WASHINGTON – The Supreme Court declined Friday to force Texas officials to offer mail-in ballots to all voters in the state because of the threat of the coronavirus, not just those over 65.
The justices, without comment, turned down a request from the Texas Democratic Party to reinstate a district judge’s order that would affect the upcoming primary election in July and the general election in November.
There were no noted dissents to the order, but Justice Sonia Sotomayor wrote that the case raised “weighty but seemingly novel questions” regarding whether special conditions for those over a certain age violated the constitutional rights of younger voters.
She said an emergency request like the one before the Supreme Court was not the right time to consider them. But she added that she hoped the U.S. Court of Appeals for the 5th Circuit “will consider the merits of the legal issues in this case well in advance of the November election.”
In May, U.S. District Judge Fred Biery issued a preliminary injunction allowing all Texas voters who feared exposure to the coronavirus to ask for a mail-in ballot, not just those older than 65.
But the decision was immediately appealed by the state’s Republican leaders: Gov. Greg Abbott, Attorney General Ken Paxton and Secretary of State Ruth Hughs, an Abbott appointee.
A unanimous three-judge panel of the 5th Circuit put Biery’s ruling on hold, saying such decisions were best left to state officials. Besides the recent age exception, the state allows absentee voting only for voters who are out of state or have a disability.
The state’s decision to allow older voters an absentee ballot was a concession to the coronavirus outbreak. Texas faces a spike in reported covid-19 cases.
But Democrats said such protection from voting in person must be offered to all. Once Texas decided to expand the absentee ballot process for older Texans – or make any change to voting procedures – it was constitutionally obligated to extend the benefit to all, the party argued.
“Texas can no more limit vote-by-mail to voters over the age of sixty-five than it could limit its early voting period only to voters under the age of sixty-five (perhaps on the theory that older voters are less likely to face childcare or employment responsibilities that make it difficult to get to the polls on a Tuesday),” the Democrats argued in their filing to the court.
“Whatever right to vote a state creates – whether it involves polling hours, early voting, or vote-by-mail – must be extended to all voters without regard to their race, their sex, their payment of a tax . . . . or their age.”
Texas countered that the appeals court got it right, and that voting accommodations are not constitutionally protected.
“The Fifth Circuit correctly explained that petitioners’ ineligibility to vote by mail does not implicate ‘the right to vote’ protected by the Twenty-Sixth Amendment – or any other constitutional provision,” Texas told the Supreme Court in its legal filing.
“There is no constitutional right to vote by mail, and each petitioner acknowledges that he or she has the option to vote by personal appearance on election day or during the extended early-voting period Texas is offering before the July primary.”
The Texas legal battle comes as states adjust their procedures in response to the pandemic and expand voting by mail.
All voters in every state but two – Mississippi and Texas – have the right to cast mail or absentee ballots for the midyear primaries after the pandemic led 14 states to relax their rules. Many states are now considering extending those changes for the general election in November.
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The Washington Post’s Michelle Ye Hee Lee contributed to this report.