This week, the Texas Supreme Court dealt a blow to Democrats’ plans for using the Chinese coronavirus as an excuse to bypass state election laws and allow everyone to vote by mail—a process more vulnerable to fraud and abuse than in-person voting.
But the high court’s ruling reveals two loopholes in the law that allow ineligible voters to request and cast mail ballots anyway.
“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,” Chief Justice Nathan Hecht wrote in a unanimous opinion issued Wednesday that sides with Texas Attorney General Ken Paxton:
“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.’”
Hecht highlights that claiming “disability” on mail-ballot applications is an honor system—voters decide if they are disabled, and no one verifies:
“[T]he 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.”
“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,” Hecht added.
Dallas County Elections Administrator Toni Pippins-Poole confirmed to county commissioners earlier this month that her office does “not investigate the reason for disability for any ballot application marked disability.”
Commissioners then approved a resolution saying any Dallas County voter who wants to vote by mail can “check the box on the application indicating ‘Disability’ as the reason for voting by mail, and the elections division will process that application as normal.”
While local election officials have no statutory authority to investigate possibly fraudulent mail-ballot applications, law enforcement officers do. Making a false statement on a mail-ballot application, or enticing others to do so, is a crime.
In South Texas, Starr County District Attorney Omar Escobar actively investigated and prosecuted paid mail-ballot harvesters, known in the Rio Grande Valley as politiqueras, for fraudulently checking “disability” on ballot applications for voters who are not disabled.
Escobar enlisted the help of Starr County’s Special Crimes Unit to talk with voters and track down ballot harvesters during the 2018 primary election, before fraudulent votes were counted.
A Gregg County case of mail-ballot harvesters abusing the “disability” check box in a 2018 Democrat primary prompted an investigation by the attorney general’s office. That contest was decided by just five votes.
In 2020, Texas Democrats hope to legitimize this form of voter fraud by using courts and the coronavirus crisis to overturn state vote-by-mail limits and force county election officials to accept every mail-ballot application marked “disability.”
For now, Democrats’ efforts to expand vote-by-mail are on hold, as Texas appeals cases in state and federal courts. But Democrat election officials in some of the state’s most populous counties have already encouraged voters who fear the coronavirus to “check the box” and apply for a mail ballot, knowing they have no duty or power to verify voters’ disability.
Despite the loopholes in the law, Justice Jeff Boyd made clear in his concurring opinion:
“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.”
Texas voters and election officials are required to follow the law on who is eligible to claim disability on mail-ballot applications. For now, the law requires election officials to trust but not verify.