For all of the life-saving promise of expanding the vote-by-mail option mid-pandemic, Texans shouldn’t expect it this fall. For one thing, it’s simply not in the interest of the Republican Party of Texas, which explains party leaders’ unfounded poppycock about its history of voter fraud. That’s a lot of bunk right up there with East Texas Congressman Louie Gohmert’s claim last week that he caught the coronavirus from his face covering. Another reason: The state’s election system isn’t prepared for any dramatic increase in mailed ballots.
And so many of us will boldly venture out to crowded polling places this fall and risk viral infection to do our duty — a situation aggravated by Gov. Greg Abbott’s reluctance (at least so far) to require face coverings in polling places, a measure that would certainly reassure unappreciated election workers, the real patriots in all this, who tend to be older and thus far more vulnerable. That said, when it comes to President Trump, I know voters who will crawl through broken glass to reelect him or send him packing. These voters might suffer far worse if they contract a bad case of COVID-19.
Even so, the possibility of voting by mail exists for more Texans than those of us who are at least 65 or have a clear-cut disability.
Headlines this spring made clear the Texas Supreme Court dismissed the legal argument that lacking immunity to the coronavirus is in itself disability enough for a Texan to vote by mail. But while Texas Attorney General Ken Paxton took a victory lap, the victory may be hollow. Chief Justice Nathan Hecht’s nuanced May 27 opinion states it’s up to the voter to decide whether his or her physical condition qualifies as a disability under state law. And to a degree, the judge adds, it’s no one else’s business: “Indeed, the Legislature rejected the requirement of a physician’s proof of disability for mail-in voting applications when it amended the Election Code in 1981. And the application form provided by the Secretary of State requires only that voters check a box indicating whether the reason for seeking a ballot by mail is a disability. The voter is not instructed to declare the nature of the underlying disability. 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.”
Consider now this passage from the Texas Election Code from which state justices rendered their decision: “A qualified voter is eligible to vote absentee by personal appearance or by mail 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 his health.”
Now consider someone who, say, suffers from diabetes. If you know anything about this malady, you know that without proper diet and insulin injections, it can be incapacitating if not life-threatening. Medical experts say the novel coronavirus is exceptionally hard, even lethal, on those who are over age 60 and/or suffer underlying health conditions such as diabetes. So would a diabetic going to a crowded, possibly infested polling place where face coverings aren’t required during a pandemic face the likelihood “of injuring his health”?
For the court, the debate boiled down to “possibility” versus “probability” (and at a time when Texas wasn’t yet a pandemic “hotspot”). One skeptical justice questioned whether a handlebar mustache qualified as a “physical condition.” Some in Waco might see all this as highfalutin quibbling over legal niceties. Consider local public health district official Kelly Craine’s terse warning last month with COVID cases and hospitalizations on the rise: “The virus is here. It’s rapidly spreading. You’re at risk.”
One reading the chief justice’s opinion could rationally argue that the decision is ultimately the voter’s, which is presumably why the court balked at allowing Paxton to admonish election clerks about their duties: “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.’”
It’s now up to each voter to decide if his or her particular malady or affliction is legally defensible in case one is challenged. You might consult your doctor. One key to deciding: Betting whether any jury having lived through these pandemic times would agree to convict someone for playing it extra safe. Presumably, you wouldn’t have to declare for whom you voted.