Texas Governor’s Exemption for Polling Places From the Statewide Mask Mandate is Declared ‘Invalid and Void’

Voting Rights Advocates Celebrate ‘Major Victory for Democracy’

SAN ANTONIO, TEXAS – A federal court in San Antonio, Texas issued a ruling last night requiring that all voters, poll workers, and poll watchers wear masks at the polls throughout the state leading into the November election.  The ruling, issued in a voting rights lawsuit brought by Mi Familia Vota, the Texas NAACP, and an individual Texas voter, takes effect immediately at all Texas polling sites.

US District Court Judge Jason Pulliam, a Trump appointee, declared “invalid and void” Texas Governor Greg Abbott’s exemption for polling places from his statewide mask mandate order, finding that it “violates Section 2 of the Voting Rights Act because it creates a discriminatory burden on Black and Latino voters.”

“This is a major victory for democracy,” says Héctor Sánchez Barba, the Executive Director and CEO of Mi Familia Vota.  “Voters should not have to choose between protecting their health and exercising their fundamental right to vote.  In the midst of the COVID-19 pandemic, Governor Abbott’s exemption for voters, poll workers, and poll watchers from the mask mandate unlawfully forced voters to make that choice, and Latino and Black voters were disproportionately impacted by it. We celebrate this ruling today for all voters across the State of Texas. Mi Familia Vota will keep fighting voter suppression and intimidation to make this a more inclusive democracy.”

“This is a tremendous victory for democracy and for humanity.  Millions of voters throughout Texas can now be assured that when they show up to vote for this election, the basic requirement of wearing a mask in public places during this pandemic will be applied to all polling sites,” says Gary Bledsoe, the President of the Texas NAACP.  “Our public policy has fallen to such a low level to where we are willing to put the lives of innocent human beings at risk when there was an easy alternative.  The Fifth Circuit panel that heard this case seemed to be shocked that Texas would have such a policy. Federal Judge Pulliam wisely and correctly ruled that the Voting Rights Act prohibits the discriminatory burden imposed on Black and Latino voters by Governor Abbott’s exemption for polling sites from the statewide mask mandate.  The Judge has already been vindicated, as last night we received reports of polling officials in Texas testing positive for the coronavirus, and other polling places being required to close down because of sick poll workers. And, this past weekend, we received reports of poll watchers who were using their maskless presence to approach and intimidate minority voters.”

The plaintiffs filed their lawsuit against Governor Abbott and Secretary of State Ruth Hughs on July 16, 2020, challenging unsafe and unequal voting conditions in Texas during the pandemic, including the governor’s exemption for voters, poll workers, and poll watchers from his statewide mask mandate order.  On September 7, 2020, Judge Pulliam dismissed the case on political question grounds.  The US Court of Appeals for the Fifth Circuit granted the plaintiffs’ motion for an expedited appeal and heard oral argument on October 7, 2020.  One week later, on October 14, 2020, the Fifth Circuit affirmed the dismissal of plaintiffs’ constitutional claims, only on sovereign immunity grounds, but reversed the dismissal of plaintiffs’ claim under the Voting Rights Act.  In its ruling, the appellate court specifically addressed the potential viability of the remedy sought by plaintiffs to remove the exemption for polling places from the governor’s statewide mask mandate order.  Judge Pulliam’s ruling last night followed a three and a half-hour hearing this past Monday on the plaintiffs’ motion for a preliminary injunction to declare the exemption invalid under the Voting Rights Act.  Soon after the district court’s ruling, the defendants filed a notice of appeal.

“This decision will ensure that everyone at Texas polling places—from voters to poll watchers—will be wearing masks and therefore working together to prevent transmission of the deadly disease that has devastated so many Texans,” says Courtney Hostetler, Senior Counsel at Free Speech For People, a public interest law firm which serves as co-lead counsel for the plaintiffs.  “As the district court rightly found, the polling place mask exemption has placed a discriminatory burden on Black and Latino voters, who have had to make difficult choices about voting in high-risk polling places, or giving up their fundamental right to vote. No one should have to make that choice, and the district court’s decision ensures that our clients, and voters across Texas, are able to vote safely during the COVID-19 pandemic.”

“This is a huge victory for democracy, public health, equality, and basic human decency,” says Ben Clements, Board Chair and Senior Legal Advisor at Free Speech For People.  “Governor Abbott’s order permitting voters and poll workers to go to the polls unmasked during a deadly pandemic, while requiring masks in almost all other public places, impermissibly forced Texas voters to choose between their right to vote and protecting their health and their lives, and did so in a manner that discriminated against those most vulnerable to COVID-19, including Black and Latino voters.  Now that the district court has properly struck down the Governor’s poll place exemption, Texas voters can safely go vote in person without fear of contracting COVID-19 from unmasked voters and workers.”

Read the full court ruling here.

Free Speech For People, Lieff Cabraser Heimann & Bernstein, Lyons & Lyons, and Emery Celli Brinckerhoff Abady Ward & Maazel are representing the plaintiffs in this case.