By: Mike Meltser, Attorney
COVID-19 has increased interest in voting by mail, which in turn has generated challenges to existing election law. Many voters are concerned about being safe while going to the polls and are wondering about the possibility of voting by mail.
In the State of Texas, there are five ways a voter is eligible to vote by mail:
- The voter is 65 years or older;
- The voter is disabled;
- The voter is out of the county on election day and during the period for early voting by personal appearance;
- The voter is confined in jail, but otherwise eligible; or
- The voter is certified for participation in the address confidentiality program administered by the Attorney General.
The Texas Supreme Court recently faced the question of whether a voter’s lack of immunity to COVID-19 and concern about contracting it at a polling place qualifies as a “disability” under the Texas Elections Code. “Disability” is defined as “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.”
This case involved the petitioner, the State of Texas, and the respondents, five county clerks and election administrators (the Clerks). Both parties were seeking clarification as to whether a voter’s lack of immunity to COVID-19 qualifies as a “disability.”
The Court held that a prospective voter’s lack of immunity, without more, is not a “disability” under the meaning of the Elections Code.However, Elections Administrators and election officials of many counties are not verifying whether a voter has a disability if a voter requests a mail ballot.Legally, a voter is not eligible to vote by mail because they fear getting COVID-19 by voting in person, but, practically, vote by mail is available to those who affirm they have a disability.
Despite the ruling by the Texas Supreme Court, the issue of whether any qualified voter can vote by mail without regard to age has not been finally decided for the November election. As of this writing, Harris County Attorney Vince Ryan has filed an amicus brief asking the United States Supreme Court to rule on the vote by mail issue quickly. The Fifth Circuit Court of Appeals is scheduled to address this issue in late August, but Ryan says that time is of the essence. The Harris County clerk sends out ballots to voters starting on September 19th.
As the issue of vote by mail works its way through the courts, there is a basic, unresolved question: who verifies whether a voter is “disabled” under the Texas Elections Code? To vote by mail, an eligible voter must fill out an Application for Ballot by Mail and check a box indicating a reason for voting by mail. An eligible voter choosing “disability” does not need to provide documentation of the disability. However, the Application requires the eligible voter to sign a statement certifying that the information provided is true and giving false information in the Application is a crime.
Even as the Texas Supreme Court held that a lack of immunity to COVID-19 is not a “disability,” the Court also held that election clerks may not look beyond a voter’s application to vote by mail.The State of Texas, in its argument, acknowledged that the Texas Elections Code does not require election clerks to investigate each applicant’s disability.
Essentially, voters can choose to check the disability box, but they leave themselves open to criminal penalties for fraud. The Court seemed to leave the decision up to the voter, stating that “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.’”However, the Court did not provide much guidance on this point. While the Court stated that contracting COVID-19 is “highly improbable” for the general population, it is not clear what a voter should do if the voter believes he or she has COVID-19, was exposed to an individual who tested positive for COVID-19, or is at high risk for severe COVID-19 symptoms based on underlying health conditions.
The litigation over the vote by mail issue brings up the issue of voter fraud. Under the Texas Elections Code, a person is guilty of election fraud if the person knowingly or intentionally makes any effort to cause any intentionally misleading statement, representation, or information to be provided: (a) to an election official; or (b) on an application for ballot by mail, carrier envelope, or any other official election-related form or document.Election fraud is a misdemeanor offense.
Despite the fact that voters must sign a statement stating that all of information they provide in the Application for Ballot by mail is true, the Texas Early Voting Ballot Board (EVBB) generally rejects mail-in ballots for one reason: lack of a matching signature. The Early Voting Clerk may establish a Signature Verification Committee (SVC) to review signatures on mail-in ballots.
The Texas Elections Code states that the [SVC] shall compare the signature on each “[mail-in ballot]…with the signature on the voter’s ballot application to determine whether the signatures are those of the voter. The committee may also compare the signatures with any two or more signatures of the voter made within the preceding six years and on file with the county clerk or voter registrar to determine whether the signatures are those of the voter.”However, the Code does not provide any standards or guidance for the SVC to determine whether a signature is that of the voter.
Legally, the EVBB may reject a mail-in ballot if a voter’s ballot application does not satisfy the requirement to provide a legal ground for early voting by mail.This means that a mail-in ballot can be rejected if the EVBB determines that a voter incorrectly checked “disability” as the reason to vote by mail.
Practically, it does not appear that the EVBB is doing this. Recent litigation focuses on mail-in ballots being rejected for mismatching signatures. In the 2018 General Election, Texas counties allegedly rejected at least 1,873 ballots on this basis. A recent Heritage Foundation database of voter fraud analyzed criminal convictions for voter fraud, but most cases under fraudulent use of absentee ballots focused on cases where individuals illegally assisted voters with their mail-in ballots. The entire database does not have a single example of a voter convicted for election fraud based on the voter obtaining a mail-in ballot by improperly selecting “disability” on the ballot application.
Moving forward, we await the Supreme Court’s decision to grant certiorari (accept the case) on the issue of whether any qualified voter can vote by mail without regard to age . As the law stands now in Texas, the decision to vote by mail because of disability is the voter’s decision. If the voter is wrong, he or she is subject to criminal penalties.
 Tex. Elec. Code § 82.002(a).
 In re State, 20-0394, 2020 WL 2759629, at *1 (Tex. May 27, 2020).
 Id at *11.
 Id at *1.
 Tex. Elec. Code § 276.013(a)(3).
 Tex. Elec. Code § 87.027(i).
 Tex. Elec Code § 87.041(d).