One day after a federal district judge ruled all Texas voters qualify for mail-in ballots during the coronavirus pandemic, a federal appeals court has put the ruling on temporary hold.
On May 19, Judge Fred Biery—presiding over a case in which the Texas Democratic Party and several Texas voters sued state officials, including Gov. Greg Abbott and Attorney General Ken Paxton—ruled that Texas could not deny voters access to mail ballots on the basis of age for elections that take place during the pandemic. Doing so would be a violation of the 26th Amendment of the U.S. Constitution, Biery said.
On May 20, Paxton appealed the ruling, calling on the U.S. Fifth Circuit Court of Appeals to issue a stay, which would prevent the ruling from taking effect during the appeal. Paxton also called for the ruling to be put on immediate hold while the appeals court considered his motion.
"Election officials will begin distributing mail-in ballots next week; time is of the essence," Paxton wrote in the appeal, stressing the urgency of his motion.
In his 73-page ruling, Biery had cited dangers posed by the coronavirus, ruling that a lack of immunity to COVID-19 constitutes a “physical condition” that would qualify a person for a mail ballot under the umbrella of “disability.”
“The evidence also shows voters are right to be fearful and anxious about the risk of transmission to their physical condition,” Biery wrote in a 73-page ruling. “Texas saw the largest single-day jump in coronavirus cases since the pandemic [May 16]. The Court finds such fear and anxiety is inextricably intertwined with voters' physical health. Such apprehension will limit citizens' rights to cast their votes in person. The Court also finds that lack of immunity from COVID- 19 is indeed a physical condition.”
Biery’s ruling came as local officials across the state are preparing for July 14 primary runoff elections. Typically, mail ballots are only available to Texans for one of four reasons: The voter is age 65 or older, has a disability, is a resident of Harris County but will not be able to vote in the county during the election, or is in jail but is otherwise eligible to vote.
Several lawsuits related to mail ballot access are also playing out in state courts, including another one in which Paxton is squaring off against the Texas Democratic Party and the American Civil Liberties Union of Texas over whether a lack of immunity to COVID-19 qualifies a voter for a mail ballot. After a lower court judge ruled in favor of the plaintiffs, the Texas Supreme Court stayed that ruling.
The Supreme Court heard oral arguments May 20 related to a petition for a writ of mandamus filed by Paxton last week. In his petition, Paxton asked judges to order election officials in five counties—Harris, Travis, Dallas, El Paso and Cameron—to follow his interpretation of the law.
Officials in the five targeted counties also filed briefs in the case, arguing what they are doing is within state law.
“Election officials in Harris County have not invited people to cower in their homes out of fear on election day,” the Harris County Attorney’s Office wrote in its brief. “They have advised them to vote by mail if they do not have immunity to a highly contagious disease that is likely to injure their health. Under the current circumstances—circumstances almost totally unique in Texas history—that is perfectly within state law.”
Tommy Buser-Clancy, a senior staff attorney with the ACLU of Texas, said he believes Paxton’s effort to take the case directly to the Texas Supreme Court was inappropriate and the proper remedy is to let it go through the appeals process. He said it is unclear at this point how all the different interlocking legal battles might play out.
“I think people think there’s a decent possibility that today’s case will resolve a lot of the statutory issues, but it is also very possible, and we think the right answer, for the court to not resolve them today because the case is improperly before it,” Buser-Clancy said in a May 20 phone interview. “I don’t think we’ll know until we read the court’s opinion.”