Fight for Vote by Mail Continues at 5th Circuit

After the U.S. Supreme Court declined to lift the stay on U.S. District Judge Fred Biery's injunction that would have allowed universal voting by mail in Texas for the July elections, the Texas Democratic Party redoubled its efforts to secure VBM in advance of the presidential election. On Monday, Aug. 31, TDP presented its argument to the 5th U.S. Circuit Court of Appeals: that under the 26th Amendment to the U.S. Constitution (which granted the franchise to 18-year-olds), the state can't restrict voting rights based on age.

Texas is an outlier in restricting VBM; it's one of only seven states that require an "excuse" to vote by mail, such as disability, age, incarceration, or military service. TDP attorney Chad Dunn said in a press conference Monday, "The constitutional text is crystal clear. There's an unbroken line of cases going back for decades saying that you cannot give different voting rights to people based on age." Texas has a long history of denying voting rights using whatever means necessary, but Dunn says it would be out of character "to write an opinion ... that says the 26th Amendment is just surplus language in the Constitution that has no additional meaning." With appellate and Supreme Court rulings trending toward close readings of the constitutional text, Dunn said he wouldn't be surprised if SCOTUS takes up the case regardless of which side prevails at the 5th Circuit.

The timeline for that ruling is undefined; though the last day to apply for a mail ballot is Oct. 23, the 5CA "can decide to rule this week, [or] it could wait weeks or months to get its ruling out the door." But Dunn says that if the court rules in the Texas Dems' favor, urban counties are prepared. "Mail ballots don't begin to go out until Sept. 19 and often it's on a rolling basis ... I'm confident the counties in the state can deal with the increase in mail voting."

Meanwhile, Texas Attorney General Ken Paxton, on behalf of state election authorities, filed suit this week against Harris County Clerk Chris Hollins over his plan to send out mail ballot applications (not the ballots themselves) to every registered voter in the state's largest county. (The Texas Supreme Court on Wednesday issued a stay to block Hollins.) Dunn sees Pax­ton's effort as a "non-starter of an argument; the 5th Circuit has rejected it more times than I can count." Regardless of whether the court determines that administering VBM is up to the state or the counties, the Texas Dems' suit names both the secretary of state and the Travis and Bexar county election offices as defendants. "Those counties would be ordered to comply with the Constitution and I feel confident the rest ... would get the message," said Dunn.

If the court rules in favor of the state, those requesting mail ballots using the excuse of COVID-19 as a disability would ostensibly be at risk of prosecution by county or district attorneys, but Dunn says it is highly unlikely that those prosecutions would be successful. While TDP's argument is that age restrictions on VBM are unconstitutional "under every and all circumstances ... whether or not there was a pandemic," Biery's order required VBM to be available to all voters only as long as the pandemic extends. "Ultimately, whether or not the age restriction can continue after the pandemic will be a matter taken up later at trial," Dunn said. "Right now, it's critically important we get relief so that all voters have the right to vote in this next presidential election."