The U.S. Supreme Court has rejected an initial bid by state Democrats to expand voting by mail to all Texas voters during the coronavirus pandemic.
Justice Samuel Alito — whose oversight of federal courts includes cases coming through Texas — on Friday issued the court's denial of the Texas Democratic Party’s request to let a federal district judge's order to expand mail-in voting take effect while the case is on appeal. U.S. District Judge Fred Biery ruled in May that Texas must allow all voters fearful of becoming infected at polling places to vote by mail even if they wouldn’t ordinarily qualify for mail-in ballots under state election law. The 5th Circuit Court of Appeals stayed Biery's order while Texas appeals his ruling.
The decision means the state’s strict rules to qualify for ballots that can be filled out at home will remain in place for the July 14 primary runoff election, for which early voting starts Monday. Under current law, mail-in ballots are available only if voters are 65 or older, cite a disability or illness, will be out of the county during the election period or are confined in jail.
Still left pending is the Democrats separate request for the justices to take up their case before the November general election. The party’s case focuses primarily on the claim that the state's age restrictions for voting by mail violate the 26th Amendment's protections against voting restrictions that discriminate based on age.
The court's only comment on the decision came from Justice Sonia Sotomayor, who said she agrees with the ruling but indicated the Democrats' case "raises weighty but seemingly novel questions regarding the Twenty-Sixth Amendment" and urged the appeals court to consider the case in a timely manner before the general election.
"But I hope that the Court of Appeals will consider the merits of the legal issues in this case well in advance of the November election," Sotomayor said.
In order for someone to vote by mail in the July 14 primary runoffs, counties must receive their application for a mail-in ballot by July 2. A favorable decision for Democrats by the Supreme Court by early October could still allow for a massive expansion in voting by mail during the November general election.
In his initial ruling, Biery agreed with individual Texas voters and the Texas Democratic Party that voters would face irreparable harm if existing age eligibility rules for voting by mail remain in place for elections held while the coronavirus remains in wide circulation. And he agreed with the plaintiffs' argument that the age limitation violates the U.S. Constitution because it imposes additional burdens on voters who are younger than 65 during the pandemic.
In his appeal to the 5th Circuit, Texas Attorney General Ken Paxton argued that Biery's injunction threatened "irreparable injury" to the state "by injecting substantial confusion into the Texas voting process mere days before ballots are distributed and weeks before runoff elections."
Democrats and voting rights groups have been fighting the state's restrictions on multiple fronts, but have been so far unsuccessful in making mail-in ballots available to all voters during the pandemic. In a separate case, the Texas Supreme found last month that lack of immunity alone does not meet the state election code's definition of disability, but it could be considered a factor as part of a voter’s medical situation.
The Texas election code defines disability as a “sickness or physical condition” that prevents a voter from appearing in person without the risk of “injuring the voter’s health.” And the Texas Supreme Court reiterated that it is up to voters to assess their own health and determine if they meet the election code's definition of disability.
But the litigation has left some voters confused about the rules, and some who may actually be eligible to vote by mail are instead considering risking exposure to the virus.
“We are disappointed that the Supreme Court did not weigh in now and provide needed relief and clarity for voters ahead of the primary runoff," Texas Democratic Party Chair Gilberto Hinojosa said in a Friday statement. “The case proceeds on in other filings before the U.S. Supreme Court and the Fifth Circuit and therefore, hope remains that the federal courts will restore equal voting rights in time for the November elections."
In a statement following the ruling, Paxton said the court's decision tracks Texas law. "State election officials have many options available to safely and securely hold elections without risking widespread fraud," Paxton said.
There are documented cases of fraud in mail-in voting in Texas. But like voter fraud overall, it remains rare.
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