Texas Supreme Court Says It's Improbable Most Texans Will Contract COVID-19

And calls Ken Paxton a liar — sorta.

As expected, the all-Republican Texas Supreme Court yesterday agreed with indicted Attorney General Ken Paxton that “lack of immunity to COVID-19 is not itself a ‘physical condition’ that renders a voter eligible to vote by mail” under Texas law. However, the court disagreed (and called the State’s arguments “misrepresentations”) that elections administrators who issue ballots to voters who mark “disability” on an absentee ballot application are breaking the law and/or encouraging voters to apply under false pretenses and, thus, refused to issue the writ of mandamus the AG requested. This is largely because elections administrators have no authority to investigate claims made on absentee ballot applications.

The most surprising part of the ruling, though, is the Texas judiciary’s belief that it is improbable most people will become infected with coronavirus:

“We all agree that ‘likelihood’ means a probability. But for the population overall, contracting COVID-19 in general is highly improbable. This is not to say that the risk is not greater for certain persons or in certain situations, as we have noted. Indeed, that improbability has justified the efforts throughout the state to reopen business and activities in a gradual return to normalcy.”

Of course, the court negates its own argument in the next sentence when it says, “In addition, as the State highlights, authorities planning elections are working in earnest to ensure adherence to social distancing, limits on the number of people in one place, and constant sanitation of facilities.” One might ask why such a focus on sanitation and small numbers when there’s so little chance of contagion. Or we could just realize they’re using BS arguments as usual.

Here are the key (and closing) lines of the Texas Supreme Court decision (with my emphasis):

The elected officials have placed in the hands of the voter the determination of whether in-person voting will cause a likelihood of injury due to a physical condition. The [clerks] do not have a ministerial duty, reviewable by mandamus, to look beyond the application to vote by mail. Moreover, while the State has alleged that the Clerks are accepted “improper application[s],” there is no evidence in the record that any has accepted a faulty application.

The Clerks have assured us that they will fully discharge their duty to follow the law. We are confident that they will follow the guidance we have provided here. Accordingly, we conclude that issuing the writ of mandamus to compel them to do so is unwarranted.

All that said, none of it really matters because the federal courts have intervened and we await a ruling from the Fifth Circuit.

Essentially, the Texas Supreme Court ruling changes nothing.