Fed appeals court temporarily pauses expansion of vote by mail in Texas amid coronavirus
A federal appeals court temporarily stayed a lower court’s ruling Wednesday that would have expanded eligibility for mail-in ballots amid the novel coronavirus’ outbreak.
A panel of judges from the U.S. 5th Circuit Court of Appeals in New Orleans sided with Attorney General Ken Paxton Wednesday afternoon, and granted an administrative stay of U.S. District Judge Fred Biery’s order that allows eligible Texas voters, regardless of their age, to qualify for a mail-in ballot to avoid contracting the novel coronavirus amid the pandemic.
Paxton had appealed Biery’s ruling Wednesday, and asked the 5th Circuit to issue a temporary stay while it weighs whether the ruling should be blocked as the state’s appeal is considered. The Texas Democratic Party and voters challenging the state have until 3 p.m. on Thursday to respond.
Paxton applauded the temporary stay in a statement Wednesday night.
“Protecting the integrity of elections is one of my top priorities, and allowing universal mail-in ballots would only lead to greater fraud and disenfranchise lawful voters,” Paxton said. “Law established by the Legislature must be followed consistently, including carefully limiting who may and may not vote by mail.”
The Texas Democratic Party did not immediately respond to a request for comment.
The 5th Circuit’s ruling is the latest development in a back-and-forth legal battle between the Texas Democratic Party and the state. And it’s just one of a slew of legal challenges in both state and federal courts that have sought to loosen Texas’ vote-by-mail laws and restrictions amid the pandemic. Civil rights groups and voters suing the state have raised concerns over Texans flocking to potentially crowded polling places amid the outbreak to cast their ballot.
In order to qualify to vote by mail under Texas law, voters must submit an application and be 65 or older, disabled, out of the county on Election Day and during in-person early voting, or be eligible to vote but confined in jail.
In its federal lawsuit against the state, the Texas Democratic Party argued that current election conditions are unconstitutional and violate the 26th Amendment by discriminating against voters who are under 65.
Tuesday night, Biery had sided with the Texas Democratic Party and granted a preliminary injunction that allows Texans who seek “to vote by mail in order to avoid transmission of COVID-19” to apply for a mail-in ballot. Biery’s ruling allowed voters under the age of 65 who would normally be ineligible for a mail-in ballot under Texas law to qualify for one.
Biery agreed that a fear of contracting the virus will limit citizens’ rights to vote in-person and a lack of immunity to COVID-19 “is indeed a physical condition.”
The issue of whether a lack of immunity to COVID-19 allows voters to cite the disability category under state law in order to request a mail-in ballot was at the heart of a hearing Wednesday afternoon before the Texas Supreme Court.
Last week, the Texas Supreme Court sided with Paxton and granted an emergency stay on the 14th Court of Appeals 2-1 decision that upheld a lower court’s ruling. In April, state district Judge Tim Sulak issued a temporary injunction allowing Texans who lack immunity to the novel coronavirus to cite the disability category under state law in order to request a mail-in ballot.
Paxton had said that his appeal of Sulak’s ruling meant the order was stayed, and attorneys for the state have argued that before the federal courts weigh in, issues raised by the Texas Democratic Party’s state district court lawsuit should first be settled by The Texas Supreme Court.
Paxton has argued that while a person ill with COVID-19 would qualify for a mail-in ballot, a fear of contracting the virus would not meet the state’s eligibility requirements. And he has warned local officials that they could be subject to criminal sanctions if they advise voters who normally aren’t eligible to apply for mail-in ballots.
Paxton had requested that the Texas Supreme Court weigh in on his interpretation of the law to prevent local election officials in the counties of Dallas, Cameron, El Paso, Harris and Travis from processing mail-in ballots for voters who cite the disability category due to a fear of contracting COVID-19.
Gov. Greg Abbott told KVUE-TV Tuesday that he thinks both cases “are going to wind up in the U.S. Supreme Court pretty quickly.”
This story was originally published May 20, 2020 at 5:07 PM.
