Citing a disability is among the few reasons that Texans can qualify to vote by mail during the pandemic this November 鈥� in addition to being 65 or older, being outside of their county during the election, or being confined to jail but otherwise eligible to vote.
But in recent months, what counts as a disability in Texas has been politicized and litigated. The Texas Supreme Court has ruled that a lack of immunity to the coronavirus is not in itself enough to qualify. Beyond that, the court ruled that voters should decide for themselves if their medical situations meet the state鈥檚 criteria.
State law defines a disability as a 鈥渟ickness 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鈥檚 health.鈥� It gets specific only in saying that 鈥渆xpected or likely confinement for childbirth on election day is sufficient.鈥�
Aside from that, voters are largely left to interpret the law for themselves.
鈥淚ndividuals are being left up to themselves to make some pretty big eligibility decisions on their own, which can be nerve-wracking and make citizens very concerned about whether or not their choices are justifiable or not,鈥� said Molly Broadway, voting rights specialist at Disability Rights Texas. 鈥淎 lot of voters are concerned about, will they truly be seen as having a disability for those who do have disabilities?鈥�
Texas is one of five states that hasn鈥檛 made mail-in ballots available to those afraid of contracting COVID-19. During a typical year, Texas is one of only 16 states that doesn鈥檛 offer no-excuse mail-in voting, which allows voters to request ballots for any reason.
Texans have had the option to cite disability as a reason to receive mail-in ballots since 1935, just two years after the first use of voting by mail. Advocates say the system may have some flaws, but it serves to increase access for many disabled people.
鈥淥ur recommendation to most people is, if you can vote by mail, we highly encourage it,鈥� said Donna Meltzer, CEO of the National Association of Councils on Developmental Disabilities. 鈥淲e think that [helps] keep people with disabilities 鈥� who are much more vulnerable to contracting COVID or having greater health conditions 鈥� safe and healthy.鈥�
In April, state Democrats and civil rights organizations argued in court that susceptibility to the coronavirus meets the state鈥檚 definition for disability. In May, the Texas Supreme Court sided with Attorney General Ken Paxton and ruled that lack of immunity to the virus is not a 鈥減hysical condition,鈥� and therefore the risk of contracting the virus does not meet the state鈥檚 qualifications.
But the court also ruled that voters could evaluate their own health and medical history to determine if they should apply for mail-in ballots during the pandemic based on a disability, as long as they have a 鈥渃orrect understanding of the statutory definition of 鈥榙isability.鈥欌��
Abhi Rahman, spokesperson for the Texas Democratic Party, said he believes Texans are going to decide for themselves if they have conditions that qualify as disabilities for mail-in voting.
鈥淰oters are smart enough to make their own decisions, whether or not they want to claim a disability, for whatever disability they might have,鈥� Rahman said. 鈥淎nd really the secretary of state and election officials 鈥� they can鈥檛 check what the disability actually is. So if voters feel like they are disabled in any way, they should vote in whatever way they鈥檙e comfortable with voting in this election.鈥�
On the application to vote by mail, voters are asked to check a box confirming they have a disability and aren鈥檛 required to provide any other details.
Voters haven鈥檛 been required to provide documentation for their disabilities since 1981, but when filling out their applications, they certify that the information is correct and that they understand giving false information is a crime.
Local election officials, who oversee the distribution of mail-in ballots, do not have the authority to verify a voter鈥檚 disability status.
But election experts say it鈥檚 unclear whether the Texas attorney general鈥檚 office would try to pursue the issue. Paxton and other Texas Republican officials have attacked efforts to broaden mail-in voting as a 鈥渢hreat to Democracy.鈥�
鈥淚 applaud the Texas Supreme Court for ruling that certain election officials鈥� definition of 鈥榙isability鈥� does not trump that of the Legislature, which has determined that widespread mail-in balloting carries unacceptable risks of corruption and fraud,鈥� Paxton said after the Supreme Court decision. 鈥淓lection officials have a duty to reject mail-in ballot applications from voters who are not entitled to vote by mail. 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.鈥�
Instances of voter fraud are incredibly rare, and there鈥檚 a lack of comprehensive data on the subject. The Heritage Foundation, a conservative think tank, lists 1,071 instances since 1982 of proven voter fraud in the U.S. None of the examples include voters incorrectly citing disabilities.
If the attorney general were to pursue a case against someone, citing false information given about a disability, the burden of proof would be on the state to prove a voter isn鈥檛 disabled, said Joaquin Gonzalez, attorney at the Texas Civil Rights Project.
鈥淭hey couldn鈥檛 just force a voter to prove their disability. They would have to have some evidence showing that the voter was fraudulently claiming it in the first place,鈥� Gonzalez said.
The attorney general鈥檚 office did not respond to repeated requests for comment.
Bob Kafka, organizer at ADAPT Texas, a disability advocacy grassroots organization, said the attorney general鈥檚 messaging alone is enough to intimidate voters.
鈥淭he bottom line is 99% of people with disabilities or people that might be in jeopardy of contracting COVID are totally confused,鈥� Kafka said. 鈥淯nfortunately, it has the effect of intimidation. Whether that鈥檚 the goal or not, the end result is when you鈥檙e threatened with a felony of voting fraud, whether its intent is intimidation, its end result is intimidation."
Disability rights activists say they鈥檙e worried the confusion may deter at-risk Texans from voting, or cause them to needlessly put their health at risk to show up in person at the polls despite being eligible for mail-in voting.
Kafka said he and other activists spoke with Secretary of State Ruth Hughs and were assured that county clerks would not ask people who checked the 鈥渄isability鈥� box to verify their disabilities. But as the attorney general continues to release what Kafka says are 鈥渢hreatening鈥� statements, activists still are not sure it鈥檚 enough to convince people to vote.
鈥淲e are not promoting voter fraud, but we also don鈥檛 want people not to vote,鈥� Kafka said. 鈥淲e already have one of the most restrictive mail in-ballot processes in the whole country.鈥�
The secretary of state鈥檚 office declined to comment for this story.