“The overwhelming majority of states allow any lawful voter to obtain an absentee ballot without having to justify their request. Texas, by contrast, allows only a minority of voters to obtain one. One provision of state law allows elderly voters to vote absentee. Another permits absentee ballots if a voter will be away from their home county on Election Day. A third provides that “a qualified voter is eligible for early voting by mail if the voter has 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” — a requirement that, according to the state Supreme Court’s decision in Texas, applies only to people who are ill or disabled.
Civil rights groups and the state Democratic Party argued that this third provision should be broadly interpreted to allow anyone who could become infected with the coronavirus to vote absentee. The words “physical condition,” they argued, includes the physical condition of being susceptible to a deadly pandemic disease. In other words, during a pandemic that requires social distancing to control the spread of said disease, nearly everyone has a “physical condition” that should enable them to vote absentee.
In recent elections, older voters have tended to prefer Republican candidates over Democrats. Texas Attorney General Ken Paxton, a Republican, objected to the broader interpretation of the law. At one point, his office even threatened to bring criminal prosecutions against any organization that encourages younger voters to request an absentee ballot. The state Supreme Court’s nine Republican justices ultimately sided with Paxton, although two of the nine did so for different reasons.
The court’s decision in Texas will not be the last word on whether younger Texans may vote absentee in November. In a separate Texas lawsuit, a federal trial judge ruled last week that the state cannot discriminate against younger voters. Among other things, he determined that the Texas law violates the 26th Amendment, which permits all otherwise eligible voters over the age of 18 to cast a ballot.
But the federal decision has been appealed to the notoriously conservative US Court of Appeals for the Fifth Circuit and may ultimately be heard by a US Supreme Court that is frequently hostile to claims of voter suppression. So it is far from clear that younger Texans will be allowed to vote absentee.”