AUSTIN (Nexstar) — The vote-by-mail lawsuit filed by the Texas Democratic Party went before a federal district judge Friday, May 15.
It’s separate from a state lawsuit, in which a district court judge ruled in April in favor of expanding vote-by-mail during this pandemic.
A state appeals court upheld that decision on Thursday, May 14.
However, on Friday, the Texas Supreme Court granted Attorney General Ken Paxton’s request for a stay order, meaning the expansion of vote by mail will be temporarily put on hold while he continues to appeal the district judge’s decision.
A recent Nexstar Media/Emerson College Poll found Texans surveyed were split on the issue, with 51.5% preferring to vote by mail in the general election, and 48.5% wanting to vote in person.
Texas Democrats argued in federal court Friday that one of the qualifications to request a mail-in ballot in Texas, being 65 or older, is an age restriction that violates the 26th Amendment, TDP general counsel Chad Dunn explained.
“People over the age of 65 in Texas can vote by mail without excuse and people under the age of 65 are essentially forced to vote in person, so 64-year-old grandma would have to go vote in person,” Dunn said.
The federal district judge did not give a timeline as to when a decision would come down for this case.
The argument made at the state level was different.
“We wanted the state courts to clarify that that language allowed people who were not immune to COVID-19, to vote by mail under the age of 65,” Dunn said.
On Thursday, the 14th District Appeals Court sided with Texas Democrats, ruling that the lack of immunity to the virus would qualify as a disability.
The decision is not based on voters’ fear of contracting the virus, which Attorney General Ken Paxton originally argued would not qualify as a disability.
On Friday afternoon, Paxton asked the Texas Supreme Court to immediately stay that order. The attorney general also asked the Texas Supreme Court to uphold the State’s right to stay temporary injunctions from lower courts upon filing an appeal.
He and other Republicans have opposed the expansion of vote-by-mail before the pandemic began. “I think our concern for vote by mail on election day is the potential for fraud,” U.S. Rep. Micahel McCaul said on Tuesday.
This back-and-forth between the judiciary and executive leaders has left county clerks across the state in limbo about what to do. A representative for Bexar County in federal court Friday said they were not arguing one way or another, they simply want a clear decision to be made as soon as possible.
Some counties are already reporting high levels of mail-in ballot applications, Dunn explained, like Harris County.
“They have already reached the total number of mail-in ballots at this stage in the process that they had in the whole time, the last go around,” Dunn said.
The Texas Supreme Court’s decision could overrule the court of appeal’s decision. However, a decision from the federal court would take precedence over all state rulings.