(The Center Square) – A multi-year challenge to Texas’ law restricting voting by mail ended after the U.S. Supreme Court this week declined to hear for a second time a petition filed challenging the law.
The multi-year challenge filed by multiple parties contesting Texas election code began in 2020 when the Texas Democratic Party and others claimed that the coronavirus was reason enough for any registered voter to be allowed to vote by mail. Texas election code, section 82.002, stipulates restrictions: “A qualified voter is eligible for early voting by mail if the voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health.”
In 2020, the Texas Democratic Party sued, asking a state district court to allow voters to apply for and vote by mail if they claimed the coronavirus was a “disability” enabling them to vote by mail. State District Judge Tim Sulak granted their request, issuing a temporary injunction, expanding who could qualify for absentee ballots in the 2020 election.
Democratic officials in Harris County also proposed sending mail ballots to all registered voters in the county, prompting action by the Secretary of State and Attorney General’s office.
In May 2020, Attorney General Ken Paxton sent a letter to counties warning them “to avoid misleading the public on vote by mail laws.” In October 2020, he sent another letter warning them that making up their own voting rules “is unlawful and could result in legal liability.”
A state appeals court upheld Sulak’s order, expanding access to mail-in voting, which was quickly blocked by the Texas Supreme Court in response to a motion Paxton filed. The high court ruled the coronavirus is not a qualification according to state law for a voter to apply for a mail-in ballot. It clarified, “a voter’s lack of immunity to COVID-19 … is not a ‘disability’ as defined by the Election Code.”
Next, two new lawsuits were filed in federal courts. Texas Democrats filed a lawsuit and six Texas voters filed another, both seeking to expand mail-in voting arguing that Texas election code was unconstitutional and violated the 26th Amendment.
Judge Fred Biery, presiding over the U.S. District Court for the Western District of Texas San Antonio Division, ruled that all Texas voters, regardless of their age, qualified to receive a mail-in ballot because of the coronavirus. Paxton appealed to the Fifth Circuit Court of Appeals requesting a temporary injunction to block any vote by mail efforts. It granted his request and issued an administrative stay, putting Biery’s ruling on hold.
State election code restrictions on voting by mail was in effect for the 2020 election and all subsequent elections.
An amended complaint was also filed in April 2021 asserting racial discrimination. The Texas Democratic Party next appealed to the U.S. Supreme Court, which declined to hear the challenge.
“In an effort to protect Texans’ health, safety, and fundamental right to vote, voting rights organizations are fighting to expand access to mail-in voting throughout the state,” Progress Texas argued at the time. “Unfortunately, Republican state lawmakers are continuing their voter suppression strategy and have opposed these efforts at every turn. Instead of protecting Texans, conservatives are arguing that Texans should be forced to risk death or illness in order to vote.”
There appear to be no reports of anyone dying from voting in person in the 2020 election, or any election in Texas because of the coronavirus.
In another lawsuit, Texas voters sued the Texas Secretary of State and lost with Judge Biery ultimately dismissing all plaintiffs’ claims in July 2022. He argued their claims were “based on speculative future election policies and pandemic conditions.”
Plaintiffs then appealed to the Fifth Circuit, which in September 2023 upheld Biery’s ruling and dismissal. Individual plaintiffs then appealed to the U.S. Supreme Court in December 2023. On Monday, the high court published a list of cert filings it declined to hear, including theirs. Declining to hear a challenge to state law for a second time, the Supreme Court ended the multi-year and multi-plaintiff challenge to Texas election code restrictions on mail-in voting once and for all.
In response, Attorney General Ken Paxton said over the years, “we fought hard to uphold Texas law and defend the integrity of elections in this State. We have worked tirelessly to keep our elections free and fair. There is nothing more important than protecting the integrity of every legal vote.”
He also reiterated what Texas law stipulates: “all eligible voters must cast their ballots in person unless they meet certain exceptions such as being 65 years of age or older, disabled, out of the county during the elections, about to give birth, or confined in jail.”
