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
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.
"One's right to vote should not be elusively based on the whims of nature," Biery wrote. "Citizens should have the option to choose voting by letter carrier versus voting with disease carriers."
In issuing the preliminary injunction, Biery cited the irreparable harm voters would face if existing age eligibility rules for voting by mail were in place for elections held while the new coronavirus remains in wide circulation. In his request to the 5th Circuit, Paxton argued that Biery's injunction threatened "irreparable injury" to the state "by injecting substantial confusion into the Texas voting process mere days before ballots are distributed and weeks before runoff elections."
The appeals court ordered the Democrats to file a response to the state's request to block the ruling by Thursday afternoon.
The state court front
The 5th Circuit's ruling came the same day the Texas Supreme Court considered Paxton's request for a quick order limiting the ability of election officials in the state's largest counties to send mail-in ballots to voters who were citing lack of immunity to the coronavirus as a disability.
In a virtual hearing Wednesday, the justices' interrogations of Paxton's lawyer and those representing the counties returned frequently to a gaping hole in Paxton's request: When voters cite disability to request an absentee ballot, they're not required to say what the disability is. The voters simply check a box on the application form, and if their application is properly filled out, locals officials are supposed to send them a ballot.
Texas Solicitor General Kyle Hawkins conceded to the court that officials cannot deny ballots to voters who cite a disability — even if their reasoning is tied to susceptibility to the coronavirus. Hawkins said the state was only arguing for applications to be rejected if a voter wrote in extraneous information on an application that indicated they feared infection but were “otherwise healthy."
Local election officials can reject an application if they know the applicant is ineligible, but they’re unable to require voters to substantiate their disabilities. They argued as much in briefs filed to the court ahead of the hearing.
“These officials move the Court to mandamus local election officials to do something the Legislature has never required of them: police voter disability claims for mail in balloting,” El Paso County argued in its brief.
Conducting an inquiry into individual voters’ reasons for checking the disability box could violate both state and federal law, Cameron County officials argued in their brief. In its brief, Dallas County argued Paxton’s request would force election administrators to look “behind the claimed disability in each case” or require voters to include information on the nature of their disabilities in their applications — both of which would go beyond the Texas Election Code.
Still, the solicitor general asked the court to order election officials to abide by the state's direction that fear of the virus or lack of immunity to the virus cannot constitute a disability under the election code, and they cannot encourage voters to request mail-in ballots on that basis.
Barbara Nichols, an attorney representing Dallas County, argued that it was unnecessary for the Supreme Court to order anything of the county's election administrator because she had not indicated she would go beyond existing laws for voting by mail.
"As we sit here right now, your honor, the election administrator has not take any action whatsoever in which to justify the exercise of jurisdiction over her," Nichols said. "And the state cannot point to any such evidence in the record."