Federal judge says all Texas voters can apply to vote by mail during pandemic
District Judge Fred Biery granted a preliminary injunction that allows all registered voters to apply to vote by mail during the coronavirus pandemic after finding the state's existing election rules violate the Equal Protection Clause.
by Alexa Ura May 19, 2020 Updated: 3 hours ago
A federal judge opened a path for a massive expansion in absentee voting in Texas by ordering Tuesday that all state voters, regardless of age, qualify for mail-in ballots during the coronavirus pandemic.
Days after a two-hour preliminary injunction hearing in San Antonio, U.S. District Judge Fred Biery agreed with individual Texas voters and the Texas Democratic Party that voters would face irreparable harm if existing age eligibility rules for voting by mail remain in place for elections held while the coronavirus remains in wide circulation. Under his order, which the Texas attorney general said he would immediately appeal, voters under the age of 65 who would ordinarily not qualify for mail-in ballots would now be eligible.
Biery's ruling covers Texas voters "who seek to vote by mail to avoid transmission of the virus."
In a lengthy order, which he opened by quoting the preamble to the Declaration of Independence, Biery said he had concerns for the health and safety of voters and stated the right to vote "should not be elusively based on the whims of nature."
"Two hundred forty-years on, Americans now seek Life without fear of pandemic, Liberty to choose their leaders in an environment free of disease and the pursuit of Happiness without undue restrictions," Biery wrote.
"There are some among us who would, if they could, nullify those aspirational ideas to return to the not so halcyon and not so thrilling days of yesteryear of the Divine Right of Kings, trading our birthright as a sovereign people for a modern mess of governing pottage in the hands of a few and forfeiting the vision of America as a shining city upon a hill," he said.
In a statement, Texas Attorney General Ken Paxton said he would seek immediate review of the ruling by the U.S. 5th Circuit Court of Appeals.
“The district court’s opinion ignores the evidence and disregards well-established law," Paxton said.
In ruling against the state, Biery cast aside arguments made by Paxton's office that he should wait until a case in state district court is fully adjudicated. In that case, state District Judge Tim Sulak ruled that susceptibility to the coronavirus counts as a disability under the state election code. The Texas Supreme Court put that ruling on hold last week.
During a hearing last week in federal court, Biery scrutinized the state’s argument that it had a significant interest in enforcing existing absentee voting requirements to preserve “the integrity of its election” and to prevent voter fraud.
The attorney general's office had submitted testimony from the long-winding litigation over the state’s voter ID law that touched on instances of fraud involving the mail ballots of voters who are 65 or older or voters in nursing homes.
“So what’s the rational basis between 65 and 1 day and one day less than 65?” Biery asked.
In his ruling, Biery said the state had cited "little or no evidence" of widespread fraud in states where voting by mail is more widely used.
"The Court finds the Grim Reaper's scepter of pandemic disease and death is far more serious than an unsupported fear of voter fraud in this sui generis experience," Biery said. "Indeed, if vote by mail fraud is real, logic dictates that all voting should be in person."
The Texas election code defines disability as a “sickness or physical condition” that prevents a voter from appearing in person without the risk of “injuring the voter’s health.” Biery opined that Paxton’s interpretation “rendered the statute unconstitutionally vague” because it left unclear which voters qualify to vote by mail under its provisions.
In a live interview as news of the ruling broke, Gov. Greg Abbott indicated he expected the ongoing cases to wind up at the U.S. Supreme Court.
“Here's the important deal, and that is we want people 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 the way that does the most to reduce any potential fraud.”
Patrick Svitek contributed to this report.
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION Vote by Mail Injunction(PDF)