On May 27, Republican officials in Texas declared victory as the Texas Supreme Court unanimously declared a lack of immunity to COVID-19 does not qualify as a valid qualification to vote by mail. Texans are currently eligible to apply if they are 65 years of age or older, disabled, imprisoned, or will be absent from the county during an election.

The court agreed with Texas Attorney General Ken Paxton that a voter's lack of immunity to COVID-19, without more, is not a "disability" as defined by the Election Code, which defines a disability as a "sickness or physical condition" that blocks a voter from voting in person without risking their health. "We agree with the state that a voter's lack of immunity to COVID-19, without more, is not a 'disability' as defined by the Election Code," the court wrote.

"In no sense can a lack of immunity be said to be such an incapacity," Chief Justice Nathan Hecht wrote in an opinion. "Accordingly, we conclude that a lack of immunity to COVID-19 is not itself a physical condition for being eligible to vote by mail."

But despite their refusal to expand vote-by-mail eligibility, the court ruled that, "a voter can take into consideration aspects of his health and his health history that are physical conditions in deciding whether, under the circumstances, to apply to vote by mail because of disability."

This means that it is up to voters to assess their own condition to determine if they meet the state's requirements, which could allow voters to decide for themselves whether they qualify and give officials very little ability to question their evaluation. Additionally, the Supreme Court denied Paxton's appeal to block local election officials from delivering mail-in ballots to Texans citing fear of contracting COVID-19 as a disability.

Under Texas law, when filling out an application for an absentee ballot, voters are not required to explain or identify their disability. They simply mark the field indicating they have a disability, and assuming the rest of the application has been properly completed, they are mailed a ballot. The Supreme Court decided that this was in fact lawful, and election officials have a duty to send out ballots to applicants that meet state guidelines.

And while the ruling states applicants do not qualify if they are in perfect health (and simply not immune to COVID-19), nobody is truly in perfect physical condition, putting the decision more or less in the voters' hands to decide for themselves whether they should qualify.

Texas Democrats have criticized the ruling as "reflective of Texas Republican leadership that long ago failed to serve Texans' needs and interests," noting that the decision came after oral arguments held over videoconference in lieu of the Austin courtroom due to COVID-19 concerns. "Now, it is up to the federal court to ensure basic constitutional rights still exist in Texas," said state party Chairman Gilberto Hinojosa, "and to ensure that Texans have a right to vote safely and not put their health at risk."

Meanwhile, Paxton praised the decision, saying "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."

Despite this, studies have found little evidence of voter fraud connected to voting by mail and no clear advantage for either party. Meanwhile, the U.S. Election Assistance Commission reports around one-quarter of all voters in the 2018 midterm elections voted by mail-in ballot, representing around 30 million citizens.

This issue has now been fought in multiple courtrooms across Texas, but is likely headed for the U.S. Supreme Court as the pandemic continues, and Texas Republicans continue to deny expansion of mail-in ballot eligibility. Proponents of expansion argue Americans have the right to life, liberty and the pursuit of happiness, and anything that impedes participation in that process, including laws limiting constitutional voting rights, should be contested. As it currently stands, COVID-19 could help accelerate the process of modernizing Texas voting by calling into question issues that have hindered Texas voters for years.

The Supreme Court, in addition to canceling in-person oral arguments, has been under an emergency order since Tuesday which has extended requirements for the majority of lower-court hearings to be held remotely. Jury trials have also been postponed until Aug. 1 at the earliest.

Brett Cain is a trial lawyer who has tried over 50 jury trials and has resolved hundreds more disputes by mediation since 2006. He is the owner of the Cain Firm, a partner of The Law Center, a national network of top law firms with decades of experience in advocating for those who have suffered from personal injury, asbestos-related diseases, motor vehicle accidents and more. Cain is proud to stand up for those who cannot stand for themselves, and, as a result, has recovered millions of dollars for clients after insurance companies initially wouldn't pay.