No relief from SCOTUS on vote by mail

This is not really a surprise.

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.

See here for the background. As noted in the story, Justice Sotomayor added a comment saying that she hoped the appeals court would take up the merits of the case in time for November. We’ll see if they’re listening. In the meantime, do what you were going to do for this runoff. Rick Hasen has more.

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2 Responses to No relief from SCOTUS on vote by mail

  1. Flypusher says:

    I’ll be there for early voting tomorrow, with 2 masks on.

  2. Wolfgang says:


    I am not surprised either, given the procedural posture (emergency motion in SCOTUS from an interim procedural appellate order in an interlocutory appeal from a preliminary injunction), but this has served at least two purposes:

    (1) it raised the salience of the problem with mail-voting in Texas by virtue of the national media coverage this interim SCOTUS ruling engendered, and

    (2) Justice Sotomayor’s statement lends respectability to the novel legal argument re: age-discrimination under the 26th Amendment (the only legal issue of several brought forward in the cert petition). In light of the hatchet job Judges Smith and Ho visited upon Judge Biery, that’s worth a lot.

    If you have not read the opinion, see a juicy excerpt at the end of this comment.

    All three opinions are available on Google Scholar in more reader-friendly formatting, and with hyperlinks to cited authority. The incendiary content is in contained in the majority opinion. As for justification on the merits issue, Judge Ho bought Paxton et al’s vote-fraud argument lock-stock-and-barrel, finding it sufficient for there to be the potential of more fraud, as opposed to actual evidence. The other problem of course is that the State does not have much of a burden when defending the constitutionality of a statute under rational-basis review, assuming it applies, which is one of the jurisprudential issues that is something of a tabula rasa in the 26th amendment context.

    Cite as: 591 U. S. ____ (2020)

    Statement of SOTOMAYOR, J.


    No. 19A1055


    [June 26, 2020]

    The application to vacate stay presented to JUSTICE
    ALITO and by him referred to the Court is denied.

    Statement of JUSTICE SOTOMAYOR respecting the denial of application to vacate stay.

    This application raises weighty but seemingly novel questions regarding the Twenty-Sixth Amendment. I do not disagree with the decision to refrain from addressing them for the first time here, in the context of an emergency application to vacate a stay of an injunction. 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.


    Shooting in the dark, the court guessed that Texas wanted to “forc[e] . . . voters to visit polls in-person [sic] during a novel global pandemic, thus jeopardizing their health” and to “fenc[e] out from the franchise a sector of the population because of the way they [sic] may vote.”

    This kind of drive-by speculation about the state’s covert motives is utterly impermissible and finds no support in this record.[42] Instead of searching for a conceivable basis for the rules, the court jerry-rigged some straw men and proceeded to burn them.

    The district court also forgot that the legislature can “take one step at a time, addressing itself to the phase of the problem which seems most acute,” Beach Commc’ns, 508 U.S. at 316, without worrying that a rogue district judge might later accuse it of drawing lines unwisely.[43] Undeterred, the court reasoned that it is absurd for Texas to “fenc[e] out voters under the age of 65” from a mail-in ballot because of frets about fraud “while allowing older voters to u[se] mail ballots,” thereby risking the same “rampant fraud.”

    The district judge should know that that is not how rational-basis review works. See McDonald, 394 U.S. at 809. Texas may take one bite at the apple; it need not swallow it whole. See, e.g., Fritz, 449 U.S. at 179. That “the line might have been drawn differently . . . is a matter for legislative, rather than judicial, consideration.” Fitzgerald v. Racing Ass’n of Cent. Iowa, 539 U.S. 103, 108 (2003).

    Texas Democratic Party v. Greg Abbott et al., No. 20-50407, 2020 WL 2982937 (5th Cir. June 4, 2020) (nondispositive opinion-order on state officials’ motion for stay of District Judge Biery’s preliminary injunction pending appeal, with published opinion, concurring opinion by Judge HO, opinion concurring only in the stay decision by Judge Costa on abstention grounds, faulting majority for delving into the merits), pet. for cert in SCOTUS pending under Docket No. 19-1389 sub nom Texas Democratic Party, et al., Petitioners v. Greg Abbott, Governor of Texas, et al.

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