A three-judge panel of the U.S. Fifth Circuit Court of Appeals has permanently stayed an injunction expanding eligibility for voting by mail pending appeal. The court had previously issued a temporary administrative stay.

Calling District Judge Fred Biery’s order something “that will be remembered more for audacity than legal reasoning,” the Court chastised him for intervening “just weeks before an election” to issue a “sweeping” injunction.

“We need not – and will not – consider the prudence of Texas’s plans for combating the [coronavirus] when holding elections,” wrote Judge Jerry Smith for the court. “Instead, we must decide only whether the challenged provisions of the Texas Election Code run afoul of the Constitution, not whether they offend the policy preferences of a federal district judge.”

The panel unanimously concluded the district court erred in application of law and precedent when it ordered several county election administrators, and by extension all of them, to accept all applications to vote by mail because of COVID-19. Judge James Ho, an appointee of President Trump, and Gregg Costa, an appointee of President Obama, issued concurring opinions.

The Texas Democratic Party, the original suit’s lead plaintiff, may appeal the decision to the full Fifth Circuit, appeal directly to the U.S. Supreme Court or pursue the case in the trial court.

Last week, the Texas Supreme Court ruled in a related state case that a lack of immunity to the virus by itself does not qualify a voter to apply for an absentee ballot. The Court nonetheless left it up to individual voters to assess their health and physical condition to determine if they meet the Election Code’s criteria.

SD27: Republican nominee Vanessa Tijerina was arrested yesterday (Wednesday) in Raymondville and charged with driving while intoxicated with child passengers, possession of drug paraphernalia and interfering with public duty. Some of Tijerina’s interactions with the officers were streamed live on Facebook by the candidate. She is a former Democratic precinct chair, former Green Party candidate for CD15 and former candidate for mayor of Raymondville. She was unopposed in the Republican primary. Sen. Eddie Lucio (D-Brownsville) faces Sara Stapleton-Barrera in the Democratic runoff.

CD13 open: Former Wichita Falls Mayor Kay Yeager endorsed Josh Winegarner in the Republican runoff over Ronny Jackson.

CD17 open: The campaign of Renee Swann released a new ad, “Holding China Accountable,” which focuses on her policies toward China. Swann faces former U.S. Rep. Pete Sessions (R-Dallas) in the Republican runoff.

Texas Values Action PAC endorsed Swann for the runoff. The group previously endorsed George Hindman, who finished third.

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