Earlier this week, I wrote In Risky Move, Texas Democrats Appeal 5th Circuit Absentee Voting Decision to Supreme Court, Claiming 26th Amendment Violation about this application filed by Texas Democrats in Texas Democratic Party v. Abbott. Justice Alito has now asked for the state to respond by June 22.
But Texas Democrats have also asked the Supreme Court to let the case jump the queue and address the merits now, filing a petition for writ of certiorari before judgment. They make they following point about timing:
Moreover, this Court recently reiterated that “lower federal courts should ordinarily not alter the election rules on the eve of an election.” Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S.Ct. 1205, 1207 (2020) (per curiam) (citing Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam)). The only way to prevent those eleventh-hour alterations while still protecting citizens’ fundamental right to vote is for this Court to grant review sufficiently in advance of the election. And when the constitutional claim arises in an election year, certiorari before judgment is the only way to achieve this. Right now, while the Purcell principle might have some bearing on whether the preliminary injunction should be reinstated for the July primary, the November general election is nearly five months away and Purcell poses no barrier to petitioners’ obtaining relief.