I previously wrote about the federal court’s interpretation of the Texas Election Code here. In that decision, the Western District of Texas found that fear of contracting the coronavirus does indeed constitute a disability. Now, the Texas Supreme Court has weighed in. TheTexas Supreme Court reached the opposite conclusion, that fear of the virus does not amount to a disability. The Texas Election Code provides that “disability” is a physical condition that prevents a voter from appearing at a polling place without a likelihood of injuring the voter’s health. It does not require any consideration of how the impairment affects a major life activity. It is a more broad definition than that found in the ADA.
And, unlike the ADA, there is no practical way for some person or entity to question a voter’s claim of disability. There is no employer or EEOC to argue that the claimed disability is not that serious. On appeal, the Harris County Clerk argued that lack of immunity to the virus is a physical condition protected by the statute. The Western District opinion accepted that argument. But, the Supreme Court said no. “Disabled,” said the court, means incapacitated. In no way, can lack of immunity be considered to be incapacitated. As i mentioned in my prior post, the caselaw supports the Supreme Court’s conclusion.
The court found that lack of immunity does not amount to a “physical condition” that would harm a person at a polling site. Two justices concurred in the decision. Justices Bland and Boyd found that lack of immunity is indeed a physical condition for purposes of Tex.Elec.C. Sec. 82.002, but that a showing of “likelihood” of harm has not been made. Those two justices also suggested with a wink, that if a voter falsely claims a disability, no one would know. Said the concurrence:
“We agree, of course, that a voter can take into consideration aspects of his health and his health history that are physical conditions in deciding whether, under the circumstances, to apply to vote by mail because of disability.”
See the Texas Supreme Court decision in the matter of In Re Texas, No. 20-0394 (Tex. 5/27/2020) here.
Even the Supreme Court shows more humanity than the Texas Attorney General is prosecuting this lawsuit.