A three-judge panel of the US Court of Appeals for the Fifth Circuit ruled Wednesday that Texas federal courts potentially have the authority to change the election policy allowing poll workers to forgo wearing facial coverings.

A Texas voting rights group originally brought the lawsuit against Governor Greg Abbott in July. The group argued that Texas’ election policies created the impossible choice between exercising the constitutional right to vote and protecting from COVID-19. The plaintiffs specifically cited a July 2 statewide mask mandate that exempted “any person who is voting, assisting a voter, serving as a poll watcher, or actively administering an election” from the requirement. The district court dismissed the case for lack of subject matter jurisdiction, but the order was immediately appealed.

The Fifth Circuit similarly decided that most of the suit was properly dismissed and it would be a “futile act” to remand the case with the ongoing election. However, on the issue of the option for poll workers to forgo wearing their mask and risk infecting others who want to exercise their right to vote, the Fifth Circuit judges found that the governor lacks authority to enforce his own mandate because that is left up to local authorities.

The single issue now left up to the district courts is to conclude if the exemption from wearing facial coverings would constitute a violation of Section 2 of the Voting Rights Act of 1965 by giving “members [of a protected class] less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”