Mail-in Ballots are not to be questioned by officials

The Texas Supreme Court issued an opinion in the case of In Re State of Texas on May 27. Ken Paxton, Texas Attorney General, filed the lawsuit directly with the Supreme Court, claiming that the fear of contracting COVID-19 is not a “disability” that would allow a voter to qualify for a mail-in ballot. The court agreed with the attorney general, but declined to issue the “writ of mandamus” he requested.

“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.” Because we are confident that the Clerks and all election officials will comply with the law in good faith, we deny the State’s petition for writ of mandamus.”

A writ of mandamus is simply a written order to act in a certain way. The attorney general asked that the court issue the writ to five county clerks and election administrators to stop them from “misinforming the public to the contrary and improperly approving applications for mail-in ballots.”  The court refused to do so, but it did opine that fear of contracting the virus, by itself, isn’t enough for a voter to request a mail-in ballot.

Texas voters can ask for mail-in ballots only if they are 65 years or older, have a disability or illness, will be out of the county during the election period, or are confined in jail. Texas election law defines disability as a “sickness or physical condition” that prevents a voter from appearing in person without the risk of “injuring the voter’s health.”

A separate federal court lawsuit on the issue is still pending. It’s probable that the issue will find itself before the U.S. Supreme Court.