Texas AG Paxton’s cynical ploy lost in the mail as Texas voters prevail

Stop us if you’ve heard this one: what’s the difference between the novel coronavirus and the voter fraud rate in Texas?

Give up? They’re both microscopic, but if a federal ruling is allowed to stand, only one can get you killed.

U.S. District Judge Fred Biery had ruled Tuesday that all Texans will be able to vote by mail during the pandemic. On Wednesday afternoon, however, Texas Attorney General Ken Paxton convinced a three-judge panel of the U.S. Fifth Circuit Court of Appeals to block Biery’s ruling temporarily. Now the plaintiffs in the case have until Thursday to tell the appeals court why it shouldn’t agree to Paxton’s demand that the ruling be stayed until the court can issue a ruling on the appeal his office filed earlier in the day.

It’s the latest development in a series of court battles between those who would prioritize voter health over a cynical ruse to limit voter access in the name of “election security.”

“Protecting the integrity of elections is one of my most important and sacred obligations,” Paxton said in a statement after a decision last week blocked mail-in ballot requests for all voters. “I am pleased that today the Texas Supreme Court confirmed that my office may continue to prosecute voter fraud and issue guidance on mail-in ballots while that appeal plays out.”

In his superseding ruling, Judge Biery took aim at Paxton’s disingenuous assertions, writing that from 2005 to 2018, there were 73 prosecutions out of tens of millions of votes cast in Texas.

“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. Indeed, if vote by mail fraud is real, logic dictates that all voting should be in person.”

It’s time the state stops fighting the expansion of vote-by-mail and recognizes that as the coronavirus outbreak continues, the only choice Texans should make on Election Day must be between the candidates, not between their personal safety and their right to vote.

The only way to guarantee that is to allow everyone who wants to request an absentee ballot to do so. While election law doesn’t contemplate a pandemic, it is nonetheless clear: the “disability” provision that qualifies Texans to vote by mail covers anyone whose health is put at risk by voting in person.

As long as there is no vaccine, that means any voter may request to vote by mail.

So far, the courts have agreed. Last month, a state district judge issued a temporary injunction and the Fourteenth Court of Appeals upheld the order. Despite Paxton’s misleading exuberance over the state Supreme Court ruling, it issued a stay but has yet to rule on the merits. Neither has the federal appeals court in the latest reversal.

In the federal case, the judge also found that plaintiffs were likely to succeed in proving the rules violate the 26th Amendment’s protections against voting restrictions that discriminate based on age.

Paxton’s focus on election security echoes the spurious claims by President Trump, who has called mail ballots “a dangerous thing” and “corrupt” — regardless of the facts.

“Voter fraud is the most overblown, manufactured crisis in election law today,” Matt Strabone, senior counsel for non-partisan advocacy group RepresentUs, told the editorial board. “It’s been proven by numerous academic studies, time and again, that it happens in minuscule numbers and is more likely to be voter mistakes than willful fraud.”