Guidance Concerning Ballot by Mail Eligibility Based on Disability

The Office of Attorney General is providing the attached updated guidance in light of confusion that has arisen around the availability of ballots by mail based on “disability” as that term is defined in the Texas Election Code.  The guidance confirms that “an individual’s fear of contracting COVID-19 is not, by itself, sufficient to meet the definition of disability for purposes of eligibility to receive a ballot by mail.” The guidance also notes that to “the extent third parties advise voters to apply for a ballot by mail for reasons not authorized by the Election Code, including fear of contracting COVID-19 without an accompanying qualifying disability, such activity could subject those third parties to criminal sanctions imposed by Election Code section 84.0041.”

In addition, the guidance clarifies the impact of ongoing litigation in federal and state court involving the definition of “disability” in Section 82.002 of the Texas Election Code. On April 17, 2020, a state district judge in Travis County issued a temporary injunction regarding eligibility to vote by mail under Section 82.002. The State immediately appealed the district court’s temporary-injunction order to the Third Court of Appeals. As a result of that appeal, the April 17 temporary-injunction order has been stayed—and thus is not operative—while the State’s appeal is pending. The Election Code’s provisions regarding eligibility to vote by mail, and the statutory process governing the conduct of voting by mail—including the requirement that a qualified voter seeking to vote by mail must first submit a mail-ballot application to the early voting clerk—remain in effect for the 2020 elections.