A federal appeals panel sided with the state earlier this month, saying that it was up to the state, not the courts, to determine how to administer voting during a pandemic.
The Texas Democratic Party, which filed the original lawsuit challenging state law, on Tuesday asked the Supreme Court to intervene and allow an earlier ruling by a U.S. district judge to remain in effect so that any Texan can vote by mail to avoid the possibility of infection during the pandemic.
Democrats also asked the Supreme Court to hear the case, arguing that Texas’s current vote-by-mail restrictions violate the 26th Amendment, which prohibits voting laws that discriminate on the basis of age.
Texas Democratic Party Chair Gilberto Hinojosa said in a statement that the current Texas law violates that principle.
“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,” Hinojosa said.
The Texas legal battle comes as states adjust their procedures in response to the pandemic and expand voting by mail.
All voters in every state but two — Mississippi and Texas — have the right to cast mail or absentee ballots for the midyear primaries after the pandemic led 14 states to relax their rules. Many states are now considering extending those changes for the general election in November.
President Trump and his GOP allies have sought to limit the expansion of mail voting, claiming that the process can lead to massive fraud. In fact, states that have implemented universal mail voting have identified a tiny number of potentially fraudulent ballots in recent elections.
In May, U.S. District Judge Fred Biery issued a preliminary injunction allowing all Texans to seek a mail ballot for fear of the coronavirus. But the decision was immediately appealed by the state’s Republican leaders: Gov. Greg Abbott, Attorney General Ken Paxton and Secretary of State Ruth Hughs, an Abbott appointee.
Hinojosa blamed Texas Republicans for being “hellbent on discriminating against and blocking Texas’s 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.”
In its application to the Supreme Court, Texas Democrats argued that age restrictions on who can vote by mail during a global pandemic violates the 26th Amendment’s protections, guaranteeing the right of all citizens “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.”
“This application concerns applicants’ right to vote, and whether they and millions of other Texas voters will be able to exercise that fundamental right in the midst of a global pandemic which grows worse by the day in Texas, without risk to their health and — without hyperbole — to their lives,” the lawsuit reads.
The Supreme Court has already weighed in narrowly on voting practices relating to this year’s elections. In April, the Supreme Court ruled in a 5-to-4 decision to allow primary ballots received as late as six days after Election Day to be counted in Wisconsin, as long as they were postmarked by then.
The decision led local officials to count tens of thousands of delayed absentee ballots.