Texas Democrats ask U.S. Supreme Court to weigh in on voting by mail

After a series of losses in state and federal courts, Texas Democrats are looking to the U.S. Supreme Court to expand voting by mail during the coronavirus pandemic.

The Texas Democratic Party asked the high court Tuesday to immediately lift the 5th U.S. Circuit Court of Appeals' block on a sweeping ruling that would allow all Texas voters who are seeking to avoid becoming infected at in-person polling places to instead vote by mail. Early voting for the July 14 primary runoff election begins June 29.

The fight to expand who can qualify for a ballot they can fill at home and mail in has been on a trajectory toward the Supreme Court since Texas Democrats, civil rights groups and individual voters first challenged the state's rules months ago when the new coronavirus reached Texas. Under existing 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.

"Our constitution prevents our government from discriminating against voters due to age. Especially during this pandemic, why should we be penalized for being under age 65?" said Brenda Li Garcia, a registered nurse in San Antonio and plaintiff in the case, during a virtual press conference announcing the appeal to the Supreme Court. "To protect a certain group and to give only certain ages the right to vote by mail is arbitrary, discriminatory and unconstitutional."

Earlier this month, a panel of the 5th Circuit extended its block on a preliminary injunction by U.S. District Judge Fred Biery ordering that all state voters, regardless of age, qualify for mail-in ballots during the pandemic. Biery agreed with plaintiffs, including 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. Under his order, voters under the age of 65 who would ordinarily not qualify for mail-in ballots would now be eligible.

But after Attorney General Ken Paxton appealed that ruling, the 5th Circuit put it on hold, effectively eliminating the possibility that Texas voters would be able to legally request mail-in ballots solely because they fear that a lack of immunity to the new coronavirus will put them at risk if they vote in person.

The effect of the Democrats' request on the upcoming election is uncertain. In their appeal, the Democrats are asking Justice Samuel Alito — who oversees cases coming through the 5th Circuit — to undo the hold on Biery's order while the runoffs move forward. Democrats are also asking the justices to take up the case 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.

If Alito does not immediately allow the lower court's ruling to go into effect, the Democrats are asking the court for a full review of the case on an expedited timeline.

"Otherwise, millions of Texas voters will face the agonizing choice of either risking their health (and the health of others) to vote in person or relinquishing their right to cast a ballot in two critical elections," the Democrats said in their filing.

The court is expected soon to go into recess until October.

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 response to the Democrats' appeal, the attorney general's office vowed to continue fighting an expansion.

“The Fifth Circuit’s powerful and well-reasoned opinion correctly found that the State likely would prevail on its argument that Texas’s mail-in voting laws comply with the U.S. Constitution," said Alejandro Garcia, a spokesperson for the attorney general. "This is clearly a ploy by the Texas Democratic Party to further confuse Texas voters."

Before the 5th Circuit, the attorney general 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."

Paxton's office has previously argued that it had a significant interest in enforcing existing absentee voting requirements to preserve “the integrity of its election” and to prevent voter fraud. The attorney general's office had submitted testimony from the long-winding litigation over the state’s voter ID law that touched on instances of fraud involving the mail ballots of voters who are 65 or older or voters in nursing homes.

But in scrutinizing that argument, Biery ultimately found the state had cited "little or no evidence" of widespread fraud in states where voting by mail is more widely used.

The case appealed to the U.S. Supreme Court is just one in a series of legal challenges the state faces to its rules for voting by mail, though it’s been largely successful in keeping the status quo in place. In a separate case, the attorney general’s office convinced the Texas Supreme Court that a lack of immunity to the virus alone does not meet the state’s qualifications for voting by mail.

The court repeatedly said that it is up to voters to assess their own health and physical conditions to determine if they meet the election code’s definition for disability, but that ruling effectively gutted another case in state district court in which individual voters, state Democrats and civic organizations had sued to expand voting by mail based on a lack of immunity.