Citing a disability is among the few reasons that Texans can qualify to vote by mail during the pandemic this November — 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’s criteria.

State law defines a disability as 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.” It gets specific only in saying that “expected or likely confinement for childbirth on election day is sufficient.”

Aside from that, voters are largely left to interpret the law for themselves.

“Individuals 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,” said Molly Broadway, voting rights specialist at Disability Rights Texas. “A lot of voters are concerned about, will they truly be seen as having a disability for those who do have disabilities?”

Texas is one of five states that hasn’t 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’t 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.

“Our recommendation to most people is, if you can vote by mail, we highly encourage it,” said Donna Meltzer, CEO of the National Association of Councils on Developmental Disabilities. “We think that [helps] keep people with disabilities — who are much more vulnerable to contracting COVID or having greater health conditions — safe and healthy.”

In April, state Democrats and civil rights organizations argued in court that susceptibility to the coronavirus meets the state’s 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 “physical condition,” and therefore the risk of contracting the virus does not meet the state’s 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 “correct understanding of the statutory definition of ‘disability.’”

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.

“Voters are smart enough to make their own decisions, whether or not they want to claim a disability, for whatever disability they might have,” Rahman said. “And really the secretary of state and election officials — they can’t check what the disability actually is. So if voters feel like they are disabled in any way, they should vote in whatever way they’re comfortable with voting in this election.”

On the application to vote by mail, voters are asked to check a box confirming they have a disability and aren’t required to provide any other details.

Voters haven’t 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’s disability status.

But election experts say it’s unclear whether the Texas attorney general’s office would try to pursue the issue. Paxton and other Texas Republican officials have attacked efforts to broaden mail-in voting as a “threat to Democracy.”

“I applaud the Texas Supreme Court for ruling that certain election officials’ definition of ‘disability’ does not trump that of the Legislature, which has determined that widespread mail-in balloting carries unacceptable risks of corruption and fraud,” Paxton said after the Supreme Court decision. “Election 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.”

Instances of voter fraud are incredibly rare, and there’s 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’t disabled, said Joaquin Gonzalez, attorney at the Texas Civil Rights Project.

“They couldn’t 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,” Gonzalez said.

The attorney general’s office did not respond to repeated requests for comment.

Bob Kafka, organizer at ADAPT Texas, a disability advocacy grassroots organization, said the attorney general’s messaging alone is enough to intimidate voters.

“The bottom line is 99% of people with disabilities or people that might be in jeopardy of contracting COVID are totally confused,” Kafka said. “Unfortunately, it has the effect of intimidation. Whether that’s the goal or not, the end result is when you’re threatened with a felony of voting fraud, whether its intent is intimidation, its end result is intimidation."

Disability rights activists say they’re 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 “disability” box to verify their disabilities. But as the attorney general continues to release what Kafka says are “threatening” statements, activists still are not sure it’s enough to convince people to vote.

“We are not promoting voter fraud, but we also don’t want people not to vote,” Kafka said. “We already have one of the most restrictive mail in-ballot processes in the whole country.”

The secretary of state’s office declined to comment for this story.

Disclosure: The Texas secretary of state has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2020/09/18/texas-mail-in-voting-disabilities/.

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