Federal appeals court rejects Texas Democrats challenge to mail ballot age restrictions
A federal appeals court ruled Thursday that Texas’ age restriction that limits mail-in ballots to voters 65 years and older does not unlawfully discriminate against younger voters.
A panel of three judges on the U.S. 5th Circuit Court of Appeals rejected the Texas Democratic Party’s argument that Texas’ age requirement violates provisions of the 26th Amendment — which prohibits age from being used as the basis to deny someone the right to vote.
The panel sent the case back to a lower court and vacated a prior ruling by U.S. District Judge Fred Biery that would have allowed eligible Texas voters, regardless of their age, to qualify for a mail-in ballot to avoid contracting the novel coronavirus amid the pandemic.
Under Texas law, voters can only qualify for an absentee ballot if they submit an application and are either 65 or older, disabled, out of the county on Election Day and during in-person early voting, or confined in jail.
In a hearing last month, Chad Dunn, an attorney who represented the Texas Democratic Party and voters suing the state, argued that Texas’ eligibility requirements irreparably harm voters under 65 years old who must vote in person while the novel coronavirus continues to spread.
“At the end of the day, this case is about a fair electoral system where nobody has to go through additional burdens in order to vote,” Dunn said during the hearing.
But Kyle Hawkins, the Solicitor General of Texas, argued that allowing seniors the option of qualifying to vote by mail, “did not erect a barrier to the exercise of the franchise for everybody else.”
The panel of judges ultimately agreed, and in their majority opinion wrote that, “an election law abridges a person’s right to vote for the purposes of the Twenty-Sixth Amendment only if it makes voting more difficult for that person than it was before the law was enacted or enforced.”
The ruling noted voters of any age may claim a disability under Texas’ Election Code and qualify for a mail-in ballot. While the Texas Supreme Court previously ruled that a lack of immunity to the novel coronavirus does not make a voter eligible to cite the disability category under Texas law, a voter can consider, “aspects of his health and his health history that are physical conditions in deciding whether, under the circumstances, to apply to vote by mail because of disability.”
The panel of judges who ruled on the case include Judge Carolyn Dineen King, an appointee of President Jimmy Carter, Judge Carl E. Stewart, an appointee of President Bill Clinton, and Judge Leslie H. Southwick, who was appointed by President George W. Bush.
In his opinion dissenting to parts of the ruling, Stewart wrote that Texas’ mail-in voting requirements fail to treat all voters equally.
“This unequal treatment is discriminatory in normal times and dangerous in the time of a global pandemic. Though all individuals can seemingly vote in person, those without the opportunity to vote by mail have less opportunity to participate than others,” Stewart wrote.
The ruling is a blow to the Texas Democratic Party, who has launched multiple legal challenges in an effort to expand who is eligible to vote by mail amid the pandemic.
“The Fifth Circuit Court of Appeals has ruled on several important legal issues and sent the case back to the district court for additional proceedings,” Texas Democratic Party Chair Gilberto Hinojosa said in a statement. “The Texas Democratic Party will continue to fight in the district court for every Texan to have an equal right to vote, regardless of their age.”
The case is expected to reach the U.S. Supreme Court, but it’s unclear if it will do so before the Oct. 23 deadline for absentee ballot applications to be received by election officials and the upcoming Nov. 3 general election.
Attorney General Ken Paxton, who has argued that greatly expanding access to absentee ballots would lead to increased voter fraud, celebrated the ruling Thursday.
“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,” Paxton said in a statement. “We will continue to protect the integrity of Texas elections and uphold the rule of law.”
Ahead of the July runoff elections, there were multiple starts and stops to expanded access to mail-in ballots as the issue made its way through the courts. It ultimately reached the U.S. Supreme Court in June, which denied the Texas Democratic Party’s request to lift a stay to allow all eligible voters to qualify for a mail-in ballot.
Oct. 5 is the last day to register to vote in the Nov. 3 general election. Mail-in ballot applications must be received by Oct. 23. Early voting begins Oct. 13 and lasts through Oct. 30. Tarrant County voters can learn more about registering to vote or requesting a mail-in ballot by visiting the Tarrant County Elections website or calling 817-831-8683.
