I have written this piece for Slate. It begins:

On Wednesday, Texas Supreme Court issued a ruling that makes a Lone Star-sized mess of the state’s law on absentee balloting and the question of whether voters who lack immunity to COVID-19 have a valid “excuse” to vote by mail in the upcoming elections. In a nutshell, the court has said that the statute does not allow voters who lack immunity and who fear contracting the virus to vote by mail because the statute only allows voting by mail for those with physical conditions preventing them from voting. But it further says that election officials won’t check the validity of excuses and it will be up to each voter, acting in good faith, to determine whether they have the ability safely vote by mail. This “don’t ask, don’t tell” policy is a recipe for disaster in a state in which Attorney General Ken Paxton has already threatened with criminal prosecution those who advise voters who lack immunity and fear the disease to vote by mail. And it cries for federal court relief….

In other words, the Texas Supreme Court has told voters that they cannot vote by mail if they lack immunity and fear the disease. But if a voter states that she has a disability for whatever reason the clerks will look the other way and let the voter vote by mail.

Again, this is a recipe for disaster. It will lead Paxton to publicize the argument that lack of immunity and fear of getting the disease is not a valid excuse to vote by mail, and that anyone who advises someone else to claim disability to vote by mail is engaged in a criminal conspiracy to commit voter fraud.  Some voters may get in trouble because they could be accused of voting by mail while understanding that it is illegal. Only the ignorant can vote by mail without fear of prosecution, assuming they can later prove their ignorance. Meanwhile, if a voter has a serious underlying condition or comorbidity that increases the risk of serious complications—or death—from COVID-19, the ruling fails to give guidance on whether she is allowed to cite the condition in lawfully voting by-mail in order to avoid the risk of contracting the novel coronavirus. This would seem to leave open the possibility for Paxton to frighten possibly qualifying voters into not voting, or to go after those who do.