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TDP appeals to SCOTUS on vote by mail

Here we go.

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


The effect of the Democrat’s 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 to soon 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.

See here for the background. You know how I feel, about the merits of this case. The arguments for the state’s restrictions on voting by mail make no sense, not that that matters. I don’t know what effect, if any, this motion will have on the other lawsuits. I’m not going to make any predictions, or get my hopes up. Rick Hasen thinks this is a “risky” move that has the potential to make bad law. We’ll see what happens. The Chron has more.

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  1. Wolfgang says:


    Election Law Guru Richard Hasen has updated his very excellent in-progress article on voting and litigating in time of Corona to include an extensive discussion of the Texas Supreme Court’s decision in In re State of Texas, No. 20-0394, 2020 WL 2759629, 2020 Tex. LEXIS 452 (Tex. May 27, 2020), and what it portends.

    Hasen, Richard L., Three Pathologies of American Voting Rights Illuminated by the COVID-19 Pandemic, and How to Treat and Cure Them (June 12, 2020). UC Irvine School of Law Research Paper No. 2020-43. Available at SSRN:

    I happen to like Judge Biery’s order more than Hasen does, but I am more of a political animal, and less concerned about the elegance of the jurisprudence or its coherent evolution, not to mention the “correctness” of the doctrine. Nor do I share the Federalist Society’s abhorrence for judicial policymaking to advance the interests of the people, as opposed to the interests asserted by Ken Paxton (or the Solicitor General) as those of “the State”.

    I doubt the SCOTUS will even decide this case at this juncture, given that’s its a challenge to the grant of a procedural motion (albeit with nontrivial effect) by a panel in an appeal from an order that itself is not final; — a preliminary injunction that was hastily entered just before the Texas Supreme Court regaled us all with a substantive state-law-construction opinion in the AG’s (denied) Election Clerk Mandamus. See cite above. But I am not an avid SCOTUS watcher, so what do I know?

    As far as the relevance of the intervening state supreme court’s decision, however, I would say it further undermines the age-discrimination complaint under the US constitution because many of the younger voters can avail themselves of the “disability” category under the Texas Supreme Court’s “FEAR PLUS” construct (fear not fear alone, but fear that the virus will ravish and wreak havoc upon your historically weak body). The import of the SCOTX holding is that those arguably most in need for judicial relief in the age-discrimination suit are basically already being taken care of.

    It would seem that the Hecht opinion (characterized as a sort of “Don’t ask, don’t tell” by the Houston Chronicle) further undermines the “undue burden” claim predicated on in-person voting in times of COVID-19, if it does not altogether eviscerate it. It was rather tenuous to begin with because the health risk at the polling places wasn’t created by state action, and because differential treatment based on age (above and below 65) is really just a benefit to facilitate voting by older folks, rather than a restrictive measure (“abridgment” in const. amendment lingo) adopted for vote-suppression purposes or something akin to it. Where is the evil and invidious intent in making it easier for seniors and about-to-birth women to cast their ballots from the comfort of home? — The voter ID law may be a different matter, but the 65+ and other exceptions are much older, and they are manifestly PRO-VOTE participation-facilitation measures, not ANTI-VOTE measures.

    And the seemingly compelling textual analogy of age with race and sex is not as airtight as it might first appear when just looking at the words without reference to what they stand for. Think about it: If we live long enough, we all get to claim senior specials, including vote-by-mail (if otherwise entitled to vote), no other questions asked. By contrast, race and sex are immutable (for the most part). That distinction would support rational-basis review (as opposed to strict scrutiny), and the obvious rational basis here is that mobility impairments are statistically more common in older age. (Sickness, however, is not as good a rational basis for statutory preferential treatment on account of age here because there is already a separate eligibility category for it in the Election Code that is age-independent. So the age-based benefit must cover ground not already covered by other qualifying conditions.)

  2. Doug says:

    The 26th amendment settles this.

    “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.”

    I don’t see how Gorsuch can fail to join the 4 liberals in ruling that denying the right to vote by mail to an 18-64 year old is an abridgement.

  3. blank says:

    @Doug–I’ve been wondering how the 5th Circuit and SCOTUS will eventually deny this elementary school reading level application of the Constitution. My guess is that they will find some specific case technicality, but who knows?

  4. Wolfgang says:


    @blank. A retort to this would be that the supremes don’t use elementary school reading level.

    They sit in their chambers and put on their judicial scrutiny binoculars: rational-basis review (any legitimate state interest), intermediate-level review (substantial state interest), and strict scrutiny (compelling state interest). With some variations on the theme, and the choice of recurring verbiage.

    Here, the State does not outright DENY the right to vote to the-below-65 of age class, and the ABRIDGMENT claim depends on the concept of a right to vote in a particular manner (by mail) rather than the right to vote, period.


    In the absence of an outright denial of the suffrage, the Democrats’ constitutional argument is limited to the contention that there is an abridgement. There are several problems with this:

    (1) the asserted undue burden of voting at a polling station in times of a ranging pandemic was not created by the State. The State did not spread COVID-19 to regulate–or in any way affect—voting; much less did the legislature when it enacted the election code provision at issue years ago. So the risk of infection and death from in-person voting is not really covered by the “abridged by the United States or by any State” language. In short, NO STATE ACTION. That leaves only the statutory classification itself (which does constitute state action), and whether it passes muster under the type of analysis the SCOTUS would generally employ, which is many notches above elementary-school level.

    (2) Under the challenged section of the Texas Election Code, the discriminatory treatment “on account of age” is IN FAVOR of older people and only concerns the MANNER of casting the ballot. So, to provide relief, the SCOTUS would either have to recognize a RIGHT of each citizen to VOTE BY MAIL (rather than the right to vote without specification of a particular method of casting the ballot) or treat age as prohibited classification altogether, or a suspect one subject to strict scrutiny under the compelling state interest test. Assuming they go that way, that would still leave the question of remedy: Should the Court extend the benefit to all or strike the age provision to satisfy the constitution? (Leveling up vs. leveling down). Since the US constitution does not create substantive voting rights, not to mention a right to vote by mail, it would be up to legislatures to come up with election rules that pass constitutional muster. If the age-based VBM ground is struck, all voters are left to vote in person unless they satisfy one of the other exceptions (such as “disability” as defined by the Election Code and now ostensibly restricted in scope by the SCOTX to exclude lack of immunity to COVID-19 “without more”).


    That’s not to say that I wouldn’t be results-happy if the SCOTUS were to disagree with former SCOTUS Litigator and now-Judge Ho (see his concurrence for details) and rule for the Petitioners. I just see significant obstacles: doctrinal (based on conventional analysis of discrimination claims under US const.), political (SCOTUS composition and weight of precedent regarding the mode of analysis), and procedural/presentational (this is a pronto-pronto cert pet. from a panel’s procedural order).

    Perhaps there is reason for hope. An unprecedented ruling that would befit an unprecedented pandemic problem of nationwide scope. At least there is an ideological split on the SCOTUS. Can’t say the same about our state-sides supremes who recently offered a quartet performance in unison: Deciding apart but together, that all Texas voters may not cast their ballots from the comfort and safety of their homes as a matter of a “correct” reading of state law. No mention of reading level in that one (though even the Houston Chronicle struggled in its efforts to distill it down to its gist, and a suitable headline).


    Note that Justice Blacklock recently had middle-school English teachers recoil in horror on a statutory construction matter, but that was in a dissent in a different case. See Waak v. Rodriguez, No. 19-0167 (Tex. Jun. 12, 2020) (the Farm Animal–not Animal Farm–case). I only wish he had written separately in In re State to leaven the LET-‘EM-CATCH-CORNONA consensus.

  5. blank says:

    @Wolfgang–As I noted in my earlier post, I expect that the 5th Circuit and SCOTUS will rule in favor of the defense. My only question is how they might likely do so. I suppose that they could agree with the argument that abridging the right to vote is not equivalent to reducing (a synonym of “abridging”) the methods by which someone can exercise his/her right to vote. However, I suspect they are more likely to go with a less ridiculous justification for their ruling, like say, “the timing of the case is just too close to the election and will cause confusion” or something like that. Who knows? We’ll see.

  6. mollusk says:

    blank is probably right. If there is a way to dispose of a case on procedural grounds without addressing the main issue, appellate courts will generally take it.

  7. Wolfgang says:

    @mollusk. Well, this case is obviously high-profile and the Plaintiffs had pre-announced their plan of going to the SCOTUS if need be. What’s noteworthy is that there were three separate opinions on the SG’s MOTION FOR STAY PENDING APPEAL, and the majority opinion is quite substantive on the issues in the case. Quite needlessly so–according to Judge Costa, who only concurred the disposition of the motion (on federal abstention let-the-state-supreme-court-go-first grounds).

    So why did the panel majority go out of their way to “pre”rule on the issues in the appeal that were not even yet fully briefed and orally argued? … I don’t follow the 5th Cir and the SCOTUS as closely as the SCOTX, but this looks like it may result in a major decision on the 26th amendment, on which there appears to be little jurisprudence.

    By way of update, the Texas Solicitor General’s response to the emergency motion in the SCOTUS is due Monday (6/22/2020). The docket numbers are 19a1055 and 19-1389, Texas Democratic Party, et al., Petitioners v. Greg Abbott, Governor of Texas, et al..