Voters, he wrote, should “have the option to choose voting by letter carrier versus voting with disease carriers.”
The judge also rebuked Texas Attorney General Ken Paxton, finding he probably engaged in illegal voter intimidation by threatening to criminally prosecute local elections officials who advised voters afraid of the virus to vote by mail.
To Biery, the fact that older voters but not younger ones could be safe from both the virus — and, potentially, Paxton’s wrath — amounted to unconstitutional discrimination against younger people. He said it probably violated the 14th Amendment’s equal protection clause along with the 26th Amendment, which ensures the right to vote “shall not be denied or abridged” for anyone 18 and older.
Without expanding mail-in ballots during the coronavirus pandemic, the judge feared so many voters may decide against going to the polls that those who do won’t adequately represent the will of the people.
“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, referencing the Declaration of Independence, wrote in his introduction.
Yet, he continued, “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 …”
Paxton promised an immediate appeal to the U.S. Court of Appeals for the Fifth Circuit, saying in a statement, “The district court’s opinion ignores the evidence and disregards well-established law."
Biery’s ruling is the latest in an ongoing conflict in Texas and throughout the United States regarding voting during a pandemic, especially when it comes to the presidential election in November. Many states, including Michigan, Pennsylvania and Indiana, among others, have massively expanded the option to vote by mail to account for anyone who is simply worried about catching the virus during in-person voting in intimate settings.
States are seeking to avoid a debacle like the one in Wisconsin, where the state Supreme Court overturned the governor’s order that delayed the election last month and forced voters to go to the polls while the pandemic was raging. At least 71 people who cast votes have since tested positive for the virus, although it is not entirely certain whether they contracted coronavirus at the polls, the Wisconsin State Journal has reported.
Wisconsin’s example, Biery noted, has added urgency to Texas’s case, providing evidence that voters have reason to be “deeply fearful” of in-person voting.
The Texas Democratic Party, which brought the lawsuit against Paxton, said Biery’s ruling is a “victory for all Texans.”
“The right to vote is central to our democracy,” Gilberto Hinojosa, the chair of the state Democratic Party, said in a statement. “It is time for a few state officers to stop trying to force people to expose themselves to COVID-19 in order to vote.”
The fight over mail-in ballots has been particularly fierce in Texas, where Republican state leaders have long peddled unfounded fears of voter fraud to push for greater restrictions on voting.
This time has been no different. Paxton, whose 2015 securities fraud charges are still pending in state court, has argued that allowing voters who fear catching the virus to vote by mail would jeopardize the integrity of the election.
Biery, a Clinton appointee in the Western District of Texas, cried foul, saying the state could offer no evidence to support this fear. Biery is among several other federal judges in Texas to reach that same conclusion. Biery cited figures reported in a San Antonio Express-News column last year finding only 73 people out of tens of millions of voters between 2005 and 2018 were prosecuted for voter fraud.
“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,” Biery wrote, using the Latin phrase for “unique.” “Indeed, if vote by mail fraud is real, logic dictates that all voting should be in person. Nor do defendants explain, and the Court cannot divine, why older voters should be valued more than our fellow citizens of younger age.”
Biery’s ruling interrupts a legal fight that had been playing out in the state courts over the issue and now rests with the Texas Supreme Court, which raises the possibility that the U.S. Court of Appeals for the 5th Circuit could find his intervention premature. Travis County State District Judge Tim Sulak ruled April 17 that fear of coronavirus qualified as a “disability” under the law.
Paxton appealed to the Texas Supreme Court, which has stayed Sulak’s ruling. He also sent a letter to elections officials threatening to criminally prosecute them for merely advising voters to seek a mail-in ballot out of fear of covid-19. Biery noted that voters under 65 could reasonably fear prosecution as well.
“Younger voters who are just as at risk to contract COVID-19 are forced to choose between risking their health by voting in-person or facing criminal prosecution by Defendant Paxton,” Biery wrote.
In states from Minnesota to Louisiana, GOP lawmakers have managed to resist efforts to massively expand mail-in voting with the same logic. President Trump, who voted by mail in the Florida primary, has also warned against voting by mail, citing voter fraud.
Biery said that “one’s right to vote should not be elusively based on the whims of nature.”
In closing, he pulled from a centuries-old proverb, “For Want of a Nail,” which, in its many variations, is about how one small initial misstep leads to a trail of increasingly disastrous consequences, ending with the fall of a kingdom.
“For want of a vote, 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,” he wrote.