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No fast track on vote by mail lawsuit

I confess, I hadn’t been aware that this was in the hopper.

The U.S. Supreme Court won’t fast-track a bid by Texas Democrats to decide whether all Texas voters can vote by mail during the coronavirus pandemic, leaving in place the state’s current regulations for the upcoming July 14 primary runoff election.

But the case, which now returns to a lower court, could be back before the Supreme Court before the higher-stakes, larger-turnout general election in November. Current law allows voters to mail in their ballots only if they are 65 or older, confined in jail, will be out of the county during the election period or cite a disability or illness. But Texas Democrats have argued that voters who are susceptible to contracting the new coronavirus should be able to vote by mail as the pandemic continues to ravage the state.

Thursday’s one-line, unsigned order denying the Democrats’ effort to get a quick ruling comes a week after another minor loss for them at the high court. On June 26, the Supreme Court declined to reinstate a federal judge’s order that would immediately expand vote-by-mail to all Texas voters during the coronavirus pandemic.

A spokesperson for the Texas Democratic Party, which brought the case, said the party will “continue to fight tooth and nail for everybody’s right to vote.”

See here for the background, and Rick Hasen for a bit more explanation of what happened. As Michael Li notes, the case now goes back to the Fifth Circuit. I do think this will wind up before SCOTUS prior to November, and the question of the 26th Amendment will be decided, and that’s the more important matter. Given that we’re already voting in the primary runoff and the deadline for requesting a mail ballot has now passed, I don’t think there was much effect of this denial of certiori. If we don’t have an answer for November, that will be a problem.

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One Comment

  1. Wolfgang says:

    Let’s face it, the Dems bungled the vote-by-mail litigation strategy in Texas. Permit me to suggest how and why:


    The state-law claim was intrinsically much better than the federal constitutional claim because it did not require the court to act proactively to “expand” legal eligibility for mail-in voting (although that would have been the effect, in terms of numbers of voters using the VBM option). All the interpretation of the statutory definition of disability required (if litigated at all–perhaps it shouldn’t have been) was judicial confirmation that the text of the existing disability provision covers the novel pandemic fact scenario, i.e. that lack of immunity is a physical condition that puts the voter’s health at risk and entitles the voter to a mail ballot.

    Unlike other COVID-19 related election law litigation elsewhere – such as deadline extension or procedural modifications having to do with logistics of election administration under pandemic conditions — NO court-imposition of modifications of existing statutory law would have been necessary in Texas. No creative legislating from the bench; no resort to equitable common-law doctrines. In Texas, the legal fix for pandemic conditions could have be achieved solely via statutory construction of statutory law as written with respect to the disability category of eligibility to vote by mail.


    Alas, the Dems allowed themselves to be played by the Attorney General, who brought the Election Code Mandamus case directly in the (friendly-to-him) Texas Supreme Court, while excluding them from that case.

    The Texas Supreme Court should NOT have resolved the statutory construction issue in the Election Clerk Mandamus case because (1) the necessary parties in the dispute with the AG/State were not allowed to participate as parties (they court treated them solely as amici curiae), and (2) because the early election clerks–whom the AG names as respondents (the equivalent of defendants in mandamus lingo)–have no legal duty or authority to opine on who is eligible under what facts. They just process the application form and make sure it’s properly filled out. So the election clerks were improper defendants for statutory construction purposes, not to mention that an election code mandamus is not supposed to operate as a substitute for a declaratory judgment action (as pointed out in at least one of the responses). And a declaratory judgment action has to brought in the trial court of proper jurisdiction.


    Instead of proceeding with their pending case in the Fourteeth COA — the AG’s appeal of the Sulak order — the Dems threw in the towel by filing a nonsuit with prejudice in the Travis County action. The effect of that is to make a nullity of Judge Sulak’s temporary injunction order without a higher court actually having reviewed it on the merits, and without the Texas Supreme Court ever having reversed it.

    The Dems should at least have continued to litigate the Fourteenth COA appeal, instead of filing a motion to dismiss based on their own voluntary nonsuit, and should have taken an adverse ruling in the court of appeals in Houston, if that’s what was going to happen, based on the supreme’s (improper) statutory construction decision in the Election Clerk Mandamus.

    That would have made it clear to the public–and the affected voters in particular– who is responsible for forcing Texas voters to vote in person at risk to health and life.


    The Texas Supreme Court is a highly partisan elected body and can be held accountable. Several of its members are actually on the November ballot.

    The same cannot be said about the Fifth Circuit (partisan yes, but not accountable to Texas voters). And they would have to enter new legal territory – set new precedent — if they were to provide relief via the 26th amendment. That’s a legally novel claim, as noted by Justice Sotomayor in her note upon rebuff of the emergency motion in the SCOTUS. It would obviously be an effective way to solve the COVID-election problem (independent of the disability-ground), making all under 65 years of age eligible to vote by mail like the older folks, but good luck with this federal appellate court, or shall we say Federalist Society court? — Look how Judge Biery got excoriated as a rogue judge for delivering human-centered jurisprudence in extraordinary (sui generis) times of a deadly pandemic. Contrariwise, the Fifth Circuit jurists found it important to vindicate the asserted interests of “the State”, however flimsy the evidence of rampant election fraud.

    As for the state-law construction of “disability” under the Texas Election Code, the Fifth Circuit is bound to follow the Texas Supreme Court because that’s a state-law question, not a federal one. They could not overrule the SCOTX even if they were inclined to, which they are clearly not, based on the tenor of the interim opinion on the AG’s motion for stay of the Judge Biery’s preliminary injunction pending resolution of the appeal.

    BOTTOM LINE: The Dems outlook for the federal constitutional prong of their absentee-voting litigation strategy in Texas are bleak. They should consider withdrawing their nonsuit and their motion to dismiss the AG’s pending interlocutory appeal based on mootness predicated on the nonsuit. Perhaps the 14th COA panel will allow them to do so, and allow them to file their merits brief as appellees late. (They never did file one, and failed to comply with the deadline, which the COA had gracefully extended on their request even though they had previously accelerated the briefing schedule).