Democrats lost another fight today in their attempt to use the courts and fear of the Chinese coronavirus to undermine state voting laws.

On Thursday, a federal appellate court blocked a lower court’s order siding with the Texas Democrat Party that would have forced the state to allow anyone to vote by mail, a process more vulnerable to fraud and abuse than in-person voting.

The U.S. 5th Circuit Court of Appeals granted the state’s request for a stay pending appeal of federal District Judge Fred Biery’s ruling, issued May 19, which said any Texas voter who fears contracting the coronavirus while voting in person could claim a “disability” and vote-by-mail ballot.

The liberal judge’s order is now on hold while the state appeals the case to the 5th Circuit.

In the three-judge panel’s unanimous opinion, Judge Jerry Smith leveled Biery’s ruling:

“In an order that will be remembered more for audacity than legal reasoning, the district judge intervenes just weeks before an election, entering a sweeping preliminary injunction that requires state officials, inter alia, to distribute mail-in ballots to any eligible voter who wants one.


“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.”

Judge James Ho concurred:

“The district court demonstrably erred here, and in more ways than one—as the majority opinion extensively documents. Most notably, the district court ignored virtually the entire body of governing Supreme Court precedent relevant to this case. … So the state is likely to prevail in this appeal.”

“I applaud the Fifth Circuit for staying the federal court’s erroneous decision and preventing widespread mail-in balloting while the case proceeds,” Texas Attorney General Paxton said in a statement following today’s ruling. “Allowing universal mail-in ballots, which are particularly vulnerable to fraud, would only lead to greater election fraud and disenfranchise lawful voters.”

Today’s decision extends a temporary stay granted last month.

The Texas Democrat Party has filed two separate lawsuits seeking to override state limits on who is eligible to vote by mail—one in federal court, one in state. The state case is also on hold as Paxton’s team appeals.

Last week, the Texas Supreme Court delivered another blow to the Democrats, siding with the state in ruling that “a lack of immunity to COVID-19 is not itself a ‘physical condition’ that renders a voter eligible to vote by mail.”

Erin Anderson

Erin Anderson is a Senior Journalist for Texas Scorecard, reporting on state and local issues, events, and government actions that impact people in communities throughout Texas and the DFW Metroplex. A native Texan, Erin grew up in the Houston area and now lives in Collin County.