Voters concerned about COVID-19 who haven’t tested positive technically don’t qualify for a vote by mail ballot, but county officials also do not have the authority to question voters’ disability status on applications, according to an opinion issued by the Texas Supreme Court on Wednesday.
The ruling came in response to Attorney General Ken Paxton’s assertion that fear of the virus does not qualify a resident to obtain a ballot in the mail using the disability category. Voters in Cameron County can take advantage of early curbside voting and officials are taking extra precautions to make polling locations as safe as possible.
Secretary of State Ruth Hughs on Tuesday issued “minimum recommended health protocols” for all voters in Texas who plan to vote in-person or through early curbside service. The guidelines encouraged voters to adopt their own protective measures against the virus in addition to safety procedures recommended at polling stations. However, the document did not address concerns raised by advocates during oral arguments in a case before the Texas Supreme Court last week that voting in person would facilitate a “heightened danger” for transmission of coronavirus.
Multiple medical professionals signed onto a brief in the case suggesting that standing in line and interacting with other voters, staff, and “communal touching” of voting equipment could easily facilitate the spread of the virus. Those front-line doctors and nurses also told the court that sanitation efforts like wiping down surfaces and washing hands would not be enough to protect voters from a respiratory virus from which droplets can hang in the air for several minutes.
In its opinion issued on Wednesday, the court wrote that while it agrees that a lack of immunity to COVID-19 is not itself a “physical condition” that renders a voter eligible to vote by mail, judges found it unnecessary to issue Paxton’s requested writ of mandamus, calling it “unwarranted.” According to the opinion, the state’s election code does not require election clerks to “investigate each applicant’s disability.” Judges cited a decision by the Legislature to reject the requirement of a physician’s proof of disability for mail-in voting applications when it amended the election code in 1981.
“ 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,” the court wrote. “The Clerks have assured us that they will fully discharge their duty to follow the law.”
Hughes’ recommended that voters bring their own writing utensils and to check with the election authority which type would be valid for marking ballots. Voters are asked to wash and disinfect their hands after each interaction with election workers or other individuals, as well as after using the voting system or marking the ballot.
Voters “should bring their own hand sanitizer” to the polling station and should sanitize their hands again after voting. Hughes recommended “non-medical grade face masks” and six feet of separation, though if an election judge is not able to determine the identity of a voter wearing a face covering, voters may have to remove their masks for the confirmation.
Individuals who contract COVID-19 or any other sickness or physical condition that prevents them from appearing at the polling location on Election Day should contact their county election officer for details about submitting an Application for Emergency Early Voting Ballot Due to Sickness or Physical Disability, the guidance stated.
While Hughes issued election staff specific guidance regarding how to screen employees for symptoms, interact with voters, keep everyone distanced, and sanitize equipment, the recommendations for in-person voters is to “self-screen” for virus symptoms and consider using curbside voting, according to Hughes. Employees with symptoms will not be allowed to work until completing an isolation period.
Cameron County Elections Administrator Remi Garza said on Wednesday that officials are expecting an influx of curbside voters. He emphasized that the curbside process will take longer and that residents who want to use the service should take advantage of early voting or vote by mail depending on eligibility.
“ A lot of these decisions are in the voter’s hands as to how they want to interact with us during the time period. We’re hoping to provide masks for every worker as well as plastic shields that they can wear to cover their faces,” Garza said.
“ We’re also going to have the hand sanitizer available — not only for staff, but for the voters as well, so that when the voter enters the polling location they’re going to utilize it and when they exit the polling location they’ll be able to sanitize again.”
According to Garza, the elections department is in the process of trying to acquire additional pens so that the ones available at polling locations will be used as infrequently as possible. The county is also sourcing desktop-mounted plexiglass shields. “Since voters are going to be spending a little bit of extra time in front of the laptop, they’ll have that extra barrier of protection,” he said.
Legal challenges to Paxton’s vote by mail stance are ongoing. In a separate case led by the Texas Civil Rights Project and several Texas voters, Paxton appealed a lower court’s ruling allowing anyone with a lack of immunity to vote by mail under Texas’ limited eligibility. The U.S. 5th Circuit Court of Appeals granted an administrative stay blocking the earlier ruling, though mail-in ballot applications are being processed as usual by the county.
Texas is recommending that those who are 65 or older should consider voting by mail. The Cameron County Elections website notes that officials do not have the authority to question someone’s disability status upon receiving an application for a mail-in ballot.
