The Fifth U.S. Circuit Court of Appeals on Thursday blocked an order requiring Texas officials to make mail-in ballots available to any voter who wants one due to the coronavirus ahead of elections in July.
Mail-in ballots are available in Texas if the applicant is over the age of 65. Voters under 65 must demonstrate that they will be outside the state or have a disability to vote by mail. Texas Democrats challenged those rules, arguing among other things that they violate equal protection and the 26th Amendment's bar on age discrimination in voting.
U.S. District Judge Fred Biery sided with the Democratic plaintiffs in a May 19 order requiring the state to make vote-by-mail available to virtually all Texans. The Fifth Circuit decision includes pointed rebukes of Biery's order, predicting his decision "will be remembered more for audacity than legal reasoning."
Voters will cast ballots on July 14 in about 30 primary races where no candidate attained a majority of the vote. Among numerous other state and federal races, Democrats M.J. Hegar and Royce West are vying for the Democratic nomination to challenge Sen. John Cornyn (R., Texas) in the November general election. Early voting for the primary runoffs begins on June 29. State officials expanded the early voting period to disperse turnout and reduce the possibility that polling precincts will become vectors of transmission. After Thursday's decision, mail-in ballots will only be available to those who ordinarily qualify under the state's rules.
Texas attorney general Ken Paxton said the decision would ensure the integrity of the election.
"Allowing universal mail-in ballots, which are particularly vulnerable to fraud, would only lead to greater election fraud and disenfranchise lawful voters. The unanimous Fifth Circuit ruling puts a stop to this blatant violation of Texas law."
Judge Jerry Smith delivered the court's opinion. Judge James Ho joined Smith's ruling and wrote his own separate opinion. Judge Gregg Costa concurred in the bottom-line outcome only.
Smith, relying on a 1969 Supreme Court precedent, said the Texas rules do not jeopardize the right to vote, since the precinct place is open to all comers. He said the case simply presents "a claimed right to receive absentee ballots," which the state can lawfully deny for any number of reasons.
"That [rule], which is designed to make voting more available to some groups who cannot easily get to the polls, does not itself deny the plaintiffs the exercise of the franchise," Smith wrote. "The plaintiffs are welcome and permitted to vote, and there is no indication that they are in fact absolutely prohibited from voting by the state."
He elsewhere noted that elections officials are implementing various public health measures to protect voters.
"Texas plans to implement measures to protect those who go to the polls," he wrote. "Those measures include the bread and butter of social distancing, such as protective masks for election workers, plentiful cleaning wipes and hand sanitizer, cotton swabs for contacting touch screens, and floor decals inside the polling places that show where voters should stand."
The decision includes particularly sharp criticisms of Biery's order, noting his decision cites among other authorities "the Declaration of Independence, the Gettysburg Address, the Bible, and various poems." In one section of his decision, Biery said Texas's refusal to extend vote by mail during the pandemic suggests a ploy to keep younger voters away from the polls "because of the way they may vote."
"Instead of searching for a conceivable basis for the rules, the court jerry-rigged some straw men and proceeded to burn them," Smith wrote of Biery's contention.
In a separate opinion, Ho argued that Biery's order would actually undermine voting rights. When courts find a law treats groups unequally, they must fix the problem by extending equal treatment to everyone or scrap the benefit altogether. If Biery is correct, Ho warned, then this case calls for abolishing Texas's entire vote-by-mail system.
"Surely plaintiffs do not want a 'leveling-down' injunction—after all, depriving the elderly of mail-in voting would seem antithetical to the spirit of their lawsuit," Ho wrote. "But it may be the only relief courts are authorized to provide."
The case is No. 20-50407 Texas Democratic Party v. Abbott.