Analysis: Judges Deal Texans More Confusion About Voting by Mail

click to enlarge Voters waited in line to cast their ballots at Lion's Field in San Antonio during the 2018 midterms. Voting rights groups argue that people should be allowed to avoid crowded polling places during the pandemic. - Sanford Nowlin
Sanford Nowlin
Voters waited in line to cast their ballots at Lion's Field in San Antonio during the 2018 midterms. Voting rights groups argue that people should be allowed to avoid crowded polling places during the pandemic.
The swarm of Texas politicians snarling at one another about how to run elections turned into a lawsuit — bringing hope, maybe, that some panel of wise judges would sort things out, make things clear, save the day.


The Texas Supreme Court ruled this week that the threat of infection from the new coronavirus does not give voters a disability that qualifies them to vote by mail. The court agreed on that point with Attorney General Ken Paxton.

Then the judges sided with the people who actually run elections, saying they don’t have to ask voters what disability they’re claiming. If a voter properly fills out the request to vote by mail and gives “disability” as their reason, the election administrators can send mail ballots.

There’s still another challenge to the state’s absentee balloting laws, in a federal suit over whether it’s constitutional to allow people 65 and older to vote by mail while denying that option to voters who are younger than that.

Whatever the federal courts rule on that question, it’s easy to enforce. You’re either old enough or not — or age doesn’t matter.

The state court issue is different: whether the legal definition of disability includes the possibility that showing up at the polls exposes a voter to the physical danger of infection. The state says no, and the court agrees. But the state’s application for absentee ballots doesn’t ask voters with disabilities to describe those disabilities. That leaves election administrators without any way to tell whether a voter who has checked the “disabled” box did so out of fear they’d be exposed to the coronavirus.

The state court’s ruling was encircled by ironies.

The judges are working remotely, like a lot of us, to remain safe during the pandemic. That doesn’t make them hypocrites — they’re here to tell you what the absentee voting law says, even if that law is full of holes. They made a provision for themselves that the law doesn’t, in their view, allow them to make for the state’s voters.

The day before the Supremes ruled, the state’s top election officer — Secretary of State Ruth Hughs — issued some instructions for people in preparation for elections coming up in July. She said they “may want to consider” curbside voting if they have symptoms of COVID-19.

Just in case you’re worried about who might be in the voting line with you.

She also recommended that voters bring their own hand sanitizer and face masks, if they want to. Local election officials were told to mark the floors to keep voters 6 feet apart in line and at voting stations.

Put it all together: It’s possible for the nine Republican judges on the Texas Supreme Court to be reading the law right, to be socially distancing themselves to avoid the coronavirus (although one, Justice Debra Lehrmann, has said she and her husband have been exposed), and to be telling voters that the pandemic doesn’t give them a legal basis for voting by mail — and for the state’s top election official to be explaining in an eight-page document how voters and election judges and everybody else should take extra measures to protect themselves.

That might be the law, but it doesn’t sound practical.

And it leaves voters to decide about checking that disabled box to get an absentee ballot. It’s open to anyone age 65 or older, for now — wait and see what the federal courts do next — to voters who’ll be outside their home counties during voting, to eligible voters who are in jail, or who are disabled.

The Texas courts say the coronavirus is no justification, under the law, to avoid voting in person. The election folks are in no position to check healthy but wary voters who cross their fingers and check that box anyway, but lying might get you in more trouble than the pandemic does.

Think of this as a civics test. Just tell the truth on the forms and decide for yourself whether voting in person is worth the risk.

And then do what you came for: Vote for the ones you like and against the ones you don’t like. Nobody can come after you for that.

Disclosure: The Texas secretary of state has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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