5th Circ. Slams 'Audacity' Of Texas Dems' Mail-In Vote Order

By Mike LaSusa
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Law360 (June 4, 2020, 11:37 PM EDT) -- The Fifth Circuit on Thursday upended a district court order won by Texas Democrats that directed the Lone Star State to allow all voters to use mail-in ballots, with the appeals panel saying the lower court's decision "will be remembered more for audacity than legal reasoning."

U.S. Circuit Judge Jerry E. Smith penned the opinion slamming the May 19 order by a Western District of Texas judge overseeing a case in which the Texas Democratic Party asked the federal court to help determine what elections will look like during the coronavirus pandemic.

"In an order that will be remembered more for audacity than legal reasoning, the district judge intervenes just weeks before an election, entering a sweeping preliminary injunction that requires state officials, inter alia, to distribute mail-in ballots to any eligible voter who wants one," Judge Smith said. "But because the spread of the virus has not given 'unelected federal jud[ges]' a roving commission to rewrite state election codes, we stay the preliminary injunction pending appeal."

The appeals court said the state officials who were sued — Gov. Greg Abbot, Attorney General Ken Paxton and Secretary of State Ruth Hughs — would likely be successful in their appeal aimed at striking down the district court's preliminary injunction for good because the district court "ignored" a key precedential case, McDonald v. Board of Election Commissioners of Chicago .

"The virus, to be sure, increases the risks of interacting in public," the panel said. "But, under McDonald, a state's refusal to provide a mail-in ballot does not violate equal protection unless ... the state has 'in fact absolutely prohibited the plaintiff from voting.'"

The Texas Democrats filed suit in April, saying the state's current approach to voting during the pandemic is vague and could lead to a mirror image of the issues surrounding Wisconsin's primary election. The federal lawsuit is essentially a backup plan for a related pending Travis County District Court suit the party filed March 20.

The party wants to get a head start on preparing for elections in light of the U.S. Supreme Court's decision on the eve of Wisconsin's primary election to toss a district judge's order extending the deadline for voters to submit absentee ballots by mail. The Supreme Court's five conservative justices said allowing voters to mail in ballots for six days after in-person voting "fundamentally alters the nature of the election."

Texas Democrats said they want to prevent a similar situation and the state's potential "march toward upcoming elections with no plan in place."

There is confusion among Texas government officials over who qualifies as a person with a disability under the state's election code, Texas Democrats said.

On April 2, Hughs, Texas' Republican secretary of state, issued an advisory that cautioned local election officials of more voters using the vote-by-mail system this year than in the past and included a list of qualified voters who could use the system. That list includes voters who will be out of the country at election time, sick or disabled voters, voters 65 years or older, and voters confined in jail who are still eligible to vote, according to the lawsuit.

But Texas Democrats pointed to two opinions by Paxton, also a Republican, that they claim allow for a wider category of voters to vote by mail.

In a 2015 opinion, Paxton said that a person is not required to satisfy any specific definition or standard to be qualified as "disabled" and to vote by mail.

The party also referenced a 2017 opinion that states an individual civilly committed to a center under the state's health and safety code Chapter 841 would be eligible to vote by mail. That specific chapter relates to civil commitment of "sexually violent predators."

Texas Democrats said Paxton's opinions show that citizens confined to their homes to avoid the spread of the coronavirus are eligible to vote by mail. If not, those voters could experience an increased burden on their voting rights, the party said.

In its lawsuit, the Texas Democratic Party claims the current election conditions violate the Voting Rights Act of 1965 as well as the 14th, 15th and 16th amendments.

U.S. Circuit Judges Jerry E. Smith, Gregg J. Costa and James C. Ho sat on the panel for the Fifth Circuit.

The Texas Democratic Party is represented by Chad W. Dunn and K. Scott Brazil of Brazil & Dunn LLP, Dicky Grigg and Martin Golando.

The government officials are represented by state solicitor general Kyle D. Hawkins.

The case is Texas Democratic Party et al. v. Abbott et al., case number 20-50407, in the U.S. Court of Appeals for the Fifth Circuit.

--Additional reporting by Katie Pohlman. Editing by Jay Jackson Jr.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

Hinojosa v. Abbott

Case Number



Appellate - 5th Circuit

Nature of Suit

3441 Voting (Civil Rights)

Date Filed

May 19, 2020

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