Federal court puts Texas coronavirus mail voting expansion on hold againThe Dallas Morning News — By James Barragán The Dallas Morning News
May 20-- AUSTIN, Texas-A federal appeals court has once again put on hold an expansion of mail voting during the coronavirus in Texas.
The decision by a three-judge panel of the U.S. Fifth Circuit Court of Appeals in New Orleans on Wednesday came just one day after a federal judge in San Antonio ordered that all Texas voters who feared contracting the coronavirus could apply to vote by mail.
The temporary hold on that order is a victory for Attorney General Ken Paxton, who said U.S. District Judge Fred Biery had ignored evidence and disregarded well-established laws in his decision to expand mail voting on Tuesday.
But it could prove to be a temporary win. The appeals court's action is an administrative stay that is in place while the court considers whether to block Biery's ruling while it hears Paxton's appeal.
The Texas Democratic Party and the voting rights groups that filed the suit to expand mail voting have until Thursday at 3 p.m. to present their argument to the appeals court to give reasons Biery's order should remain in place while the appeals court hears the case.
Still, Paxton celebrated the appeal court's temporary stay of Biery's order.
"I applaud the Fifth Circuit for issuing this temporary stay while the case proceeds. Protecting the integrity of elections is one of my top priorities, and allowing universal mail-in ballots would only lead to greater fraud and disenfranchise lawful voters," Paxton said in a statement. "Law established by the Legislature must be followed consistently, including carefully limiting who may and may not vote by mail."
The appeal's court consideration of the case is the latest twist in a legal battle over expanding mail voting during the coronavirus pandemic. That issue has taken on an added sense of urgency because the July 14 primary runoffs are less than two months away, with early voting set to begin June 29.
The Texas Democratic Party and the state's top officials-all Republicans-have waged a back-and-forth legal war on the issue since early April.
Before the federal appeals court made its ruling Wednesday, the Texas Supreme Court held arguments over whether to grant Paxton's request to order county clerks in the state to reject mail ballots for people whose only qualification for voting by mail was a fear of contracting the coronavirus.
The state Supreme Court is seen as a friendlier venue for Paxton than the federal district court because all nine justices are Republicans. Biery, the federal judge who ruled Tuesday, is an appointee of President Bill Clinton.
In essence, Paxton asked the Texas Supreme Court to overrule the decision by State District Judge Tim Sulak, a Democrat, to allow people who lack immunity to COVID-19 to qualify for mail ballots under the state election code's disability clause. A state appeals court had allowed that order to stay in place while an appeal was heard.
Paxton, who argues Sulak decided incorrectly, has maintained that the disability clause covers only people who have an illness or physical condition that prevents them from going to the polls. The state's lawyers say that fear of contracting an illness, or the mere possibility of contracting it, do not fall under the plain text definition of that clause.
By following Sulak's order, state lawyers argue, local elections administrators have broken the law by conveying false information about who can apply for mail ballots-namely, people who lack immunity to COVID-19.
Texas Solicitor General Kyle Hawkins said elections officials had an obligation to only provide "correct information" to voters and he asked the Supreme Court to allow Paxton to prosecute elections administrators who follow Sulak's order.
Barbara Nicholas, a lawyer representing Dallas County, said elections administrator Toni Pippins-Poole's office had given no guidance to voters on the orders so the state had no standing to take action against the county.
Scott Brister, a lawyer representing elections administrators from Harris, El Paso, Cameron, and Travis counties, said county clerks are not giving voters incorrect information. They are simply relaying the information that Sulak gave in his order, which he said is correct.
Brister, a former Texas Supreme Court Justice, said an order from the court definitively stating that lack of immunity to COVID-19 fell under the state's disability clause would clear up the issue.
"There's no question that lack of immunity in a pandemic is a physical condition" he said.
Without that clarity, Brister said, the state could argue that any number of reasons election officials gave voters to qualify for mail voting were open to prosecution and could lead to a battle over free speech.
"I'm not aware of any example ever where the attorney general has gotten an injunction or some kind of order (over what) an independently elected official of course, the Harris county clerk is an independently elected official, what she can and can't say," he said.
Hawkins argued that lack of immunity is "not a distinct medical problem the way, for example, being paralyzed is a distinct medical problem." Because of that, the Supreme Court should not add it to the state election law's definition of disability.
Such an action would usurp the Legislature, whose job is to write laws.
"Our Legislature has declined to do that," he said. "The respondents have to accept that policy choice."
Justice Jeffrey Boyd gravitated toward that argument, saying it was the governor and the Legislature's job to worry about adjusting laws during a pandemic but the court's job to uphold the laws already in statute. Justice John Devine also questioned Brister's argument about making lack of immunity a disability.
"Wouldn't this lack of immunity also, arguably, apply to just the everyday average flu?"
But others followed the argument. Justice Jane Bland noted that many people were directed by state officials to not go to work for fear of spreading the virus. And when another justice compared voting in the pandemic to going to the grocery store in a pandemic, Justice Debra Lehrmann noted a difference.
"The reality is people have choice about going to the grocery store. They can order it, it can be delivered there's other ways they can get their groceries," she said. "If they check disability and they're denied that they won't have another choice. Does that reality factor into the analysis?"
Brister said it did and that this year's elections would likely have less polling locations and longer lines which could increase the virus' spread.
"It does seem a little more than ironic that judges and lawyers are arguing remotely about whether other people have to vote in person," he said.
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