Texans Not Required to Wear Face Masks at Polling Station, Appeals Court Rules

October 30, 2020 Updated: October 30, 2020

Texans will no longer be required to wear face masks when casting election ballots at polling stations, less than a day after a federal appeals court halted an order that would have compelled voters to do so.

The 5th U.S. Circuit Court of Appeals on Wednesday blocked a previous order (pdf) issued one day before by San Antonio federal judge Jason Pulliam that found the exemption to Governor Greg Abbott’s statewide face mask mandate placed “a discriminatory burden on Black and Latino voters,” who have a higher risk of severe illness and death from the CCP virus, also referred to as COVID-19.

“This discriminatory effect can be eliminated, or at least mitigated, if all people wear masks at polling sites,” Pulliam, a Trump-nominated judge, wrote.

Shortly afterward, Texas Attorney General Ken Paxton told Pulliam that he will ask the 5th U.S. Circuit Court of Appeals to block the order.

The judges on Wednesday granted a short-term administrative stay, which effectively stops the federal judge’s ruling from taking effect while the court considers whether or not it will uphold the decision during the appeals process. This means voters once again are not required to wear masks inside polling places.

Governor Greg Abbott’s statewide mandate for Texans to cover their mouths and noses in public does not apply to polling places. The mandate went into effect July 3 and includes other public places such as restaurants and grocery stores.

Although Abbott has previously said he encourages voters to wear a face mask, he excluded polling places from his mandate to prevent people from being turned away from voting just because they don’t have a mask, though he has also recommended that people wear them. Poll workers are also not required to wear masks.

“With the runoff … we made clear that masks are highly recommended,” Abbott said of the expedition during a town hall broadcast by KTRK in Houston.

“We don’t want to deny somebody the ability to go vote simply because they don’t have a mask, and that’s why if you look into the depths of the order, you would see that they are not mandated for people to go vote because we didn’t want anybody to say, well, they couldn’t vote because they didn’t have a mask. However, we know that the safest way to go vote is by wearing a mask.”

Pulliam’s order came more than two weeks after in-person early voting began in Texas. Early voting for the Nov. 3 general election in Texas runs from Oct. 13 through Oct. 30.

The ruling came after the Texas chapter of the National Association for the Advancement of Colored People (NAACP) and Mi Familia Vota filed a lawsuit against Abbott and the Texas secretary of state in July. The plaintiffs sought to get the state to adopt a list of safety requirements during the pandemic, including the opening of additional polling places, additional voting machines, and an extra week of early voting on top of the six additional days already ordered by Abbott.

Pullman had dismissed that lawsuit in early September, ruling that he lacked authority to order the changes because it was outside his jurisdiction as a federal judge and that the power to administer elections and set voting procedures belongs to the Legislature and state agencies, not the courts.

The civil rights groups appealed, and the 5th Circuit Court upheld Pulliam’s ruling but returned the matter to his court for him to review, noting that if he found that Abbott’s decision to not require masks at the polls violated the federal Voting Rights Act’s disallowance of discriminatory voting practices based on race, he would have jurisdiction to order changes.

Paxton’s office countered that the majority of states are not requiring masks at polling places and argued that the new legal fight over a potential Voting Rights Act violation is taking place too late, after more than 7 million Texans have already cast ballots since early voting began.

According to an ABC analysis, at least 33 states, plus Washington, D.C., are requiring or strongly recommending voters wear masks at the polls.