The Texas Supreme Court’s majority opinion in In re: State of Texas, No. 20-0394 (May 27, 2020), which addresses whether a lack of COVID-19 immunity can be a “disability” under the Election Code provision allowing a mail-in ballot, has these main points:

• Mandamus relief, availability. It may be appropriate when the parties “agree[] . . . that because of imminence of the July elections, filing first in this Court is justified,” and when “th[e] case also presents questions of state-wide importance.”
• Statutory interpretation. A lack of COVID-19 immunity is not a qualifying disability: “[I]f ‘physical condition’ as used in § 82.002(a) meant ‘physical state of being’, it would swallow the other categories of voters eligible for mail-in voting.” (This holding resolves the main legal issue in other cases statewide involving various county clerk’s offices.)
• Mandamus relief, issuance. “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 respondents do not have a ministerial duty, reviewable by mandamus, to look beyond the application to vote by mail.”
• Going forward. “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.”

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