Federal Judge Rules All Texas Voters Can Apply to Vote by Mail

A boarded-up business closed due to the Covid-19 pandemic, Monday in Austin, Texas. (AP Photo/Eric Gay)

SAN ANTONIO (CN) — A federal judge ruled Tuesday that all of Texas voters can choose to cast an absentee ballot during the Covid-19 pandemic, deeming the state’s current vote-by-mail statute unconstitutional. 

U.S. District Judge Fred Biery — an appointee of President Bill Clinton — issued a preliminary injunction to allow all registered voters to vote by mail. 

Two-hundred and forty-four years after the Declaration of Independence, Biery said 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.”

The Texas Democratic Party and three individual voters sued the state on April 7, claiming their 26th Amendment rights are violated by an age-based voting statute that permits voters over the age of 65 without a disability to vote by mail. 

The plaintiffs claimed younger voters will be subjected to excessive burdens to vote during the ongoing public health crisis.

“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,” the 74-page opinion states. “Defendants … are enjoined from refusing to accept and tabulate any mail ballots received from voters solely on the basis that the voter does not otherwise meet the eligibility criteria outlined in Texas Election Code 82.001-82.004.”

Texas currently allows voters to vote absentee if they will be out of their registered county during early voting or Election Day, are in jail, have a disability, or are 65 years or older.

“For those who have recently awakened from a Rip Van Winkle sleep, the entire world is mostly without immunity and fearfully disabled,” Biery said.

Biery rejected arguments by Republican Texas Attorney General Ken Paxton of “the specter of widespread voter fraud” if mail ballots are expanded, concluding the defendants “cite little or no evidence” of such fraud in other states that have expanded absentee voting.

“Texas truth is to the contrary. Between 2005 to 2018, there were 73 prosecutions out of millions of votes cast,” Biery wrote. “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. Indeed, if vote by mail fraud is real, logic dictates that all voting should be in person. Nor do defendants explain, and the court cannot devise, why older voters should be valued more than our fellow citizens of younger age.” 

The judge implied Paxton is illegally trying to intimidate voters, citing the attorney general’s public expressions of willingness to criminally charge election administrators and law enforcement officials who refuse to follow his office’s non-binding legal opinions discouraging expansion of absentee voting during the pandemic.

“The court finds that threatening legal voters and election administrators with criminal prosecution is not the same as issuing a political press release directed at alleged illegal voters,” Biery wrote.

Biery added there is “no rational basis” for a distinction between absentee voters 65 years of age and older and those “64 years, 364 days and younger” in his ruling the ban violates the “clear text of the 26th Amendment under a strict scrutiny analysis.”

During a May 15 hearing on the plaintiff’s request for the injunction, Assistant Attorney General Michael Abrams tried to persuade the judge that the line on absentee voter age does not have to be “so precise” and that the executive branch only has to demonstrate that the Texas Legislature had a rational basis for establishing such a limit.

The dispute with Republican state officials over voting by mail is complicated by a separate lawsuit the Texas Democratic Party filed in Travis County District Court on March 20. The trial judge, Tim Sulak, granted a similar temporary injunction on April 15 allowing all voters to claim a disability during the pandemic if they wish to vote absentee. The state’s 14th Court of Appeals in Houston upheld the injunction on May 14, but the Texas Supreme Court abruptly reversed that decision one day later. 

A hearing to determine the merits of the case in the Texas Supreme Court is scheduled for Wednesday.  

Paxton directly asked the Texas Supreme Court on May 14 in a petition for writ of mandamus to block election officials in five Democratic-leaning counties from allowing voters to claim disability in requesting an absentee ballot, again citing voter fraud fears.

The officials in Dallas, Cameron, El Paso, Harris and Travis counties responded that it is not their job to “police” or verify a voter’s request for an absentee ballot under disability and that they can only reject an application if it is incomplete.

Paxton quickly criticized Biery’s ruling, saying he will seek “immediate review” on appeal with the Fifth Circuit Court of Appeals in New Orleans.

“The district court’s opinion ignores the evidence and disregards well-established law,” he said in a statement.

Texas Democratic Party Chair Gilberto Hinojosa cheered the ruling, deeming it a victory for all Texans.

“It is time for a few state officers to stop trying to force people to expose themselves to COVID-19 in order to vote,” Hinojosa said in a statement. “The Texas Legislature provided for these circumstances by statute allowing voters to vote by mail when they have a physical condition that makes it dangerous for them to do so. That’s why we fought in court on behalf of voters.

The American Civil Liberties Union of Texas accused Paxton of playing “politics with Texans’ health” after the ruling.

“We’ll keep fighting to ensure voting doesn’t come at the risk of anyone’s health or safety,” it tweeted.

Dallas County Judge Clay Jenkins — a Democrat — reacted to the ruling by urging Paxton and Republican Governor Greg Abbott to “give all voters the choice to vote” either via absentee ballot or in person.

“Let’s come together,” Jenkins tweeted. “Texans shouldn’t have to choose between unnecessary COVID-19 exposure risk and their right to vote. Elections should be won based on the power of ideas not voter suppression.”

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