On Tuesday, a federal court ruled that Texas should allow all eligible voters to obtain a vote in the absence during the coronavirus pandemic, regardless of the age of the voter. The case, Texas Democratic Party v. AbbottIncluding a state law that, at least according to the Republican Attorney General of Texas, allows voters older than 65 to vote in their absence, easily prevents most voters under 65 from doing so.
Attorney General Ken Paxton has even threatened to prosecute organizations that encourage healthy voters under 65 to apply for absentee ballots.
In recent elections, older voters preferred Republicans to Democrats. So Paxton’s interpretation of this state law could give Republicans a head start by preventing many (presumably democratically minded) voters under 65 from voting – at least on the assumption that the pandemic will still force most Texans to stay at home during the November general election.
Nor is Paxton the only prominent Republican struggle to limit access to absentee ballots. President Trump is an outspoken opponent of widespread access to mail-in ballot papers, claiming that when states make it easy to vote by mail, it “doesn’t go well for Republicans.” Likewise, Republicans fought all the way to the Supreme Court to prevent many absentee ballots from being counted in a recent election to Wisconsin – although that effort did not end well for the GOP.
It is difficult to exaggerate the bet Abbott. Nearly 30 million people live in Texas, and more than half of them are between 18 and 64 years old. That means millions of Texans may be deprived of their rights if they are unable to obtain the ballot papers for absence and are forced to stay at home due to polling station closings, closing orders, or understandable fears of becoming infected.
And all of this is happening as Texas becomes increasingly competitive. In 2018, Democrat Beto O’Rourke came in 3 points of winning one of the seats of the United States Senate in Texas. Polls show suspected Democratic presidential candidate Joe Biden perform the same way against Trump, with one poll even showing Biden leading Trump in Texas.
But Abbott is also very important for another reason. There are very few court rulings, and there are no pertinent Supreme Court cases explaining how courts should deal with cases alleging that state law discriminates on the basis of age. So it’s not just about the voting rights of millions of Texans. If the Supreme Court Abbott In case, it could hand out a historic age discrimination decision that will guide all future cases of 26th Amendment.
The United States has the 26th amendment in 1971; it states that “the right of citizens of the United States, who are eighteen years of age or older, to vote is not denied or shortened by the United States or by any State because of their age.” Still, the amendment has remained surprisingly dormant since then, at least in federal court.
Although courts have heard some of the cases related to this change, few of these have reached the Supreme Court. Indeed, the Court has never given a decision that has the meaning of the 26th amendment. A handful of judges have mentioned the amendment casually, often in agreement or dissent. And in Symm against United States (1979) The Court upheld a lower court decision rejecting the attempt by a Texas official to prevent students from voting because it attempted to violate the 26th Amendment.
But the Court did not explain his decision Symm. The Supreme Court’s full decision consists of four words: “The verdict has been confirmed.”
All this means that Judge Fred Biery, the federal judge holding the Democratic Party of Texas case, had very little guidance from higher courts when he made his decision. In addition, Biery’s decision will be reviewed by the notoriously conservative U.S. Fifth Circuit Court of Appeal – and possibly by a Supreme Court that often quite hostile to claims of voting rights.
And those courts will paint on a largely blank canvas when they give their own interpretations of the 26th amendment.
Abbott is one of two lawsuits that make ballot papers available to younger voters for absence
Abbott is one of two lawsuits aimed at ensuring that voters under 65 can vote in their absence if the pandemic discourages them from voting in person. The second, Texas Democratic Party v. DeBeauvoir, is currently working its way through the state courts of Texas.
in contrast to Abbott, the federal case, DeBeauvoir focuses less on the Constitution and more on the correct interpretation of the Texas ballot paper law.
The overwhelming majority of states either automatically send ballot papers to all registered voters or allow each voter to request ballot papers from election officials without explaining why. Texas is one of the few outliers to allow only certain voters to obtain an absent vote.
In Texas, voters over 65 can obtain an absence ballot by applying to the state for one. A separate provision of the state ballot paper law states that “a qualified voter is eligible for early postal voting if the voter has an illness or physical condition this prevents the voter from appearing at the polling station on election day without the chance of needing personal assistance or harming the voter’s health. ” DeBeauvoir switches on the correct meaning of the words ‘physical condition’.
In DeBeauvoir, the plaintiffs claim that all voters in Texas are allowed to vote during the coronavirus pandemic. The best argument for this feature was put forward by a team of civil rights attorneys led by the American Civil Liberties Union, who claim that the term “physical condition” includes the physical condition susceptible to coronavirus. Thus, during a pandemic that requires social distance to control the spread of a deadly disease, everyone has a “physical condition” that should enable them to attain an absent mood.
But there are also plausible arguments that state law should be read narrowly to prevent people who do not really have a disease or disability from receiving an absence ballot (I explain those arguments in more detail here). More importantly, all nine judges in the Texas Supreme Court are Republicans. So, it is probably unlikely that given two plausible ways of reading state law, five of those judges will choose the Democrats’ preferred interpretation and will be opposed to the republican state attorney general.
That means that the fate of younger voters is likely to be determined by the federal courts Abbott case.
The Abbott Procedure, briefly explained
It should be noted that the plaintiffs in Abbott to make several claims other than their argument that discrimination in favor of older voters is contrary to the 26th amendment.
They claim, among other things, that the state violates the guarantee of the 14th amendment that no one “equal protection of the lawBecause it treats older voters differently than younger ones. They claim that through threatening criminal proceedings against organizations that encourage young people to search in absenteeism, Paxton violated a ban on voter harassment. They also suggest that Paxton may exclude Republicans from this threat, which would violate the First Amendment’s prohibition on discrimination.
But it is not clear that many of these claims would contribute much to the voters in Texas. For example, if Paxton selectively commits threats, the correct remedy would be to order him to stop making those threats. It would not necessarily be that younger voters can obtain votes in their absence. In addition, the Roberts Court generally hostile to claim that restrictions on voting rights violate the vague language of the 14th amendment.
But the language of the 26th amendment is not the least vague. On the contrary, it speaks in clear, radical terms. The voting rights of citizens over the age of 18 “are not denied or shortened… Due to age.” The six words “will not be denied or shortened” are categorical. They suggest that each a law restricting a person’s voting rights because of his age is constitutionally suspect.
Unlike the 14th amendment, will be the 26th by the Roberts Court’s decisions interpret her language narrowly. It is likely that at least some judges will practice grammar gymnastics to save Paxton’s favorite reading of Texas law, but that gymnastics will have to be quite advanced.
The Abbott claimants can be defeated by a Catch-22
However, higher courts may never answer the question of whether Texas is violating the 26th amendment. Indeed, there is a very real risk that either the Fifth Circuit or the Supreme Court will actually conclude that this is the case never possible to question Texas’ efforts to prevent younger voters from voting during the pandemic.
Pullman sometimes requires federal courts to refrain from taking a decision on a pending case – if the outcome of that case is the correct way to read a state law, the meaning of which is currently being contested by the state judge. Purcellmeanwhile, warned that “injunctions affecting elections themselves could lead to voter confusion and, consequently, an incentive to steer clear of polls” and that “as an election approaches, that risk will increase”.
More recent Supreme Court rulings continue Purcell suggest that federal courts should avoid deciding many voting cases when elections are in sight.
So it is not hard to see how these two decisions could work together to thwart prosecutors Abbott. Until the Supreme Court of Texas decides DeBeauvoirthe Fifth Circuit and the United States Supreme Court are likely to conclude that Pullman prevents them from constitutional claims Abbott. Then, when the Texas Supreme Court turns in its decision DeBeauvoir, the Fifth Circuit and the US Supreme Court may as well conclude that it is too close to Election Day – and Purcell prevents federal courts from weighing up.
It is a trap that often arises in voting cases reaching the Roberts Court. Claimants who file a lawsuit early often lose because they filed too early to gather enough evidence to win their case, or because a doctrine like Pullman Abstinence prevents them from immediately prosecuting their case. However, claimants who take the time to develop their case often lose out because Purcell does not allow them to bring a voting right too close to an election.
Meanwhile, millions of Texans can lose their voting rights simply because they are too young.