(TNS) — A federal judge's ruling that Texans must wear masks in polling places — so as to not discriminate against minority voters who are at higher risk of serious complications from the coronavirus — was blocked by an appellate court late Wednesday.
U.S. District Judge Jason Pulliam on Tuesday had temporarily struck down the exemption for polling places in Gov. Greg Abbott's mask order, saying that the rule "creates a discriminatory burden on Black and Latino voters."
Texas Attorney General Ken Paxton's office, which represents state agencies and officials, immediately appealed to the 5th Circuit Court of Appeals. The court will still need to decide whether to issue a longer-term stay that would last for the duration of the appeal.
"We applaud the 5th Circuit for halting the district court's unlawful injunction that blocked Gov. Abbott's exemption for face masks at polling locations," Paxton said. "The order is lawful and must stand to allow every registered voter an equal opportunity to cast their ballot." Courtney Hostetler, attorney for the plaintiffs, said Wednesday that she was disappointed with the appellate court ruling and planned to oppose it in court.
"Voters have the right to vote safely and without unnecessary risk to their health during this pandemic," Hostetler added.
Harris County election officials decided early on not to enforce the ruling, anticipating the quick appellate turnaround that came to pass. Officials already require election workers to wear masks at the polls and encourage voters to wear them.
The litigation over mask requirements is part of an avalanche of legal challenges to the way Texas conducts elections — from the lack of straight-ticket voting to the number of mail-ballot dropoff sites — happening smack in the middle of an early voting period that has elicited record-high turnout of almost 8 million.
The effect has been head-spinning, back-and-forth court rulings, as the mostly Democrat-launched suits are upheld by lower-level Democratic judges, then fended off by Republican-dominated appellate courts.
It's not uncommon for voting-related suits to coincide with elections, especially because that's when alleged violations of law tend to occur. But with all the last-minute changes spurred by the pandemic, attorneys in Texas and nationwide say the number of legal battles has skyrocketed.
"It's unprecedented, but we're in unprecedented times," Hostetler said. "A lot of voters aren't seeing their right to vote being prioritized by legislators and by governors, and these lawsuits are really focused on making sure that people can vote, they can stay safe and they're not putting themselves at increased risk to do so."
It also comes as the country is seeing one of the worst surges in COVID-19 cases yet. Texas' seven-day rolling average for new cases is now at 7,198.3, the first time it's broken 7,000 cases since Aug. 21.
Houston-area Rep. Briscoe Cain, a Republican attorney who sits on the Texas House elections committee, said the notion that the state is universally suppressing the vote amid the pandemic is off-base.
Echoing arguments by the attorney general's office in recent suits, Cain said there are even more opportunities to vote in 2020, given Abbott's orders extending the early voting period by six days and allowing voters to drop off absentee ballots not just on Election Day but in the weeks prior.
The state has argued it has an obligation to protect against voter fraud, even if that means inconvenience for voters. While studies have shown that incidents of voter fraud are rare and the state has yet to provide evidence that it's pervasive, Cain said he anticipates new cases to follow this election.
"I believe the paramount issue is we should have a fair and secure election," Cain said. "And I think partisans are going to come up with their opinion of what that means. But at the end of the day, everybody is hoping for a fair and secure election."
Texans overwhelmingly approved of Abbott's statewide mask mandate when it came out in early July — a poll from that month by Quinnipiac University showed almost 80 percent supported it.
While the Republican governor has still encouraged the use of masks, the exemption of polling places in his order runs contrary to the Centers for Disease Control and Prevention recommendation that voters and poll workers wear masks.
Studies have indicated that face masks can reduce the spread of the flu and the coronavirus, and scientists and health experts have said the decreased air flow and lack of sunlight increase the risk of spending time indoors.
A Japanese study from April, which has not yet been peer-reviewed, found that the odds of COVID-19 transmission were 18.7 times greater indoors compared with outdoors.
The suit over Abbott's order was first brought in July by Mi Familia Vota, the Texas chapter of the NAACP and two Texas voters and raised a series of issues, requesting a longer early voting period, more polling places and an expansion of curbside voting.
The San Antonio-based judge had dismissed the suit in September, saying he lacked the jurisdiction to make the large-scale changes that plaintiffs requested.
The 5th Circuit Court of Appeals, however, sent the case back to Pulliam this month, saying that if he found the provisions of Abbott's order regarding polling places to violate the federal Voting Rights Act, then he would have the authority to make changes.
In the 35-page ruling Tuesday, Pulliam agreed with plaintiffs that the exemption disproportionately affects Black and Latino Texans who are statistically more likely to become infected with COVID-19 and have more serious complications and would have to "choose between not voting or risking their lives or the lives of their loved ones to vote."
That concern "can be eliminated, or at least mitigated, if all people wear masks at polling sites," Pulliam wrote. "As a result of this discriminatory effect, these minority groups have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice."
The attorney general's office argued in a filing Tuesday that Supreme Court precedent should bar such a change in the middle of an election.
Pulliam in his order had disagreed that the ruling would disrupt the election.
"This Court is not ordering a drastic change in rules or requirements that are contrary or drastically different than the procedures already in place," he wrote. "Those citizens who arrive at a polling site while not wearing a facial mask will be easily recognized and options for compliance or redirection are not complicated or extensive."
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