WASHINGTON — Texas can impose age-based restrictions on who can vote by mail during the coronavirus pandemic, a federal appeals court ruled this week.
Under Texas law, all eligible voters over the age of 65 are allowed to vote by mail. For Texans under 65, however, they can only get a mail-in ballot if they'll be absent from their county on Election Day, are in jail, or if they have a "qualifying disability" that prevents them from voting in person — and Texas has said that fear of contracting COVID-19, the disease caused by the novel coronavirus, doesn't count.
In a 2–1 decision on Thursday, the US Court of Appeals for the 5th Circuit sided with Texas. Judge Leslie Southwick wrote for the majority that giving older voters a privilege — the right to vote by mail without having to meet any special conditions — didn't hurt the voting rights of voters under 65. The pandemic didn't change the analysis, Southwick wrote, since younger voters with an underlying health problem that put them at higher risk could still ask for a mail-in ballot.
"The record indicates Texas is taking the kinds of precautions for voting that are being used in other endeavors during the pandemic. None of them guarantees protection. There are quite reasonable concerns about voting in person, but the state’s mandating that many voters continue to vote in that way does not amount to an absolute prohibition of the right to vote," Southwick wrote.
Judge Carl Stewart dissented, writing that the pandemic did affect whether Texas's vote-by-mail rules violated the 26th Amendment of the US Constitution, which states that voting rights "shall not be denied or abridged by the United States or by any State on account of age." Given the risks of in-person contact right now, he wrote, Texans who aren't allowed to vote by mail "have less opportunity to participate than others."
Texas's law "fails to treat members of the electorate equally with regard to mail-in voting. This unequal treatment is discriminatory in normal times and dangerous in the time of a global pandemic," Stewart wrote.
The Texas Democratic Party, one of the groups that brought the lawsuit, said in a statement that they would continue to fight the case now that the 5th Circuit had sent it back down to a federal district judge in San Antonio. Although the appeals court ruled that the state's law didn't violate the 26th Amendment, it did not decide if it violated the Constitution's equal protection guarantees.
"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," Texas Democratic Party chair Gilberto Hinojosa said in the statement.
Texas Attorney General Ken Paxton, a Republican, said in a statement that he commended "the court for concluding that Texas’s decision to allow elderly voters to vote by mail does not violate the 26th Amendment" and said his office "will continue to protect the integrity of Texas elections and uphold the rule of law."
US District Judge Fred Biery had originally ruled against Texas in May. He issued a preliminary injunction ordering the state to provide absentee ballots to any eligible voter who asked for one citing the pandemic — lack of immunity to COVID-19 was "indeed a physical condition," he wrote, and "[o]ne's right to vote should not be elusively based on the whims of nature."
Biery had harsh words for Texas at the time. Alluding to the Declaration of Independence, he wrote that Americans asking to vote by mail during the pandemic were seeking "Life without fear of pandemic, Liberty to choose their leaders in an environment free of disease and the pursuit of Happiness without undue restrictions."
"For want of a vote, our democracy and the Republic would be lost and government of the people, by the people and for the people shall perish from the earth," Biery wrote.
The 5th Circuit immediately put Biery's order on hold pending an appeal by the Texas attorney general's office and issued an opinion in June signaling that the court was very likely to reverse Biery altogether.
Judge Jerry Smith, who was on the three-judge panel that granted the stay, wrote at the time that Biery's decision "will be remembered more for audacity than legal reasoning."
"[T]he spread of the Virus has not given 'unelected federal jud[ges]' a roving commission to rewrite state election codes," Smith wrote.