Fifth Circuit Court of Appeals blasts U.S. District Judge, blocks vote by mail



The battle continues. Will Texans have universal mail-in voting for the presidential election in November? That is the question bouncing from court to court, most recently landing in the Fifth U.S. Circuit Court of Appeals. The court struck down a previous order from U.S. District Judge Fred Biery Thursday.

Biery sided with Texas Democrats demanding that due to the coronavirus pandemic outbreak in the state, it is unreasonable to expect voters to go to polling places and risk exposure to the virus. U.S. District Judge Fred Biery, a federal judge agreed that all Texas voters can vote by mail due to the pandemic. Using hyper-flowery language in the opinion he issued, he ruled that all Texans can now be considered disabled due to fear of exposure to the virus. The question of disability due to a lack of immunity was heard in the Texas Supreme Court, too. That court ruled that Judge Biery’s opinion was wrong – a lack of immunity to COVID-19 is not a disability.

The latest court to hear the question was the Fifth U.S. Circuit of Appeals in New Orleans. Not only did the three judge court block Judge Biery’s order but the Fifth Circuit decision claims his ruling “will be remembered more for audacity than legal reasoning.” Ouch. Judge Biery is a Clinton appointee. Texas Attorney General Ken Paxton is pleased with the ruling.

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

There are provisions in Texas law for mail-in voting, as there is in all fifty states. In Texas, a voter is eligible to vote by mail if he/she is 65 years of age or older, has a disability or illness, will be out of the county during the voting period, or is in jail. Texas Democrats are looking to exploit the disability and illness provision.

Precautions are being made at polling places to accommodate voters during the coronavirus pandemic. Early voting has been extended to lessen crowds at polling places. After Thursday’s ruling, mail-in ballots will only be available to voters who qualify under the standard rules.

Judge Jerry Smith delivered the court’s opinion. Judge James Ho joined Smith’s ruling and wrote his own separate opinion. Judge Gregg Costa concurred in the bottom-line outcome only.

Smith, relying on a 1969 Supreme Court precedent, said the Texas rules do not jeopardize the right to vote, since the precinct place is open to all comers. He said the case simply presents “a claimed right to receive absentee ballots,” which the state can lawfully deny for any number of reasons.

“That [rule], which is designed to make voting more available to some groups who cannot easily get to the polls, does not itself deny the plaintiffs the exercise of the franchise,” Smith wrote. “The plaintiffs are welcome and permitted to vote, and there is no indication that they are in fact absolutely prohibited from voting by the state.”

He elsewhere noted that elections officials are implementing various public health measures to protect voters.

“Texas plans to implement measures to protect those who go to the polls,” he wrote. “Those measures include the bread and butter of social distancing, such as protective masks for election workers, plentiful cleaning wipes and hand sanitizer, cotton swabs for contacting touch screens, and floor decals inside the polling places that show where voters should stand.”

The U.S. Circuit Court slammed Judge Biery’s use of several authorities in his opinion, including poems, the Declaration of Independence, the Gettysburg Address, and the Bible. Biery even claimed Texas was deliberately trying to suppress the votes of young voters “because of the way they may vote.” Judge Smith wrote, “Instead of searching for a conceivable basis for the rules, the court jerry-rigged some straw men and proceeded to burn them.”

It seems like the question of health concerns due to exposure at polling places has been answered by the general public anyway. With all the massive protests and marches occurring, the public has decided that large gatherings are ok, right? Just put on a face mask and join 60,000 of your best friends, as the protesters did this week in Houston. Social distancing concerns were not to be found.

On July 14 voters go to the polls for about 30 primary races in run-offs. The question of universal voting by mail in Texas will likely travel up to the Supreme Court.





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