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Texas court: Virus fear alone not enough for mail balloting

May 28, 2020 GMT
Protesters attend a Safely Open Texas Now rally Saturday, April 25, 2020, across the street from the El Paso County Court House in El Paso, Texas, during the coronavirus outbreak. The protesters demanded elected officials safely reopen the State of Texas, the County of El Paso and the city of El Paso for business. (Briana Sanchez/The El Paso Times via AP)
Protesters attend a Safely Open Texas Now rally Saturday, April 25, 2020, across the street from the El Paso County Court House in El Paso, Texas, during the coronavirus outbreak. The protesters demanded elected officials safely reopen the State of Texas, the County of El Paso and the city of El Paso for business. (Briana Sanchez/The El Paso Times via AP)

AUSTIN, Texas (AP) — Texas officials fighting to block widespread mail-in voting during the pandemic claimed victory after the state’s highest court ruled Wednesday that a lack of immunity to the coronavirus doesn’t qualify someone to cast a ballot by mail.

The decision was unanimous by the Texas Supreme Court, which is stocked with nine Republican justices, including one who revealed last week that she had tested positive for COVID-19. Texas generally limits mail balloting only to voters who are over 65 years old or have a disability.

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Justice Eva Guzman wrote the court was unified in the conclusion that “fear of contracting a disease is not a physical condition.”

The Texas Democratic Party blasted the decision, and moved its hopes to a similar challenge playing out in federal court. But not all saw the decision as a total loss: the top elections lawyer in Houston, Harris County attorney Douglas Ray, said he believed the ruling leaves room for each voter to decide themselves whether they qualify, and gives clerks basically no ability to second-guess the reasoning.

In Texas, voters do not have to describe their disability when requesting a mail-in ballot.

Republican Texas Attorney General Ken Paxton, who earlier this month lost lower court decisions that would have expanded mail-in ballots to all of the state’s 16 million registered voters, has argued that fear of getting the virus alone doesn’t qualify as a disability. He applauded the court for keeping the status quo with just weeks until the state is set to hold primary runoff elections in July.

Paxton has taken a hard line on resisting efforts by Democrats and voting rights groups to try expanding mail balloting in Texas. His fight comes as President Donald Trump rails against mail-in balloting and alleges without evidence that it leads to “total election fraud.”

“In-person voting is the surest way to maintain the integrity of our elections, prevent voter fraud and guarantee that every voter is who they claim to be,” Paxton said.

Trump tweeted support of the court’s decision later Wednesday night: “Texas Supreme Court: Lack of immunity to COVID-19 alone not enough to vote by mail ... Big win in Texas on the dangerous Mail In Voting Scam!”

The fight in Texas is just one of several court battles across the country over efforts, mainly by Democrats, to expand access to mail-in ballots amid the pandemic. In Wisconsin, where election officials drew widespread criticism for holding its April 7 presidential primary even as other states delayed voting, a new lawsuit filed this month argued that not enough has been done since then to ensure that the upcoming elections can be conducted safely and fairly.

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The court rejected Paxton’s request to bar local election officials from accepting mail-in ballots based on claims of disability because of the virus. Justice Nathan Hecht wrote that the court was “confident that election officials will comply” with the broader decision.

But in Houston, Ray said that while the ruling is clear that if voters don’t qualify if they’re “perfectly healthy and all that you’re afraid of is you might get COVID,” he believed the court order didn’t totally shut the door.

“As we all know, nobody’s perfectly healthy,” Ray said. “We all have something we can look at, and it’s really up to the voter to decide based on his personal situation whether he would qualify or not. And the clerk basically has no authority or ability to question him.”

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Bleiberg contributed from Dallas.