A federal judge ruled Tuesday Texas voters who want to vote by mail to avoid possible exposure to the 2019 novel coronavirus can do so in upcoming elections, but Texas Attorney General Ken Paxton is already preparing his appeal saying the decision by U.S. District Judge Fred Biery is a dismissal of "well-established law."
Biery issued his ruling late Tuesday afternoon, siding with Texas Democrats who claimed the state's current voter law was discriminatory by generally allowing only people over the age of 65 or with a disability the ability to vote by mail. The plaintiffs said the state law violated the 26th Amendment against voting restrictions that discriminate based on age and that those without immunity to COVID-19 were to be considered disabled or suffering from a physical condition that prevented them from going to the polling place.
The legal squabble doesn't end there, however, as Paxton said late Tuesday he intended to file an appeal.
"The district court's opinion ignores the evidence and disregards well-established law. We will seek an immediate review by the Fifth Circuit Court of Appeals," Paxton said in a statement.
Paxton previously said he was trying to maintain the integrity of the election and was concerned about the potential for voter fraud with the use of mail-in ballots.
In Biery's order, he said Paxton had cited "little or no evidence" of widespread fraud in states where mail-in ballots are more widely used and added that a mail-in ballot was, "a process recently used by the President of the United States."
Biery, addressing the claim that a lack of immunity was a disability, with "disability" defined as a "physical or mental condition that limits a person's movements, senses, or activities," agreed with the argument by saying fear or anxiety caused by the pandemic could limit all of those things.
"The evidence also shows voters are right to be fearful and anxious about the risk of transmission to their physical condition. Texas saw the largest single-day jump in coronavirus cases since the pandemic began this past Saturday," Biery wrote. "The Court finds such fear and anxiety is inextricably intertwined with voters' physical health. Such apprehension will limit citizens' rights to cast their votes in person. The Court also finds that lack of immunity from COVID-19 is indeed a physical condition."
Gilberto Hinojosa, chairman of the Texas Democratic Party, said it was time a few state officers stopped trying to force people to expose themselves to the virus in order to cast a ballot.
"The Court finds the Grim Reaper's scepter of pandemic disease and death is far more serious than an unsupported fear of voter fraud in this sui generis experience," Biery said. "Indeed, if vote by mail fraud is real, logic dictates that all voting should be in person. Nor do defendants explain, and the Court cannot divine, why older voters should be valued more than our fellow citizens of younger age."
In his ruling, Biery said "any 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."
Municipal elections scheduled for May were postponed until Nov. 3. A runoff from the March primary is still scheduled for July 14 and the governor has already expanded early voting for that election. The last day to apply for a ballot by mail for the runoff is July 2 (received, not postmarked). Ballots by mail must be postmarked by 7 p.m. on Election Day.