Under Texas law, only voters ages 65 and older may vote by mail without providing an excuse. The Texas Democratic Party and several voters went to federal court this spring to try to change that rule in light of the COVID-19 pandemic. U.S. District Judge Fred Biery issued a preliminary injunction in May that would allow all eligible voters to vote by mail without an excuse throughout the pandemic. Biery ruled that, because it treats older voters differently from younger voters, the Texas law likely violates the 26th Amendment to the U.S. Constitution, which bars states from discriminating against voters based on age.

Texas appealed to the U.S. Court of Appeals for the 5th Circuit, which agreed to put Biery’s order on hold until the appeal was resolved. That led the challengers to go to the Supreme Court last June, asking the justices to reinstate Biery’s order and allow all eligible voters to vote by mail during the pandemic. The justices rejected that request in a brief order, without any noted dissents, on June 26. Justice Sonia Sotomayor added a short statement in which she explained that she did “not disagree with the decision to refrain from addressing” the “weighty but seemingly novel questions regarding the Twenty-Sixth Amendment” at this stage of the case, but she urged the 5th Circuit to “consider the merits of the legal issues in this case well in advance of the November election.”

A three-judge panel of the 5th Circuit issued a decision lifting Biery’s order on Sept. 10. The court of appeals concluded that the Texas law limiting no-excuse mail-in voting to older voters does not, standing alone, violate the 26th Amendment, and nothing about the pandemic changes that. “There are quite reasonable concerns about voting in person,” the court of appeals acknowledged, “but the state’s mandating that many voters continue to vote in that way does not amount to an absolute prohibition of the right to vote.” “The real issue here,” the court added, “is equal protection” – the idea that the government cannot treat one group less favorably than another – “and that is not before us.” The court of appeals sent the case back to the lower court for further proceedings, which will likely include consideration of issues like equal protection, although it is not clear yet whether the challengers will ask either the full 5th Circuit or the Supreme Court to weigh in first.

The deadline for Texas voters to request a mail-in ballot is Oct. 23.