Fifth Circuit hears arguments on vote by mail case

One more try before it’s too late to make a difference for this year.

The Texas Democratic Party’s lawyer argued today before a federal appeals court that the state is unlawfully discriminating against the majority of the voting-age population by requiring only those under the age of 65 to have an excuse to receive a mail-in ballot.

It’s one of several last-minute battles playing out in the months leading up to the 2020 election, which is expected to yield historic turnout despite the coronavirus pandemic.


The Democrats’ federal case is expected to make its way to the U.S. Supreme Court, but the clock is ticking. The deadline to request a mail-in ballot in Texas is October 23, leaving just about seven weeks for the appellate court and high court to rule on it.

At Monday’s hearing, Chad Dunn, representing the Texas Democratic Party, told the court that the Texas mail-in voting law violates the 26th Amendment, which says the right to vote can’t be “denied or abridged” on account of age.

Dunn said previous elections have shown that voters will likely be waiting in long lines in November.

“We’re asking voters — certain ones of them get excused from that endurance test and others, based purely on their age, are to suffer through it,” Dunn said. “The fact of the matter is that when individuals’ characteristics are used by the government to divvy up who gets to vote, those are prohibited” by the Constitution.

The state, represented by Texas Solicitor General Kyle Hawkins, argued that Supreme Court precedent exists to show that the Texas law does not violate the 26th Amendment.

“It does not deny or abridge the right to vote to make voting more available to some groups as opposed to others,” Hawkins said. “To abridge the right to vote does not mean giving other groups more options; it means taking away something from a certain group.”

See here for the previous update. As noted, the other vote by mail-related lawsuit recently survived a motion to dismiss. We should get a ruling of some kind in this lawsuit before the deadline to mail out overseas ballots, which is September 18. I have no idea if there’s time for any action on the other one.

This Statesman story from earlier in the day on Monday has some more background info on the case.

Monday’s arguments will focus on the U.S. Constitution’s 26th Amendment, which was ratified in 1971 to lower the voting age to 18, saying the right to vote cannot be denied or restricted “by any State on account of age” for those 18 and older.

Just as other constitutional amendments ensure that voters cannot be treated differently based on race or gender, the 26th Amendment uses identical language to extend voting protections based on age, said Chad Dunn, who will argue Monday on behalf of Democrats before the 5th U.S. Circuit Court of Appeals.

“I am confident that we will ultimately ensure that everybody, regardless of age, has the right to vote by mail,” Dunn told the American-Statesman.


The age question has drawn the interest of at least one influential observer: Supreme Court Justice Sonia Sotomayor.

When Texas Democrats raised the issue at the high court this summer, the nine justices declined to accept the case. Sotomayor was the only one to discuss the reason.

The Democrats’ challenge, she wrote in late June, “raised weighty but seemingly novel questions regarding the 26th Amendment.”

However, justices balked at addressing those questions for the first time at the high court, and Sotomayor urged the 5th Circuit Court to make a speedy decision in the matter.

Many others hope for a quick resolution as well. In Texas, voting for the November election begins in less than seven weeks.


The case before the 5th Circuit Court will determine the fate of a May order by U.S. District Judge Fred Biery, an appointee of President Bill Clinton who required mail-in ballots to be sent to any registered Texas voter who requested one while “pandemic circumstances” continue.

“One’s right to vote should not be elusively based on the whims of nature. Citizens should have the option to choose voting by letter carrier versus voting with disease carriers,” Biery wrote.

Paxton appealed, and the 5th Circuit Court responded by blocking enforcement of Biery’s order until the appeal can be decided.

That ruling by a three-judge panel at the 5th Circuit was notable for its harsh criticism of Biery for wading into election decisions that belong to “politically accountable officials,” not judges.

“The spread of the virus has not given unelected federal judges a roving commission to rewrite state election codes,” wrote Judge Jerry Smith, who was appointed by President Ronald Reagan.

A different three-judge panel, however, will hear Monday’s oral arguments and decide whether the 26th Amendment bars Texas from denying mail-in voting to those under age 65. Two of the judges on the new panel were appointed by Democratic presidents — Carolyn Dineen King and Carl Stewart — while the panel’s third member, Leslie Southwick, was appointed by President George W. Bush.

A ruling won’t come Monday, but with the election looming, the appeals court has placed the matter on an expedited schedule.

The Texas Democratic Party’s challenge has drawn considerable interest, with additional legal briefs filed by liberal and conservative public interest groups, health professionals, advocates for the disabled, other states and local political parties.

Travis County Clerk Dana DeBeauvoir also submitted a brief with election officials from Harris, Cameron and Fort Bend counties that begged the 5th Circuit Court to accept the 26th Amendment arguments and expand mail-in voting.

“Unless access to vote by mail is increased significantly, providing a safe election will be impossible because of the expected high volume of in-person voters this presidential year,” their brief said.

On the one hand, almost 30 doctors and nurses, including epidemiologists and front-line health workers, told the court that it is essential to reduce the number of people gathering on Election Day to protect voters, poll workers and the community from COVID-19, while the Texas NAACP argued that the state’s Republican leaders adopted a needlessly restrictive interpretation of mail-in voting law to impose a severe and unacceptable burden on the right to vote.

On the other hand, a brief from conservative legal interest groups argued that Biery improperly interfered with the state’s authority to regulate the time, place and manner of elections in favor of widespread mail-in voting, which should be allowed in only limited circumstances because it is more vulnerable to fraud than traditional voting.

Originally, there were two lawsuits, one filed by the TDP that argued COVID vulnerability was sufficient to be considered a “disability” and allow anyone who claimed that to get a mail ballot, and one filed by other groups that argued the existing limit of vote by mail to those 65 and over (plus those who claim a disability, which as we know was not clearly defined and is being argued about in other venues) violates the 26th Amendment, which is the one that lowered the voting age to 18. Both were combined into this lawsuit, and as you can see the 26th Amendment claim is the main thrust from the plaintiffs. We’ll see what we get.

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2 Responses to Fifth Circuit hears arguments on vote by mail case

  1. Jen says:

    Let’s remember where all this came from–there was a poll that that showed Dems were more likely to stay away from in-person voting during the pandemic. And remember the reason Texas has mail-in voting for 65 and over is because these voters skew conservative, giving Republicans a baked-in advantage for every election. All of this nonsense about voter fraud etc. is just the usual fake outrage because Republicans may lose an unfair advantage. Democrats want to make elections easier, safer and more fair. I certainly hope the lawyers will bring up the fact of the number of states that conduct every election entirely by mail without problems or fraud.

  2. Kibitzer Curiae says:

    Re: Texas has mail-in voting for 65 and over is because these voters skew conservative, giving Republicans a baked-in advantage for every election.

    That’s a good point and can be shown with empirical data. The demographic/ partisan skew makes it politically acceptable to the Republicans as the party in power to have vote by mail for the older crowd (even though residents in nursing homes are more susceptible to duress and fraud), so preserving the age-based privilege is in their partisan interest.

    By the same token, it means that the under 65 segment of the electorate (the majority) is disadvantaged by not having no-excuse voting available to them and that the burden is imposed disproportionately in the opposite direction. Which provides additional support for the proposition that the age-based classification should be struck down because it not only expressly classifies based on age, but also has a disparate impact along the lines of race and ethnicity because of the differences in the demographic compositions of the two groups of voters above and below the 65-years divider line.

    At least one amicus brief in the Fifth Circuit appeal does an excellent job of setting forth the disparate-impact argument. The Democrats, however, and the allied parties (plaintiffs-appellees), focus exclusively on the 26th Amendment (right to vote not to be abridged on account of age) to defend the preliminary injunction by USDC Judge Biery on appeal, presumably because they do not want to run the risk of the Fifth Circuit establishing adverse precedent on all the other legal issues. After all, this case is still in the preliminary injunction stage and has not been fully litigated at the trial court level.


    This approach, however, arguably puts in doubt whether any of three names defendants – Governor Abbott, SOS Hughs, and AG Paxton are the proper defendant as required by the Ex parte Young exception.

    The rule that those under 65 don’t qualify for a mail ballot (unless they meet one of the other eligibility grounds and check the corresponding box on the application form) is enforced by the early election clerks, rather than the state officials, because they are required to reject application forms that have no eligibility ground checked, and cannot legally issue a ballot to those who don’t qualify under existing law. They control the spigot, so to speak.

    Possibly, it could be argued that the SOS has sufficient involvement by being the relevant rule-promulgating authority, and because the SOS has issued a standard VBM application form (which is not required to be used, though). Still, it is the early election clerks that will deny a mail-in ballot if no grounds are checked on the form or provided in a narrative application. So they are the enforcers at the front line (not just after the fact, as would describe the Attorney General investigating and suing for Election Code violations).

    That said, the focus at oral argument was on statutory construction, rather than on jurisdictional issues.

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