On June 4, the United States Court of Appeals for the Fifth Circuit extended its order blocking a lower court ruling that would have allowed all Texas voters to qualify as eligible to vote by mail during the COVID-19 pandemic. In extending its order, The Fifth Circuit found a "great likelihood that the state officials will ultimately succeed on the merits." And while the circuit court will set the case at some point in the future, it appears the fight to expand voting-by-mail in Texas will not have any impact on the July elections.

The Texas Supreme Court, which is composed of nine Republican justices, had previously ruled that a lack of immunity to the novel coronavirus does not qualify a voter to apply for a mail-in ballot. This decision came in advance of the primary runoff elections and with the approval of President Donald Trump, who tweeted in support of the court's decision: "Texas Supreme Court: Lack of immunity to COVID-19 alone not enough to vote by mail … Big win in Texas on the dangerous Mail In Voting Scam!"

For now, Texas voters are eligible to apply for mail-in-ballots if they cite a disability or illness, are 65 years or older, or if they will be absent from the country or in jail during an election.

Under Texas law, a disability is defined as a sickness or physical condition that prevents a voter from voting in person without serious risk to their health, but voters are not required to describe their disability when requesting a mail-in ballot. Applicants simply check a box on their application, and according to the Texas Supreme Court, if everything is filled out correctly, local officials are required to send a ballot.

The Texas Supreme Court also found that it is up to voters to assess their own health and physical conditions to determine if they meet the election code's definition for disability. Some experts believe this leaves the door open for an expansion in who qualifies to apply for mail in ballots. "We all have something we can look at," says the top election lawyer in Houston, Harris County attorney Douglas Ray. "And it's really up to the voter to decide based on his or her personal situation whether he would qualify or not. And the clerk basically has no authority or ability to question him."

Plaintiffs had previously argued successfully to a district judge in Travis County that a lack of immunity to COVID-19 should qualify voters to apply for a mail-in ballot. The Fourteenth Court of Appeals agreed with the ruling and rejected Attorney General Ken Paxton's assertion that fear of contracting COVID does not qualify as a disability. "In-person voting is the surest way to maintain the integrity of our elections, prevent voter fraud and guarantee that every voter is who they claim to be," Paxton said, despite evidence showing mail-in voting systems do not substantially increase the risk of voter fraud compared to in-person voting.

Now, the battle will continue in federal court and could end up in front of the U.S. Supreme Court after runoff elections. According to a recent Pew Research Center poll, 70% of adults support, "allowing any voter to vote by mail if they want to." Democrats were much more likely to support vote by mail expansions (87%), while Republicans were more divided (49% in favor, 50% against). Additionally, 38 states have some sort of "no excuse necessary" form of mail-in ballot option, and if Democrats are successful in the U.S. Supreme Court, Texas could be next.

Brett Cain is a trial lawyer who has tried over 50 jury trials and has resolved hundreds more disputes by mediation since 2006. He is the owner of Cain Firm, a partner of The Law Center, a national network of top law firms with decades of experience in advocating for those who have suffered from personal injury, asbestos-related diseases, motor vehicle accidents and more. Cain is proud to stand up for those who cannot stand for themselves, and, as a result, has recovered millions of dollars for clients after insurance companies initially wouldn't pay.