With just over two weeks remaining before the deadline to request mail-in ballots for the upcoming primary runoff election, the Texas Democratic Party and a group of Texas voters have asked the Supreme Court to reinstate a ruling by a federal trial court that would allow all eligible voters in Texas to vote by mail for the 2020 election cycle. Citing concerns that allowing widespread mail-in voting will lead to voter fraud, Texas officials have opposed their effort; a decision by the Supreme Court to intervene could have repercussions for mail-in voting in other states beyond Texas.
Texas election laws only allow voters who are 65 years or older to vote by mail without providing an excuse. But the Texas Democratic Party and several Texas voters went to federal court this spring to challenge that rule in light of the COVID-19 pandemic. One of those voters, Joseph Cascino, is a 20-year-old Texas voter who wants to be able to vote by mail because his mother is immunocompromised; another, Shanda Sansing, is 60 years old and wants to avoid in-person voting because her husband and daughter have asthma.
In May, a federal district judge in Texas issued a preliminary injunction that would allow any voter in Texas, regardless of age, to vote by mail to avoid COVID-19. U.S. District Judge Fred Biery ruled that, by treating older voters differently from younger voters, the Texas election law likely violates the 26th Amendment, which gives the right to vote to all U.S. citizens who are at least 18 years old. Biery’s order would apply “during the pendency of pandemic circumstances,” which could mean not only the upcoming primary runoff election scheduled for July 14, but also the general election scheduled for November 3.
On June 4, the U.S. Court of Appeals for the 5th Circuit put the district court’s ruling on hold while the state appeals. The court of appeals concluded that the challengers were not likely to succeed on their 26th Amendment claim because there was “no evidence” that Texas had denied or limited the challengers’ right to vote; eligible voters could still vote. “The Virus’s emergence,” the court of appeals wrote, “has not suddenly obligated Texas to do what the Constitution has never been interpreted to command, which is to give everyone the right to vote by mail.”
The challengers came to the Supreme Court today, asking the justices to restore the district court’s order and allow mail-in voting for all Texas voters for the 2020 election cycle. In their filing seeking a stay of the 5th Circuit’s order, they told the justices that there “are millions of voters in Texas under the age of sixty-five who would be eligible to obtain a no-excuse vote-by-mail ballot if this application is granted.” If it is not, they warned, and the ruling by the court of appeals remains in place, “many of those voters will be forced to either risk contracting COVID-19 during in-person voting or relinquish their right to vote at all.”
At the same time, the challengers asked the justices to weigh in on the merits of the dispute – that is, whether the Texas law limiting no-excuse mail-in voting to voters over the age of 65 violates the 26th Amendment – immediately, even before the 5th Circuit has ruled on the appeal. The challengers warned the Supreme Court that, because of the pandemic, the court is likely to face repeated questions about the constitutionality of state laws that impose age restrictions on mail-in voting.
In their petition for review, the challengers argue that even if the justices do not block the 5th Circuit’s ruling, the court should grant their petition and put the case on a fast track for review and a ruling before the election in November. The decision by the court of appeals is wrong on the merits, they say: “Texas could have decided not to extend no-excuse vote-by-mail to anyone, but it cannot grant that privilege based on age. The State cannot ‘impose a material requirement’ on voting—namely, showing up at a polling place—‘solely’ on the basis of an eligible voter’s age.” Moreover, the challengers add, the Supreme Court’s ruling would be significant not only to Texans who want to vote by mail, but also to those who would in vote in person, because lines will be shorter – and the risk of becoming infected with COVID-19 will be lower – if more people are allowed to vote by mail.
The challengers’ stay request went to Justice Samuel Alito, who handles emergency appeals from the 5th Circuit. Alito can act on the request on his own or, as is more common, refer it to the full court.
Update: Alito has called for a response, which is due Monday, June 22, by 4 p.m. ET.
This post is also published on SCOTUSblog.