Voting by Mail in Texas: Where Things Stand

The Law: Election Code, Title 7, Sec. 82.002. DISABILITY. (a) A qualified voter is eligible for early voting 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 the voter's health.

The Form: There are four official eligibility requirements to vote by mail: 65 years of age or older; "sick or disabled"; expected absence from the county during voting period; confined in jail but eligible to vote. The mail ballot application asks only for an indication of the eligibility category (e.g., "disabled"), and requires no additional documentation. On May 27, the Texas Supreme Court ruled that "the decision to apply to vote by mail based on a disability is the voter's," and that election officials "do not have a ministerial duty ... to look beyond the application to vote by mail."

Official Advisories: Travis County Clerk, re: request for mail ballots: "A voter who requests a mail ballot on the grounds of disability will be accepted as eligible for a mail ballot. Our office has no legal authority to administratively require voters to substantiate their disability at the time the application is submitted." Secretary of State Ruth Hughs recently responded to an inquiry by advocacy group Progress Texas by citing the Election Code definition of dis­ability, and concluded: "If a voter believes they meet this definition, they can submit an application for ballot by mail."

The Lawsuits: There are several legal actions in progress concerning VBM; some consider whether lack of immunity to COVID-19 constitutes a "physical condition" that could threaten an in-person voter's health; others make broader constitutional claims of discrimination against young and minority voters.

• On April 17, state District Judge Tim Sulak ruled that all Texas voters are eligible for VBM under pandemic conditions; the 14th Court of Appeals sustained his injunction (pending appeal); the state Supreme Court stayed the injunction pending its review. Following a May 20 (remote) hearing, on May 27 the Court ruled that while "lack of immunity" to COVID-19 is not a "disability" under the law, the voter is the sole judge of their health status and decision to request a mail ballot.

• On May 19, U.S. District Judge Fred Biery ruled that all Texas voters are eligible for VBM (during the pandemic, and on constitutional grounds); the state appealed to the 5th Circuit Court of Appeals, which granted an administrative stay pending appeal. On June 4, a three-judge panel extended that stay pending a full court review, in an order excoriating Biery's opinion and arguing that the Texas Supreme Court has settled the matter as to Texas law.

• On April 29, six young Texas voters filed a lawsuit challenging the VBM restrictions by age, as violating the 26th Amendment to the U.S. Constitution. That suit remains pending.

• On May 11, two Dallas Democrats filed a criminal complaint with the Dallas County D.A. against Attorney General Ken Paxton, accusing him of "felony election fraud" for disseminating false or misleading information to voters and election officials. The D.A.'s office has declined comment on the complaint.