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Fifth Circuit extends block on vote by mail expansion

Not unexpected, unfortunately.

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.


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.”

See here and here for the background. As noted in the State Supreme Court ruling, there’s still nothing to prevent someone from requesting and receiving a mail ballot if they claim a disability. It’s just the risk they take if someone like Ken Paxton or a GOP activist charges that their claim is illegal because it’s based on coronavirus concerns. It’s hard to assess that risk, but so far at least nearly all of the people who have requested a mail ballot so far in Harris County are people 65 years old and older.

Rick Hasen breaks down the ruling.

Judge Smith’s opinion simply excoriates the sloppy and poorly written district court decision; it was the most unhelpful way for the district court to have written a decision to be reviewed by a much more conservative 5th circuit.

Judge Smith’s opinion helpfully rejects the argument, which was advanced by a federal district court in Georgia, that these cases raise nonjusticiable political questions. But on the merits, the opinion rejects a challenge to Texas’s absentee voting rules, which allow voters over 65 to vote by mail without an excuse but everyone else must present an excuse (and lack of immunity to Covid-19 does not count under Texas law) to do so. The court held the equal protection challenge was rejected by the Supreme Court in the McDonald case, which rejected a challenge to failing to give pre-trial detainees in Illinois the right to cast an absentee ballot. (I explain why I do not believe McDonald controls in the Covid situation in footnote 171 of this draft.) The court then takes McDonald and applies it directly to reject a 26th amendment age discrimination argument, despite the fact that the 26th amendment was not an issue in that case. The court drops a footnote recognizing that there is a large dispute over the full scope of the amendment.

Judge Ho joined the majority opinion, but spent some pages trying to explain the supposed great risk of voter fraud with mail-in ballots.

Judge Costa concurred only in the result, noting that the district court did not wait for the state courts to first interpret the meaning of Texas’s absentee ballot law. Judge Costa would have said the district court should have abstained, and he would have remanded the case back for reconsideration now that the Texas courts have interpreted the statute in light of Covid. He would not have reached the merits.

There are still the other two federal lawsuits in the works, one of which directly challenges the age restriction on 26th Amendment grounds. I don’t know where they are on the calendar and I’m not sure how to evaluate that bit in Judge Smith’s opinion that Hasen cites, but it’s probably irrelevant for these purposes anyway. We’re too close to the July election for the courts to allow a major change in procedure at this point. There may still be time for that for November, but every day that passes makes that schedule a little bit tighter. For now, proceed as you see fit. Mark Joseph Stern has more.

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  1. Wolfgang says:

    Did they really call it “Chutzpah” ?

    To me, the equal-protection/age-discrimination claim looked weak from the get-go because the additional burden (risk) for those voting in person was caused by COVID-19, not by state action, and the favorable treatment of those 65 and up could easily pass constitutional muster under the conventional rational-basis test.

    So I don’t disagree with their reasoning, but the tone of the majority opinion is supercilious, if not polemic and petty. Just one example:

    “This kind of drive-by speculation about the state’s covert motives is utterly impermissible and finds no support in this record. Instead of searching for a conceivable basis for the rules, the court jerry-rigged some straw men and proceeded to burn them.”

    Then they cite verbatim from Biery’s order and make hay of some copy-editing oversights with [sic] [sic] and [sic], as if to say: Oyez, oyez, not only did he get the legal analysis wrong; he can’t even spell!

    Judge Costa’s concurrence, by contrast, is more measured and dignified. He also points out that equality in treatment of voters (if unconstitutional) could (or might have to) be remedied by making the older folks also vote in person, rather than allowing all to vote by mail. That was also a critical issue in RBG’s erstwhile sex-discrimination jurisprudence (when she was an advocate before the SCOTUS and push for raising the level of scrutiny to compelling state interest).

    Note that a different panel will hear the full-fledged interlocutory appeal of the preliminary injunction. This ruling on the appellate stay issue was just a preview of sorts, and should not have delved into the merits, according to Costa. Because majority chose to do so to bolster Ken Paxton, this preliminary ruling weighs in at 47 pages.

    I wouldn’t expect any different result from the fully argued case.

  2. […] noted there’s not a lot of precedent to guide us. And of course, this was written before the Fifth Circuit ruling from last week, so who knows how or if that changes the […]

  3. Wolfgang says:


    In my original comment I attributed the argument about the remedy – whether to take away the benefit from the 65 and up age-group or extend it to all voters– to Judge Costa. It was actually part of the concurring opinion by Judge Ho. I apologize for the error. Excerpt follows:

    [T]he majority opinion correctly observes that the Supreme Court has said little to date about the Twenty-Sixth Amendment, and that the closest analogy available under current precedent is the McDonald approach to the Fourteenth Amendment. That is surely right. I would simply add that, even if one were to assume that Texas law violates the Twenty-Sixth Amendment, the preliminary injunction is likely flawed for another reason.

    The Supreme Court has repeatedly held that “there are ‘two remedial alternatives’ . . . when a statute benefits one class . . . and excludes another from the benefit.” Sessions v. Morales-Santana, 137 S. Ct. 1678, 1698 (2017). The remedy must provide equal treatment, of course. But equal treatment can be achieved either by “withdrawal of benefits from the favored class” or by “extension of benefits to the excluded class.” Id. “How equality is accomplished . . . is a matter on which the Constitution is silent.” Id. (quotations omitted). So how do courts decide which remedy to order? Do we “level up” (everyone gets to vote by mail) or “level down” (no one gets to)? To decide, courts must determine “what the legislature would have willed had it been apprised of the constitutional infirmity.” Id. at 1699 (quotations omitted). We look to “the legislature’s intent, as revealed by the statute at hand.” Id. If “the discriminatory exception consists of favorable treatment for a discrete group,” we “strik[e] the discriminatory exception” and “extend[] the general rule . . . to cover the previously favored group.” Id.

    These principles readily apply here. Under Texas law, in-person voting is the rule, and mail-in voting is the exception. And that is consistent with judicial consensus that “fraud is much greater in the mail-in ballot context than with in-person voting.” Veasey, 830 F.3d at 239 (en banc). So if Plaintiffs are entitled to relief, it is presumably the “leveling-down” injunction noted by Texas—an injunction “requiring all to vote in person,” not one “extend[ing] mail-in voting to those under 65.”

    Texas Democratic Party, et al v. Greg Abbott, Ruth Hughs, Ken Paxton, No. 20-50407 (5th Cir. June 4, 2020). Document: 00515441096 Pages: 41-42 Date Filed: 06/04/2020

  4. […] neither of which has had a hearing yet, as well as the TDP/LULAC lawsuit for which there is a block of the lower court’s ruling in the plaintiffs’ favor. (This Daily Kos elections lawsuit […]