Texas Supreme Court hears arguments on disability definition in mail-in ballot fight

A Utah County election worker collect actual mail-in ballots after they were opened for the midterm elections on November 6, 2018 in Provo, Utah. (Photo by George Frey/Getty Images)

Wednesday, the back and forth over the right to vote by mail in Texas during the coronavirus pandemic continued in both state and federal court.

Late in the afternoon the U.S. Fifth Circuit Court of Appeals granted an administrative stay to U.S. District Judge Fred Biery's order Tuesday.

According to The Texas Tribune, Biery's original ruling sided with state Democrats and voters suing the state for expanded mail-in voting.

Biery's order allowed people to vote by mail in order to avoid transmission of the virus.

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However, Attorney General Ken Paxton sought review by the Fifth Circuit Court of Appeals—releasing this statement after the court's decision for an administrative stay:

"I applaud the Fifth Circuit for issuing this temporary stay while the case proceeds.
Protecting the integrity of elections is one of my top priorities, and allowing universal mail-in ballots would only lead to greater fraud and disenfranchise lawful voters.
Law established by the Legislature must be followed consistently, including carefully limiting who may and may not vote by mail."

Meanwhile, on Wednesday the state Supreme Court heard oral arguments in response to Attorney General Paxton's petition requesting the court to compel early voting clerks in Dallas, Cameron, El Paso, Harris and Travis Counties to "follow Texas law on mail-in ballots."

Solicitor General Kyle D. Hawkins argued voting clerks do not have the authority to issue mail-in ballots if voters cite disability because of concern over possibly contracting COVID-19 at the polls.

"If the voter has written in extraneous information on the mail in application indicating that the voter is otherwise healthy but simply susceptible to disease or afraid of catching disease then that application should be rejected," says Hawkins.

However, former justice Scott Brister, speaking on behalf of the respondents argued, "There's no question that lack of immunity in a pandemic is a physical condition."

Justice Jeff Boyd pointed to an amicus briefing filed by Texas physicians and healthcare workers stating lack of immunity from COVID-19 is a physical condition considered disability.

The state Supreme Court has yet to make a ruling on the case.

For now, current election law stands which allows voters to receive mail-in ballots if they're over 65, disabled, out of the county on election day, or in jail but otherwise able to vote.

Governor Greg Abbott has extended the time period for early voting in the July elections.