Fifth Circuit Blocks Expansion of Vote-by-Mail in Texas

A worker passes a sign at a San Antonio restaurant that reopened last month. (AP Photo/Eric Gay)

(CN) — The Fifth Circuit on Thursday rebuked a San Antonio federal judge in its unanimous order blocking an injunction that would have allowed any Texan to qualify for a mail-in ballot during the Covid-19 pandemic.

“In an order that will be remembered more for audacity than legal reasoning,” wrote U.S. Circuit Judge Jerry Smith, “the district judge intervenes just weeks before an election. … But because the spread of the virus has not given ‘unelected federal jud[ges]’ a roving commission to rewrite state election codes, we stay the preliminary injunction pending appeal.” (Brackets in original.)

U.S. Circuit Judge Fred Biery, a Bill Clinton appointee, had ordered last month that “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.” He instructed state and county officials not to refuse any mail ballot requested due to the coronavirus crisis.

“The district court ignored virtually the entire body of governing Supreme Court precedent relevant to this case,” U.S. Circuit Judge James Ho, a Donald Trump appointee, wrote in a concurring opinion for the Fifth Circuit, which granted a stay of the lower court’s order.

Biery’s injunction — widely noted for its lofty appeals to “life without fear of pandemic, liberty to choose [American] leaders in an environment free of disease and the pursuit of happiness without undue restrictions” — was a win for the Texas Democratic Party, which sought to broaden eligibility for mail-in voting when it sued state officials in April.

Lawyers representing the state’s Republican attorney general, Ken Paxton, maintained in a hearing before Biery that expanded vote-by-mail eligibility would invite vote harvesting and fraud.

Paxton’s office immediately appealed the injunction and the Fifth Circuit on Thursday granted the state’s request to stop Biery’s order from taking effect until a further ruling is handed down.

Paxton praised the New Orleans-based appellate court in a statement Thursday.

“I applaud the Fifth Circuit for staying the federal court’s erroneous decision and preventing widespread mail-in balloting while the case proceeds,” he wrote. “Allowing universal mail-in ballots, which are particularly vulnerable to fraud, would only lead to greater election fraud and disenfranchise lawful voters.”

The Texas Democratic Party slammed the decision.

“We find ourselves in the midst of a once-in-a-century pandemic. Voters who are rightfully worried about the safety of in-person voting should have the option to vote by mail,” Chairman Gilberto Hinojosa said in a statement. “It is truly reprehensible that Republicans, from Donald Trump to Texas’ indicted Attorney General Ken Paxton, seek to use this pandemic for political gain.”

Hinojosa signaled the party hopes to put the issue before the U.S. Supreme Court.

Thursday’s decision comes eight days after a similar finding by the Texas Supreme Court, the state’s highest authority on matters of civil law. The high court ruled last week that a Texan’s lack of immunity to Covid-19 does not constitute a qualifying disability for an absentee ballot under the state’s election code.

In a footnote to the Fifth Circuit’s opinion, Judge Smith, a Ronald Reagan appointee, acknowledged that if the plaintiffs in that case “had succeeded before the Texas Supreme Court, all Texas voters could have applied to vote by mail under the disability provision.”

The federal appeals court also said that Paxton’s public statements — including threats to prosecute voters who unlawfully apply for mail-in ballots as well as election officials who help would-be absentee voters violate Texas’ election code — “likely” do not constitute voter intimidation.

“By characterizing his comments as ‘threats,’ the district judge undermined freedom of speech, rule of law, and the power of public officials to participate in public discourse,” Smith wrote.

U.S. Circuit Judge Gregg Costa, a Barack Obama appointee, also issued a concurring opinion.

“The district court ruled just one day before the Supreme Court of Texas was hearing argument on a mandamus petition asking what counts as a ‘disability’ under the mail-in ballot law,” he wrote. “That forthcoming interpretation of state law could have made any federal constitutional ruling ‘unnecessary.’”

Biery did not reply to a request for comment by press time.

%d bloggers like this: