On Wednesday, the Texas Supreme Court issued a ruling that makes a Lone Star–size mess of the state’s law on absentee balloting and the question of whether voters who lack immunity to COVID-19 have a valid “excuse” to vote by mail in the upcoming elections. In a nutshell, the court has said that the statute does not allow voters who lack immunity and who fear contracting the virus to vote by mail because the statute only allows voting by mail for those with physical conditions preventing them from voting. But it further says that election officials won’t check the validity of excuses and it will be up to each voter, acting in good faith, to determine whether they have the ability to safely vote by mail. This “don’t ask, don’t tell” policy is a recipe for disaster in a state in which Attorney General Ken Paxton has already threatened with criminal prosecution those who advise voters who lack immunity and fear the disease to vote by mail. And it cries out for federal court relief.
This issue got before the Texas Supreme Court because the state is an outlier. In about two-thirds of the states, voters can vote by mail without an excuse (this includes five states with virtually all-mail elections). In a number of the remaining states that require proof of an excuse, state officials have determined that lack of immunity for COVID-19 and the concomitant fear of contracting a potentially deadly virus is excuse enough to be able to vote by mail. Texas law has limited vote by mail and only allows such voting if a voter fits into a number of excuses including “disability.” As Chad Flanders and Kristen Spina explained in Slate, “The election law in question says a person can only vote by mail if the would-be 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.’ ” Flanders, Spina, and I have argued that on a close question of statutory interpretation like this one, courts should apply a thumb on the scale favoring voter enfranchisement (a theory of interpretation known as the “Democracy Canon”). Paxton disagrees, and while cases were pending in state and federal court over the question, he sought immediate review, or mandamus, before Texas’ Supreme Court, which has the ultimate authority to explain the meaning of Texas statutes.
The Texas court on Wednesday issued four separate opinions, technically rejecting the state’s request for review as unnecessary but interpreting the statute in line with Paxton’s view that voters lacking immunity who fear contracting the disease cannot raise “disability” as an excuse to vote by mail. (Only one justice came close to embracing the broader definition in concurrence, but even she rejected it.) The majority opinion by Justice Nathan Hecht, though, tried to split the baby. The court wrote that:
The elected officials have placed in the hands of the voter the determination of whether in-person voting will cause a likelihood of injury due to a physical condition. The [officials] do not have a ministerial duty, reviewable by mandamus, to look beyond the application to vote by mail.
In other words, the Texas Supreme Court has told voters that they cannot vote by mail if they lack immunity and fear the disease. But if a voter states that she has a disability for whatever reason, the clerks will look the other way and let the voter vote by mail.
Again, this is a recipe for disaster. It will lead Paxton to publicize the argument that lack of immunity and fear of getting the disease is not a valid excuse to vote by mail, and that anyone who advises someone else to claim disability to vote by mail is engaged in a criminal conspiracy to commit voter fraud. Some voters may get in trouble because they could be accused of voting by mail while understanding that it is illegal. Only the ignorant can vote by mail without fear of prosecution, assuming they can later prove their ignorance. Meanwhile, if a voter has a serious underlying condition or comorbidity that increases the risk of serious complications—or death—from COVID-19, the ruling fails to give guidance on whether she is allowed to cite the condition in lawfully voting by mail in order to avoid the risk of contracting the novel coronavirus. This would seem to leave open the possibility for Paxton to frighten possibly qualifying voters into not voting, or to go after those who do.
With this official interpretation of the vote-by-mail regulation now in place, it is up to the federal courts to step in. A federal district court already issued an order saying that such an interpretation is unconstitutional, but the opinion is written in an over-the-top manner by a liberal judge that is almost certain to be reversed by a conservative panel of the United States Court of Appeals for the 5th Circuit. In light of today’s state Supreme Court order, the federal appeals court is likely to send the case back to the district court for another go-round. One can only hope the district court will lay out a more careful case next time for the unconstitutionality of a system that threatens voters with criminal punishment if they try to protect both their health and franchise by voting by mail in the midst of a pandemic.