Federal Judge Legalizes Vote-by-Mail

Judge Fred Biery

Citing the Declaration of Independence and Attorney General Ken Paxton's own opinions, Judge Biery ruled that all Texas voters are currently "disabled" under state election law, and therefore eligible to vote by mail ballot.

[May 20 update: A panel of the 5th Circuit Court of Appeals today granted an administrative stay of Biery's order, as requested by Attorney General Ken Paxton.]

"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."

Accordingly, Judge Biery ruled that any eligible Texas voter can apply to vote by mail, that election officials must accept and tabulate those votes, and that his order must be posted on the websites of election administrators, for any elections held "during the pendency of pandemic circumstances."

The lawsuit, one of several pending in state and federal court, was brought by the Texas Democratic Party and individual voters, seeking an expedited ruling that would allow expanded voting by mail for all eligible Texas voters, under current pandemic conditions.

It's an extraordinary opinion that rejects entirely the state's claims (via A.G. Paxton) that an expansion of VBM either violates state law or would lead to increased voter fraud.

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."

This is a developing story, and the ruling will likely be appealed. Tomorrow afternoon, May 20, the Texas Supreme Court has scheduled a hearing for Paxton's request for a writ of mandamus to overturn the earlier injunction granted by Judge Tim Sulak of the 201st District Court to allow all eligible voters to do so by mail. For more, follow the Daily News and the Chronicle's print edition.