In In re State of Texas, the Texas Supreme Court held that a voter’s lack of COVID-19 immunity, without more, does not qualify as a “disability” for an application to vote by mail under Texas Election Code § 82.002.
In Texas, voters are generally required to vote in person. Voting by mail is permitted in only five specific circumstances: (1) absence from the county of residence; (2) disability; (3) old age; (4) confinement in jail; and (5) participation in an address confidentiality program.
On March 7, 2020, the Texas Democratic Party, its Chairman, and two voters filed a lawsuit in the Travis County District Court against the Travis County Clerk seeking a declaration that “any voter who believes social distancing is necessary to hinder the spread of the [COVID-19] virus” has a “disability” that authorizes voting by mail under Texas Election Code § 82.002. The State of Texas and several advocacy groups intervened in the lawsuit.
On April 17, the district court issued a temporary injunction declaring that any voter without COVID-19 immunity is entitled to vote by mail under Texas Election Code § 82.002. After the court of appeals allowed the district court to enforce its injunction, the State of Texas filed a petition for a writ of mandamus in the Texas Supreme Court. The petition asked the court to compel officials in various counties to reject requests for mail-in ballots based solely on the claim that a generalized risk of contracting COVID-19 was a “disability” under Texas Election Code § 82.002.
Just two weeks after the petition was filed, Chief Justice Hecht delivered an opinion for the majority of the court. Justices Green, Guzman, Lehrmann, Devine, Blacklock, and Busby joined the opinion. The court began with the text of Texas Election Code § 82.002, which states that a voter is entitled to vote on the basis of “disability” 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.” A voter who is concerned about the risk of a COVID-19 infection while voting obviously does not have “a sickness.” Therefore, the court focused its analysis on the question of whether a lack of COVID-19 immunity is a “physical condition.”
The court interpreted the word “condition” to mean to an “abnormality,” such as a heart condition. That interpretation is in accord with the Texas Legislature’s use of the word “disability” in Texas Election Code § 82.002, which the court interpreted as referring to an “incapacity.” Voters who lack COVID-19 immunity have neither a physical abnormality nor an incapacity. Therefore, the majority held that a voter is not entitled to vote by mail under Texas Election Code § 82.002 based purely on a lack of COVID-19 immunity.
Having clarified the law, the court declined to issue a writ of mandamus. Mandamus is a discretionary remedy, and the court sought to give county officials an opportunity to “follow the guidance” that it had just provided in its opinion.
Justice Boyd argued that “physical condition” should be construed more broadly as “a bodily state of being that limits, restricts, or reduces a person’s abilities.” He believed that a lack of COVID-19 immunity could, in some instances, allow a person to vote by mail, depending on “innumerable factors, including the nature of the person’s sickness or physical condition, the person’s health history, the nature and level of the risk that in-person voting would pose in light of the particular sickness or physical condition, the adequacy of safety and sanitation measures implemented at and near the polling station to reduce that risk, and the level of caution the voter exercises.” Justice Boyd argued for a case-by-case approach that turns on whether the facts of a particular voter’s situation demonstrate that in-person voting poses a “likelihood” of “injuring the voter’s health” under Texas Election Code § 82.002.
Justice Bland would have construed “physical condition” even more broadly as referring to a person’s “state of health or physical fitness.” Like Justice Boyd, she too argued for a case-by-case approach based on each voter’s particular situation, focusing on the “likelihood” of injury. Justice Bland went out of her way to emphasize that county officials did “not have any authority to police” voters’ personal determinations about whether Texas Election Code § 82.002 applied to them. She explained that the “Legislature left it to the voter” to determine the law’s applicability, and she cautioned the State of Texas that “the possibility of fraud does not allow for the disenfranchisement of eligible voters.”
Three months after the Texas Supreme Court’s decision in In re State of Texas, the Harris County District Clerk announced his intention to send more than 2 million unsolicited applications for mail-in ballots to all registered voters. The State of Texas is now back at the state high court with a petition for a writ of mandamus (Case No. 20-0715). On September 15, the court ordered the Harris County District Clerk “not to send or cause to be sent any unsolicited mail-in ballot applications pending disposition of the State’s appeal to the Court of Appeals and any proceedings in this Court, and until further order of this court.” The State’s mandamus petition was still pending at the time this article was published.
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 Tex. Elec. Code § 82.001.
 Id. § 82.002.
 Id. § 82.003.
 Id. § 82.004.
 Id. § 82.007.
 In re State of Texas, No. 20-0394, slip op. at 4 (Tex. May 27, 2020).
 Id. at 5.
 Id. at 20.
 Id. at 21.
 In re State of Texas, No. 20-0394, Opinion of Justice Boyd at 5 (Tex. May 27, 2020).
 Id. at 7.
 Id. at 7–8.
 In re State of Texas, No. 20-0394, Opinion of Justice Bland at 4 (Tex. May 27, 2020).
 Id. at 6–8.
 Id. at 9.
 Id. at 9.