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Appeals Court Stymies Voting by Mail in Texas. Again.

The John Minor Wisdom U.S. Courthouse is home to the 5th U.S. Circuit Court of Appeals in New Orleans.EXPAND
The John Minor Wisdom U.S. Courthouse is home to the 5th U.S. Circuit Court of Appeals in New Orleans.
Bobak Ha'Eri

One day after a U.S. district judge in San Antonio cleared the path for all Texans who want to vote by mail and avoid potential COVID-19 exposure later this year, a three-judge panel at the 5th U.S. Circuit Court of Appeals has blocked their way.

On Tuesday, U.S. District Judge Fred Biery sided with voting rights groups who've argued that fear of the coronavirus amounts to a disability under Texas law, entitling those who want to stay home and vote the right to do so.

"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," Biery wrote in his opinion granting a preliminary injunction.

Texas Attorney Ken Paxton immediately appealed Biery's decision to the appeals court, arguing that vote-by-mail should be on ice until the matter is finally decided in court. Paxton argues that under Texas law voters must either be older than 65, out of their home county for the duration of early voting and election day or have a physical disability or illness in order to vote by mail.

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"Mail-in ballots are vulnerable to fraud,” Paxton said Wednesday, as he announced his appeal to the 5th Circuit. “Two-thirds of all election fraud cases prosecuted by my office involve mail ballot fraud, also known as ‘vote harvesting.’ Allowing widespread mail-in ballots will lead to greater fraud and disenfranchise lawful voters.”

But in Tuesday's ruling, Biery pointed out that the state sees relatively few prosecutions of voter fraud of any kind.

"Defendants raise the specter of widespread voter fraud if mail ballots are employed but cite little or no evidence of such in states already doing so," he wrote. "Texas truth is to the contrary. Between 2005 to 2018, there were 73 prosecutions out of millions of votes cast."

Texas Gov. Greg Abbott told an Austin TV station Tuesday that he expects that the case will soon be heard by the U.S. Supreme Court.

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