Federal appeals court extends block on voting-by-mail expansion in Texas

A three-judge panel of the U.S. 5th Circuit Court of Appeals extended its order Thursday blocking a lower court’s sweeping ruling that would have allowed all Texas voters to qualify to vote by mail during the coronavirus pandemic.

With early voting for the primary runoff elections starting later this month — and the Texas Supreme Court also blocking expanded voting by mail in a separate case —Thursday’s ruling effectively eliminates the possibility that Texas voters will be able to legally request mail-in ballots solely because they fear a lack of immunity to the new coronavirus will put them at risk if they vote in person.

The issue is likely headed to the U.S. Supreme Court.

U.S. District Judge Fred Biery issued a preliminary injunction in late May expanding mail-in voting, but the appellate panel almost immediately put it on administrative hold while awaiting legal briefings from both sides. Thursday’s ruling keeps Biery’s ruling on ice while Texas appeals it.

This keeps in place the state’s existing rules for mail-in ballots: They are available only if voters are 65 or older, cite a disability or illness, will be out of the county during the election period, or are confined in jail.

The Texas election code defines disability as a “sickness or physical condition” that prevents a voter from appearing in person without the risk of “injuring the voter’s health.” The Texas Supreme Court found last month that lack of immunity alone does not meet the state’s qualifications, but the court reiterated that it is up to voters to assess their own health and determine if they meet the election code’s definition of disability.

In issuing his preliminary injunction, Biery cited the irreparable harm voters would face if existing age eligibility rules for voting by mail were in place for elections held while the new coronavirus remains in wide circulation. In his appeal to the 5th Circuit, Texas Attorney General Ken Paxton argued that Biery’s injunction threatened “irreparable injury” to the state “by injecting substantial confusion into the Texas voting process mere days before ballots are distributed and weeks before runoff elections.”

Siding with Paxton, the 5th Circuit panel in part found that requiring Texas officials to institute voting by mail for all against their will would present “significant, irreparable harm” to the state. The panel pointed to the U.S. Supreme Court’s standing that lower federal courts should “ordinarily not alter the election rules on the eve of an election.”

Early voting for the upcoming primary runoffs begins June 29.