Supreme Court Won’t Force Texas to Expand Mail-In Voting

Visitors wearing masks to protect against the spread of Covid-19 pose for photos at the closed Alamo in San Antonio on Wednesday. (AP Photo/Eric Gay)

(CN) — Texas Democrats’ months-long battle to expand access to absentee ballots faced yet another obstacle Friday when the U.S. Supreme Court declined to force the state to let all eligible Texans vote by mail.

“This application raises weighty but seemingly novel questions regarding the Twenty-Sixth Amendment,” Justice Sonia Sotomayor wrote in the court’s single-page order. “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.”

The high court’s decision comes nine days after the Texas Democratic Party asked the justices to reverse the Fifth Circuit’s stay of a San Antonio federal judge’s order that would have let any eligible voter qualify for a mail-in ballot during the Covid-19 pandemic.

Texas’ election law reserves mail-in ballots for voters who have a sickness or physical condition, including pregnancy, “that prevents the voter from appearing at the polling place on election day.”

Additionally, voters who will be out of their registered county during the voting period, those 65 or older, and eligible voters who are jailed may lawfully apply for an absentee ballot.

Fearing that the novel coronavirus may spread quickly at election booths, and that the pandemic would deter voters from turning out to the polls, Texas Democrats took to state and federal courts to argue that a voter’s lack of immunity to Covid-19 constitutes a disability preventing them from appearing at polling places.

The Texas Supreme Court sided against the Democrats in late May.

“‘Disabled’ normally means ‘incapacitated by or as if by illness, injury, or wounds,’” Chief Justice Nathan Hecht wrote for the majority. “In no sense can a lack of immunity be said to be such an incapacity.”

The chair of the Texas Democratic Party, Gilberto Hinojosa, expressed his dismay at the U.S. Supreme Court’s decision in a statement Friday.

“We are disappointed that the Supreme Court did not weigh in now and provide needed relief and clarity for voters ahead of the primary runoff,” he said. “We will not stop fighting for the rights of voters.”

Ken Paxton, the state’s Republican attorney general, approved of the decision.

“I applaud the Supreme Court for following the law and refusing to order mail-in balloting that the Texas Legislature has forbidden. Universal mail-in ballots, which are notoriously vulnerable to fraud, would only lead to greater election fraud and disenfranchise lawful voters,” Abbott said in a statement. “My office will continue to fight for safe, free and fair elections.”

With Friday’s Supreme Court ruling, the restrictions on absentee ballots remain the law of the land in Texas, where the state’s Republican governor has rolled back his efforts to reopen the state for business.

Texas has recorded 137,624 confirmed Covid-19 cases and 2,324 deaths as of Friday afternoon, according to the Department of State Health Services. The number of Covid-19 patients hospitalized has risen every day since June 11.

In response to the surging numbers, Governor Greg Abbott ordered bars to close and reduced restaurant capacity to 50% Friday at noon. He cited the state’s rising positivity rate and shrinking supply of hospital beds.

“As I said from the start, if the positivity rate rose above 10%, the state of Texas would take further action to mitigate the spread of Covid-19,” Abbott said. “We want this to be as limited in duration as possible. However, we can only slow the spread if everyone in Texas does their part. Every Texan has a responsibility to themselves and their loved ones to wear a mask, wash their hands, stay six feet apart from others in public, and stay home if they can.”

Though the Supreme Court declined to order an expansion of mail-in voting eligibility in Texas, the Texas Democrats’ request for the high court to take up their case remains pending.

Texas primary runoffs will be held July 14. Eligible voters who hope to send an absentee ballot must ensure their applications are received by county election officials by July 2.

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