Fifth Circuit flips the switch

It’s what they do.

A federal appeals court has temporarily put on hold a lower court’s sweeping ruling that would have allowed all Texas voters to qualify to vote by mail during the coronavirus pandemic.

Siding with Texas Attorney General Ken Paxton, a three-judge panel of the U.S. 5th Circuit Court of Appeals on Wednesday blocked a preliminary injunction issued just a day before by U.S. District Judge Fred Biery. The move could prove to be a temporary win for the state. The appellate panel granted what’s known as an administrative stay, which only stops Biery’s ruling from taking effect while the court considers if it will issue an injunction nullifying it during the entire appeals process.

Also on Wednesday afternoon, Paxton’s office tried to convince the Texas Supreme Court to issue an order blocking local election officials in Texas from facilitating efforts by voters obtain absentee ballots if they fear getting sick from voting in person. The court did not issue a ruling, but it grappled with the question of who gets to decide if a voter has a disability under Texas election law.


In issuing the preliminary injunction, Biery cited the irreparable harm voters would face if existing age eligibility rules for voting by mail remained in place for elections held while the new coronavirus remains in wide circulation. In his request to the 5th Circuit, 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.”

The appeals court ordered the Democrats to file a response to the state’s request to block the ruling by Thursday afternoon.

See here for the background. I mean, this was to be expected, so let’s move on to the other thing that happened yesterday, also from this story.

In a virtual hearing Wednesday, the justices’ interrogations of Paxton’s lawyer and those representing the counties returned frequently to a gaping hole in Paxton’s request — when voters cite disability to request an absentee ballot, they’re not required to say what the disability is. The voters simply check a box on the application form, and if their application is properly filled out, locals officials are supposed to send them a ballot.

Texas Solicitor General Kyle Hawkins conceded to the court that officials cannot deny ballots to voters who cite a disability — even if their reasoning is tied to susceptibility to the coronavirus. Hawkins said the state was only arguing for applications to be rejected if a voter wrote in extraneous information on their application that indicated they feared infection but were “otherwise healthy.”

Local election officials can reject an application if they know the applicant is ineligible, but they’re unable to require voters to substantiate their disabilities. They argued as much in briefs filed to the court ahead of the hearing.

“These officials move the Court to mandamus local election officials to do something the Legislature has never required of them: police voter disability claims for mail in balloting,” El Paso County argued in its brief.

Conducting an inquiry into individual voters’ reasons for checking the disability box could violate both state and federal law, Cameron County officials argued in their brief. In its brief, Dallas County argued Paxton’s request would force election administrators to look “behind the claimed disability in each case” or require a voter to include information the nature of their disability in their applications — both of which would go beyond the Texas Election Code.

Still, the solicitor general asked the court to order election officials to abide by the state’s direction that fear of the virus or lack of immunity to the virus cannot constitute a disability under the election code, and they cannot encourage voters to request a mail-in ballot on that basis.

Barbara Nichols, an attorney representing Dallas County, argued it was unnecessary for the Supreme Court to order anything of the county’s election administrator because she had not indicated she would go beyond existing laws for voting by mail.

“As we sit here right now, your honor, the election administrator has not take any action whatsoever in which to justify the exercise of jurisdiction over her,” Nichols said. “And the state cannot point to any such evidence in the record.”

See here for the previous update. Harris County was also a respondent in this hearing – I have a copy of their brief here. I mean, the law here is pretty clear, so much so that even the Solicitor General had to admit it. The question is, what will the Supreme Court do about it? I will note that this is a writ of mandamus, not an appellate action, so they could just swat it away and let the lower courts do their thing before they weigh in. Remember, the state lawsuit hasn’t even been heard yet, we’ve just had a ruling on the motion to allow people to apply for mail ballots while the litigation is in progress. Just take a pass, that’s all I’m saying. We’ll see what they say. The Chron and the Signal have more.

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21 Responses to Fifth Circuit flips the switch

  1. brad says:

    Hey Kennie Paxton boy,

    My absentee ballot application is in the mail. I am a healthy marathon runner who doesn’t want to come in contact with any anti-science, flat earth believing GOP election officials at the polling station.

    Come and get me!

  2. voter_worker says:

    Brad, Texas accepts private mail boxes and businesses as an expanded definition of residency for voter registration purposes, so I’m having a hard time envisioning how it’s logical or practical for them to do an about-face and enforce a narrow definition of disability on another type of application. They seem to think they can; we will see.

  3. Joel says:

    voter_worker: It’s unenforceable, but the goal is not enforcement; it is voter suppression by intimidation.

    If they really didn’t want anyone voting by mail, they wouldn’t have created it in the first place.

  4. brad says:

    Doesn’t matter the methodology of voting…Republicans will find a way to cry “Fraud” at every turn.

    Especially our lying Governor Abbott on the “rampant” in person voting fraud. Which Abbott has failed to prove any shred of evidence for his claim.

    The GOP is literally a conspiracy factory.

  5. Wolfgang says:

    brad: “conspiracy factory”

    Wouldn’t it more suitably be called the “Ministry of Truth” when it’s run as a government enterprise?

    Also, while we are on conspiracy theories …

    Given that the lower and more pigmented strata in the social pecking order are less prone to vote Republican, and more affected by the #1 communicable disease, wouldn’t there be gains to be had if more of them were to be herded into crowded Democrat run-off voting venues, rather than voting from the comfort and safety of their homes? The more Democrats catch the virus and die, the fewer will be around to vote against Trump in November. As long as there are more Democratic run-offs and run-off voters, one could confidently predict a partisan skew to the casualties, and therefore a partisan advantage of one side at the expense of the other.

    Assuming counter-factually–and for purposes of argument only– that COVID-19 is actually a 14th-amendment-abiding equal-opportunity killer, how many lives are we collectively willing to sacrifice to eliminate the risk of mail-ballot fraud?

    … and in a slight variation on the query: How many Democratic voters would Ken Paxton be willing to sacrifice on the election integrity altar?

    As for the Texas Supreme Court, do you think it makes any difference that one of them reportedly got it (and does not know whence)?

  6. C.L. says:

    Crazy thing is, it appears the GOP’s fear is ‘unauthorized’ mail-in voting by Democrat-leaning voters, when there’s zero evidence to prove prove such nefarious behavior is under the sole purview or inclination of liberals. Conservative voters, should they want to game the system, could just as easily do it.

    …but it you wanted to game it, mail-in voting probably wouldn’t be the method either Party would choose, I suspect. Voter suppression would be much easier to accomplish.

  7. Bill Daniels says:

    Oh, lookie here, a Democrat just got convicted of…..stuffing the ballot box with fake votes:

    “DeMuro admitted that he illegally added votes for Democrats on Election Day and then certified later that the votes counted were accurate.

    “DeMuro fraudulently stuffed the ballot box by literally standing in a voting booth and voting over and over, as fast as he could, while he thought the coast was clear,” U.S. Attorney William McSwain said in a statement. “This is utterly reprehensible conduct. The charges announced today do not erase what he did, but they do ensure that he is held to account for those actions.”

    The criminal complaint has been filed in the U.S. District Court for the Eastern District of Pennsylvania. The case number is 2:20-cr-00112-PD.”

  8. Bill Daniels says:

    Stacy Adams, bringing the truth, in her own words.

    The problem is, undocumented immigrants aren’t represented properly in government.

  9. voter_worker says:


    Guess what? It happens. Posting links proves you know how to copy and paste urls but little else.

  10. Bill Daniels says:

    OK, here’s Vice President Amy Klobuchar telling us that her husband had the Wuhan virus and took……OMG…..hydroxychloroquine. Why would Amy allow her husband to get HCQ? Did she want to kill her husband? Or maybe, when the SHTF, she wanted to save her husband, even if it meant taking the Trump pill.

  11. Bill Daniels says:


    Your own link shows us the problem with ballot harvesting, yet one of us is all for mail in voting and ballot harvesting, and one of us isn’t. Why is it you support these things that your own link demonstrates is rife for abuse and fraud?

  12. voter_worker says:

    Bill, if you’ve been tracking my comments here I’m impressed by your OCD. I don’t remember ever mentioning ballot harvesting, though. In any event I don’t think it’s a good idea, period., mainly because it is vulnerable to abuse and because it’s fodder for conspiracy theorists and demagogues.

  13. Manny says:

    20 to 25% unemployment, the Trump Depression.

    Nearly 100,000 dead thanks to Trump’s incompetence.

    4 billion dollar budget deficits, under Trump.

    Is America better off today than it was four years ago?

    That is why Trump and his idiot supporters are worried about people voting.

    Have you seen Trump’s face lately, he ain’t a happy camper, he knows he will be facing prison and/or a ton of lawsuits.

  14. Manny says:

    Bill have you seen this ad

  15. brad says:


    Check out this evangelical GOP congressional candidate in North Carolina crying crocodile tears when caught in his extensive absentee ballot fraud scheme with a firm that was known in GOP circles as very good at “getting out the vote”…wink, wink.

  16. Bill Daniels says:


    Thanks, even more anecdotal examples of why mail in balloting is ripe for fraud and abuse. We should ALL be against mass balloting by mail, for this very reason. As we’ve seen, both sides do it, so why not just stop the abuse by voting in person and requiring voter ID? Easy peasy.

  17. Wolfgang says:

    Re: Dems and GOPs as equal opportunity offenders

    Assuming it’s true that both sides cheat with mail-in ballots (in the same election), the effect should cancel each other out, at least partially. I would think that scenario is unlikely, but so is the scenario where the cheating/fraud is so pervasive as to bring about a different election outcome. The chance of that happening will depend on the margin of victory, and if it is very small, election contests and recounts are possible to double-check and verify the count. Inadvertent errors and failures will likely account for discrepancies because lack of perfection is inherent in most human activities. Voter fraud, by contrast, assumes mens rea.

    More fundamentally, however, consider that an improperly marked mailed-in vote is not necessarily cast for the other party or opposing candidate. Say, for example, that a registered voter is a chronic alcoholic who has his mail-in ballot filled out and mailed by a family member while he is passed out; it might still go to the same party. In other words, the crime – if crime it be – would have no effect on the vote tally, not to mention on the outcome of the election in term of who wins and loses.

    That’s not to say voter fraud never happens, but there isn’t enough of it (if any of it) to produce a different result. If there is as big a problem as some on the right claim, it should have been exposed by now in Texas, considering that there will always be mail-in ballots by people over 65 years of age who would presumably be particularly susceptible to having their ballots messed with in violation of the election code.

    In the Texas Supreme Court, the AG’s petition had 2 footnotes to 2 newspaper articles to support the State’s professed concern about fraud and the State’s interest in election integrity. Newspaper articles are typically not even considered evidence of the matter reported (truth of the facts asserted) therein. There is also a reference to a certain report with data, but it is dated, and its not even from Texas.

    If anyone has any better evidence, let’s see it.

  18. Bill Daniels says:


    “In the Texas Supreme Court, the AG’s petition had 2 footnotes to 2 newspaper articles to support the State’s professed concern about fraud and the State’s interest in election integrity. Newspaper articles are typically not even considered evidence of the matter reported (truth of the facts asserted) therein.”


    Are you kidding? Newspaper articles are more than enough to get FISA warrants, spy on people, and impeach a president for the crimes of others!

    We just saw that happen, and it didn’t even matter that the ‘investigators’ paid for the disinformation, and leaked that to the press themselves. So yes, newspaper articles are indeed more than enough evidence for a court case.

    So, if I called my friend at the Houston Chronicle and gave that friend a story that Wolfgang had committed a string of unsolved robberies, then yes, that would be enough to have you investigated, arrested and dragged into court, even though I just made all of that up (I’m assuming you have NOT committed a series of unsolved crimes.)

    The bar (pun intended) has been lowered significantly since you took poly sci.

  19. brad says:


    So you are against mass mail-in voting because of your concerns, but you are okay with normal mail-in voting fraud that happens in GOP circles…check.

    Why hasn’t the Texas GOP voiced any concerns to date on mail-in person fraud? Yet, they are clutching their pearls about non-existent in-person voting fraud which Governor Abbott has lied about being “rampant” and has not produced any evidence about it. Why is that? You know the answer.

    You left out the part about the need to avoid pandemic death as a reason for mass mail-in voting. Details, details.

  20. Wolfgang says:


    The first thing the new County Clerk should do is to fire Scott Brister as lead attorney in No. 20-0394 (In Re State of Texas) for Harris County/County Clerk Trautman (or see to it, if beyond scope of authority).

    Tex. Sup. Ct. No 20-0394 is the direct by-pass mandamus (oxymoron appropriate) filed by the AG in the Texas Supreme Court to leapfrog to victory in the most receptive judicial forum. It was filed ex-parte as to the plaintiffs/appellees in the Sulak temporary injunction appeal to get an advance ruling from the SCOTX before the Fourteenth Court of Appeals would get to deciding the merits of State’s interlocutory appeal against the State (and rule against Paxton) in the pending accelerated appeal from Judge Sulak’s order. The latter is 14-20-00348-CV in Houston, and No. 20-04-01 in the SCOTX. Not only is this an accelerated appeal, the briefing schedule, too, was accelerated because of the time-sensitive nature. With loss impending, the AG rushed to the Supreme Court, which promptly gave him just what he asked for.

    I get the reasoning: HIRE ONE OF THEM a former member of the SCOTX who presumably still stands IN THEIR GOOD GRACES, and there is no disputing that this is top-notch appellate litigator … but look where that got us:

    Lo and behold Brister ends up siding with Ken Paxton by agreeing with the Solicitor General at oral argument that the SCOTX should exercise mandamus jurisdiction (mind you, in a case from which Plaintiff TDC had been deliberately excluded and denied real-party-in-interest status, along with the other plaintiff seeking access to mail-in ballots to avoid contracting COVID-19 at polling places.)

    Brister agreed that the SCOTX should adjudicate the pivotal statutory construction issue in this highly dubious mandamus case — whether “disability” as defined in the TEC covers fear/risk of catching COVID-19 in the absence of immunity to the virus — even though another regular case is pending that actually stems from an evidentiary hearing in the trial court in which expert and other testimony was received on that very issue. An original proceeding in the supreme court is not a trial, and the SG even urged the Court to ignore the multiple amicus filings by medical professionals that could arguably substitute for the lack of trial evidence (regarding the pathogenesis, i.e. how the virus enters the body, replicates, and wreaks havoc, and the inane efforts to equate COVID-19 with the flu, etc.). In the SG’s view: Not relevant. The likelihood of injury to the voter’s health is, after all, a legal question. Can’t let doctors weigh in on matters of textual analysis that are the prerogative of the supreme court to decide. Dictionaries and grammar books will do just fine as authority.

    Since the SCOTX immediately undid the temporary order of the 14th COA that was entered to preserve the substance of Judge Sulak’s order pending resolution of the appeal, it’s fairly obvious where the SCOTX stands (in case there was any doubt to begin with). So, by endorsing Paxton’s mandamus bid against the election clerk(s), Brister is in effect inviting the Texas Supreme Court to write an opinion in an extraordinary proceeding that would micromanage by fiat what local election officials can do and say to enforce the AG’s preferred manner of administering elections in times of pandemic (restricting availability of mail-in ballots). And, for good measure, Brister gave up the First Amendment argument too. The SG is already gloating about it in post-submission briefing.

    Meanwhile, the Texas Democratic Party and the aligned plaintiffs can watch from the sidelines, relegated to the status of amici curiae. And his client, Harris County, stands to waste millions of dollars allocated to administer the anticipated flood of mail-in ballets, which the SCOTX may yet force the County Clerk to reject to “vindicate” the Attorney Generals’ vote-suppression bid pursued under the guise of “election integrity”.

    Brister was charged to go to the supreme court to defend Harris County Clerk and voters against Paxton’s bid to suppress the vote and expose them to risk of harm if they vote in person. He surrendered the best argument to nix the mandamus: Get rid of him.

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