Appeals Court Rules COVID-19 Fears Not Valid Reason for Voting by Mail in Texas

June 5, 2020 by Dan McCue
Nancy Fulton, a clerk, sorts vote by mail ballots in preparation for a vote tally at the Los Angeles County Registrar's office in Norwalk, Calif. on Nov. 4, 2010. (Allen J. Schaben/Los Angeles Times/TNS)

A federal appeals court in Atlanta ruled Thursday that Texans cannot request mail-in ballots for the upcoming 2020 elections out of fear that they might contract the coronavirus if they vote in person.

The 5th U.S. Circuit Court of Appeals ruling voids an injunction issued by a federal judge last month.

In May, U.S. District Judge Fred Biery held that all registered voters in Texas should be able to apply to vote by mail during the pandemic and concluded that the state’s existing election rules violate the Equal Protection Clause.

“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.

But on Thursday, U.S. Circuit Judge Jerry Smith, writing on behalf of a unanimous three-judge panel, said “the spread of the virus has not given ‘unelected federal judges’ a roving commission to rewrite state election codes.”

Smith also has some curt words for Biery, saying his grant of an injunction in the case “will be remembered more for audacity than legal reasoning.”

Democratic lawmakers in Texas had argued that a longstanding process that allows for people with disabilities, people over 65 and other groups to vote by mail should apply to all people during the ongoing pandemic.

But Republicans pushed back strongly at this assertion, saying allowing for mail-in voting could lead to widespread voter fraud.

This flies in the face of the beliefs of many election experts who say that while fraud in voting-by-mail is more common than in in-person voting, the incident rate is so small as to not be statistically meaningful.

Amber McReynolds, a former Colorado election official and now the CEO of the National Vote at Home Institute, and Charles Stewart, director of the MIT Election Data and Science Lab, sought to put the numbers in context in an April op-ed in The Hill.

Over the past 20 years, they wrote, more than 250 million ballots have been cast by mail nationwide, while there have been just 143 criminal convictions for election fraud related to mail ballots.

That averages out to about one case per state every six or seven years, or a fraud rate of 0.00006%.

“Expanding voting by mail will be a challenge in most states in 2020,” they continued. “But we reiterate: There is no evidence that mail-balloting results in rampant voter fraud, nor that election officials lack the knowledge about how to protect against abuses.”

But that and similar analysis did not prevent Texas Attorney General Ken Paxton from lauding the 5th Circuit ruling on Thursday afternoon.

“Allowing universal  mail-in ballots, which are particularly vulnerable to fraud, would only lead to greater election fraud and disenfranchise lawful voters. The unanimous 5th Circuit ruling puts a stop to this blatant violation of Texas law,” Paxton said.

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