The U.S. Court of Appeals for the Fifth Circuit blocked the Democrats’ attempt to expand mail-in voting in the Lone Star State after the Texas Democratic Party challenged the state’s age restrictions for voting by mail.
Texas Democrats challenged the state’s rules on voting by mail, which require those under the age of 65 to meet another eligibility requirement to qualify. Those 65 and older automatically qualify, as do those who are disabled, out of the county on both Election Day and “during the period for early voting by personal appearance,” and “confined in jail, but otherwise eligible.”
Democrats argued that the rule discriminated against younger voters, who may seek an alternative voting method in the midst of the coronavirus pandemic. The panel, however, did not see it that way.
“In sum, 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,” the panel wrote, contending that the claim “fails” because “adding a benefit to another class of voters does not deny or abridge the plaintiffs’ Twenty-Sixth Amendment right to vote.”
The panel continued:
We hold, based on the meaning of the word “abridged,” that the right to vote under the Twenty-Sixth Amendment is not abridged unless the challenged law creates a barrier to voting that makes it more difficult for the challenger to exercise her right to vote relative to the status quo, or unless the status quo itself is unconstitutional. Thus, conferring a privilege on one category of voters does not alone violate the Twenty-Sixth Amendment.
U.S. Circuit Judge Carl Stewart wrote in the dissent that the state’s current requirements are unfair to younger voters, as it limits their options during the public health crisis.
“This unequal treatment is discriminatory in normal times and dangerous in the time of a global pandemic,” Stewart dissented. “Though all individuals can seemingly vote in person, those without the opportunity to vote by mail have less opportunity to participate than others.”
Despite the majority ruling, Texas Democrats have vowed to continue the fight.
“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,” chairman Gilberto Hinojosa stated.
Those eligible for mail-in ballots in Texas have until October 23 to request their ballot — less than two weeks from the November 3 election.
Critics of mass vote-by-mail continue to point to Wisconsin’s in-person primary, which saw roughly 413,000 people either voting or working at the polls at the start of the pandemic. Of those, only 52 later contracted the virus, some of whom also indicated other ways they could have fallen ill.
The Democrats’ call for universal vote-by-mail coincides with nationwide Black Lives Matter protests, having hundreds — sometimes thousands — gathering in person.