On October 27, in the Western District of Texas, the Honorable Judge Jason Pulliam overturned a portion of Georgia Governor Greg Abbott’s Executive Order GA-29 (which generally mandates the statewide wearing of masks during the COVID-19 pandemic), specifically Exemption 8, which exempts those who are “voting, assisting a voter, serving as a poll watcher, or actively administering an election” from the mask mandate. The court ruled that such an exemption violated the Voting Rights Act by deterring Black and Latino voters from participating in the 2020 election, given the unique public health consequences present in both communities during the COVID-19 pandemic.
The plaintiffs, Mi Familia Vota and the Texas NAACP, commenced the underlying legal action against the Governor on allegations that Exemption 8 violated Section 2 of the Voting Rights Act. Section 2, the court explained, proscribes any “voting qualification or prerequisite to voting or standard, practice, or procedure … which results in a denial or abridgment of the right of any citizen … to vote on account of race or color” with said “denial or abridgment” being proven upon a showing that Exemption 8 imposed a discriminatory burden upon Black and Latino voters. The district judge continued to elaborate on the legal standard, noting that a discriminatory burden meant that the plaintiffs must prove that the masking exemption resulted in members of the protected class having “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their own choice” and that the burden is in part “linked to social conditions that…currently produce discrimination against members of the protected class.”
Judge Pulliam determined that the plaintiff provided evidence to prove the existence of the discriminatory burden created by Exemption 8. The court detailed how the plaintiff provided extensive testimony, both expert and layperson, proving the existence of “higher rates of infection of the disease amongst communities of color, worse outcomes once infected, and widespread reporting on these dangers, (concluding that) people in the Black (and Latino) community experience the dangers and devastation of the virus differently.” Given the heightened public health risks created by the COVID-19 pandemic for Black and Latino voters, the district court analyzed that the voters “have to choose between not voting and risking their lives, or the lives of their loves ones, to vote” with the ultimate result being “this difficult choice will dissuade some (Latino and Black voters) from voting.” This evidence presented by the plaintiffs, concluded the court, established the requisite discriminatory burden as it “set out the fear of (minority voters) of the greater severity of and fatality from the disease” and displayed the “unfortunate choice required between voting and minimizing…risk caused by Exemption 8 of the Executive Order.”
The district court then summarily concluded that the discriminatory burden indisputably linked itself to the current social conditions, given that with no pandemic, there existed no heightened public health consequences for Black and Latino voters, and theretofore existed no risk considerations centered around whether one must be masked or unmasked in public places, such as voting spots. As such, Judge Pulliam concluded, Exemption 8 violates the Voting Rights Act prohibition on state-created barriers to voting for racial minorities, and cannot stand. The court then granted the plaintiffs their requested preliminary injunction invalidating Exemption 8, ruling that while such an injunction on the eve of an election required careful balancing of irreparable harm versus public interest, such balancing proved simple as the injunction merely overturned an exception to a mask mandate already in existence, while protecting the fundamental right to vote for Black and Latino voters.
The defendant appealed the order to the Fifth Circuit on October 27. The plaintiffs are represented by Lyons & Lyons, P.C., Free Speech for the People, and Lieff Cabraser Heimann & Bernstein.
