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
Biery’s ruling Tuesday was a major win for Democrats and individual voters suing for expanded mail-in voting.His order covered Texas voters "who seek to vote by mail to avoid transmission of the virus" under the age of 65 who would ordinarily not qualify for mail-in ballots. The appeals court’s action Wednesday temporarily reverts Texas back to existing limits on absentee ballots: They are available only if voters are 65 or older, cite a disability or illness, will be out of the county during the election period, or are confined in jail.
The case in Biery’s court focused, in part, on whether the state’s age limitation violates the U.S. Constitution. The Texas Democratic Party and a few individual voters argued it would impose additional burdens on voters who are younger than 65 during the pandemic.
Among his findings in a lengthy ruling, Biery agreed that the state’s failure to provide a safe option to vote by mail during the pandemic to voters under 65 violates the Equal Protection Clause of the 14th Amendment and the 26th Amendment’s protections against voting restrictions that discriminate based on age. Biery also cast aside arguments offered by the attorney general's office that he should wait until a case in state district court is fully adjudicated and shot down arguments that widening voting by mail to those under 65 would invite increased voter fraud in the state.