• A federal judge ruled on Tuesday that Texas must allow all voters to cast absentee ballots without an excuse in its upcoming elections for the duration of the COVID-19 pandemic.
• The Texas Democratic Party filed a lawsuit arguing Texas only allowing voters aged 65 and above to request an absentee ballot without an excuse violates the 26th amendment protections against age discrimination in voting.
• District Court Judge Fred Biery of the Western District of Texas granted a preliminary injunction against the state, siding with the plaintiffs in striking down the age waiver during the duration of the pandemic.
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A federal judge ruled on Tuesday that Texas must allow all voters to cast absentee ballots without an excuse in its upcoming elections for the duration of the COVID-19 pandemic, including in Texas’ scheduled July run-off elections.

Currently, twenty-eight states allow all voters to request an absentee ballot without a documented excuse. Seven more states, including Texas, only allow elderly voters above a certain age cut-off, often 60 or 65, to request an absentee ballot without an excuse.

Before the pandemic, Indiana, South Carolina, Louisiana, and Mississippi also only allowed voters above 65 to request an absentee ballot without an excuse, while Tennessee only allowed those over 65 and Kentucky allowed those of “advanced age” to do so. Now, Indiana, South Carolina, and Kentucky have changed their rules and are now allowing all voters to request a ballot without an excuse for upcoming elections this summer.

In April, a group of plaintiffs including the Texas Democratic Party filed a lawsuit against a number of state officials including Gov. Greg Abbott, Attorney General Ken Paxton, and Secretary of State Ruth Hughes over Texas’ age waiver, arguing that it violates the 26th amendment’s protections against age discrimination in voting laws.

In his decision, District Court Judge Fred Biery of the Western District of Texas granted a preliminary injunction against the state, siding with the plaintiffs in striking down the age waiver during the duration of the pandemic and ruling that Texas must allow all voters to request ballots without an excuse.

Shortly after the ruling was handed down, the defendants filed an appeal to Biery’s decision in the Fifth Circuit Court of Appeals.

“The Texas Election Code allows citizens over sixty-five without a disability to vote by mail. Thus, the Texas vote by mail statute provides for the health safety of mail ballots for those 65 years of age and older but not those 64 years, 364 days and younger,” Judge Biery wrote, adding, “The Court finds no rational basis for such distinction and concludes the statute also violates the clear text of the Twenty-Sixth Amendment under a strict scrutiny analysis.”

The Court also rebuked Attorney General Ken Paxton’s attempts to state that fear of contracting COVID-19 did not qualify as a legitimate disability excuse under which a voter could request an absentee ballot, finding that “lack of immunity from COVID- 19 is indeed a physical condition.”

The judge noted that the opinion from Paxton’s office stating that fear of coronavirus is not a valid disability contradicts with previous guidance has Paxton put out stating that there is no specific definition of “disability” Texas requires voters to meet to request a ballot.

“Confusion also reigns because plaintiffs have not received requested guidance nor can the Court find any guidance from the Secretary of State,” the decision said before laying out all the contradicting guidance from the state about the law. “Such contradictory opinions are at best duplicitous and at worst hypocritical.”

Judge Biery didn’t buy into the state’s argument that expanding no-excuse absentee voting would lead to the widespread incidence of voter fraud, noting that such fraud is exceedingly rare in Texas.

“Between 2005 to 2018, there were 73 prosecutions out of millions of votes cast. 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,” he wrote in his decision.

The judge also appealed to the Declaration Of Independence and the historical importance of the franchise, writing: “One’s right to vote should not be elusively based on the whims of nature. Citizens should have the option to choose voting by letter carrier versus voting with disease carriers. ‘We the People’ get just about the government and political leaders we deserve, but deserve to have a safe and unfettered vote to say what we get.”

In a Tuesday statement, Texas Democratic Party Chairman Gilberto Hinojosa celebrated the decision.

“Today is a victory for all Texans,” he said. “The right to vote is central to our democracy. This ruling means eligible voters can vote by mail during this pandemic. It is time for a few state officers to stop trying to force people to expose themselves to COVID-19 in order to vote.”

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