In a concurring opinion to the Texas Supreme Court’s recent ruling that lack of immunity to the Chinese coronavirus is not by itself a “disability” that entitles voters to vote by mail, Justice Jeff Boyd evoked a handlebar mustache to illustrate why.

The case before the court was prompted by lawsuits filed by the Texas Democrat Party seeking to overturn vote-by-mail limits set by the legislature, using the coronavirus crisis as an excuse.

Democrats want courts to force local election officials to accept every mail-ballot application marked “disability” for the remainder of 2020 and beyond, arguing fear of contracting the virus at the polls should qualify all voters to claim they are disabled and request a mail ballot.

Texas Attorney General Ken Paxton disagreed.

Under Texas law, only voters who are 65 or older, disabled, in jail, or outside their home county during an election are eligible to vote by mail—a process more vulnerable to fraud and abuse than in-person voting.

The AG asked the high court to rule on the law’s meaning and to order local election officials to stop misinforming voters about who is eligible to apply for a mail ballot under the law.

Paxton’s team argued before the court last week that neither fear of contracting COVID-19 nor lack of immunity in an otherwise healthy person is a “physical condition” under the statute because they don’t distinguish the person from the general populace. Such an interpretation would make the law’s limits meaningless.

On Wednesday, the court ruled unanimously in favor of the state, agreeing that “a lack of immunity to COVID-19 is not itself a ‘physical condition’ that renders a voter eligible to vote by mail within the meaning of § 82.002(a).”

Boyd’s concurring opinion reaches the same conclusion, but using different reasoning.

A person’s lack of immunity to COVID-19 can constitute a “physical condition” under the statute, he said, interpreting the law as referring to a “bodily state of being that limits, restricts, or reduces a person’s physical abilities.”

Boyd reasoned the election code’s definition of “physical condition” does not hinge on whether the condition is “distinguishing” but whether it restricts a voter’s physical ability to go to the polls:

“A person with a lengthy handle-bar mustache, for example, might have an ‘abnormal’ and ‘distinguishing’ physical condition, but not the type that fits within the context of conditions that prevent or confine a person’s physical abilities.”

But “disability” under the election code is a two-part test, requiring a physical condition that also prevents a voter from voting in person without a “likelihood” of injuring their health.

Concurring with the rest of the court, Boyd found voters who are simply susceptible to the virus are not eligible to vote by mail unless, “because of the voter’s physical condition, voting in person will probably injure the voter’s health.”

“We cannot decide on this record whether any particular voter is eligible for mail-in voting under that standard,” he added.

Now that the court has resolved the disability question, Boyd concludes, voters and election officials “must accept and abide by the statute’s restrictions” as construed:

“Voters who claim to have a disability under section 82.002(a) merely because they lack immunity to COVID-19 or have a fear or concern about contracting the virus would do so in violation of the statute. And although, as the State acknowledges, election officials have no responsibility to question or investigate a ballot application that is valid on its face, they are not free to advise or instruct voters to ignore or violate the statute’s requirements.”

Like a handlebar mustache, susceptibility to the coronavirus is not by itself a physical condition that prevents Texas voters from safely going to the polls.

Erin Anderson

Erin Anderson is a Senior Journalist for Texas Scorecard, reporting on state and local issues, events, and government actions that impact people in communities throughout Texas and the DFW Metroplex. A native Texan, Erin grew up in the Houston area and now lives in Collin County.