This article, originally published on May 21, 2020, has been updated as of June 29, 2020.
On May 19, 2020, federal District Court Judge Fred Biery from the Western District of Texas granted a preliminary injunction that allows all registered voters, regardless of age, disability, or presence, to apply for mail-in voting ballots during the COVID-19 pandemic.
Under existing provisions in the Texas Election Code, Texas voters can qualify for ballots to complete at home and mail if they are 65 years or older, will be out of the country during the election period, or are in jail. Texas Election Code Section 82.002 also permits voters to be eligible for mail-in ballots “if the voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health.” If a voter qualifies under one of these provisions, the voter may apply to vote by mail with the local county registrar for approval by the early voting clerk for that county.
In this dispute, Plaintiffs argued that the age limitation violates the United States Constitution because it imposes additional burdens on voters who are younger than 65 during this pandemic. The Defendants opposed expanding absentee voting requirements out of concern for ensuring smooth and efficient elections, preventing voter confusion and disarray, preserving the security of its election results and preventing voter fraud. The Defendants also argued that voters most at risk of becoming seriously ill from COVID-19 – those who are over 65 or who have underlying health conditions – are already eligible to vote by mail under existing law and that Texas counties are taking steps to ensure that voting in-person is safe for their residents, including social distancing and providing shields at voter check-in stations and protective masks.
On May 15, 2020, the Court held a two-hour preliminary injunction hearing in San Antonio where it heard arguments and evidence from both sides. Following the hearing, Judge Biery issued an order holding that voters under the age of 65 who would ordinarily not qualify for mail-in ballots are now eligible to apply. Citing concerns for the health and safety of both voters and poll workers due to in-person voting, the Court ordered that [a]ny 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.” On May 20, 2020, the Defendants filed a motion in the Fifth Circuit Court of Appeals for an emergency stay of Judge Biery’s order. The Fifth Circuit administratively stayed Judge Biery’s order and, subsequently, in an order filed June 4, 2020, ordered an emergency stay pending appeal. On June 26, 2020, the Supreme Court denied an application to vacate the Fifth Circuit’s stay. Justice Sotomayor filed a statement respecting the denial, noting that although she did not disagree with the Court’s decision, she hoped that the Fifth Circuit would “consider the merits of the legal issues in this case well in advance of the November election.”
In addition to this case pending in federal court, some of the Plaintiffs filed an application for temporary injunction in a Texas state court to determine the application of state law. In that case, Plaintiffs requested the Court to declare that Texas Election Code Section 82.002 “allows any eligible voter, regardless of age and physical condition, to request, receive and have counted, a mail-in ballot, if they believe they should practice social distancing in order to hinder the known or unknown spread of the virus or disease.” Plaintiffs also sought a temporary injunction requesting that the Texas Secretary of State and the Travis County Clerk “be enjoined to accept and tabulate any mail-in ballots received from voters in an upcoming election who believe that they should practice social distancing in order to hinder the known or unknown spread of a virus or disease.”
In the Texas state court case, Travis County District Judge Tim Sulak ruled that all Texas voters who are not immune from COVID-19 are eligible to apply for mail ballots under the “disability” provision of state election law through July 27, 2020. After the order was issued, Texas Attorney General Ken Paxton appealed the decision to the Third Court of Appeals who transferred the case to the Fourteenth Court of Appeals. The Fourteenth Court of Appeals in Houston ruled that the state court injunction shall remain in full force and effect pending the conclusion of the appeal.
During the same time period, Attorney General Paxton filed a petition for writ of mandamus to the Texas Supreme Court to determine that election administrators have “a duty to reject applications for mail-in ballots that claim ‘disability’ under Texas Election Code Section 82.002(a) based solely on the generalized risk of contracting a virus. In an opinion dated May 27, 2020, authored by Chief Justice Hecht and joined by Justices Green, Guzman, Lehrmann, Devine, Blacklock and Busby, the Supreme Court concluded “a lack of immunity to COVID-19 is not itself a ‘physical condition’ that renders a voter eligible to vote by mail within the meaning of § 82.002(a).” However, it found no ministerial duty, reviewable by mandamus, for election officials to determine whether or not a voter’s application to vote by mail properly claims in-person voting will cause a likelihood of injury due to the physical condition of the applicant. Because the Court was confident that election officials would comply with their duty to follow the law and the Court’s ruling, the Court declined to issue the writ of mandamus.
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