Texas’ vote-by-mail legal battles advanced this week as a federal appellate court temporarily blocked a lower court’s order favoring Democrats’ plan to disregard state voting laws and allow anyone to vote by mail—a process ripe for fraud—while the state’s high court heard a request to stop county officials from misleading voters about who is eligible to cast a mail ballot.
The U.S. 5th Circuit Court of Appeals granted a temporary stay Wednesday of a federal district judge’s ruling, issued Tuesday, which said any Texas voter who feared contracting the coronavirus by voting in person could claim a “disability” and vote by mail ballot.
Under Texas law, only voters who are 65 or older, disabled, in jail, or outside their home county during an election are eligible to vote by mail.
“I applaud the Fifth Circuit for issuing this temporary stay while the case proceeds,” Texas Attorney General Ken Paxton said in a statement.
Paxton filed an appeal in the case on Wednesday.
“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. “Law established by the Legislature must be followed consistently, including carefully limiting who may and may not vote by mail.”
The Texas Democrat Party has brought two lawsuits—one in federal court, one state—aiming to eliminate vote-by-mail limits set by state lawmakers.
Their suits are part of a nationwide litigation strategy by Democrats using courts and the coronavirus crisis to push universal vote-by-mail and other election policies they’ve been unable to win in state legislatures.
In his ruling Tuesday siding with the Democrats, U.S. District Judge Fred Biery, a Clinton appointee, said that “the entire world is … fearfully disabled” and “the Grim Reaper’s scepter of pandemic disease and death is far more serious than an unsupported fear of voter fraud.”
A Democrat state district judge in Travis County also sided with the Democrat Party in a similar ruling last month, but Paxton has appealed and that order has been temporarily stayed by the Texas Supreme Court.
Also on Wednesday, Paxton’s team was before the Texas Supreme Court, arguing a related matter provoked by the Democrats’ state lawsuit.
The state asked the court to rein in local election officials they say are misleading voters with false information about the state’s vote-by-mail laws and creating confusion that will lead to countless improper mail-ballot applications.
The misinformation stems from the state district court’s April ruling that ordered county election officials to accept mail-ballot applications from all voters who claim disability.
The ruling was immediately stayed when Paxton appealed.
Yet in the ensuing month, citing the court order, the five Democrat officials named in the state’s petition signaled to the public that everyone could vote by mail by claiming fear of contracting the coronavirus as a disability:
- Travis County Clerk Dana DeBeauvoir
- Cameron County Elections Administrator Remi Garza
- Dallas County Elections Administrator Toni Pippins-Poole
- Harris County Clerk Diane Trautman
- El Paso County Elections Administrator Lisa Wise
“If the legislature wanted to make everyone eligible to vote by mail, it would not have gone to all the trouble of enacting [statutes specifying who is eligible],” Texas Solicitor General Kyle Hawkins told the court.
Yet Wednesday’s arguments highlighted how tricky a subject “disability” can be.
Justices focused much of their questioning on what qualifies as a disability, sickness, or physical condition under the election code.
They also quizzed counsel on challenges posed by the fact that no one verifies how, or whether, voters who check the “disability” box on mail-ballot applications are disabled—a loophole in the system that ballot harvesters have been caught exploiting in South Texas and elsewhere in the state.
“We all want the court to say what this statute means, what disability means,” Brister said.
Hawkins said the state wants county election officials to comply with their statutory duties, stop giving voters incorrect information about who is eligible to use a mail ballot, and correct their previous misstatements.
“The judicial branch should not rewrite the election code out of policy concerns that are already being addressed by the executive branch,” Hawkins added, noting the governor and secretary of state have already taken concrete actions to ensure the safety of in-person voting.
With multiple court decisions pending, the status of vote-by-mail eligibility for upcoming elections remains fluid. Mail ballots for the July 14 elections will start going out to voters as early as May 30, so all parties want a swift resolution—as do Texas voters.
