The back-and-forth on eligibility for voting by mail during the coronavirus pandemic continued today (Tuesday) when U.S. District Judge Fred Biery ruled that all voters regardless of age qualify for absentee voting.

“Any eligible Texas voters who seeks to vote by mail in order to avoid transmission of COVID-19 can apply for, receive and cast an absentee ballot in upcoming elections during the pendency of pandemic circumstances,” Biery wrote in a 73-page order. He sided with plaintiffs, including individual voters and the Texas Democratic Party, that voters would face irreparable harm if existing eligibility rules forced them to vote in person while the virus that causes COVID-19 remains in wide circulation. “Lack of immunity from COVID-19 is indeed a physical condition” qualifying voters to cast their ballots by mail.

The state will appeal the decision. “The district court’s opinion ignores the evidence and disregards well-established law,” said Atty. Gen. Ken Paxton in a statement. “We will seek immediate review by the Fifth Circuit Court of Appeals.”

On Friday, the Texas Supreme Court stayed the Fourteenth Court of Appeals decision to reinstate a temporary restraining order expanding eligibility for mail ballots due to COVID-19. That stay remains in effect pending disposition of the state’s appeal. The Court scheduled a hearing tomorrow (Wednesday) on the appellate decision but not the merits of the case. The state asked Biery to refrain from ruling on the federal case until the state case is resolved. For now, Biery’s order is controlling.

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