Image: United States Fifth Circuit Court of Appeals Judge Leslie Southwick of Mississippi wrote the opinion, which the Court of Appeals issued late in the afternoon, Thursday, September 10, 2020, upholding Texas’ mail-in ballot law and rejecting a challenge by the Texas Democratic Party which seeks to expand mail-in ballot voting.
New Orleans and Austin, September 11 – The United States Court of Appeals for the Fifth Circuit in New Orleans, which oversees all United States District Courts in Texas, reversed a United States District Judge for the Western District of Texas, Judge Fred Biery, and upheld Texas’ mail-in ballot law, which restricts mail-in ballots to voters who are over 65 years of age, those with disabilities, and those who will be absent from the state on election day. The Texas Democratic Party had challenged the law under the United States Constitution’s 26th Amendment in an attempt to expand mail-in ballot eligibility to all Texas voters during the November 3, 2020, General Election.
Texas Attorney General Ken Paxton gave this statement following yesterday’s Fifth Circuit opinion regarding Texas election law: “I am pleased that the Fifth Circuit correctly upheld Texas’s vote-by-mail laws, and I commend the court for concluding that Texas’s decision to allow elderly voters to vote by mail does not violate the 26th Amendment. We will continue to protect the integrity of Texas elections and uphold the rule of law.”
The case is a major dispute likely to garner the attention of the United States Supreme Court over the coming months as Texas and the United States head into the General Election.
A Texas statute allows mail-in voting for any voter at least 65 years old but requires younger voters to satisfy conditions, such as being absent from the county on election day or having a qualifying disability. Judge Leslie Southwick, writing the opinion for the Court of Appeals, noted, “Amid an election year pandemic, the district court entered a preliminary injunction requiring Texas officials to allow any Texan eligible to vote to do so by absentee ballot. This court stayed the injunction pending appeal. The plaintiffs defend the injunction at this stage of the proceedings only on the basis that the vote-by-mail privilege for older voters is unconstitutional under the Twenty-Sixth Amendment’s prohibition against denying or abridging the right to vote on account of age. The statutory provision withstands that challenge.”
The Court of Appeals vacated the injunction of the District Court and sent the case back to that court for further proceedings.
Attorney General Ken Paxton sought to reduce confusion by sending a letter to Texas judges and election officials in early May. The letter explained: “Based on the plain language of the relevant statutory text, fear of contracting COVID-19 unaccompanied by a qualifying sickness or physical condition does not constitute a disability under the Texas Election Code for purposes of receiving a ballot by mail.” The letter ordered public officials to refrain from advising voters who lacked a qualifying condition but nonetheless feared COVID-19 to vote by mail. The letter warned third parties that if they advised voters to vote by mail without a qualifying disability, then the party could be subject to criminal liability under the Texas Election Code. The plaintiffs, which include the Democratic Party, in the federal lawsuit characterized this guidance as a threat.
Section 1 of the Twenty-Sixth Amendment provides: “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.” Section 2 gives Congress enforcement power. Ratified in 1971, the most recent of the voting-rights constitutional amendments has yet to be interpreted in any significant depth.
The defendants in the lawsuit, including Texas Governor Greg Abbott, Paxton, and Secretary of State Ruth Hughes, argued that the Twenty-Sixth Amendment was simply an extension of the right to vote to individuals between the ages of 18 and 21, not to eliminate all age-based distinctions in election-related laws. They further contend that Texas’ mail-in ballot rules do not affect the right to vote under the Amendment, because the laws neither abridge nor deny the right of voters younger than 65 to vote.
Judge Southwick’s opinion agreed with the defendants and concluded, “the plaintiffs based their Twenty-Sixth Amendment claim on the argument that differential treatment in allowing voters aged 65 and older to vote by mail without excuse constitutes, at least during the pandemic, a denial or abridgment of a younger citizen’s right to vote on account of age. This claim fails because adding a benefit to another class of voters does not deny or abridge the plaintiffs’ Twenty-Sixth Amendment right to vote.”