In the ongoing guerrilla war between the parties over liberalizing (Democrats) or restricting (Republicans) voting by mail between now and November, the Republicans won a round on Friday. The U.S. Supreme Court declined to grant an emergency appeal by Texas Democrats to force their GOP-controlled state to let voters under 65 cast ballots by mail on grounds that the current loophole for seniors violates the 26th amendment (which granted 18-year-olds the vote and banned age discrimination in voting).
A federal district judge in Texas had agreed with the Democratic argument, but was overruled by the 5th Circuit Court of Appeals. SCOTUS didn’t rule on the substance of the argument, but indicated there was time for the courts to resolve it before November (though not before Texas’ July 14 primary runoffs), as the Washington Post explained:
There were no noted dissents to the court’s order, but Justice Sonia Sotomayor wrote that the case raised “weighty but seemingly novel questions” regarding whether special conditions for those over a certain age violated the constitutional rights of younger voters.
She said an emergency request like the one before the Supreme Court was not the right time to consider them. But she added she hoped the U.S. Court of Appeals for the 5th Circuit “will consider the merits of the legal issues in this case well in advance of the November election.”
Texas is the largest of seven states that require an excuse to cast absentee (mail) ballots but exempt seniors from the requirement. The others (Indiana, Kentucky, Louisiana, Mississippi, South Carolina, and Tennessee) are all deep-red states that generally frown upon liberalized voting rules, but predictably will cut corners for the over-65 voters who have in recent years leaned Republican. Texas Democrats’ argument, if accepted, would strike all those accommodations down or expand them to include all voters.
Texas Republicans have argued in court that the availability of voting in person for non-seniors means the special rules for old folks don’t deny anyone voting rights. We’ll soon know if the argument on the merits gets a full discussion in the federal courts, including SCOTUS.
The big picture is that even in states that did make voting by mail easier during the spring primaries, Republicans are showing signs of walking such accommodations back before November. The GOP secretaries of State in Georgia and Iowa, for example, do not plan to send mail-ballot applications to all active registered voters for the general election the way they did in the primaries.
Perhaps sustained or even worsening pandemic conditions will increase pressure on both election officials and the courts to do the right thing and let people vote in whatever manner they find safe. But for the moment, they are not in a hurry to do so.