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.

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