The Texas Supreme Court, meeting remotely

Meeting remotely (you know, for the safety of the justices in the midst of a deadly global pandemic), the entirely Republican Texas Supreme Court ruled last night that not having immunity to COVID-19 was not reason enough for a voter to request a mail-in ballot.

The case, styled In re State of Texas, was brought by Texas Attorney General Ken Paxton, who tried to use coronavirus to stop women from receiving reproductive healthcare but otherwise thinks the deadly global pandemic is NBD. And now, the Texas Supreme Court has stepped in to agree with him. Mostly.

Essentially, this case was about whether not having immunity to COVID-19 is a "disability" that would allow voters to request absentee ballots. Texas law allows voters to request mail-in absentee ballots if they are in jail, outside of their county of residence on election day, 65 or older, or have a disability or illness. Chapter 82 of the Texas Election Code states that "[a] qualified voter is eligible for early voting by mail if the voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter's health[.]"

According to the Texas Supreme Court, not wanting to die from viral pneumonia because you lack immunity to COVID-19 doesn't meet this definition.

So here's what happened


Back in March, the Texas Democratic Party and two voters sued the Texas secretary of state and the Travis County clerk, asking the court to declare that voters without immunity to the coronavirus could request to vote by mail. Last month, the Travis County District Court agreed and said that it was

reasonable to conclude that voting in person while the virus that causes COVID-19 is still in general circulation presents a likelihood of injuring [a voter's] health, and any voters without established immunity meet the plain language definition of disability thereby entitling them to a mailed ballot[.]

But the Texas Supreme Court said "Nah," and reversed course, ruling that

"Disabled" normally means "incapacitated by or as if by illness, injury, or wounds". The phrase, "physical
condition", must be read in this light. In no sense can a lack of immunity be said to be such an incapacity.

So that's cute.

Now, there is also a case on this issue pending in federal court. Texas Dems and three voters filed suit in the Western District of Texas, arguing Paxton's interpretation of the state election code is unconstitutional under the First, 14th, and 26th Amendments. Earlier this month, that court ruled that "lack of immunity from COVID-19 is indeed a physical condition" and issued a preliminary injunction, saying "[a]ny eligible Texas voter who seeks to vote by mail in order to avoid transmission of COVID-19 can apply for, receive ,and cast an absentee ballot in [the] upcoming elections during the pendency of pandemic circumstances."

This order, however, was stayed by the US Court of Appeals for the Fifth Circuit, the conservative appellate court that declared the ACA unconstitutional last December. And between the makeup of the Fifth Circuit and the fact that federal courts usually defer to state courts on issues of state law interpretation, it seems unlikely that this notoriously rightwing appeals court will step in to upset this decision. And as for the Roberts Court jumping in to protect voting rights ...

Mila Kunis Lol GIF by IFC

But ...

But there is a silver lining. While the court agreed with Paxton that not wanting to die of coronavirus isn't enough, in and of itself, to get an absentee ballot, it refused to require local election officials to police mail-in ballot requests and deny the requests related to the pandemic.

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 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".

So, in essence, it's up to voters to consider all of the information and decide if they meet the definition of "disabled" to request an absentee ballot. And then we guess it's up to county clerks to decide if they're going to police those requests or not. They don't have to! (But they will.)

The court also rejected Paxton's request to stop county election officials from sending absentee ballots to people who say on their request that it's because of COVID-19, noting that "the Election Code does not require election clerks to 'investigate each applicant's disability.'"

Voters requesting mail-in ballots don't have to list any explanation of their disability; rather, a person just checks the box for disability and sends in the form. If the form is properly filled out, local election officials are supposed to send that person a ballot. Therefore, says the court,

[t]he 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. The respondents do not have a ministerial duty, reviewable by mandamus, to look beyond the application to vote by mail. Moreover, while the State has alleged that the Clerks are accepting "improper application[s]," there is no evidence in the record that any has accepted a faulty application.

We appreciate the court wanting to make everyone happy here. We'd guess that Ken Paxton will be happiest when he can investigate people for vote fraud for marking "disability" on their ballot requests, and maybe subpoena their medical records while he's at it, and the court here gives him that opening by not just saying GIVE EVERYBODY BALLOTS.

Fuck the GOP (not literally)

While it's disgusting and horrific that Republicans around the country are in favor of forcing voters to physically go to the polls during a deadly pandemic, coronavirus isn't the only reason they're fighting this particular fight. The GOP has made it perfectly clear, time and time again, that it doesn't want people to vote. The powers that be in the Republican Party have been using voter ID laws, voting roll purges, fucked up gerrymandering and other nefarious fuckery to try to keep people — mostly people of color and poor people — from having their votes counted.

While Democrats have fought for nonpartisan redistricting commissions, passed the VRAA in the House, and tried to let more people vote remotely during the pandemic, Republicans have made bullshit arguments about "election security" and "illegals" voting, with no factual basis. Meanwhile, a ton of people got sick after the Wisconsin Supreme Court forced the state to conduct its in-person election.

The fight to force people to go out to vote in the midst of a pandemic is more than just a shocking disregard for human life; it's part of the Republican plan to ensure the voices of the people are never really heard.

umbrella middle finger GIF


[ Opinion ]

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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