Office of the Attorney GeneralApril 14, 2020 (Approx. 4 pages)
Tex. Atty. Gen. Op. XX-0001 (Tex.A.G.),
Office of the Attorney General
State of Texas
April 14, 2020
*1 The Honorable Stephanie Klick
Committee on Elections
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910
Dear Chairwoman Klick:
You have asked us for guidance on whether a qualified voter who wishes to avoid voting in-person because the voter fears contracting COVID-19 may claim a disability entitling the voter to receive a ballot by mail regardless of whether the voter would need personal assistance to vote in-person or risk injuring their health because of a sickness or physical condition.1 We conclude that, based on the plain language of the relevant statutory text, fear of contracting COVID-19 unaccompanied by a qualifying sickness or physical condition does not constitute a disability under the Election Code for purposes of receiving a ballot by mail.
The Election Code establishes specific eligibility requirements to obtain a ballot by mail for early voting. Tex. Elec. CODE §§ 82.001-.004. While any qualified voter is eligible to early vote by personal appearance, the Legislature has provided limited access to early voting by mail for individuals who meet specific qualifications. Section 82.002 of the Election Code, titled ““Disability,” allows a qualified voter to early vote by mail “if the voter has 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.” See id. § 82.002(a). Thus, we must construe this provision to determine whether the Legislature intended to include within the population of individuals eligible to vote by mail those with a fear of contracting a disease—in this instance COVID-19—but without a then-present sickness or physical condition that would limit their ability to vote in-person.
The Legislature has defined “disability” for purposes of voting by mail as a ““sickness or physical condition” that prevents a person from voting in-person on election day without a likelihood of needing personal assistance or of injuring the voter's health. TEX. ELEC. CODE § 82.002(a). Thus, we look to the common meaning of those words to determine the Legislature's intent as to who qualifies to vote by mail by reason of disability. SeeTex. Att'y Gen. Op. KP-0009 (2015) (concluding that to be able to vote by mail, a voter must satisfy the standard of disability established under section 82.002, and that standards of disability set in other unrelated statutes are not determinative). The common understanding of the term “sickness” is “the state of being ill” or “having a particular type of illness or disease.” New Oxford Am. Dictionary 1623 (3d ed. 2010).2 A person ill with COVID-19 would certainly qualify as having a sickness. However, a reasonable fear of contracting the virus is a normal emotional reaction to the current pandemic and does not, by itself, amount to a “sickness,” much less the type of sickness that qualifies a voter to vote a mail-in ballot under Texas Election Code section 82.002.
*2 In addition to “sickness,” the Legislature has allowed voters having a physical condition that prevents them from appearing at the polling place without assistance or without injury to their health to vote by mail. TEX. ELEC. CODE § 82.002(a). “Physical” is defined as “of or relating to the body as opposed to the mind.” New Oxford Am. Dictionary 1341, (3d ed. 2010). ““Condition” is defined as “an illness or other medical problem.” Id. at 362. Combining the two words, a physical condition is an illness or medical problem relating to the body as opposed to the mind. To the extent that a fear of contracting COVID-19, without more, could be described as a condition, it would at most amount to a mental or emotional condition and not a physical condition as required by the Legislature to vote by mail. Thus, under the specifications established by the Legislature in section 82.002 of the Election Code, an individual's fear of contracting COVID-19 is not, by itself, sufficient to meet the definition of disability for purposes of eligibility to vote a mail-in ballot.
Finally, to the extent third parties advise voters to apply for a mail-in ballot based solely on fear of contracting COVID-19, such activity could subject those third parties to criminal sanctions imposed by Election Code section 84.0041. Tex. Elec. CODE § 84.0041 (providing that a person commits an offense if the person “intentionally causes false information to be provided on an application for ballot by mail”); see also id. § 276.013 (providing that a person commits election fraud if the person knowingly or intentionally causes a ballot to be obtained under false pretenses, or a misleading statement to be provided on an application for ballot by mail). However, whether specific activity constitutes an offense under these provisions will depend upon the facts and circumstances of each individual case.
Please note that as discussed above this response is not an official opinion of the Office of the Attorney General issued under section 402.042 of the Texas Government Code, nor is it an exhaustive memorandum of law; rather, it is an informal letter of legal advice offered for the purpose of general guidance.
Related to this request, we understand that you have received correspondence in your capacity as Chair of the Texas House of Representatives Committee on Elections from other State lawmakers advocating that you support use. of the early voting by mail option for such voters. We also understand that some voters have been encouraged by third parties to apply for a ballot by mail by identifying as disabled based on fear of COVID-19, and without reference to the voters' health or physical condition. As a general rule, we do not opine through the formal opinion process on questions, such as these, that are the subject of pending litigation. See Tex. Democratic Party, et al., v. Debeauvoir, No. D-1-GN-001610 (201st Dist. Ct., Travis Cnty., Tex.). However, given the time-sensitive nature of your request and the urgency presented by the present COVID-19 crisis, we are providing this informal guidance to assist you.
See alsoTex. Att'y Gen. Op. KP-0149 (2017) (noting that a behavioral abnormality of a sexually violent predator sufficient to result in civil commitment qualifies as a sickness, understood as an “unsound condition” or disease of the mind, under section 82.002(a)).