By Alexa Ura
May 19, 2020 | Republished with permission
Pictured: Mail-in ballot application. Photo by Miguel Gutierrez Jr./The Texas Tribune
Editor’s note: This story has been updated with additional details.
By Alexa Ura
May 20, 2020 | Republished with permission
Editor’s note: This story has been updated with additional developments.
A federal appeals court has temporarily put on hold a lower court’s sweeping ruling that would have allowed all Texas voters to qualify to vote by mail during the coronavirus pandemic.
Siding with Texas Attorney General Ken Paxton, a three-judge panel of the U.S. 5th Circuit Court of Appeals on Wednesday blocked a preliminary injunction issued just a day before by U.S. District Judge Fred Biery. The move could prove to be a temporary win for the state. The appellate panel granted what’s known as an administrative stay, which only stops Biery’s ruling from taking effect while the court considers whether it will issue an injunction nullifying it during the entire appeals process.
Also on Wednesday afternoon, Paxton’s office tried to convince the Texas Supreme Court to issue an order blocking local election officials in Texas from facilitating efforts by voters to obtain absentee ballots if they fear getting sick from voting in person. The court did not issue a ruling, but it grappled with the question of who gets to decide if a voter has a disability under Texas election law.
The developments are the latest in a legal tennis match that in the last week alone has twice opened and then shut the door on a massive expansion of absentee voting in Texas as federal and state courts consider challenges to the state’s rules for mail-in voting. The issue is being fought on two fronts now, but both likely lead to the U.S. Supreme Court as Texas Republican officials continue to resist expanding voting by mail during the pandemic.
The federal court front
A federal judge opened a path for a massive expansion in absentee voting in Texas by ordering Tuesday that all state voters, regardless of age, qualify for mail-in ballots during the coronavirus pandemic.
Days after a two-hour preliminary injunction hearing in San Antonio, U.S. District Judge Fred Biery agreed with individual Texas voters and the Texas Democratic Party that voters would face irreparable harm if existing age eligibility rules for voting by mail remain in place for elections held while the coronavirus remains in wide circulation. Under his order, which the Texas attorney general said he would immediately appeal, voters under the age of 65 who would ordinarily not qualify for mail-in ballots would now be eligible.
Biery’s ruling covers Texas voters “who seek to vote by mail to avoid transmission of the virus.”
In a lengthy order, which he opened by quoting the preamble to the Declaration of Independence, Biery said he had concerns for the health and safety of voters and stated the right to vote “should not be elusively based on the whims of nature.”
“Two hundred forty-years on, Americans now seek Life without fear of pandemic, Liberty to choose their leaders in an environment free of disease and the pursuit of Happiness without undue restrictions,” Biery wrote.
“There are some among us who would, if they could, nullify those aspirational ideas to return to the not so halcyon and not so thrilling days of yesteryear of the Divine Right of Kings, trading our birthright as a sovereign people for a modern mess of governing pottage in the hands of a few and forfeiting the vision of America as a shining city upon a hill,” he said.
In the federal lawsuit, the Texas Democrats argued that holding traditional elections under the circumstances brought on by the coronavirus pandemic would impose unconstitutional and illegal burdens on voters unless state law was clarified to expand who can qualify to vote by mail.
Under existing law, Texas voters qualify for ballots they can fill out at home and mail only if they are 65 years or older, have a disability or illness, will be out of the county during the election period, or are confined in jail.
The Democrats argued that the age limitation violates the U.S. Constitution because it would impose additional burdens on voters who are younger than 65 during the pandemic, and Biery agreed. Biery also found the plaintiffs were likely to succeed in proving the rules violate the 26th Amendment’s protections against voting restrictions that discriminate based on age.
In a statement, Texas Attorney General Ken Paxton said he would seek immediate review of the ruling by the U.S. 5th Circuit Court of Appeals.
“The district court’s opinion ignores the evidence and disregards well-established law,” Paxton said.
In ruling against the state, Biery cast aside arguments made by Paxton’s office that he should wait until a case in state district court is fully adjudicated. In that case, state District Judge Tim Sulak ruled that susceptibility to the coronavirus counts as a disability under the state election code. The Texas Supreme Court put that ruling on hold last week.
During a hearing last week in federal court, Biery scrutinized the state’s argument that it had a significant interest in enforcing existing absentee voting requirements to preserve “the integrity of its election” and to prevent voter fraud.
The attorney general’s office had submitted testimony from the long-winding litigation over the state’s voter ID law that touched on instances of fraud involving the mail ballots of voters who are 65 or older or voters in nursing homes.
“So what’s the rational basis between 65 and 1 day and one day less than 65?” Biery asked.
In his ruling, Biery said the state had cited “little or no evidence” of widespread fraud in states where voting by mail is more widely used.
“The Court finds the Grim Reaper’s scepter of pandemic disease and death is far more serious than an unsupported fear of voter fraud in this sui generis experience,” Biery said. “Indeed, if vote by mail fraud is real, logic dictates that all voting should be in person.”
The case in Biery’s court is part of a growing collection of legal challenges to the state’s existing rules for absentee voting. In other lawsuits, Paxton has argued that a fear of contracting the virus while voting in person doesn’t meet the state’s definition of a disability.
But Biery also took issue with Paxton’s reading of the state’s voting-by-mail qualifications.
The Texas election code defines disability as a “sickness or physical condition” that prevents a voter from appearing in person without the risk of “injuring the voter’s health.” Biery opined that Paxton’s interpretation “rendered the statute unconstitutionally vague” because it left unclear which voters qualify to vote by mail under its provisions.
Biery also found that the plaintiffs were likely to succeed on their claim that Paxton’s statements on voting by mail amounted to unlawful voter intimidation.
Paxton previously issued guidance to local election officials in which he raised the prospect that “third parties” could face criminal sanctions if they advise voters who typically do not qualify for mail-in ballots to request them under the circumstances allowed by Sulak’s ruling. Paxton has also claimed in public statements that expanding eligibility for absentee voting “will only serve to undermine the security and integrity of our elections.”
“Defendant Paxton’s statements operate to discourage voters from seeking mail-in ballots because of their fear of criminal sanction or victimization by fraud,” Biery wrote, “and have the intention and the effect of depriving legally eligible voters’ access to the franchise.”
In a live interview as news of the ruling broke, Gov. Greg Abbott indicated he expected the ongoing cases to wind up at the U.S. Supreme Court.
“Here’s the important deal, and that is we want people to vote based upon our current laws,” Abbott said. “We want them to be able to vote safely, and we want to do so in the way that does the most to reduce any potential fraud.”
Patrick Svitek contributed to this report.
“Federal judge says all Texas voters can apply to vote by mail during pandemic” was first published at https://www.texastribune.org/2020/05/19/federal-judge-says-texas-voters-can-vote-mail-during-coronavirus/ by The Texas Tribune. The Texas Tribune is proud to celebrate 10 years of exceptional journalism for an exceptional state.