Federal judge says all Texans can apply to vote by mail during COVID-19 pandemic

Dallas News

AUSTIN — A federal judge in San Antonio granted a temporary injunction on Tuesday allowing all Texas voters to vote by mail in upcoming elections during the COVID-19 pandemic.

“Any eligible Texas voter who seeks to vote by mail in order to avoid transmission of COVID-19 can apply for, receive, and cast an absentee ballot in upcoming elections during the pendency of pandemic circumstances,” U.S. District Judge Fred Biery wrote in his order.

The ruling is a major victory for the Texas Democratic Party and voting rights groups which filed the lawsuit. It will almost certainly be appealed by Attorney General Ken Paxton who has opposed the expansion of mail voting.

In one of the court’s most sweeping determinations, Biery found that Texas’ election code – which allows for mail voting for people over the age of 65 – violated the 26th amendment by abridging or denying the rights of people under that age their right to vote.

Biery also agreed with a state district court that had interpreted the lack of immunity to COVID-19 as a physical condition that qualified Texans for mail ballots under the state election code’s disability clause.

“The district court’s opinion ignores the evidence and disregards well-established law,” Paxton said in a statement. “We will seek immediate review by the Fifth Circuit Court of Appeals.”

Reacting to the court’s injunction, Gov. Greg Abbott told KVUE-TV in Austin that he predicts the case will work its way to the U.S. Supreme Court “pretty quickly.”

But the Texas Democratic Party celebrated the ruling.

“Today is a victory for all Texans,” Gilberto Hinojosa, the party’s chairman said in a statement. “The right to vote is central to our democracy. This ruling means eligible voters can vote by mail during this pandemic. It is time for a few state officers to stop trying to force people to expose themselves to COVID-19 in order to vote.”

Biery, who was appointed as a federal judge by President Bill Clinton, said election administrators in Travis and Bexar counties who are defendants in the case “may not deny a mail in ballot to any Texas voter solely on the basis that the voter does not otherwise meet” the state’s established eligibility for mail voting. They must also accept and count all mail ballots received this way.

Biery ordered Secretary of State Ruth R. Hughs to ensure uniform application of his order across Texas and ordered all defendants not to issue any guidance or threats of criminal prosecution that would go against his order. That order was a direct protection for voters and election officials against Paxton who had previously told election officials that they could be criminally liable if they sent mail ballots to voters who were scared of contracting the virus.

Paxton gave that guidance after a state district judge had ruled in Travis County that election officials could send mail ballots to voters who lacked immunity to COVID-19 – essentially every voter in the state.

Biery also ordered all of the defendant’s to post his order publicly on their website and mandated that state officials send it to election administrators in every Texas county.

Abbott, who was the state’s attorney general before he was elected governor in 2014, said he wants Texans “to be able to vote safely” but without going beyond the qualifications that state law now sets.

“We want people to be able 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 a way that does the most to reduce any potential fraud.”

Abbott said the state had already taken steps to make voting safer and pointed to his delay of the May 26 runoff election for state offices to July 14 because of the COVID-19 pandemic.

“We sought to achieve that [safety] in the elections that are taking place this July … by extending the time period for early voting to make sure that everyone’s going to have plenty of time to be able to go voting in ways in which there won’t be very many people there — hence, reducing the potential of contact and hence, reducing the spread of COVID-19.”

In considering the plaintiffs’ request to allow all voters in the state to use mail voting, Biery said he considered the risk to poll workers, many of whom are over 65 and at high-risk for severe complications if exposed to the virus. He also took into account that other states have implemented mail voting expansions during the pandemic and President Donald Trump’s recent use of mail voting.

On Tuesday, the Michigan Secretary of State announced that all voters would receive mail ballot applications.

Biery said that different branches of the Texas government had issued conflicting information that confused voters. He also castigated Hughs for not providing clarity to the plaintiffs.

He also took Paxton to task for raising the specter of voter fraud in connection with mail ballots, saying the state cited “little or no evidence of such in states already” using mail ballots. He said a previous case had proved “that there is no widespread voter fraud,” adding that he trusted law enforcement to prevent and prosecute the “infinitesimal events of voter fraud, none of which are likely to affect election outcomes.”

“Between 2005 to 2018, there were 73 prosecutions out of millions of votes cast,” he said. “The Court finds the Grim Reaper’s scepter of pandemic disease and death is far more serious than an unsupported fear of voter fraud.”

The legal battle has taken on added urgency because the primary runoffs are less than two months away. That election, set for July 14, will decide the Democratic Senate candidate to challenge Republican Sen. John Cornyn and several high-stakes statehouse and congressional races for both parties.

Democrats and voting rights groups say election officials have to start preparing now in order to be able to safely hold those elections.

Part of their motivation in seeking expanded mail ballots, Democrats said, is to avoid the scenario that played out in Wisconsin in April when voters waited in long lines where social distancing protocols were not followed. Those elections, Democrats argue, may have led to the spread of the virus in the state. 

Biery made clear that his order also applied to Republicans. He cited efforts by GOP candidate Kathaleen Wall to register her supporters to vote by mail. Wall is in a contested runoff for a battleground U.S. House seat.

Republican state officials will continue fighting the case. On Wednesday, the state is scheduled to argue before the Texas Supreme Court in a separate state lawsuit on mail voting expansion. State lawyers had asked Biery to hold off on a ruling because the state case could resolve the issue. That hearing is still scheduled for 2:30 p.m.

For now, Biery’s order is the controling order in these cases.

“One’s right to vote should not be elusively based on the whims of nature,” he wrote. “Citizens should have the option to choose voting by letter carrier versus voting with disease carriers.”

Staff writer Robert T. Garrett contributed to this report.

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