It seems unlikely a move to expand the population of Texans who can vote by mail will get a fair hearing this week before the Texas Supreme Court.
It’s a highly partisan issue. Republicans tend to be against it, Democrats for it. And unfortunately in this case, the state’s court system, in which judges are elected, also can be highly partisan.
All nine members of the court are Republicans.
It’s possible for members of the court to rise above their party’s long opposition to extending mail-in voting rights to more Texans. It is unlikely, however, and that’s a shame and a disservice to voters and to democracy.
This is a long-running conflict between the two major parties, but at issue now is a lawsuit Texas Democrats filed in effort to expand mail-in voting rights during the coronavirus pandemic. The argument is people at risk of infection should be allowed to vote by mail because the law allows people to claim a disability if they have a “sickness or physical condition.”
Lack of immunity to COVID-19 is a physical condition, the lawsuit argues.
Both a Travis County district court and the Texas 14th Court of Appeals agreed, which meant practically all Texans could vote by mail.
The supreme court, however, blocked the expansion until it can hear arguments, which are scheduled for Wednesday.
There’s no good reason for the state to deny most all Texans, and those worried about contracting the coronavirus, the same voting option it already extends to some Texans during every election.
The main argument against allowing mail-in voting is doing so would lead to fraud, as Attorney General Ken Paxton argued when he urged the Texas Supreme Court to intervene.
Interestingly, Paxton is making the same fundamental argument gun control advocates use in attempts to justify curtailing firearms ownership. Guns should be restricted or banned among all because a few might use them in crime. The more guns the more crime. The more mail-in ballots the more crime.
It’s a weak argument in both cases and both are examples of laws that punish the law-abiding in attempt to control those inclined to break the law.
It’s also interesting to look at who can vote by mail now.
Among them are the disabled, which is reasonable.
Also among them is anyone 65 or older. That’s almost certainly the biggest population of mail-in voters. It also highlights the biggest flaw in arguments for keeping the law exactly as restrictive as it is now.
Anybody who has looked around lately knows 65 isn’t what it used to be. Plenty of people 65 and much older typically engage in activities far more arduous than going to the polls now and then.
People 65 and older are no less likely to be dishonest than the general population.
So if fraud is really the issue, age alone shouldn’t be considered at all in granting the right to vote by mail.
The punch line in the fraud joke, however, is that people who are incarcerated are eligible for mail-in voting. They can be trusted to cast mail-in ballots, but the rest of us can’t be.
Voting rights activists and Democrats will argue the GOP’s opposition to mail-in voting has nothing to do with fraud and everything to do with the demographics of voting and suppressing turnout.
One prong of that theory is older people tend to vote more conservatively. The other is that denying mail-in voting to most people keeps turnout low, which favors Republican candidates. So, by setting a limit at the mostly arbitrary age of 65, Republicans are granting a right mostly to people most likely to vote Republican.
It is hard to square allowing healthy, mobile 60-somethings an exclusive right to mail it in with the Fourteenth Amendment, which guarantees equal protection under the law.
It’s impossible to justify doing so with the old strawman argument about fraud.
If fraud is the problem, mail-in voting should be restricted even more. Physical infirmity and incarceration alone should determine eligibility.
The Texas Supreme Court should, but probably won’t, allow the mail-in option for most Texans. Killing the option certainly will look like a partisan act meant to suppress turnout.
The thing about voter suppression tricks like this, however, is they work only when voters allow them to.
If the court kills the mail-in option and that makes you mad, stay mad and go vote on Election Day.
• Michael A. Smith