Do I need a Social Security or VA disability rating to vote early by mail in Texas?

Plain-English summary

W. Coty Siegert, the Robertson County and District Attorney, asked the Attorney General what "disability" means on a Texas application for an early-voting ballot by mail. Section 82.002 of the Election Code lets a qualified voter vote early 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." The mail-in application has a box a voter can check for "Disability." The district attorney wanted to know whether that box draws on disability definitions from other laws, such as the standards the Social Security Administration or the Department of Veterans Affairs use, or only the Election Code's own standard.

The AG concluded the Election Code's standard is the one that controls. The plain language of section 82.002 does not require a voter to satisfy any disability definition from outside the Election Code. The statute even gives a non-limiting example: expected or likely confinement for childbirth on election day qualifies. The Texas Secretary of State, which administers section 82.002, took the same position in briefing, explaining that the statute itself sets the appropriate standard for mail-in voting based on a disability.

The AG explained that the Social Security and Veterans Affairs standards are not mutually exclusive with the Election Code standard. A person whom Social Security has found disabled could vote by mail if that disability amounts to a sickness or physical condition that prevents appearing at the polling place as section 82.002 describes. But a disability determination under some other standard, by itself, is not what makes a voter eligible. To vote early by mail on the ground of disability, a qualified voter need only meet the section 82.002 standard. The AG also noted, in a footnote, that while proof of disability is not required to apply for a mail-in ballot, a voter may be compelled to produce it if the voter's qualification is challenged in court.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Election law in particular changes often. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Voters checking the "disability" box (as the opinion described it): The opinion described eligibility as turning on the Election Code's own standard in section 82.002, a sickness or physical condition that prevents appearing at the polls without likely needing assistance or injuring the voter's health, not on a disability rating from another agency.

Voters who already have an SSA or VA disability rating (as the opinion described it): The opinion treated such a rating as neither automatically qualifying nor disqualifying. A person found disabled by Social Security could vote by mail if that condition met the section 82.002 standard, but the outside rating alone was not determinative.

Election officials and the county clerk (as the opinion described it): The opinion described section 82.002, as administered by the Secretary of State, as the measure of mail-in eligibility on a disability, and noted that a voter's qualification may be challenged and proof compelled in court even though proof is not required to apply.

The district attorney who asked (as the opinion described it): The opinion answered that the "disability" on the application means the section 82.002 standard and does not incorporate disability definitions from other state or federal statutes.

Common questions

Can I vote early by mail in Texas just because Social Security says I'm disabled?
The AG said a Social Security disability finding does not by itself qualify you. You qualify if your condition is a sickness or physical condition that prevents you from appearing at the polling place without likely needing personal assistance or injuring your health, the standard in section 82.002.

Does the "disability" box on the mail-in application use the ADA or VA definition of disability?
The AG concluded it does not. Section 82.002 makes no reference to disability determinations by other agencies, so the Election Code's own standard applies, not the ADA, Social Security, or Veterans Affairs definitions.

Do I have to prove my disability to get a mail-in ballot?
The AG noted that proof of disability is not necessary just to apply, but a voter may be compelled to produce it if the voter's qualification for voting by mail is challenged in court.

What is the actual standard for voting by mail on a disability?
A qualified voter must have "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," as stated in section 82.002(a).

Background and statutory framework

Section 82.002 of the Election Code allows a qualified voter to cast an early ballot by mail if the voter has a sickness or physical condition that prevents appearing at the polling place on election day without a likelihood of needing personal assistance or injuring the voter's health (Tex. Elec. Code Ann. § 82.002(a)). The statute supplies a non-limiting example, treating expected or likely confinement for childbirth on election day as qualifying (Tex. Elec. Code Ann. § 82.002(b)). The early-voting application requires certain information from an applicant applying on the ground of age or disability (Tex. Elec. Code Ann. § 84.011(a)(4)(D)). The Secretary of State administers and seeks uniformity in applying the election laws (Tex. Elec. Code Ann. § 31.003).

The AG applied plain-language construction, the best indicator of legislative intent, and noted that a court defers to an agency's reading only if the statute is ambiguous and the reading is reasonable and consistent with the text (Zanchi v. Lane, 408 S.W.3d 373 (Tex. 2013); TracFone Wireless, Inc. v. Comm'n on State Emergency Commc'ns, 397 S.W.3d 173 (Tex. 2013)). Because section 82.002 refers to no outside disability standard, the AG concluded the Social Security and Veterans Affairs definitions (20 C.F.R. § 404.1505; 38 C.F.R. §§ 4.1-4.150), and the separate Americans with Disabilities Act definition (42 U.S.C.A. § 12102), do not control mail-in eligibility, though they are not mutually exclusive with the Election Code standard. The AG added that the manner and procedure of casting absentee ballots is mandatory and statutory, so a voter's qualification can be challenged and proof compelled in court (Tiller v. Martinez, 974 S.W.2d 769 (Tex. App.-San Antonio 1998, pet. dism'd w.o.j.)).

Citations

Statutory and regulatory provisions:

• Tex. Elec. Code Ann. § 82.002(a)-(b) (standard for early voting by mail on a disability)
• Tex. Elec. Code Ann. § 84.011(a)(4)(D) (early-voting application; age or disability)
• Tex. Elec. Code Ann. § 31.003 (Secretary of State's uniformity duty)
• 42 U.S.C.A. § 12102 (ADA definition of "disability")
• 20 C.F.R. § 404.1505 (Social Security disability definition)
• 38 C.F.R. §§ 4.1-4.150 (Veterans Affairs disability rating schedule)

Cases:

• Tiller v. Martinez, 974 S.W.2d 769, 775 (Tex. App.-San Antonio 1998, pet. dism'd w.o.j.)
• Zanchi v. Lane, 408 S.W.3d 373, 376 (Tex. 2013)
• TracFone Wireless, Inc. v. Comm'n on State Emergency Commc'ns, 397 S.W.3d 173, 182 (Tex. 2013)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0009
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2015/kp0009.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

March 9, 2015

The Honorable W. Coty Siegert Opinion No. KP-0009
Robertson County and District Attorney
Post Office Box 409 Re: Qualification for early voting by mail
Franklin, Texas 77856 under section 82.002 of the Election Code
(RQ-1221-GA)

Dear Mr. Siegert:

You ask about the disability requirements for voting early by mail pursuant to section 82.002 of the Election Code. [1] Section 82.002 allows qualified voters to cast a mail-in ballot in an election prior to the official election day "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." TEX. ELEC. CODE ANN. § 82.002(a) (West 2010). You state that "[o]n the application for ballot by mail, there is a box voters can check for 'Disability' which allows them to vote early by mail." Request Letter; see TEX. ELEC. CODE ANN. § 84.011(a)(4)(D) (West 2010) (requiring certain information on an early voting ballot application for "an applicant applying on the ground of age or disability"). You question whether the term "disability" as used on the mail-in ballot application means only the "sickness or physical condition" in subsection 82.002(a), or whether it also includes definitions of disability from other statutes. Request Letter.

The Texas Secretary of State ("SOS") is the entity tasked with administering and applying section 82.002. See TEX. ELEC. CODE ANN. § 31.003 (West 2010) (requiring SOS to "obtain and maintain uniformity in the application, operation, and interpretation of" state election laws). In briefing submitted in response to your request, SOS states that "section 82.002 sets out the appropriate standard" for mail-in voting based on a disability, such that "a voter should believe that they have a sickness or condition which prevents them from voting by personal appearance without assistance or without injuring their health." [2]

The manner and procedure of casting absentee ballots, which includes mail-in ballots, "is mandatory and directed by statutory requirements." Tiller v. Martinez, 974 S.W.2d 769, 775 (Tex. App.-San Antonio 1998, pet. dism'd w.o.j.). When construing a statute, a court will focus on the statute's plain language, which is the best indicator of legislative intent. Zanchi v. Lane, 408 S.W.3d 373, 376 (Tex. 2013). A reviewing court will defer to an agency's interpretation of a statute only if the statute is ambiguous, provided that the agency's interpretation is reasonable and does not conflict with the plain language of the statute. TracFone Wireless, Inc. v. Comm'n on State Emergency Commc'ns, 397 S.W.3d 173, 182 (Tex. 2013).

The plain language of section 82.002 does not require that a person satisfy any specific definition or standard of "disability" outside of the Election Code in order to qualify to vote by mail. The statute does, however, provide a clarifying but non-limiting example of a condition that satisfies the expressed standard. See TEX. ELEC. CODE ANN. § 82.002(b) (West 2010) (providing that "[e]xpected or likely confinement for childbirth on election day" would qualify one to vote under subsection 82.002(a)).

You refer to definitions of disability used by the Social Security Administration ("SSA") and the United States Department of Veterans Affairs ("DVA"), two federal agencies that provide services to disabled citizens. Request Letter. SSA and DVA use their own standards for determining a person's disability for purposes of establishing eligibility for services. [3] Election Code section 82.002 makes no reference to a determination of disability made by any state governmental entity or federal agency. See TEX. ELEC. CODE ANN. § 82.002 (West 2010); cf. 42 U.S.C.A. § 12102 (West 2013) (defining "disability" for purposes of the Americans with Disabilities Act). Nor does it condition or limit eligibility based on any such determination. Further, while the disability standards used by SSA and DVA may differ from the standard described under section 82.002, nothing indicates that the two are mutually exclusive for purposes of mail-in voting eligibility. A person determined to be disabled by SSA, for example, would be eligible to vote in an election by mail if the SSA disability constituted a "sickness or physical condition that prevents the voter from appearing at the polling place on election day" as provided under section 82.002. Id. § 82.002(a). In accordance with the plain language of section 82.002, to be eligible for early voting by mail, a qualified voter need only satisfy the disability standard established under section 82.002. Consistent with SOS's construction of the statute, a determination of disability under a different standard or definition of "disability," standing alone, is not determinative of a person's qualification for early mail-in voting under section 82.002.

SUMMARY

To be eligible to vote early by mail based on a disability, a qualified voter must satisfy the standard established under section 82.002 of the Election Code. A disability determination under a different standard or definition of "disability," standing alone, is not necessarily determinative of a person's qualification for early mail-in voting under section 82.002.

Very truly yours,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Assistant Attorney General

[1] Letter from Honorable W. Coty Siegert, Robertson Cnty. & Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. (Sept. 11, 2014), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Brief from Keith Ingram, Dir. of Elections, Tex. Sec'y of State at 1 (Oct. 1, 2014) (on file with Op. Comm.). A person's qualification to cast a vote by mail in an election may be subject to challenge. Tiller, 974 S.W.2d at 775 ("Votes are void and should not be counted if the evidence shows that procedural statutory requirements were not followed in the casting of absentee ballots[.]"). Consequently, while proof of disability may not be necessary to apply for a mail-in ballot, its production may be compelled if a voter's qualification for voting by mail is challenged in court.

[3] The SSA uses the following definition of disability: "the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 404.1505 (2014). The DVA, by contrast, uses a specific disability rating schedule governed by 38 C.F.R. §§ 4.1-4.150 (2014).