SAN ANTONIO – Editor's note: This story has been updated with additional detail.
A federal judge on Tuesday opened a path for a massive expansion in absentee voting in Texas by ordering that all state voters regardless of age qualify for a mail-in ballot during the coronavirus pandemic.
Days after a two-hour preliminary injunction hearing in San Antonio, U.S. District Judge Fred Biery agreed with individual Texas voters and the Texas Democratic Party that voters would face irreparable harm if existing age eligibility rules for voting by mail remain in place for elections held while the coronavirus remains in wide circulation. Under his order, which will surely be appealed, voters under the age of 65 who would ordinarily not qualify for a mail-in ballot would now be eligible.
In a lengthy order, 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 hundreds 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.
In the federal lawsuit, the Texas Democrats argued that holding traditional elections under the circumstances brought on by the coronavirus pandemic would impose unconstitutional and illegal burdens on voters unless state law was clarified to expand who can qualify to vote by mail.
They focused, in part, on the state’s eligibility rules that limit absentee voting based on age to those who are 65 or older. They argued that rule violated the U.S. Constitution because it would impose additional burdens on voters who are younger than 65 during the pandemic, and Biery agreed.
In ruling against the state, Biery cast aside arguments made by the Texas Attorney General’s Office that he should wait until a case in state district court is fully adjudicated. In that case, state District Judge Tim Sulak ruled that susceptibility to the coronavirus counts as a disability under the state election code. That ruling was put on hold by the Texas Supreme Court last week.
During a Friday hearing in federal court, Biery scrutinized the state’s argument that it had a significant interest in enforcing existing absentee voting requirements to preserve “the integrity of its election” and to prevent voter fraud.
The AG’s office had submitted testimony from the long-winding litigation over the state’s voter ID law that touched on instances of fraud involving the mail ballots of voters who are 65 or older or voters in nursing homes.
“So what’s the rational basis between 65 and 1 day and one day less than 65?” Biery asked.
In his ruling, Biery said the state had cited "little or no evidence" of widespread fraud in states where voting by mail or more widely used.
“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 said. “Indeed, if vote by mail fraud is real, logic dictates that all voting should be in person.”