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For Texas Voting By Mail, Debate over Definition of Disabled Appears Headed to U.S. Supreme Court

In Texas, eligible voters can participate in an election by mail, frequently referred to as absentee ballots,  if they are going to be out of their home county during early voting and on election day, if they’re in jail but eligible to vote, if they’re 65 years or older, or if they are disabled. The last qualifier, “disabled” has been hotly debated, particularly over the past week.

Under the Texas Elections Code, a disability is defined as a “sickness or physical condition” that prevents a voter from appearing in person without the risk of “injuring the voter’s health”. The definition may help to provide some guidance, but who decides whether an individual requesting to vote by mail meets this definition of disabled? In Texas, when voters cite a 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, local officials are supposed to send them a ballot. Local officials cannot require voters to substantiate their disabilities.

Many in Texas have argued that during the COVID-19 pandemic, the ability to vote by mail should be expanded to all Texans who are eligible to vote. While others believe that expanded voting by mail could lead to election fraud. The debate is currently a battle being fought on two separate fronts. Both Texas state courts and the Federal courts are grappling with the issue, and there may not be final clarification until the Supreme Court of the United States weighs in.

State Court

At the state court level, voters filed suit to expand voting by mail to all eligible voters who wish to utilize it. The argument is essentially that a lack of immunity to COVID-19 qualifies as a “physical condition” that prevents a voter form appearing in person without the risk of “injuring the voter’s health”; thereby meeting the Elections code definition of a disability. State District Judge Tim Sulak agreed with this argument and ruled in April that potential exposure to the coronavirus qualifies as a legally valid reason for voters to request absentee ballots. A state appellate court also upheld Judge Sulak’s ruling. However, Texas Attorney General Ken Paxton continues to fight these rulings. Paxton argues that fear of contracting the virus while voting in person doesn’t meet the state’s definition of disability. On Friday, the Texas Supreme Court put a temporary hold on the expansion of absentee ballots. The Texas Supreme Court has not yet heard the case on the merits, but the lower courts’ ruling will remain blocked while the appeals process moves forward.

Federal Court

Texas voters also filed arguments in U.S. District court contending that voters would face irreparable harm if existing age restrictions related to voting by mail remained in place while the COVID-19 pandemic continues. In other words, allowing voters who are 65 years or older to vote by mail, while restricting voters under the age of 65 from doing so. U.S. District Judge Fred Biery agreed. The very next day, however, the U.S. 5th Circuit Court of Appeals put a temporary hold on Biery’s ruling, which would have allowed all Texas voters to qualify to vote by mail during the pandemic. It’s highly likely that this issue will make it all the way to the U.S. Supreme Court.

Currently, there are 29 states that allow any registered voter to request a ballot by mail, and 5 states who conduct all elections by mail. Multiple states have also expanded voting by mail as a result of the COVID-19 pandemic. For now, Texas voting laws in this regard, remain in place. The issue will likely not be completely settled until it reaches the U.S. Supreme Court.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.

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