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Federal court issues order to allow voting by mail

Here we go again.

A federal judge opened a path for a massive expansion in absentee voting in Texas by ordering Tuesday that all state voters, regardless of age, qualify for mail-in ballots during the coronavirus pandemic.

Days after a two-hour preliminary injunction hearing in San Antonio, U.S. District Judge Fred Biery agreed with individual Texas voters and the Texas Democratic Party that voters would face irreparable harm if existing age eligibility rules for voting by mail remain in place for elections held while the coronavirus remains in wide circulation. Under his order, which the Texas attorney general said he would immediately appeal, voters under the age of 65 who would ordinarily not qualify for mail-in ballots would now be eligible.

Biery’s ruling covers Texas voters “who seek to vote by mail to avoid transmission of the virus.”

In a lengthy order, which he opened by quoting the preamble to the Declaration of Independence, Biery said he had concerns for the health and safety of voters and stated the right to vote “should not be elusively based on the whims of nature.”

“Two hundred forty-years on, Americans now seek Life without fear of pandemic, Liberty to choose their leaders in an environment free of disease and the pursuit of Happiness without undue restrictions,” Biery wrote.

“There are some among us who would, if they could, nullify those aspirational ideas to return to the not so halcyon and not so thrilling days of yesteryear of the Divine Right of Kings, trading our birthright as a sovereign people for a modern mess of governing pottage in the hands of a few and forfeiting the vision of America as a shining city upon a hill,” he said.


The Democrats argued that the age limitation violates the U.S. Constitution because it would impose additional burdens on voters who are younger than 65 during the pandemic, and Biery agreed. Biery also found the plaintiffs were likely to succeed in proving the rules violate the 26th Amendment’s protections against voting restrictions that discriminate based on age.

In a statement, Texas Attorney General Ken Paxton said he would seek immediate review of the ruling by the U.S. 5th Circuit Court of Appeals.

“The district court’s opinion ignores the evidence and disregards well-established law,” Paxton said.

In ruling against the state, Biery cast aside arguments made by Paxton’s office that he should wait until a case in state district court is fully adjudicated. In that case, state District Judge Tim Sulak ruled that susceptibility to the coronavirus counts as a disability under the state election code. The Texas Supreme Court put that ruling on hold last week.

During a hearing last week in federal court, Biery scrutinized the state’s argument that it had a significant interest in enforcing existing absentee voting requirements to preserve “the integrity of its election” and to prevent voter fraud.

The attorney general’s office had submitted testimony from the long-winding litigation over the state’s voter ID law that touched on instances of fraud involving the mail ballots of voters who are 65 or older or voters in nursing homes.

“So what’s the rational basis between 65 and 1 day and one day less than 65?” Biery asked.

In his ruling, Biery said the state had cited “little or no evidence” of widespread fraud in states where voting by mail is more widely used.

“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.”

See here, here, and here for the background. A copy of the order is here, and I recommend you read it, because the judge is clearly not having it with the state’s arguments. Let me just say, the hypocrisy of the state’s case, in particular their pathetic wails of “voter fraud!”, is truly rich. I for one am old enough to remember when Texas passed its heavily restrictive and burdensome voter ID law, in which voting by mail – which at the time was primarily the purview of Republicans – was specifically exempted, a fact noted by the various plaintiffs in the lengthy litigation against that odious law. The Republican argument at the time was that voter ID was needed to combat “voter fraud”, yet those same Republicans saw no need to include any similar requirement for those who voted by mail, presumably because they had no concerns about “fraud” from those voters. And now they want to claim voting by mail is a threat to election integrity? I’m sorry, but that’s all kinds of bullshit and it deserves to be labeled as such.

Now, none of this means that Paxton’s handmaidens at the Fifth Circuit will care about that. As nice as this ruling is, I figure we have a day, maybe two, before that cesspool rubber stamps an emergency petition from the AG to put this ruling on hold. I will of course be delighted to be proven wrong, but I know better than to invest any faith in the Fifth Circuit. So enjoy this for now, but don’t go counting any chickens just yet. The Chron has more.

UPDATE: Rick Hasen provides more objective reasons why the Fifth Circuit will likely put a hold on this order.

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  1. Wolfgang says:

    I am not up to speed on the federal side of appellate procedure …. does anyone know whether an appeal the the Fifth Circuit will automatically stay the federal District Court order, and what that means?


    I am pretty sure that it’s different from what happened in the Travis County lawsuit with the supersedeas/stay issue under state law, which – by the way – is critical to the Paxton’s posture, which is that the Sulak order was no longer in effect because it was automatically superseded when the State filed a notice of interlocutory appeal (leaving Paxton free to pronounce what the law is on the disability issue on May 1, 2020 without defying Judge Sulak). That immediate stay/supersedeas is a weird argument too, by the way, because the State gets treated as “judgment debtor” even though there was no judgment (only an interlocutory order granting injunctive relief) and no debt, or any prospect even of money damages (judgement debt). Just goes to show how esoteric litigation can get, and that words used in common parlance (like debtor) take on new meanings that really don’t make much sense in the real — as opposed to the legal — world.

    Also, Richard Hasen is THE scholarly authority on election law matters, so I would listen carefully what predictions he makes about the Fifth Circuit regarding the strength of the age-discrimination arguments etc. and the decisional proclivities of that court. But I am not sure he has had a chance to get up to speed on the two (2) case pending in our state supreme court, and the distinct issue in those. I think it’s fair to say that the prospects are worse in the Texas Supreme Court than the Fifth. Which leads me to speculate as follows …


    On the assumption that the SCOTX will be very much inclined to back Paxton (just look at the instanter emergency orders), I wonder if it might make sense for the TDP and the Plaintiff-Interenors to nonsuit the Travis County in the trial court to kill off the AG’s pending interlocutory appeal, thus preventing the SCOTX from expressly reversing Judge Sulak. Even if that would technically end the case without a final judgment, it would still leave Judge Sulak’s order intact as a historical legal fact (presumably with WestLaw cite by now) and unreversed. A dismissal of the pending appeal would also terminate the stay and supersedeas, and any legal effect of that.


    If I recall correctly, the SCOTX has recently approved of the proposition that a nonsuit is effective in a pending appeal even though the Nonsuit rule is found in the TRCP (trial court rules of procedure) and not in the TRAPS (appellate rules), and that an opinion already issued may stay in place even if the case terminates for mootness (and even if a cases is settled, judgment reversed by agreement, at the intermediate level, already issued opinion does not have to be withdrawn).

    So here, the Sulak appeal is technically not pending in the SCOTX, but in the 14th COA (the SCOTX stay order in that case nixed the temporary order issued by the panel of the 14th in a 2:1 split, but did not expressly stay the appeals case). If the Sulak case were nonsuited (or declared/found moot based on the federal court’s order, or otherwise jurisdictionaly nonviable on a sua sponte realization that there was no real controversy because it was a “friendly” suit against a cooperative county election official who did not put up a fight), the 14th COA could dismiss it with an opinion based on absence of jurisdiction (and say whatever they want to say in dicta, including a reference to yesterday’s federal order and its persuasiveness, albeit on an altogether different legal issue, namely different treatment of voters based on age). Such a jurisdictional dismissal by the intermediate court of appeals would make it hard for the AG to appeal to the SCOTX because the AG is actually ALSO trying to get the case and the appeal dismissed for lack of jurisdiction (albeit based on different doctrines, such as lack of standing, unripeness, and sovereign immunity, the kind of arguments that were also losers in the federal suit). If if the AG were to go to the SCOTX and complain of a jurisdictional dismissal by the court of appeals, the remedy in the SCOTX would be a reversal and a remand to the 14th for a resolution on the merits there, and would not do much harm immediately.

    If the appeal of the Sulak order were nixed, the SCOTX wouldn’t get to reverse the Sulak injunction order expressly, and it would still “exist” as persuasive authority at the minimum, even if not legally binding (following a jurisdictional dismissal or a nonsuit dismissal). Also keep in mind that it was never legally binding on the election clerks of other counties anyhow because they were never parties. Instead, these clerks relied on the order as the best available legal authority on the matter of vote-by-mail eligibility under the “disability” category in times of COVID-19 pandemic.

    If the interlocutory appeal of the Sulak order is killed, that would just leave the direct mandamus against the election clerks/administrators in the SCOTX, which does not provide a good basis for the SCOTX to resolve the fact issues that are necessarily part of the analysis of whether lack of immunity to the virus that causes COVID-19 constitutes a qualifying “physical condition” for disability purposes under the mail-in-vote provision of the election code. That question cannot be resolved as a pure statutory construction issue and a mandamus action cannot (at least not conventionally) be used to try a case in the first instance in the Texas Supreme Court. The other problem with the mandamus proceeding is its limited scope of what the SCOTX can order. The Clerks aver that all they do is check the applications for completeness and that they have no legal duty look into the veracity of disability claims, and that they don’t adjudicate them. Therefore, it is not clear what the SCOTX could order by way of writ of mandamus to achieve what the AG wants short of either establishing by fiat a requirement that the clerk investigate and verify disability claims, or that the clerks deny all applications based on disability, which would sweep up all non-COVID-19-based disability grounds likewise. Might be hard even for the SCOTX to go that far. But who knows …


    In any event, killing off the appeal of the Sulak temporary injunction would bolster the federal judge’s ruling that abstention was INapproriate under the circumstances, because there would no longer be an state appellate case pending that squarely presents the state-law issue of how to construe and APPLY the “disability” provision of the Texas election code in times of COVID-19 pandemic. As already mentioned the APPLIED element requires EVIDENCE, and the only case in which evidence was admitted and used as a basis for a ruling was in Judge Sulak’s court. Unless, of course, the SCOTX takes judicial immunity of pandemic and lack-of-immunity facts, and rules against the AG.

    make make sense to nonsuit the Travis County suit

  2. Wolfgang says:


    Oops … I meant to say … unless the Texas Supreme Court takes JUDICIAL NOTICE of pandemic facts, which would then obviate the need for evidence taken at an evidentiary hearing.

  3. mollusk says:

    A Federal appeal does not automatically put the lower court ruling on hold.

    There has to be a specific order staying the trial court’s ruling, which could be by the trial court itself or by the 5th Circuit. More globally, that stay against enforcing the judgment or order can also be conditioned on certain things either happening or not happening, depending on what’s appropriate under the circumstances.

  4. brad says:

    Voting rights gets a win!

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