TDP asks SCOTUS to review age discrimination claim in mail voting

From the inbox:

Today, the Texas Democratic Party and voters filed their final brief with the U.S. Supreme Court, seeking its review of the case filed last Spring which challenged the constitutionality of Texas’s law that limits voting by mail, without excuse, to voters age 65 and older. The 26th Amendment prohibits “denying or abridging” the right to vote based on age, which Texas law does. The United States Court of Appeals for the Fifth Circuit ruled in September that so long as all voters can vote in person, it does not abridge the right to vote if the state provides some voters with additional voting options. The Texas Democratic Party and voters argue this ruling runs contrary to the 26th Amendment and is inconsistent with U.S. Supreme Court precedent.

The Supreme Court is scheduled to confer regarding this case on January 8, 2021. On January 11, 2021, at 10:00 am ET, the Court will issue its orders list for the 2021 term. At that point, the Court may grant review of the case, deny review, or hold the case over for further consideration at a later time. If the Court grants review, the case could be heard this term, with a decision before Summer or it could decide to hear the case in its term beginning Fall of 2021. If the court denies review of the case, it will return to the U.S. District Court in San Antonio, where it will proceed to the final trial and, thereafter, potentially go back through the appeals process.

See here for my last update on this case, and here for a copy of the filing, which in fancy lawyer-speak is a “petition for a writ of certiori”. SCOTUSblog has a concise summary of the case so far. The brief makes three arguments, of which the first two are technical and boring to non-lawyers, but the third is a straightforward claim that the Fifth Circuit erred in its ruling:

The error in the Fifth Circuit’s reasoning was powerfully illustrated by the statement respondents’ counsel made at oral argument: “[I]f a state were to pass a law saying that White people must vote by personal appearance but Black people can vote by personal appearance or by mail-in balloting, …. the Fifteenth Amendment would not prohibit that law because that law does not deny or abridge the right to vote within the meaning of the Fifteenth Amendment.” Or. Arg. Rec. at 41:27-42:07. To state that position is to show its indefensibility.

1. The Fifth Circuit treated “abridge” as solely a temporal restriction: In its view, a state’s law does not “abridge” the right to vote when it adds voting opportunities for some, so long as one manner of voting remains in place for those not given the new voting opportunity. See BIO App. 38a. That holding is inconsistent with this Court’s precedents that the concept of abridgement “necessarily entails a comparison” of “what the right to vote ought to be.” Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 334 (2000).

Contrary to the Fifth Circuit’s arid resort to dictionary definitions of “abridgment,” BIO App. 33a34a, the proper baseline under the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments is given in the text of those amendments themselves. Those amendments provide that the right to vote shall not be abridged “on account of” or “by reason of” specific characteristics: “race,” “sex,” taxpaying status, or “age.” By their plain terms, those amendments call for a comparison between the law’s treatment of voters of different races, sexes, taxpaying statuses, or ages—not between the scope of the right a particular voter enjoyed yesterday and the scope of the right he or she enjoys today. It cannot be that the Fifteenth Amendment would have nothing to say if a jurisdiction gave white voters an early voting period, as long as it left untouched a preexisting ability for Black voters to cast a ballot in person on election day. But that perverse consequence is exactly what the Fifth Circuit’s logic commands.

The reason why the voting amendments use the word “abridge” is not to create a temporal comparison, but to make clear that any race-, sex-, taxpaying-, or age-based suffrage rule, and not only categorical denial of the right to vote, is covered. The Voting Rights Act, which was enacted to enforce the Fifteenth Amendment, illustrates this point. While Section 5, the provision at issue in Bossier Parish involved a statute with language explicitly requiring a temporal comparison, Section 2 echoes the Fifteenth Amendment text and requires an inter-voter comparison. Section 2(a) prohibits practices that result “in a denial or abridgement” of the right to vote on account of race or color or membership in a specified language minority. 52 U.S.C. § 10301(a). Section 2(b) declares that a violation of that prohibition occurs, among other things, when the plaintiff group has “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 52 U.S.C. § 10301(b) (emphasis added). That understanding of abridgment is also, as the petition explains, more consistent with this Court’s decision in Harman v. Forssenius, 380 U.S. 528 (1965). See Pet. 20-22.

Basically, the Fifth Circuit said that giving one set of voters (in this case, voters over the age of 65) something extra (no-excuses absentee ballots) was fine and not a form of discrimination against other voters, who were still able to vote. The TDP argues that the correct interpretation of the 26th and other amendments to the constitution is that not giving the under-65 voters the same benefit as the 65-and-older crowd is an abridgement of their rights, and thus unconstitutional. I think the plaintiffs have a solid argument, but as we know I Am Not A Lawyer, and also this particular Supreme Court is nobody’s friend when it comes to voting rights. We’ll know in January if we’ll get a short-term resolution or if this goes back to the trial court for a do-over.

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One Response to TDP asks SCOTUS to review age discrimination claim in mail voting

  1. Kibitzer Curiae says:


    Law Prof Vikram David Amar just wrote on the topic, which also arises in Georgia, albeit in a somewhat different presentation: The age-based discrimination there involves a higher triggering age (75) and consists in younger voters having to apply for absentee ballots for each election while a single application is sufficient for those over 75.

    See here:


    Tex. Elec. Code. Sec. 82.003. AGE. A qualified voter is eligible for early voting by mail if the voter is 65 years of age or older on election day.


    It would be desirable for the SCOTUS to resolve this novel constitutional question well before the next election season, but they could have done so already on an emergency basis, and now the urgency is gone. And Texas Solicitor General (SG) Hawkins argues that the SCOTUS need not weigh in because two circuits that have ruled on the 26th Amendment challenge to age-based eligibility to vote by mail, and both rejected it; — ergo no circuit split for the SCOTUS to resolve.

    The other case is from the Seventh Circuit. See Tully v. Okeson, 977 F.3d 608, 613 (7th Cir. 2020)(holding that as long as the state allows voting in person, there is no constitutional right to vote by mail, and that heightened scrutiny of different treatment of classes of voters would come from the Fourteenth Amendment’s Equal Protection Clause.).

    In response, the Texas Democratic Party et al, now as Petitioners for a regular cert grant under the same docket number (19-1389), argue that the two circuits each used a different rationale, and that both are wrong. They also point to the disagreement in the lower court system (though that’s a weak argument since the District Court decisions don’t create a circuit split and aren’t even precedential, especially when reversed by the circuit court lording over them).

    And the merit of the 26th amendment argument are not the only issue, albeit the more interesting one from a jurisprudential perspective, given the dearth of caselaw and the novelty. But jurisdiction also looms large here.


    The SG still pushes the lack-of-jurisdiction argument also; maintaining that Gov. Abbott and Secretary of State (SOS) Ruth Hughs are not proper defendants because they don’t enforce the challenged age-based VBM eligibility provision of the Texas Election Code. In the merits panel opinion issued Oct 14, 2020, the Fifth Circuit overruled the argument as to the SOS on the basis that her office promulgates the VBM application form, which of course has a box for age-based eligibility claims on it, and held that this circumstance provided a sufficient connection to enforcement:

    “We conclude that a voter under the age of 65 has clear standing to challenge Section 82.003. In the next section, we will discuss the Secretary’s duty to design the required application form for absentee ballots that identifies voter eligibility categories. TEX. ELEC. CODE § 31.002(a). The Secretary would need to correct the form should the judiciary invalidate the age-based option. Thus, the Secretary of State had a role in causing the claimed injury and is in a position to redress it at least in part. That is enough to confer standing to the voter plaintiffs to sue the Secretary. We need not address the standing of other plaintiffs. See Texas, 945 F.3d at 377–78.”


    [T]he Secretary’s specific duties regarding the application form under Section 31.002 are enough for us to conclude that the Secretary has at least a scintilla of enforcement authority for Section 82.003. We do not need to consider whether other duties of the Secretary might suffice. Sovereign immunity does not bar suit against the Secretary in this case.”

    Tex. Democratic Party v. Abbott, No. 20-50407, 2020 WL 6127049, at *6-7 (5th Cir. Oct. 14, 2020) (finding some enforcement connection to § 82.003)


    Note, however, that the actual enforcement qua enforcement — namely the *rejection* of applications on which none of eligibility boxes is checked – would be done at the local level. (Voters under age 65 could not lawfully check the age-based eligibility ground, and would suffer no harm if they qualified on another ground). So the enforcement connection would certainly be much closer—if not indisputable–as to the early voting clerks.

    Also consider this: It the Secretary were ordered to merely delete the age category from the official VBM application form, that would then amount to leveling down (taking the benefit away from the favored class of voters, rather than extending it to the class treated less favorably, as favored by Fifth Circuit Judge Ho). So, the more effective injunctive remedy – upon a finding of unconstitutionality — would be for the local clerks to be ordered not to reject forms on which *no* eligibility ground is checked. Alternatively, the SOS could be required to redo the form to delete all references to eligibility.


    And there is another twist: In a related vote-suppression endeavor targeting Harris County, Attorney General Paxton sued County Clerk Chris Hollins on an ultra-vires theory challenging his handling of the VBM application form/procedures under state law, and the SCOTX handed Paxton the ruling he wanted. See State v. Hollins, No. 20-0729, 2020 WL 5919729 (Tex. Oct. 7, 2020) (per curiam)(reversing order denying State’s application for temporary injunction prohibiting Hollins from mailing of VBM applications to those under age 65 without request by voter).

    So, arguably, General Paxton is now a SCOTX-anointed election law enforcement authority and a proper defendant within the meaning of the Ex Parte Young exception to sovereign immunity in federal court.

    Note also that Paxton sued Hollins in the name of “The State of Texas” and not as counsel for the Secretary of State as Plaintiff (or as her ex officio representative in court), and that he did *not* rely on the specific and much more limited enforcement role spelled out for the AG in the Election Code. There is a much stronger argument now that Paxton is the enforcer, not Hughs, the nominal Chief Elections Officers.

    The state supreme court has seen fit to put AG Paxton in charge of election law enforcement against local election clerks.

    Although Solicitor General Hawkins cites State v. Hollins in his SCOTUS brief (for an unrelated purpose), the matter of the Attorney General being a proper defendant – given the active role he has assumed in the election realm with or without statutory Election Code authority — is not addressed. (SG Hawkins is the counsel of record in this case, unlike Texas v. Penn. et al, in which Paxton signed himself.


    Here is what the Fifth Circuit had to say regarding Paxton amenability to suit:

    “Unlike NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389 (5th Cir. 2015) the Attorney General’s letter in this case was sent to judges and election officials, not to the plaintiffs. The letter did not make a specific threat or indicate that enforcement was forthcoming. Nor did it state that the Texas Democratic Party or the other plaintiffs had violated any specific law, as the letter did in NiGen, 804 F.3d at 392. Instead, the letter explained that advising voters to pursue disability-based mail-in voting without a qualifying condition constituted a felony under Sections 84.0041 and 276.013 of the Texas Election Code.

    As a result, we conclude that the letter here did not “intimat[e] that formal enforcement was on the horizon.” Id. Instead, it closely reflected the Attorney General’s letter in In re Abbott, 956 F.3d at 709. Accordingly, the Attorney General lacks a requisite connection to the challenged law, and Ex parte Young does not apply to him.”

    Tex. Democratic Party v. Abbott, No. 20-50407, 2020 WL 6127049, at *6-7 (5th Cir. Oct. 14, 2020) (finding some enforcement connection to Tex. Elec. Code § 82.003). The case citation style does not reflect that SOS Hughs and AG Paxton were also named as defendants.


    In light of the Texas Supreme Court’s decision in State v. Hollins, and the Court’s sweeping judicial enhancement of the Attorney General’s ability to micro-manage local election officials through that newly-fashioned common-law precedent – which includes the local clerks’ administration of the absentee voting process — the federal courts should revisit their assessment of the Texas AG’s role in Texas election law enforcement – and the AG’s amenability to being sued in federal court for constitutional violations.

    CITE FOR PRO-PAXTON ULTRA-VIRES RULING BY SCOTS (with “sovereign injury” rationale to accommodate the unfavorable procedural posture: interlocutory appeal of the denial — not grant, as in other cases — of a temporary injunction).

    State v. Hollins, No. 20-0729, 2020 WL 5919729 (Tex. Oct. 7, 2020) (per curiam)(“We hold that the Election Code does not authorize an early-voting clerk to send an application to vote by mail to a voter who has not requested one and that a clerk’s doing so results in irreparable injury to the State. We grant the State’s petition for review, reverse the court of appeals’ judgment, and remand the case to the trial court for entry of a temporary injunction prohibiting the Harris County Clerk from mass-mailing unsolicited ballot applications to voters.”)

    POST SCRIPTUM: The already-printed mailers with the VBM application forms weren’t sent (except for the batch to voters above age 65, which went out before the SCOTX opinion issued), but the trial court never entered the temporary injunction mandated by the Texas Supreme Court.

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