Justices reject effort to allow mail-in voting for all in Texas

The Supreme Court today refused to reinstate a ruling by a federal trial court that would have allowed all eligible voters in Texas to vote by mail for the 2020 election cycle. In a brief order without any noted dissents, the justices turned down a request from the Texas Democratic Party and a group of Texas voters to block a ruling by the U.S. Court of Appeals for the 5th Circuit that put the trial court’s ruling on hold. In a short statement, Justice Sonia Sotomayor urged the 5th Circuit to settle the constitutional issue at the heart of the case in time for the general election in November.

Today’s order was the latest in a series of emergency filings at the Supreme Court arising from the COVID-19 pandemic. It came in a lawsuit challenging a Texas election law that allows only voters ages 65 and older to vote by mail without providing an excuse. The plaintiffs – including several Texas voters who have family members at high risk for severe illness if they are exposed to the virus – prevailed in a federal trial court. U.S. District Judge Fred Biery agreed with them that, because it treats younger voters differently from older voters, the rule likely violates the 26th Amendment to the Constitution, which gives all U.S. citizens who are at least 18 years old the right to vote. Biery therefore ordered the state to allow all eligible voters, not just those over the age of 65, to vote by mail until the pandemic subsides.

The state went to the U.S. Court of Appeals for the 5th Circuit, which put Biery’s order on hold while the state appeals. “The Virus’s emergence,” the court of appeals concluded, “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.” As a result of today’s order, the 5th Circuit’s ruling will now remain in place.

Sotomayor filed a brief statement regarding the denial. She explained that the challengers’ “application raises weighty but seemingly novel questions regarding the Twenty-Sixth Amendment,” and that she did “not disagree with the decision to refrain from addressing them for the first time here, in the context of an emergency application to vacate a stay of an injunction.” But she urged the 5th Circuit to “consider the merits of the legal issues in this case well in advance of the November election.”

This post was originally published at Howe on the Court.