In a victory for Texas Attorney General Ken Paxton, the Texas Supreme Court ruled Wednesday that a lack of immunity to the coronavirus is not a reason to request a mail-in ballot by claiming a disability. The question was this – Does fear of the coronavirus spreading among voters without immunity at polling places on election day amount to a disability? Should mail-in voting be expanded due to the pandemic?

That question is still playing out in federal courts but the ruling by U.S. District Judge Fred Biery that all Texas voters can now be considered as “disabled” due to concerns over the safety of voting in person during the coronavirus pandemic was rejected by the Texas Supreme Court. Texas Democrats rejoiced that Judge Biery’s ruling would massively increase mail-in voting in Texas. Attorney General Paxton is pleased with the state supreme court’s ruling.

“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 in a statement. “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 court’s opinion included an acknowledgment that the political debate over expanding mail-in voting is intense along party lines. Seven justices, including Chief Justice Nathan Hecht, delivered a majority vote in favor of state election code, not which is better policy.

“The question before us is not whether voting by mail is better policy or worse, but what the Legislature has enacted. It is purely a question of law,” he wrote. “Our authority and responsibility are to interpret the statutory text and give effect to the Legislature’s intent. 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.”

Under the state election code, a disability is a sickness or physical condition preventing in-person voting without a likelihood of harm to the voter’s health. But the court, which heard arguments in the case through a video conference instead of in-person as a precaution against spreading the disease, said a lack of immunity to COVID-19 did not meet that threshold against a number of tests.

If a “physical condition” means a “physical state of being,” Hecht wrote, “it would swallow the other categories of voters eligible for mail-in voting.”

“A voter’s location during an election period is certainly a physical state of being. So are age, incarceration, sickness, and childbirth, even participation in a program,” he wrote. “To give ‘physical condition’ so broad a meaning would render the other mail-in voting categories surplusage.”

Justice Hecht went on to explain that with such a broad definition of disability, a person that is feeling too tired to drive to a polling place could be considered as a disabled voter. The overly generous definition of what constitutes a disability is what the Democrats and others working to increase mail-in voting are counting on. The coronavirus pandemic presents an opportunity for Democrats – never let a crisis go to waste.

All 50 states have provisions for mail-in voting, including Texas. In Texas, the reasons to request a mail-in ballot include age (65 years or older), disability or illness, the voter will be out of the county during the election period or is confined in jail. Disability is defined as “sickness or physical condition” that prevents a voter from voting in person.” However, in this ruling, there is a catch – it is up to voters to assess their own health and determine if they meet the state’s definition.

When voters cite disability to request an absentee ballot, they’re not required to say what the disability is. The voters simply check a box on the application form, and if their application is properly filled out, locals officials are supposed to send them a ballot. The state ultimately conceded that officials can’t reject those voters

In other words, there is no stopping someone from requesting a mail-in ballot due to disability, whether that claim is legitimate under the state election code or not. That is one of the ways in which mail-in voting can dilute the integrity of elections. By not voting in person, abuses creep into the process. Democrats would like for ballots to be mailed to everyone ahead of an election and Texas, like most states, is not set up to handle that change even if it was what voters want.

Expanding mail-in voting in Texas will likely go up to the U.S. Supreme Court. Also playing out at the same time, an appeals court is considering whether to stay an order by a district judge that allowed those who lack immunity to COVID-19 to vote by mail.

A separate case is pending in federal court, where a three-judge panel of the U.S. 5th Circuit Court of Appeals temporarily blocked an expansion of voting by mail ordered by a lower court. The appellate panel granted what’s known as an administrative stay, which only stops the lower court ruling from taking effect while the court considers whether it will issue an injunction nullifying it during the entire appeals process.

The question of how to safely conduct elections during a pandemic continues with time running out. Primary runoffs are scheduled for July 14. Early voting begins June 29.

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