does not constitute a disability that would allow those under 65 years old to vote by mail rather than at the polls, under the Texas election codes.
But it added — which legal experts say is crucial — that a voter can take the possibility of being infected into consideration along with his or her “health” and “health history” to determine whether he or she needs to vote by mail under the ‘disability’ provisions in the law.
“I think really the story here is that it’s going to be up to individual voters to decide whether they fit this definition or not,” said Joseph Fishkin, a University of Texas professor who studies election law and has closely followed the cases.
Assistant County Attorney Douglas Ray has said Harris is relying on the Supreme Court decision to bolster its recommendation that voters request a ballot if they believe they are eligible.
“If it’s checked disabled, we’ll just send the ballot,” Ray said. “We don’t question that. We don’t have the authority or ability to investigate that.”
In Bexar County, the commissioners court last month passed a resolution supporting access to mail-in ballots for voters afraid of contracting COVID-19 at polling place, but the county has not made any recommendations to voters since.
Bexar County Judge Nelson Wolff said Monday that such a public notice is on the way.
The Bexar commissioners last week directed the county attorney to help craft language for voter guidance, citing the Texas Supreme Court decision, and requesting for the election administrator, Jacque Callanen, to consider publishing it. Callanen did not respond to a request for comment.
“We’ve asked her to make it clear to voters that it’s up to them to determine whether they have a health condition or a physical condition” that qualifies them to vote by mail, Wolff said. “It’s their decision, not the state’s decision.”
Well, we know what Harris County has done. (Note: That was mail ballot applications the Clerk sent to all over-65 voters, not actual mail ballots.) We’ll see what the demand looks like in November. I would still advise, in my extremely I Am Not A Lawyer way, that there is some risk in applying for a mail ballot under the disability provision. How much there is I can’t say, but given the times and the apparent determination of the Republican Party to salt the earth, it’s definitely greater than zero. Make the best decision for yourself. Campos has more.