Texas officials fighting to block widespread mail-in voting during the pandemic claimed victory after the state’s highest court ruled late Wednesday that a lack of immunity to the coronavirus doesn’t qualify someone to cast a ballot by mail.
The decision was unanimous by the Texas Supreme Court, which ruled remotely and is stocked with nine Republican justices, including one who revealed last week that she had tested positive for COVID-19. Texas generally limits mail balloting only to voters who are more than 65 years of age or have a disability.
Justice Eva Guzman wrote the court was unified in the conclusion that “fear of contracting a disease is not a physical condition.”
The Texas Democratic Party blasted the decision and moved its hopes to a similar challenge playing out in federal court.
But not all saw the decision as a total loss: the top elections lawyer in Houston, Harris County attorney Douglas Ray, said he believed the ruling leaves room for each voter to decide themselves whether they qualify, and gives clerks basically no ability to second-guess the reasoning.
In Texas, voters do not have to describe their disability when requesting a mail-in ballot.
Republican Texas Attorney General Ken Paxton has argued that fear of getting the virus alone doesn’t qualify as a disability. He applauded the court for keeping the status quo with just weeks until the state is set to hold primary runoff elections in July.
Trump allegations about mail-in voting marked by Twitter
Paxton has taken a hard line on resisting efforts by Democrats and voting rights groups to try expanding mail balloting in Texas.
“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,” Paxton said.
U.S. President Donald Trump tweeted support of the court’s decision later Wednesday night: “Texas Supreme Court: Lack of immunity to COVID-19 alone not enough to vote by mail … Big win in Texas on the dangerous Mail In Voting Scam!”
Trump has been railing against mail-in balloting and alleges without evidence that it leads to “total election fraud.”
Trump this week has directed his anger at Twitter, which he uses to speak directly to his more than 80 million followers, after the company slapped fact-check alerts on two of his tweets claiming that mail-in voting is fraudulent.
The fight in Texas is just one of several court battles across the country over efforts, mainly by Democrats, to expand access to mail-in ballots amid the pandemic.
In Wisconsin, where election officials drew widespread criticism for holding its April 7 presidential primary even as other states delayed voting, a new lawsuit filed this month argued that not enough has been done since then to ensure that the upcoming elections can be conducted safely and fairly.
Studies have found little evidence of voter fraud connected to voting by mail and no clear advantage for either party.
A report by the U.S. Election Assistance Commission says the process was used by about one-quarter of all voters in the 2018 midterm elections, representing about 30 million votes. The total was more than that of in-person, early voting, which represented one-fifth of the total, with just over half voting in person on election day.
The court rejected Paxton’s request to bar local election officials from accepting mail-in ballots based on claims of disability because of the virus. Justice Nathan Hecht wrote that the court was “confident that election officials will comply” with the broader decision.
But in Houston, Ray said that while the ruling is clear that if voters don’t qualify if they’re “perfectly healthy and all that you’re afraid of is you might get COVID,” he believed the court order didn’t totally shut the door.
“As we all know, nobody’s perfectly healthy,” Ray said. “We all have something we can look at, and it’s really up to the voter to decide based on his personal situation whether he would qualify or not. And the clerk basically has no authority or ability to question him.”