Federal judge: All Texas voters can vote by mail ... for now

Texas Democrats are claiming a victory after a federal judge ruled that all Texas voters are eligible to vote by mail if they are concerned about exposure to the coronavirus at polling places. As he made his ruling, U.S. District Judge Fred Biery cited the Declaration of Independence.to justify his opinion.


Judge Biery, appointed by former President Bill Clinton, ruled that all Texas voters can now be considered as “disabled” due to concerns over the safety of voting in person during the coronavirus pandemic. This qualifies every voter to be able to vote by mail. His ruling orders that election officials must accept and tabulate those votes. His order must be posted on the websites of election administrators, for any elections held “during the pendency of pandemic circumstances.”

“For want of a vote,” the judge wrote, “our democracy and the Republic would be lost and government of the people, by the people and for the people shall perish from the earth.”

Texas Democrats, along with individual voters, filed the lawsuit to seek an expedited ruling in order to expand voting by mail during the pandemic outbreak. Currently, there are several lawsuits concerning voting working through the court system.

Texas Attorney General Ken Paxton says he will appeal the ruling which came down Tuesday. Paxton argues that this violates state law and would usher in increased voter fraud. Judge Biery’s ruling completely rejects Paxton’s opinion.

Biery agreed with a state district court ruling that election law in fact allows this expansion of voting by mail, citing Paxton’s own opinions as precedence. Moreover, Biery wrote, “For those who have recently awakened from a Rip Van Winkle sleep, the entire world is mostly without immunity and fearfully disabled.”

Biery added that actual instances of voter fraud are virtually nonexistent, and that “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.”


On April 17, District Court Judge Tim Sulak issued a temporary injunction enabling vote-by-mail in Travis County (Austin area) and all Texas voters under threat of the coronavirus pandemic, at least through July. The State of Texas appealed. Sulak’s ruling claims that susceptibility to the coronavirus counts is a disability under the state election code. Judge Sulak pointed to the general risk to public health and time constraints in order to deny the state’s motion to reject the court’s jurisdiction.

Judge Sulak assumed office on January 1, 2011, and his current term ends on December 31, 2020. He lost his bid for re-election in the Democrat primary on March 3. He is a Democrat.

So, this is a massive expansion of mail-in voting in Texas. Current Texas law allows for mail-in voting under specific circumstances – the voter is 65 years or older, has a disability or illness, will be out of the county during the election period, or is confined in jail. Judge Biery’s order spotlights public health and safety concerns as well as possible voter suppression. Frankly, it sounds hyperbolic, especially given that Texas has not experienced an overwhelming number of cases of the coronavirus, like New York or New Jersey, for example. Re-opening the state is well underway.

In a lengthy order, which he opened by quoting the preamble to the Declaration of Independence, Biery said he had concerns for the health and safety of voters and stated the right to vote “should not be elusively based on the whims of nature.”

“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.


Texas Democrats, in the federal lawsuit, claim that traditional elections during a pandemic impose unconstitutional and illegal burdens on voters without universal mail-in voting. Judge Biery says he chooses “voting by letter carrier over voting with disease carriers.” Never let a crisis go to waste.

“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,” Biery wrote in his ruling. “’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.”

Today the Texas Supreme Court has scheduled a hearing for Attorney General Paxton’s request for a writ of mandamus to overturn the earlier injunction granted by Judge Tim Sulak to allow all eligible voters to vote by mail. Republicans argue that universal voting by mail ushers in voter fraud and weakens the integrity of elections. There are currently several legal challenges in both state and federal courts challenging Texas’ vote by mail laws and restrictions.

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