One more thing about the Texas mail-in voting case I mentioned in this thread.
In the first sentence of her note, Sotomayor says that the Texas mail-in ballot case "raises weighty but seemingly novel questions regarding the Twenty-Sixth Amendment." Wait, what?
The 26th Amendment, for those of you who don't carry this information at your fingertips, was the amendment that lowered the voting age to 18. What does that have to do with mail-in ballots?
Well, it turns out that Texas law allows you to request a mail-in ballot under only four circumstances: If you're out of the county on election day, if you have a disability or illness, if you're in jail, or ... if you're over 65.
And the way the 26th Amendment lowered the voting age to 18 was by declaring that "the right of citizens of the United States, 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."
There's no blanket right to vote in the United States Constitution, horrifyingly, so you can't just say "face-to-face ballots deprive me of the vote" and make SCOTUS care. You have to demonstrate that you've been deprived of the vote for a prohibited reason.
And "you're over 18, but under 65" is a prohibited reason.
And this is a really good example of how weird SCOTUS jurisprudence is, and how likely you are to be led astray by one-sentence summaries of how the Court ruled, or how somebody voted.
Because when you see a headline like "Supreme Court Turns Down Request to Allow All Texans to Vote by Mail," you might well conclude that the question before the Court was whether people have a right to vote by mail during a pandemic. But you'd be wrong.
The question before the Court today was whether they were going to order Texas to mail out ballots to any citizen who wanted one while they figured out whether setting an age limit on on-demand mail-in ballots was constitutional, AND IF NOT, WHAT TO DO ABOUT IT.
Because if the Court rules that giving over-65s, and only over-65s, mail-in ballots on demand violates the 26th, they might well just bar Texas from letting old people have mail-in ballots. Or make the state decide whether to expand or contract ballot access. Or something else.
It's like the blowup this week about RGB's vote on deportation. I saw a LOT of people tweeting that she voted to deny due process rights to asylum seekers, when actually what she did was say that one particular asylum seeker wasn't entitled to one specific kind of appeal.
Now, Sotomayor and Kagan disagreed with her and Breyer on that question, and I'm entirely prepared to believe that they were right and she was wrong. But I spent a bunch of time reading her opinion because my kid asked me about it, and quickly concluded that it was over my head.
(I probably could have mostly figured it out if I'd spent another half hour on it, but I decided to cut bait when I was vaguely confident that I had a decent answer for the specific question my kid had asked me.)
This stuff is complicated, is what I'm trying to say.
