SAN ANTONIO - Texans will not be required to wear face masks when casting election ballots during the coronavirus pandemic after a federal appeals court halted an order that would be mandated voters to don the coverings.
Late Wednesday, the 5th Circuit Court of Appeals blocked an order issued the prior day by a San Antonio federal judge that invalidated an exemption for polling places included in Gov. Greg Abbott's statewide mask mandate.
The trio of judges on the appellate panel, all appointed by President Trump, granted what's known as a short-term administrative stay, effectively stopping the federal judge's ruling from taking effect while the court weighs whether it will uphold the decision or strike it down during the appeals process.
Abbott's executive order that requires Texans to wear a face-covering in public spaces in counties that have at least 20 positive COVID-19 cases does not apply to people who are “voting, assisting a voter, serving as a poll watcher, or actively administering an election.”
That exemption was challenged as discriminatory against Black and Latino voters who are more likely to be hurt by the coronavirus.
In his temporary ruling issued Tuesday night, U.S. District Judge Jason Pulliam said exception violated the Voting Rights Act because it “creates a discriminatory burden on Black and Latino voters" by forcing them to make "the unfortunate choice required between voting and minimizing their risk" of exposure.
“This discriminatory effect can be eliminated, or at least mitigated if all people wear masks at polling sites,” Pulliam wrote.
Minorities are disproportionately more likely to be infected, hospitalized, and die from the virus, according to the Centers for Disease Control and Prevention. The virus infected more than 9 million Americans and killed over 227,000, the most in the world.
Abbott has previously recommended people wear masks to the polls and said the exemption is so that voters aren't turned away.
On Wednesday, Texas Attorney General Ken Paxton filed an emergency petition requesting the 5th U.S. Circuit Court of Appeals block Pulliam's order.
″[Abbott] exempted voters and polling personnel from a mask mandate precisely to protect important rights such as the right to vote,” Paxton said in his request. “Yet the district court has turned that on its head, judicially imposing that obstacle to voting for countless Texas citizens who now have to choose: wear a mask, or else lose the right to vote.”
Mi Familia Vota, the Texas National Association for the Advancement of Colored People and two Texas voters first filed a lawsuit against Abbott and the Texas secretary of state in July seeking a mask mandate at the polls, as well as a month of early voting and the opening of additional polling places.
Pulliam dismissed that lawsuit in September; but the case arrived in his court earlier this month.
“Black and Latino Texans … are more likely to become infected and more likely to suffer severe illness or to die of COVID-19. Black and Latino voters in Texas also face longer lines at the polls, increasing their risk of transmission by exposing them to crowds of other voters and poll workers,” the plaintiffs wrote in the lawsuit.
So far, the Lone Star State has already topped 8.4 million votes, the second-highest in the nation, according to the U.S. Elections Project, a turnout-tracking database run by University of Florida political scientist Michael McDonald. That represents more than 90% of the nearly 9 million ballots counted during the 2016 presidential election.
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