Elections 2020Statewide NewsFederal Judge Rules Voters Can Vote-by-Mail Out of Fear of Contracting Coronavirus

With two simultaneous mail-in ballot lawsuits in the works, the question of whether Texas voters under the age of 65 can vote by mail due to coronavirus concerns continues to broil.
May 20, 2020
In the latest development of a constantly shifting story, a San Antonio federal district judge ruled that voters in Texas can request an absentee ballot out of fear of contracting COVID-19.

The lawsuit was filed by the Texas Democratic Party in tandem with a state lawsuit by the same entity.

While the state lawsuit focuses on the interpretation of state law, the federal one asks whether the federal constitution requires absentee ballots.

Attorney General Ken Paxton filed an appeal on Wednesday to the Fifth Circuit challenging the ruling.

Paxton said of the ruling, “Two-thirds of all election fraud cases prosecuted by my office involve mail ballot fraud, also known as ‘vote harvesting.’ Allowing widespread mail-in ballots will lead to greater fraud and disenfranchise lawful voters.”

The Texan Tumbler

Texas’ Attorney General has been emphatic in his opposition to absentee ballot expansion. Earlier this month, he warned local officials against expanding their mail-in ballot practices — saying it may constitute election fraud.

About a week later he requested that the Texas Supreme Court rule on the question of whether fear of contracting COVID-19 qualifies under the “disability or sickness” provision.

Some counties, like Dallas and Harris, have already begun expanding their absentee programs.

A state district judge ruled voters could request mail-in ballots under the “disability” section but it has since been stayed pending appeal.

The federal judge’s opinion read, “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.”

A main assertion within the opinion is that voters have a reason to fear and be anxious about the potential risks of voting in-person. Citing the “largest single-day jump in coronavirus cases” that occurred on Saturday, the judge stated, “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.”

This past Saturday did see the largest positive case increase but also had the second-highest number of tests conducted since the pandemic began. The positive rate remained relatively low at 5.55 percent.

That same day, the governor said, the state tested a hotspot in Amarillo — from which 41 percent of the new positive cases came.

Data show Texas has been in relatively good shape during the course of the pandemic, but proponents of mail-in ballot expansion say the risks, no matter how big or small, is still a barrier to voting.

The Centers for Disease Control and Prevention (CDC) recently stated that coronavirus “does not spread easily” from contaminated surfaces or objects, but added that this doesn’t mean it is not appropriate to take “practical and realistic” precautions.

The opinion further specifies, “This Order does not prevent defendants and their agents and employees from prosecuting cases of voter fraud where evidence and probable cause exist.”

One of the main contentions of those opposed to expanding mail-in balloting cite fraud implications of vote-by-mail.

Another assertion the district judge made was that the 26th Amendment requires the state to expand its mail-in ballot abilities. That amendment reads: “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.”

“The Court finds no rational basis for such distinction,” the opinion reads regarding the age cutoff of 65 years-old to be eligible for a mail-in ballot, “and concludes the statute also violates the clear text of the Twenty-Sixth Amendment under a strict scrutiny analysis.”

The opinion concluded, “[T]he threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and that granting the injunction will not disserve the public interest.”

Essentially, this means that the defendant’s insinuated injury of increased fraud is outweighed by the plaintiff’s insinuated injury of citizens’ unwillingness to vote in-person.

Should the federal ruling be overturned by the Fifth Circuit, then the outcome of the state lawsuit would be the presiding decision.

Governor Abbott expanded the early voting period for the July runoff election to June 29.

Update: The Fifth Circuit Court has issued a stay on the district court’s injunction allowing all voters to apply for a mail-in ballot due to coronavirus fears. Appellees must respond to the motion to stay by tomorrow, May 21, by 3:00 p.m.

Second Update: The Fifth Circuit Court cemented the stay on June 4, placing a hold on expanded vote-by-mail efforts pending review of the case. The previous stay was administrative until the court decided whether to issue the broader stay until the case is ruled on.


Disclosure: Unlike almost every other media outlet, The Texan is not beholden to any special interests, does not apply for any type of state or federal funding, and relies exclusively on its readers for financial support. If you’d like to become one of the people we’re financially accountable to, click here to subscribe.

Get “KB's Hot Take”

A free bi-weekly commentary on current events by Konni Burton.

Brad Johnson

Brad Johnson is a senior reporter for The Texan and an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.