By James Barragan The Dallas Morning News
AUSTIN, Texas — The Texas Democratic Party on Tuesday asked the U.S. Supreme Court to expand mail voting to all voters in the state.
The party, which has fought to expand mail voting during the COVID-19 global pandemic since April, asked the Supreme Court to intervene in two ways.
First, it asked the court to lift a stay imposed by the 5th U.S. Circuit Court of Appeals and allow to stand a lower court’s decision to let every voter in the state cast a mail ballot. In a separate filing, the party asked the Supreme Court to hear its full case before the November elections.
The Democrats’ case argues that Texas’ election code violates the U.S. Constitution’s 26th Amendment — which prohibits voting laws that discriminate on the basis of age — by allowing voters over 65 to vote by mail, but denying that to those under that age.
“There’s no logical reason for those whose 65th birthday is the day after Election Day to have to go to the polling place in person while their 65-year-old spouse can vote a mail ballot — especially during the worst pandemic in a century,” Gilberto Hinojosa, the party’s chairman, said in a statement. “Texas Republicans are hell-bent on discriminating against and blocking Texas’ new diverse majority from casting their ballot. We have not — and never will — stand by as Republicans discriminate against hard-working Texans trying to cast their ballot.”
Alejandro Garcia, deputy communications director for Texas Attorney General Ken Paxton, said the office would “continue to defend the integrity of our electoral process.”
“The 5th 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,” Garcia said in a statement. “This is clearly a ploy by the Texas Democratic Party to further confuse Texas voters.”
Paxton, a Republican, has opposed efforts to expand mail voting during COVID-19 for those who fear contracting the virus, saying the state constitution does not allow it. He fought the Democrats’ argument in court that a lack of immunity to COVID-19 warranted a disability that qualified people to vote by mail.
The state’s top Republican officials have said the state is putting in place safe steps to conduct elections during the global pandemic.
The filings by the Democrats are the latest actions in an on-again, off-again battle over expanded mail voting during the COVID-19 pandemic.
Democrats, along with voting rights groups that joined the lawsuit, won the first rounds of the battle when a state judge ruled that a lack of immunity to COVID-19 counted as a disability under the state election code and allowed essentially every voter in the state to vote by mail. A federal judge in San Antonio also sided with the plaintiffs, saying that any Texas voter who sought to vote by mail to avoid contracting COVID-19 could receive a mail ballot.
But state officials clawed back those victories with wins at the Texas Supreme Court and a federal appeals court. The Texas Supreme Court ruled that a lack of immunity to COVID-19 alone did not qualify as a disability under the election code without an additional illness or physical condition that prevented a person from voting in person.
The federal appeals court blocked the district judge’s order to allow expanded mail voting until a full appeal could be heard. In its order, U.S. Circuit Judge Jerry Smith questioned the legal reasoning of the lower court and indicated that the state was likely to succeed on its arguments to shutter the expansion of mail voting.
Chad Dunn, general counsel of the Texas Democratic Party, said the appeals court made a “serious error” in interpreting the party’s arguments about the 26th Amendment and said the U.S. Supreme Court should take up the case if it does not choose to lift the appeals court’s stay.
The Democrats’ request to lift that stay was filed with Associate Justice Samuel Alito, a George W. Bush appointee who is considered among the most conservative on the court. Dunn said a response on that request could come in a few weeks.
If the Supreme Court lifts the stay, Dunn said, it could then set the hearings on the full case on a longer time frame at some point before November when presidential elections will be held. But if the court declines to lift the stay, the Democrats requested that their case be taken up sooner.
The legal battle is time sensitive because Texas’ primary runoffs are scheduled for July 14, with early voting beginning June 29.
Dunn said it is unlikely the Supreme Court would hear the full case before the primary runoffs — the court ends its term at the end of June and doesn’t return until fall — but it could rule on the request to lift the appeals court’s stay before then. The court’s decision on the stay request would essentially set the rules for the primary runoffs.
But Dunn said the court should take up its full case before November to give voters clarity before a pivotal election. The court returns for its next term in early October, which would provide enough time for voting by mail in November if the case is decided early in the month.
“We think there’s ample time. It’s an important legal question, but not a complicated legal question, that can be briefed and argued if necessary, and then decided in time for people to fill out their ballot applications in mid-to-late October,” he said.
Dunn said the party filed its lawsuit following voting problems during Wisconsin’s primary in April, which left people waiting in long lines where there was problems with social distancing, potentially exposing people unnecessarily to the virus.
One day before the election, the state’s Democratic governor had filed to postpone the election but was overturned by Wisconsin’s Supreme Court. That same day, the U.S. Supreme Court overturned a lower court’s decision extending the deadline for absentee balloting. In that case, which was decided along ideological lines, the conservatives on the court said they reached their decision not because they agreed with how Wisconsin was conducting its election, but because the election was only one day away.
“We filed this federal case that very next day, to be sure that when and if necessary, the U.S. Supreme Court had to review the case, it would do so in ample time before the November election,” Dunn said. “We could not be blamed for having gotten to the court too late. So it can’t be true that we’re too soon, but also later is too late. We think now is exactly the right time.”