Texas Democratic Party v. Greg Abbott, Gove ( 2020 )

Case: 20-50407 Document: 00515602091 Page: 1 Date Filed: 10/14/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 14, 2020
No. 20-50407 Lyle W. Cayce
Clerk
Texas Democratic Party; Gilberto Hinojosa; Joseph
Daniel Cascino; Shanda Marie Sansing; Brenda Li
Garcia,
Plaintiffs—Appellees,
versus
Greg Abbott, Governor of the State of Texas; Ruth
Hughs, Texas Secretary of State; Ken Paxton, Texas
Attorney General,
Defendants—Appellants.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:20-CV-438
Before King, Stewart, and Southwick, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
The opinion entered on September 10, 2020 is withdrawn.
A Texas statute allows mail-in voting for any voter at least 65 years old
but requires younger voters to satisfy conditions, such as being absent from
the county on election day or having a qualifying disability. Amid an election-
year pandemic, the district court entered a preliminary injunction requiring
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No. 20-50407
Texas officials to allow any Texan eligible to vote to do so by absentee ballot.
This court stayed the injunction pending appeal. The plaintiffs defend the
injunction at this stage of the proceedings only on the basis that the vote-by-
mail privilege for older voters is unconstitutional under the Twenty-Sixth
Amendment’s prohibition against denying or abridging the right to vote on
account of age. The statutory provision withstands that challenge. We
VACATE and REMAND.
FACTUAL AND PROCEDURAL BACKGROUND
In Texas, in-person voting is the rule. Tex. Elec. Code ch. 64.
Early voting by mail is the exception. Id. ch. 82. Texas law permits early
voting by mail for voters who: (1) anticipate being absent from their county
of residence; (2) are sick or disabled; (3) are 65 years of age or older; or (4)
are confined to jail. Id. §§ 82.001–.004.
The 2020 COVID-19 pandemic prompted Texas state officials to
adopt various emergency measures. In March, Governor Greg Abbott
declared a state of disaster for all of Texas. He also postponed the May
primary runoff election until July. In May, he extended the period for early
voting for the July primary to help the election proceed efficiently and safely.
Texas Secretary of State Ruth Hughs issued a proclamation in May
concerning early voting hours and federal funding to combat the pandemic.
Secretary Hughs also issued guidance concerning health and safety measures
for in-person voting. The guidance encouraged voters to wear masks,
disinfect their hands, and practice social distancing. In June, Secretary
Hughs issued additional guidance concerning social distancing and
sanitization of polling places.
State-court litigation preceded the current suit. In March, the Texas
Democratic Party, its Chairman, and two voters sued a county clerk in Texas
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state court, and the State intervened. The plaintiffs sought a declaration that
under the disability provision, Section 82.002 of the Texas Election Code,
“any eligible voter, regardless of age and physical condition” may vote by
mail “if they believe they should practice social distancing in order to hinder
the known or unknown spread of a virus or disease.” Under their
interpretation, lack of immunity as well as concern about transmission
qualified as a disability for the purpose of eligibility for mail-in voting. After
the State intervened, the state court entered an injunction barring Texas
officials from “prohibit[ing] individuals from submitting mail ballots based
on the disability category” during the pandemic. The State immediately filed
a notice of interlocutory appeal, which superseded and stayed the injunction
order. See In re Texas, 602 S.W.3d 549, 552 (Tex. 2020).
Texas Attorney General Ken Paxton sought to reduce confusion
surrounding the state-court action by sending a letter to Texas judges and
election officials in early May. It explained: “Based on the plain language of
the relevant statutory text, fear of contracting COVID-19 unaccompanied by
a qualifying sickness or physical condition does not constitute a disability
under the Texas Election Code for purposes of receiving a ballot by mail.”
The letter ordered public officials to refrain from advising voters who lacked
a qualifying condition but nonetheless feared COVID-19 to vote by mail. The
letter warned third parties that if they advised voters to vote by mail without
a qualifying disability, then the party could be subject to criminal liability
under the Texas Election Code. The plaintiffs characterize this guidance as
a threat underlying some of the claims not before the court today and rely on
it for part of their argument opposing sovereign immunity.
After a Texas Court of Appeals reinstated the initial injunction, the
State sought an emergency mandamus from the Supreme Court of Texas.
On May 27, the Supreme Court of Texas held “that a lack of immunity to
COVID-19 is not itself a ‘physical condition’ for being eligible to vote by mail
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within the meaning of [Section] 82.002(a).” In re Texas, 602 S.W.3d at 560.
A voter may “take into consideration aspects of his health and his health
history” in deciding whether to apply to vote by mail, but COVID-19 is not
itself a ground for voting by mail. Id. The In re Texas court found it
unnecessary to issue a writ of mandamus, id. at 561, and the plaintiffs
dismissed that suit with prejudice on June 9.
While the state-court litigation was pending, the plaintiffs filed this
lawsuit in early April in the United States District Court for the Western
District of Texas and added a third voter as a plaintiff. The plaintiffs’
operative complaint requested relief on seven grounds. The plaintiffs’
motion for a preliminary injunction slimmed down the claims and argued that
Texas’s statute allowing voting by mail for any persons aged at least 65
violated the First, Fourteenth, and Twenty-Sixth Amendments, 1 and that it
was void for vagueness. They also asserted that the Attorney General’s May
letter constituted voter intimidation and suppression of political speech.
On May 19, the district court issued an order requiring no-excuse
mail-in balloting in Texas, meaning that “[a]ny eligible Texas voter who
seeks to vote by mail in order to avoid transmission of COVID-19” could do
so. The court’s preliminary injunction prohibited the defendants from
issuing any guidance, threats, or pronouncements, or otherwise taking any
action inconsistent with the order. The district court concluded that the
plaintiffs were likely to succeed on the merits of each of their claims. On the
only claim that remains for us on this appeal, namely, a violation of the
Twenty-Sixth Amendment, the district court applied strict scrutiny to the
1
In their request for a preliminary injunction, the plaintiffs limited the Twenty-
Sixth Amendment grounds to an as-applied challenge seeking relief “[t]o the extent that
the state [was] purporting, in these pandemic circumstances, to apply different voting
burdens based on the voter’s age.”
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law. Voters under 65, according to the district court, bear a disproportionate
burden because of the age restrictions set out in Section 82.003 of the Texas
Election Code, which the court concluded “violates the [Twenty-Sixth]
Amendment, as applied, during the COVID-19 pandemic.” Going one step
further, the district court added that neither a legitimate interest nor a
rational basis existed for enforcing the age-based distinction during the
pandemic.
Just eight days after entering this injunction, the Supreme Court of
Texas issued its decision in In re Texas. Meanwhile, the defendants appealed
the federal injunction. The defendants also filed an emergency motion for a
stay pending appeal and a temporary administrative stay.
In June 2020, a panel of this court that had the responsibility to resolve
motions filed in the appeal prior to completion of briefing granted the
defendants’ motion to stay the district court’s preliminary injunction
pending the decision on the merits — which we now are entering. See Tex.
Democratic Party v. Abbott, 961 F.3d 389, 397 (5th Cir. 2020). That panel
concluded that the defendants were likely to succeed on the merits of each
claim. See id. at 402–11. As to the Twenty-Sixth Amendment claim, it found
“plenty of evidence that the Amendment’s most immediate purpose was to
lower the voting age from twenty-one to eighteen.” Id. at 408. Relying on a
Supreme Court opinion slightly predating the Amendment, the motions
panel concluded that rational-basis review applied to the Texas age-based
absentee-voting law. Id. at 408–09 (citing McDonald v. Bd. of Election
Comm’rs of Chi., 394 U.S. 802, 807–08 (1969)). The court reasoned that
giving a benefit of voting by mail to one class does not affect plaintiffs’ right
to vote because the Twenty-Sixth Amendment concerns only the denial or
abridgement of voters’ rights. Id. at 409. That meant that the plaintiffs were
unlikely to succeed on the merits of their Twenty-Sixth Amendment claim,
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just as they were similarly unlikely to succeed on their other claims.
Consequently, the district court’s injunction was stayed.
We remark here that though we are greatly benefitted by the earlier
panel’s analysis of the issues before us, under our circuit’s procedures,
opinions and orders of a panel with initial responsibility for resolving motions
filed in an appeal are not binding on the later panel that is assigned the appeal
for resolution. Northshore Dev., Inc. v. Lee, 835 F.2d 580, 583 (5th Cir. 1988).
We agree with much but not quite all of the earlier opinion.
DISCUSSION
The district court granted a preliminary injunction based on four
claims for relief — the First, Fourteenth, and Twenty-Sixth Amendments as
well as the void-for-vagueness doctrine. The defendants’ appeal suggests
three jurisdictional bars and challenges all of the bases on which the
injunction was granted. The plaintiffs defend the injunction only on their
Twenty-Sixth Amendment claim. 2 Unclear, though, is the breadth of the
Twenty-Sixth Amendment claim now being made by the plaintiffs. The
point of uncertainty is whether the effect of the COVID-19 pandemic, even
though it was central to arguments at the district court level, has been
withdrawn from our review. We explain the competing indications.
Following this court’s decision in June to enter a stay of the
preliminary injunction, briefs were filed that guide the decision we are issuing
2
The plaintiffs stated they wished to preserve the right to pursue permanent relief
on their other claims and argued that, if we were to reverse the district court on the
application of the Twenty-Sixth Amendment, we should vacate the injunction and remand
to the district court for further proceedings. That is what we do.
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today. As we just said, the plaintiffs’ brief stated that it would defend the
preliminary injunction only on Twenty-Sixth Amendment grounds. The
plaintiffs asserted “it is not the State’s tragic inability to contain the COVID-
19 epidemic that compels affirmance of the District Court’s order — it is the
Twenty-Sixth Amendment’s unambiguous text that does.” The brief
certainly explains the procedural history of this action in federal court and of
the parallel action in state court; there, the brief places COVID-19 front and
center. The argument section, though, almost never refers to COVID-19 in
explaining why the Amendment invalidates the relevant Texas Election Code
provision. There are a few, one might even say stray, usages of the pandemic
to support their arguments. 3 The defendants in their reply brief classified the
plaintiffs’ argument now as being solely a facial challenge.
If in fact the plaintiffs withdrew their reliance on the pandemic and are
instead making a facial challenge, that could transform the appeal into a
constitutional argument that has little relevance to the district court’s
reasons for granting a preliminary injunction. For example, that court’s
analysis of harm to the plaintiffs and their likelihood of success on the merits
— two criteria for the preliminary injunction — relied exclusively on the
pandemic. Yes, a facial challenge would be a legal issue subject to our de novo
review had the district court decided it, but that court did not do so.
3
The most we see as to the plaintiffs’ legal arguments relying on the pandemic are
the following. On one page of their brief, they argue it is unconstitutional to require those
younger than 65 to appear at the polls “particularly during the COVID-19 pandemic, while
allowing over-65 voters to cast ballots from the safety of their homes.” Appellee’s Br. 27
(citing Harman v. Forssenius, 380 U.S. 528, 542 (1965), and Lane v. Wilson, 307 U.S. 268,
275 (1939)). A few pages later, the plaintiffs reject the defendants’ argument that the
legislature would rather nobody vote by mail than for everyone to do so; instead, they argue
that nothing supports that the legislature would not wish to “extend that right on a
nondiscriminatory basis during the COVID-19 pandemic (which is the only period relevant
for the preliminary injunction now before this Court).” Id. at 34.
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We need not resolve whether the plaintiffs indeed are now trying to
have us consider the facial challenge even though that was not considered by
the district court. Appellate rules regarding how we treat absent issues differ
depending on whether it is the appellant or the appellee who has neglected
them. An appellant can intentionally waive or inadvertently forfeit the right
to present an argument by failure to press it on appeal, a higher threshold
than simply mentioning the issue. Nichols v. Enterasys Networks, Inc., 495
F.3d 185, 190 (5th Cir. 2007). On the other hand, even an appellee’s failure
to file a brief does not cause an automatic reversal of the judgment being
appealed. By appellate rule, so extreme a lapse does cause the appellee to
lose the right to appear at oral argument. FED. R. APP. P. 31(c). We also know
that if we disagree with the grounds relied upon by a district court to enter
judgment but discover another fully supported by the record, we can affirm
on that alternative basis. Eastus v. ISS Facility Servs., Inc., 960 F.3d 207, 211
(5th Cir. 2020).
There are a few cases that consider waiver rules for appellees. 4 For
example, the rules against considering an argument not properly presented
are more generous for an appellee than for an appellant. United States v.
Guillen-Cruz, 853 F.3d 768, 777 (5th Cir. 2017). Appellees neither select the
issues for the appeal nor file reply briefs, leaving them at a disadvantage in
being able to present all favorable arguments on appeal.
We consider the ambiguity in the plaintiffs’ briefing to present
another variant of these principles. Regardless of whether the plaintiffs were
4
An appellant’s failure to raise an issue in an initial appeal constitutes a waiver of
having the issue considered on remand; not so for the appellee. United States v. Smith, 814
F.3d 268, 272 (5th Cir. 2016). This is a component of the law-of-the-case doctrine. See
18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice and Procedure § 4478.6 (2d ed. April 2020 Update). Simply
put, as to waiver, the rules for appellants and appellees are not identical.
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abandoning the defense of the injunction on the grounds on which it was
issued, and we cannot discern if they were, we will review the validity of the
actual judgment, not some alternative.
We begin with the defendants’ arguments about standing, sovereign
immunity, and the political question doctrine.
I. Plaintiffs’ standing
The first jurisdictional question is whether the plaintiffs have standing
to challenge Texas’s election law. A plaintiff must show: (1) an injury in fact
to the plaintiff that is concrete, particularized, and actual or imminent; (2)
the injury was caused by the defendant; and (3) the injury would likely be
redressed by the requested judicial relief. Thole v. U. S. Bank N.A., 140 S.
Ct. 1615, 1618 (2020). In the preliminary-injunction context, plaintiffs must
make a “clear showing” of standing to maintain the injunction. Barber v.
Bryant, 860 F.3d 345, 352 (5th Cir. 2017). Standing is a question we review
de novo. Pederson v. La. State Univ., 213 F.3d 858, 869 (5th Cir. 2000).
This case involves two groups of plaintiffs: (1) three registered Texas
voters under 65 years old who desired to vote in the July 14 Texas Democratic
Primary and the November election; and (2) the Texas Democratic Party and
its Chairman. We have held that, in the context of injunctive relief, one
plaintiff’s successful demonstration of standing “is sufficient to satisfy
Article III’s case-or-controversy requirement.” Texas v. United States, 945
F.3d 355, 377–78 (5th Cir. 2019). The voter plaintiffs contend that they suffer
a sufficient injury in fact because they are, unlike older voters, forced to vote
in person and risk contracting or spreading COVID-19. They assert that the
injury is fairly traceable to the defendants’ enforcement of Section 82.003,
and that their injury would be redressed by an injunction requiring what they
consider to be non-discriminatory access to mail-in voting.
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The defendants challenge only the causation prong, arguing that the
voter plaintiffs lack standing because their injury is caused by COVID-19, not
the defendants. The injury alleged in the brief actually is the result of the
combination of COVID-19 and Texas officials’ continuing enforcement of
Section 82.003 as written. The defendants argue that the officials have no
authority to relent in enforcement of the statute.
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.
II. Defendants’ sovereign immunity
The defendants assert that they are entitled to sovereign immunity.
State sovereign immunity prohibits “private suits against nonconsenting
states in federal court.” City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir.
2019). State officials and agencies enjoy immunity when a suit is effectively
against the state. Id. Unless waived by the state, abrogated by Congress, or
an exception applies, the immunity precludes suit. Id.
The plaintiffs contend that sovereign immunity does not bar their
Twenty-Sixth Amendment claim under the exception carved out in Ex parte
Young, 209 U.S. 123 (1908). Suits for injunctive or declaratory relief are
allowed against a state official acting in violation of federal law if there is a
“sufficient ‘connection’ to enforcing an allegedly unconstitutional law.” In
re Abbott, 956 F.3d 696, 708 (5th Cir. 2020).
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This circuit has not spoken with conviction about all relevant details
of the “connection” requirement. Tex. Democratic Party, 961 F.3d at 400.
An en banc plurality of this court explained that “the officers [must] have
‘some connection with the enforcement of the act’ in question or be
‘specially charged with the duty to enforce the statute’ and be threatening to
exercise that duty.” Okpalobi v. Foster, 244 F.3d 405, 414–15 (5th Cir. 2001)
(en banc) (plurality op.). Without a majority, no controlling precedent was
made. See K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010). In K.P., we
declined to “resolve whether Ex Parte Young requires only ‘some
connection’ or a ‘special relationship’ between the state actor and the
challenged statute,” because the defendant fell within the exception under
either standard. Id.
Although the precise scope of the requirement for a connection has
not been defined, the plaintiff at least must show the defendant has “the
particular duty to enforce the statute in question and a demonstrated
willingness to exercise that duty.” Morris v. Livingston, 739 F.3d 740, 746
(5th Cir. 2014) (quotation marks omitted). That means the official must be
“statutorily tasked with enforcing the challenged law.” In re Abbott, 956 F.3d
at 709. Enforcement typically means “compulsion or constraint.” K.P., 627
F.3d at 124. A “scintilla of ‘enforcement’ by the relevant state official with
respect to the challenged law” will do. City of Austin, 943 F.3d at 1002.
Determining whether Ex parte Young applies to a state official requires
a provision-by-provision analysis, i.e., the official must have the requisite
connection to the enforcement of the particular statutory provision that is the
subject of the litigation. See, e.g., In re Abbott, 956 F.3d at 709. This is
especially true here because the Texas Election Code delineates between the
authority of the Secretary of State and local officials. A “case-by-case
approach to the Young doctrine has been evident from the start.” Idaho v.
Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 280 (1997).
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The plaintiffs claim that Section 82.003, the age-based absentee-
voting provision, violates the Twenty-Sixth Amendment of the Constitution.
The plaintiffs have included the Secretary of State as a defendant,
understandable since the Secretary is the “chief election officer of the state.”
Tex. Elec. Code § 31.001. Still, we must find a sufficient connection
between the official sued and the statute challenged.
The statutory duties that matter today are the ones for the Secretary
regarding applications for absentee ballots. She has the specific and relevant
duty to design the application form for mail-in ballots, id. § 31.002(a), and to
provide that form to local authorities and others who request it. Id. §
31.002(b). Additionally, the Secretary must furnish forms to those who
request them for distribution to others. Id. § 84.013. Because local
authorities are required to use the Secretary’s absentee-ballot form outside
of emergency situations, id. § 31.002(d), the Secretary has the authority to
compel or constrain local officials based on actions she takes as to the
application form. See City of Austin, 943 F.3d at 1000.
The Secretary’s form currently includes an option for a voter to
indicate entitlement to an absentee ballot because that voter is at least 65
years old. It is permissible under Ex parte Young for a court to “command[]
a state official to do nothing more than refrain from violating federal law.”
Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255 (2011). Thus, a
finding that the age-based option denies or abridges younger voters’ right to
vote might lead to prohibiting the Secretary from using an application form
that expressed an unconstitutional absentee-voting option.
The plaintiffs present far broader reasons for holding the Secretary to
be a proper defendant. The Secretary’s general duties under the Code
include issuance of directives and instructions, being willing to “assist and
advise” local officials, and endeavoring to “obtain and maintain uniformity
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in the application, operation, and interpretation” of the Election Code.
Tex. Elec. Code §§ 31.003–.004. We previously interpreted this
provision as “requiring the Secretary to take action with respect to
elections.” Lightbourn v. Cnty. of El Paso, 118 F.3d 421, 429 (5th Cir. 1997).
Almost fifty years ago, though, a justice on the Supreme Court of Texas, who
would later be a cherished colleague of ours, wrote that the Secretary’s duty
to “obtain and maintain” uniformity in the application of the Election Code
is not “a delegation of authority to care for any [i.e., every] breakdown in the
election process.” Bullock v. Calvert, 480 S.W.2d 367, 372 (Tex. 1972)
(Reavley, J.). That 1972 opinion suggests the Secretary can address some
breakdowns, id., but today the only ones we need to identify are those relating
to absentee-ballot applications. Even there, some duties fall on other
officials. For example, a local “early voting clerk shall review each
application for a ballot to be voted by mail.” Tex. Elec. Code §
86.001(a). Also, an “early voting clerk shall mail without charge an
appropriate official application form.” Id. § 84.012. Though there is a
division of responsibilities, the Secretary has the needed connection.
In sum, the 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.
As to the Governor, we conclude he lacks a sufficient connection to
the enforcement of an allegedly unconstitutional law. In re Abbott, 956 F.3d
at 708–09. As the motion’s panel in this case stated, the actions the Governor
took — to postpone the May 2020 primary and to expand the early voting
period — were exercises of the Governor’s emergency powers unrelated to
the Election Code. The Governor is not “statutorily tasked with enforcing
the challenged law.” Id. at 709. The challenged Section 82.003 certainly
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operates independently of influence or enforcement from the Governor. As
a result, the connection between the Governor and enforcement of the
challenged provision is insufficient, and Ex parte Young does not apply to him.
As for the Attorney General, whether Ex parte Young applies is a closer
question. The plaintiffs’ only argument as to this official is that, in previous
cases, the state of Texas has “concede[d] that the attorney general has a duty
to enforce and uphold the laws of Texas.” See City of Austin v. Abbott, 385 F.
Supp. 3d 537, 544 (W.D. Tex. 2019). We have already held that “[t]he
required connection is not merely the general duty to see that the laws of the
state are implemented, but the particular duty to enforce the statute in
question and a demonstrated willingness to exercise that duty.” Morris, 739
F.3d at 746 (quotation marks omitted). A general duty to enforce the law is
insufficient for Ex parte Young.
The plaintiffs also focus us on the letter sent by the Attorney General.
True, we applied the Ex parte Young exception to this Attorney General after
his office sent to a manufacturer numerous “threatening letters” that
“intimat[ed] that formal enforcement” of the Texas Deceptive Trade
Practices Act “was on the horizon.” NiGen Biotech, L.L.C. v. Paxton, 804
F.3d 389, 392, 397 (5th Cir. 2015). Conversely, we have declined to apply Ex
parte Young where the Attorney General issued a press release warning that
anyone who violated the Governor’s recent emergency order would be “met
with the full force of the law.” In re Abbott, 956 F.3d at 709. We explained
that “our cases do not support the proposition that an official’s public
statement alone establishes authority to enforce a law, or the likelihood of his
doing so, for Young purposes.” Id.
Unlike NiGen, 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
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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.
III. Political question doctrine
The defendants insist the plaintiffs’ as-applied challenge based on
Texas officials’ response to the COVID-19 pandemic presents a
nonjusticiable political question. In their view, our answering whether the
pandemic presents a need to change election rules to protect voters is a
question constitutionally committed to other branches of government. See
Baker v. Carr, 369 U.S. 186, 217 (1962). The Supreme Court has warned that
“lower federal courts should ordinarily not alter . . . election rules on the eve
of an election.” Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S.
Ct. 1205, 1207 (2020). Further, they argue that we must refrain from
judgment out of respect for the executive and legislative branches of the state
of Texas. See Baker, 369 U.S. at 217. Finally, they assert that there is no
“judicially discoverable and manageable standard[]” for resolving whether
Texas’s age-based absentee-voting law meets constitutional muster in the
context of the pandemic. See id. The plaintiffs disagree, arguing they have
presented a “straightforward constitutional claim” capable of resolution by
judicially discoverable and manageable standards.
The motions panel on this case rejected the political question doctrine
as an impediment, concluding that it “need not — and will not — consider
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the prudence of Texas’s plans for combating [COVID-19] when holding
elections.” Tex. Democratic Party, 961 F.3d at 398. Instead, resolution of the
appeal was said to turn on “whether the challenged provisions of the Texas
Election Code run afoul of the Constitution, not whether they offend the
policy preferences of a federal district judge.” Id. at 398–99.
We agree that no political question bars our review of the Twenty-
Sixth Amendment challenge. We are tasked with determining whether
Section 82.003 of the Texas Election Code violates the Twenty-Sixth
Amendment as applied during the pandemic, a question susceptible to
judicial resolution without interfering with the political branches of Texas
government. Even when “matters related to a State’s . . . elective process
are implicated by this Court’s resolution of a question,” as our resolution of
this appeal will do, that “is not sufficient to justify our withholding decision
of the question.” Elrod v. Burns, 427 U.S. 347, 351–52 (1976). Judicially
discoverable and manageable standards exist to help us determine whether
the law runs afoul of the Twenty-Sixth Amendment. Namely, we determine
whether the law denies or abridges the plaintiffs’ right to vote based on age.
If it does, then we will apply an appropriate level of scrutiny. The effects of
the pandemic are relevant to answering whether the law denies or abridges
the right to vote, but the standards themselves do not yield to the pandemic.
For these reasons, we hold that the political question doctrine does
not bar our review of the plaintiffs’ challenge. Our analysis will not focus on
policy determinations from Texas’s executive and legislative officials.
Regardless of whether the plaintiffs are presenting on this appeal a facial or
as-applied challenge, our analysis does not turn on the effect of the pandemic
and therefore avoids a political question.
Because we conclude there are no jurisdictional impediments to the
plaintiffs’ bringing these claims, we now turn to the merits of the injunction.
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The defendants in their opening brief challenged all the grounds used by the
district court. The plaintiffs defend only on the basis of the Twenty-Sixth
Amendment. We exercise our discretion to review only that basis and not
examine the alternative grounds to determine if any of them would sustain
the judgment. The plaintiffs, as appellees, defend only the one ground, and
the parties need a ruling.
We also forewarn on a seeming inconsistency to what we have just said
about not ruling on a facial challenge. It is impossible to consider the as-
applied challenge based on the pandemic without addressing what is
generally required to violate the Twenty-Sixth Amendment. The difference
between the two forms of challenge “is not so well defined that it has some
automatic effect or that it must always control the pleadings and disposition
in every case involving a constitutional challenge.” Citizens United v. Fed.
Election Comm’n, 558 U.S. 310, 331 (2010). We reach conclusions as to what
is necessary to deny or abridge the right to vote on the basis of age, as we can
do no other.
IV. Twenty-Sixth Amendment
Section 1 of the Twenty-Sixth Amendment provides: “The right of
citizens of the United States, who are eighteen years of age or older, to vote
shall not be denied or abridged by the United States or by any State on
account of age.” Section 2 gives Congress enforcement power. Ratified in
1971, the most recent of the voting-rights constitutional amendments has yet
to be interpreted in any significant depth. After almost fifty years, apparently
it now is time in several jurisdictions.
The parties have widely different interpretations of the Amendment.
The plaintiffs contend that the Amendment creates a sweeping prohibition
against any age-based denial or abridgment of the right to vote. Further, they
contend that any differential treatment in terms of voting on the basis of age
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is a plainly unconstitutional denial or abridgment. Such an interpretation is
said to be consistent with the Fifteenth, Nineteenth, and Twenty-Fourth
Amendments. Under their reading, Section 82.003 is unconstitutional under
the Twenty-Sixth Amendment because it offers mail-in voting to those who
are at least age 65 without offering the same benefit to younger voters. Even
if not facially unconstitutional, the plaintiffs argue that the election law is
unconstitutional as applied “during the COVID-19 pandemic.”
The defendants argue that the Twenty-Sixth Amendment was simply
an extension of the right to vote to individuals between the ages of eighteen
and twenty-one, not to eliminate all age-based distinctions in election-related
laws. They further contend that Texas’s mail-in ballot rules do not affect the
right to vote under the Amendment because the laws neither abridge nor
deny the right of voters younger than 65 to vote.
Also divergent are the arguments about the level of scrutiny to give to
the challenged provision. Texas argues for rational-basis review, but the
district court applied strict scrutiny. Perhaps because another panel of this
court entered a stay of the preliminary injunction by finding only rational-
basis review applied, Tex. Democratic Party, 961 F.3d at 409, the plaintiffs’
current briefing exercised some caution by not explicitly identifying a
standard. Still, the plaintiffs’ disagreement with the motions panel is
pressed, as is their belief that some heightened level of scrutiny is required.
A. An individual right
We first examine whether the Twenty-Sixth Amendment confers an
individual right to be free from any denial or abridgment of the right to vote.
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We acknowledge this has not been an issue in the case, but we need to walk
through the only recently developing analysis of this Amendment with care.
The language and structure of the Twenty-Sixth Amendment mirror
the Fifteenth, Nineteenth, and Twenty-Fourth Amendments. 5 Each of those
amendments has been interpreted to provide an individual right to be free
from the denial or abridgement of the right to vote based on the classification
described in the Amendment. The Fifteenth Amendment prohibits voting
laws that “handicap exercise of the franchise” on account of race because the
Amendment “nullifies sophisticated as well as simple-minded modes of
[racial] discrimination.” Lane v. Wilson, 307 U.S. 268, 275 (1939). The
Nineteenth Amendment “applies to men and women alike and by its own
force supersedes inconsistent measures.” Breedlove v. Suttles, 302 U.S. 277,
283 (1937), overruled on other grounds by Harper v. Va. State Bd. of Elections,
383 U.S. 663, 668–69 (1966). Likewise, the Twenty-Fourth Amendment
provides a right to vote without paying a poll tax. Harman v. Forssenius, 380
U.S. 528, 540–41 (1965). These are Supreme Court interpretations of the
5
Compare U.S. Const. amend. XXVI, §§ 1–2 (“The right of citizens of the
United States, who are eighteen years of age or older, to vote shall not be denied or abridged
by the United States or by any State on account of age. The Congress shall have power to
enforce this article by appropriate legislation.”), with U.S. Const. amend. XV, §§ 1–2
(“The right of citizens of the United States to vote shall not be denied or abridged by the
United States or by any State on account of race, color, or previous condition of servitude.
The Congress shall have power to enforce this article by appropriate legislation.”), and
U.S. Const. amend. XIX (“The right of citizens of the United States to vote shall not be
denied or abridged by the United States or by any State on account of sex. Congress shall
have power to enforce this article by appropriate legislation.”), and U.S. Const. amend.
XXIV, §§ 1–2 (“The right of citizens of the United States to vote in any primary or other
election for President or Vice President, for electors for President or Vice President, or for
Senator or Representative in Congress, shall not be denied or abridged by the United States
or any State by reason of failure to pay any poll tax or other tax. The Congress shall have
power to enforce this article by appropriate legislation.”).
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Fifteenth, Nineteenth, and Twenty-Fourth Amendments predating the 1971
submission and ratification of the Twenty-Sixth Amendment.
We hold that the Twenty-Sixth Amendment confers an individual
right to be free from the denial or abridgment of the right to vote on account
of age, the violation of which allows for pursuing a claim in court. We now
turn to what denial and abridgment in this context mean.
B. Scope of the Twenty-Sixth Amendment’s protection
For Section 82.003 of the Texas Election Code to be constitutional,
its granting to those at least 65 years of age an excuse-free right to a mail ballot
cannot be a denial or abridgment of not-as-old voters’ right to vote, either
facially or during the pandemic. Because we conclude that by definition no
denial or abridgement has occurred, it is unnecessary for us to assess the
applicable level of scrutiny to apply had there been either. On remand, the
issue may arise. For that reason, we will discuss levels of scrutiny generally
at the end of the opinion.
As we search for the meaning of the key terms, we find direction from
a time not too long ago when the Supreme Court began to give meaning to a
different amendment long ignored in litigation as this one has been, namely,
the Second. District of Columbia v. Heller, 554 U.S. 570 (2008). The Court
considered how the words and phrases of that amendment had been used and
interpreted in other constitutional provisions. Id. at 579–81. The Court
wrote a lengthy exegesis of each significant term in the Second Amendment
and its usage at the time of ratification. Id. at 579–95. That time was
contemporaneous with the adoption of the Constitution itself. Among its
lengthier explanations was the understanding at that time of “keep and bear
Arms,” and each of the key words had a discernable late-Eighteenth-Century
meaning. Id. at 581–92. A focus as well was how the same or at least similar
terms that also appeared elsewhere in the Constitution had been interpreted.
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For example, the Second Amendment’s phrase “right of the people” was
held to guarantee an individual right to possess and carry a weapon in case of
confrontation, id. at 592, at least in part because the same phrase used in
other constitutional provisions “unambiguously refer[s] to individual
rights.” Id. at 579.
Similarly, in the statutory context, “there is a natural presumption
that identical words used in different parts of the same act are intended to
have the same meaning.” Atl. Cleaners & Dyers, Inc. v. United States, 286
U.S. 427, 433 (1932). Different here than in most statutory interpretation
contexts, though, are the large gaps in time between the adoption of different
amendments that use language similar to each other or to the original
Constitution itself.
Just as Heller examined such questions as what to “keep and bear
arms” meant in the Founding Era, relevant for us is how broad or limited the
phrase “right to vote” was interpreted at the time the Amendment was
ratified. This will establish our baseline. That meaning is the context for the
use of the phrase, and with “textual interpretation, context is everything.”
Antonin Scalia, A Matter of Interpretation: Federal
Courts and the Law 37 (1997).
Understanding what the right to vote meant at the time the Twenty-
Sixth Amendment was ratified in 1971 is certainly assisted by the 1969
McDonald decision. McDonald, 394 U.S. at 807–08. A definitive meaning of
the right to vote and of denying that right could hardly have been given any
closer to the time the Amendment was ratified. In McDonald, the Supreme
Court held that denying mail-in ballots to incarcerated persons otherwise
eligible to vote did not “deny appellants the exercise of the franchise.” Id.
The Court explained that it was “thus not the right to vote that [was] at stake
[t]here but a claimed right to receive absentee ballots.” Id. at 807.
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We also consider some Congressional sources. Though we find no
utility in examining the individual statements of various members of
Congress who spoke to their beliefs — or perhaps only their hopes in guiding
future interpretations — as to the meaning of the Amendment, we are willing
to examine materials that accurately reflect what Congress was willing to
adopt by joint action and present to a President who then was willing to
register agreement. Enacted revisions to statutes are part of “statutory
history,” not “the sort of unenacted legislative history that often is neither
truly legislative (having failed to survive bicameralism and presentment) nor
truly historical (consisting of advocacy aimed at winning in future litigation
what couldn’t be won in past statutes).” BNSF Ry. Co. v. Loos, 139 S. Ct.
893, 906 (2019) (Gorsuch, J., dissenting).
Congress did not in this instance revise earlier enacted legislation by
passing a new bill. Instead, after the Supreme Court invalidated part of its
earlier effort, Congress revised by proposing a constitutional amendment
through proper bicameral procedures, then presented it to the states where
it was ratified. We explain.
The Voting Rights Act was adopted in 1965 to ensure that the right to
vote would not be denied or abridged on account of race or color. See 52
U.S.C. § 10301. In the 1970 renewal of the Act, Congress decided to broaden
the franchise in another way — by lowering the voting age to eighteen. See
Oregon v. Mitchell, 400 U.S. 112, 117 (1970). The 1970 amendments imposed
the change this way: “Except as required by the Constitution, no citizen of
the United States who is otherwise qualified to vote in any State or political
subdivision in any primary or in any election shall be denied the right to vote
in any such primary or election on account of age if such citizen is eighteen
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years of age or older.” 6 The slogan for some who urged this change was “old
enough to fight, old enough to vote,” 7 an allusion to the young members of
the American military serving in Vietnam.
Perhaps Congress was willing to hazard lowering the voting age by
legislation even for state elections because the Supreme Court had upheld
the 1965 Voting Right Act’s ban on use of literacy tests based on Congress’s
Fifteenth Amendment enforcement power. See South Carolina v.
Katzenbach, 383 U.S. 301 (1966). Lowering the voting age by federal statute
for all elections, though, could not be supported by the same arguments. The
Court in December 1970 held that the 1970 amendment to the Voting Rights
Act setting the voting age at eighteen was within Congress’s power with
respect to federal elections but not as to state and local elections. Mitchell,
400 U.S. at 117–18. 8 At the time, forty-seven states recognized the right to
vote beginning at an age higher than eighteen. Eric S. Fish, Note, The Twenty-
Sixth Amendment Enforcement Power, 121 YALE L.J. 1168, 1193 (2012).
The Twenty-Sixth Amendment followed immediately. Approved by
Congress in March of 1971 and ratified by June, the Amendment was the most
quickly ratified constitutional amendment in our history. Id. at 1194–95. This
is some indication that the Twenty-Sixth Amendment was at least perceived
6
Voting Rights Act Amendments of 1970, Pub. L. No. 91-285, § 302, 84 Stat. 314,
318, invalidated in part by Oregon v. Mitchell, 400 U.S. 112, 117–18 (1970).
7
Nancy Turner, Comment, The Young and the Restless: How the Twenty-Sixth
Amendment Could Play a Role in the Current Debate over Voting Laws, 64 Am. U. L. Rev.
1503, 1508 (2015).
8
Debate on the Voting Rights Act Amendments may have altered the makeup of
the Court that would by a 5–4 vote limit the voting-age change. The Judiciary Committee
favorably reported Fifth Circuit Judge G. Harrold Carswell’s nomination to the Supreme
Court in February 1970, but the Senate gave precedence to considering the amendments in
March, a delay that some contend is what allowed opposition to organize and defeat his
confirmation in April. Richard Harris, Decision 84, 108, 200–02 (1971).
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as having a narrower sweep than the other constitutional amendments
affecting voting, which in this instance was to fulfill what Congress tried but
failed to do in 1970 in lowering the voting age for all elections.
We also look at details of absentee voting nationwide, data that was
provided to Congress when it was considering the 1970 Voting Rights Act
Amendments as well as what became the Twenty-Sixth Amendment. One
1973 review of the election laws, apparently mirroring but updating research
provided to Congress in 1968–69, showed there was much variation. 9 In
1968, only two states were providing a special privilege for older voters to cast
absentee ballots; by 1973, there were four. 10 There were other differences:
Maine has the most sweeping statute; it provides that any
registered voter may cast an absentee ballot. Presumably, those
who are able to vote in person do so, but the statute does not
require applicants for absentee ballots to demonstrate an
inability to reach the polls. In all other states, voters who wish
9
Note, The Submerged Constitutional Right to an Absentee Ballot, 72 Mich. L.
Rev. 157, 159–61 (1973). Similar data through 1969 was prepared for Congress as shown
in the record of Senate hearings cited in the article. Id. at 158 n.3. That data provides the
absentee-voting landscape from each state based on two compilations by the Legislative
Reference Service of the Library of Congress. Amendments to the Voting Rights Act of 1965:
Hearings Before the Subcomm. on Constitutional Rights of the Comm. on the Judiciary on S. 818,
S. 2456, S. 2507, and Title IV of S. 2029, 91st Cong., 1st & 2d Sess. 292–93 (1969–70) (citing
Elizabeth Yadlosky, Legis. Reference Serv., 69–226A, Absentee
Registration and Voting: Digests of Major Provisions of the Laws
of the Fifty States and the District of Columbia (1969), and
Elizabeth Yadlosky, Legis. Reference Serv., A–243, Election Laws
of the Fifty States and the District of Columbia (1968)). Our thanks to
Stuart Carmody of the Congressional Research Service — with Ryan Annison of Senator
Roger Wicker’s staff as liaison — and to Fifth Circuit Librarians Judy Reedy, Peggy Mitts,
and Susan Jones for diligently seeking and obtaining these two long-buried documents.
10
Submerged Constitutional Right, supra note 9, at 161 n.18 (Arizona, Michigan,
Rhode Island, and Wyoming in 1973); Election Laws of the Fifty States and
the District of Columbia, supra note 9, at 128, 221 (Michigan and Rhode Island
in 1968).
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to cast an absentee ballot must demonstrate that they fall within
a statutory classification.
Although most states provide absentee ballots in all
elections, four restrict their use to general elections. In many
states, eligibility is determined by the voter’s actual distance
from his home. The majority of states require absence from the
county of the voter’s residence; others require absence from
the state, the city, or the precinct. Some absentee-ballot
legislation encompasses classes of voters who are within the
election district but cannot reach the polls. Almost all states
allow the physically incapacitated to cast absentee ballots.
Some also furnish absentee ballots to students, to election
workers stationed at precincts other than their own, to persons
over sixty-five years of age, and to persons whose religious
beliefs prevent them from attending the polls on election day. 11
Other variants among the states were permitting absentee voting for
those who participated in the election process itself, or whose religious tenets
prevented attendance at the polls. 12
Though this data provided to Congress when considering the 1970 and
1971 enactments indicate that almost all states at the time of submission of
the Twenty-Sixth Amendment permitted absentee voting by those who were
temporarily removed from proximity to their polls, there was much variation
— being absent from the precinct, city, county, or state. 13 Those variations
11
Submerged Constitutional Right, supra note 9, at 159–61 (footnotes omitted).
12
Some states allowed absentee voting for election workers. Election Laws
of the Fifty States and the District of Columbia, supra note 9, at 52
(Florida); id. at 74 (Illinois); id. at 128 (Michigan). Others allowed absentee voting for
religious reasons. Id. at 25 (California); id. at 36–37 (Connecticut); id. at 275 (Wisconsin).
Many single-state variations existed, such as Mississippi’s allowing absentee voting for
those engaged in transportation as a driver, operator, or crewman. Id. at 137.
13
Submerged Constitutional Right, supra note 9, at 160.
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were eliminated in part by the 1970 Voting Rights Act Amendments: “[E]ach
State shall provide by law for the casting of absentee ballots for . . . President
and Vice President . . . by all duly qualified residents of such State who may
be absent from their election district or unit in such State on the day such
election is held and who have applied therefor not later than seven days
immediately prior to such election,” then who timely return their ballots. See
Voting Rights Act Amendments of 1970, Pub. L. No. 91-285, § 202, 84 Stat.
314, 316–17, codified as 52 U.S.C. § 10502(d). The Mitchell Court upheld
this standardization of the right to an absentee ballot in presidential elections,
and it remains the law today. Mitchell, 400 U.S. at 119.
The significance we give to this status quo for absentee voting at the
time of the Twenty-Sixth Amendment is that, despite all the variations in the
states, the only congressional insistence in the Voting Rights Act
Amendments, which included a provision lowering the voting age for all
elections, was to give all voters who were going to be absent on election day
a right to vote absentee for a presidential ticket. Deciding whether the
Twenty-Sixth Amendment should be interpreted as doing even more is
informed by this statutory history.
The Supreme Court distinguished between a right to vote and a right
to vote absentee: “It is thus not the right to vote that is at stake here but a
claimed right to receive absentee ballots.” McDonald, 394 U.S. at 807. Judge
Ho was correct when concurring to the entry of a stay during the pendency
of this appeal when he wrote: “For nearly a century, mail-in voting has been
the exception — and in-person voting the rule — in Texas.” Tex. Democratic
Party, 961 F.3d at 414 (Ho, J., concurring).
In summary, the right to vote in 1971 did not include a right to vote by
mail. In-person voting was the rule, absentee voting the exception. Though
we identify this historical context for the Amendment, certainly our
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imperative is to focus on the text. “Only the written word is the law, and all
persons are entitled to its benefit.” Bostock v. Clayton Cnty., 140 S. Ct. 1731,
1737 (2020). Even “small gestures can have unexpected consequences,” id.,
which is relevant when considering whether the nearly forgotten Twenty-
Sixth Amendment invalidates any age-based limitation on voting today.
We now consider when the right to vote is “denied” or “abridged.”
1. To deny the right to vote
Before ratification, the Supreme Court held that the right to vote was
not “denied” where there was no indication that the challengers were “in
fact absolutely prohibited from voting.” McDonald, 394 U.S. at 807–08 &
n.7. After ratification, the Court held that a person’s right to vote is denied
when an election law “absolutely prohibits them from voting.” Goosby v.
Osser, 409 U.S. 512, 521 (1971). Under the Twenty-Sixth Amendment, then,
“denied” means “prohibited.” There has been no denial here.
2. To abridge the right to vote
To abridge is “[t]o reduce or diminish.” Abridge, Black’s Law
Dictionary 7 (10th ed. 2014). Evaluating whether there has been a denial
of a right will rarely involve a comparison. On the other hand, “[i]t makes no
sense to suggest that a voting practice ‘abridges’ the right to vote without
some baseline with which to compare the practice.” Reno v. Bossier Parish
Sch. Bd., 528 U.S. 320, 334 (2000). More, later, on Bossier Parish. We are
not focused today on how important that right is, but it is one of importance,
central to a democratic system. Instead, we are seeking a clear understanding
of the right itself, from which we then can determine whether something the
government has done in its election rules has abridged the right.
The plaintiffs insist that an abridgment occurs any time a new election
law makes voting more difficult for one age group than it is for another.
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Under that construct, when Texas in 1975 legislated a privilege for older
voters to cast absentee votes without needing to claim a reason such as being
out of the county, it abridged younger voters’ rights even though no change
was made as to them. 14 In essence, a new baseline for voting arises with each
new election rule. If some category of voters has more limited rights after the
change in comparison to other categories, an abridgement has occurred.
Our first reaction is that this seems an implausible reading of
“abridge.” Conceptually, plaintiffs are converting the Twenty-Sixth
Amendment into the positive assertion that voting rights must be identical
for all age groups at all times. Any indulgence solely for one age group of
voters would fail; voters of all ages must get the same indulgence. 15 The
Amendment, though, is a prohibition against adopting rules based on age that
deny or abridge the rights voters already have. Indeed, neither the Twenty-
Sixth Amendment nor the related amendments we have been discussing are
written in terms of granting a positive right to vote. Instead, they each are
phrased in the negative, namely, that the right to vote shall not be denied or
abridged based on the relevant reason. See David Schultz, Election
Law and Democratic Theory 87 (2016). More consistent with the
text of the Twenty-Sixth Amendment is for us to evaluate whether younger
voters’ rights were reduced by the addition of a privilege for older voters.
The point just made, though, needs to take into account a possible
exception. We return to the Bossier Parish decision concerning the Fifteenth
Amendment. After stating that a baseline for measuring abridgements was
14
Addressed later is the specific assertion in support of the preliminary injunction
that the privilege abridges the younger voters’ right in the context of the pandemic.
15
We borrow the term “indulgence” from Justice Scalia, who used it to refer to
accommodations offered to some but not all voters based on a perceived special need.
Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 209 (2008) (Scalia, J., concurring).
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necessary, the Court continued by distinguishing two parts of the Voting
Rights Act. Section 5 proceedings, the since-invalidated requirement that
certain states had to preclear any election law changes with the Department
of Justice, “uniquely deal only and specifically with changes in voting
procedures.” Bossier Parish, 528 U.S. at 334 (emphasis omitted). On the
other hand, challenges to voting practices generally, i.e., not necessarily a
recent change, under Section 2 of the Act or under the Fifteenth
Amendment, had a broader reach:
In § 2 or Fifteenth Amendment proceedings, by contrast,
which involve not only changes but (much more commonly)
the status quo itself, the comparison must be made with a
hypothetical alternative: If the status quo “results in [an]
abridgement of the right to vote” or “abridge[s] [the right to
vote]” relative to what the right to vote ought to be, the status
quo itself must be changed.
Id. The Court then stated that “abridging” for purposes of the Fifteenth
Amendment refers to discrimination more generally, not just to
retrogression. Id. That certainly makes sense, as litigation under the
Fifteenth Amendment went far beyond just challenging recent changes but
sought to dismantle longstanding discrimination in voting.
Even if this concept applies to the Twenty-Sixth Amendment, i.e.,
that abridging goes beyond just looking at the change but also at the validity
of the state’s voting rules generally, we see no basis to hold that Texas’s
absentee-voting rules as a whole are something that ought not to be.
Secondly, we examine the two Supreme Court decisions on which
plaintiffs rely in defining “abridge” in this manner. The earlier of the
opinions used the Fifteenth Amendment to invalidate an Oklahoma voter
registration system. Lane, 307 U.S. at 270, 275. When Oklahoma was
admitted as a state in 1907, it imposed a literacy test that, because of how it
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was administered, effectively denied most black Oklahomans the right to
vote. Id. at 269. The test was invalidated by the Supreme Court. Id.
Oklahoma then devised a registration system providing that those who voted
in the 1914 Oklahoma elections remained eligible thereafter, but those who
had been eligible and failed to vote had to register within a 12-day window in
1916. Id. at 271. Thus, voters who had been eligible in 1914 had much
different rules applied to them depending on their race. White voters who
had not been subject to barriers of law or custom in 1914 remained eligible to
vote, while black voters had a registration window that briefly opened, then
closed tight. The plaintiff was a black potential voter who had been old
enough but failed to register in 1916; in 1934, he was rejected when he sought
to register. Id. The Court invalidated the registration scheme, explaining
that the Fifteenth Amendment prohibits “onerous procedural requirements
which effectively handicap exercise of the franchise.” Id. at 275. Plaintiffs
latch on to the phrase “effectively handicap,” but we fail to see that when
Texas granted a privilege to older voters, it was reducing or handicapping the
rights of younger voters. It failed to enhance rights for younger voters, but
that is not the equivalent of abridging.
Three decades later, the Supreme Court held that Virginia abridged
the right to vote in violation of the Twenty-Fourth Amendment when voters
were required to choose between paying a poll tax or filing a certificate of
residence. Forssenius, 380 U.S. at 531–33. Somewhat similarly to the
Oklahoma response to invalidating literacy tests, Virginia adopted the
alternatives because of the imminent prohibition of poll taxes for federal
elections by the Twenty-Fourth Amendment. Id. at 531. Under the new state
law, someone wishing to vote in a federal election could either pay the poll
tax applicable to state elections or instead file every election year at least “six
months before the election, a notarized or witnessed certificate attesting that
they have been continuous residents of the State since the date of registration
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(which might have been many years before under Virginia’s system of
permanent registration) and that they do not presently intend to leave the
city or county.” Id. at 541. The Court held that to demonstrate the invalidity
of the measure, “it need only be shown that it imposes a material requirement
solely upon those who refuse to surrender their constitutional right to vote in
federal elections without paying a poll tax.” Id. The Twenty-Fourth
Amendment eliminated “all requirements impairing the right to vote in
federal elections by reason of failure to pay the poll tax,” and Virginia could
not impose the tax even just as an alternative. Id. at 544.
Forssenius invalidated the law requiring voters choose between paying
an unconstitutional tax or engaging in an onerous registration. The plaintiffs
emphasize the Court’s calling the registration an invalid “material
requirement,” but here, too, the plaintiffs seek more than can be found in one
of the Court’s opinions. The Twenty-Fourth Amendment provides that the
right to vote in federal elections “shall not be denied or abridged by the
United States or any State by reason of failure to pay any poll tax or other
tax.” When Virginia imposed a material requirement of registration within a
certain time period prior to every election, it did not grant a privilege to one
class of voters while leaving other classes untouched. It was mandating that
every voter either pay the poll tax or register. It was unconstitutional to
require that choice.
Rejecting the plaintiffs’ arguments, we hold that an election law
abridges a person’s right to vote for the purposes of the Twenty-Sixth
Amendment only if it makes voting more difficult for that person than it was
before the law was enacted or enforced. As the Court has held, the “core
meaning” of “abridge” is to “shorten,” and shortening “necessarily entails
a comparison.” Bossier Parish, 528 U.S. at 333–34. Abridgment of the right
to vote applies to laws that place a barrier or prerequisite to voting, or
otherwise make it more difficult to vote, relative to the baseline.
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On the other hand, a law that makes it easier for others to vote does
not abridge any person’s right to vote for the purposes of the Twenty-Sixth
Amendment. That is not to say that a state may always enact such a law, but
it does not violate the Twenty-Sixth Amendment.
Sophisticated attempts to circumvent this rule could arise. The
Supreme Court, though, has these constitutional amendments “nullif[y]
sophisticated as well as simple-minded modes of impairing the right
guaranteed.” See Forssenius, 380 U.S. at 540–41 (quotation marks omitted).
Courts will be able to respond properly to any artful efforts.
We now examine some of the caselaw urged upon us by the plaintiffs.
We have discussed Lane and Forssenius already and concluded they do not
counsel a different approach. We now review some other decisions in which
other courts considered claimed violations of the Fifteenth, Twenty-Fourth,
or Twenty-Sixth Amendments. Soon after the Twenty-Sixth Amendment
was ratified, the Supreme Court of California held that California’s
registration rule that compelled young voters living apart from their parents
to retain their parents’ voting residence violated the Twenty-Sixth
Amendment. Jolicoeur v. Mihaly, 488 P.2d 1, 2 (Cal. 1971). That decision is
not binding on this court, but we examine it for its persuasive value. The
court held that the word “abridge” was defined as to “diminish, curtail,
deprive, cut off, [or] reduce.” Id. at 4. The registration rule compelled the
newly enfranchised voters either to travel to their parents’ district to register
and vote, or to vote by absentee. Id. The court held that it was “clear” that
the law “abridged petitioners’ right to vote in precisely one of the ways that
Congress sought to avoid — by singling minor voters out for special
treatment and effectively making many of them vote by absentee ballot.” Id.
at 7. Unlike the generally older voters who were not in college, these students
could not register to vote where they lived. We agree with Jolicoeur to the
extent it means that a voting scheme that adds barriers primarily for younger
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voters constitutes an abridgement due to age.
We also consider a decision by the Supreme Court of Colorado, which
held that the Twenty-Sixth Amendment applied to participation in a ballot-
initiative process. Colo. Project-Common Cause v. Anderson, 495 P.2d 220,
222–23 (Colo. 1972). The court invalidated a law that prevented persons
younger than twenty-one from signing and circulating petitions. Id. at 223.
Although this case did not involve voting, the suit did involve prohibiting
political participation based on age. We do not necessarily endorse using the
Twenty-Sixth Amendment in this context, but the Colorado court’s doing so
does not create a result contrary to our holding here.
The final decision we examine is one that the district court cited in the
present case. See United States v. Texas, 445 F. Supp. 1245 (S.D. Tex. 1978),
aff’d sub nom. Symm v. United States, 439 U.S. 1105 (1979). The 1978 district
court opinion applied strict scrutiny to a claim under the Twenty-Sixth
Amendment. Texas, 445 F. Supp. at 1261. There, a local county clerk refused
to allow college students to register to vote, effectively disenfranchising 973
of the 1000 applicants. Id. at 1249. The district court held that this refusal
violated the Twenty-Sixth Amendment. The invalidation of this practice is
consistent with our analysis, but lesser scrutiny would have reached the same
outcome. Further, the Supreme Court’s summary affirmance of the district
court’s result is not a summary endorsement of the district court’s reasoning.
We hold, based on the meaning of the word “abridged,” that the right
to vote under the Twenty-Sixth Amendment is not abridged unless the
challenged law creates a barrier to voting that makes it more difficult for the
challenger to exercise her right to vote relative to the status quo, or unless the
status quo itself is unconstitutional. Thus, conferring a privilege on one
category of voters does not alone violate the Twenty-Sixth Amendment.
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C. The Texas Election Code and the Twenty-Sixth Amendment
It has taken much discussion, but we finally arrive at the dispositive
question: Does Section 82.003 of the Texas Election Code deny or abridge
the plaintiffs’ voting rights during the pandemic? The statutory background
for voting in Texas prior to election day is the following. Early voting was
first permitted in 1917. In re Texas, 602 S.W.3d at 558. Gradually adding
classes of voters to those who qualify for absentee voting, the state did not
extend no-excuse absentee voting to persons 65 and older until 1975, after the
adoption of the Twenty-Sixth Amendment. Id. (citing Act of May 30, 1975,
64th Leg., R.S., ch. 682, § 5, 1975 Tex. Gen. Laws 2080, 2082). This right is
now codified in the challenged Section 82.003.
For all the reasons we already have discussed, the Texas Legislature’s
conferring a privilege to those at least age 65 to vote absentee did not deny or
abridge younger voters’ rights who were not extended the same privilege.
Thus, Section 82.003 itself does not violate the Twenty-Sixth Amendment.
We now consider if the pandemic affects the validity of that age-based
privilege. We start with what the Texas Supreme Court stated regarding the
extent of that state’s adjustment of its election rules during the pandemic.
That court held that “a voter can take into consideration aspects of his health
and his health history that are physical conditions in deciding whether, under
the circumstances, to apply to vote by mail because of disability.” Id. at 560.
Further, “elected officials have placed in the hands of the voter the
determination of whether in-person voting will cause a likelihood of injury
due to a physical condition.” Id. at 561. The “lack of immunity to COVID-
19, without more, is not a ‘disability’ as defined by the Election Code.” Id.
at 550. Although “lack of immunity” alone is not a Section 82.002 disability,
In re Texas shows that voters with an underlying physical condition making
them more vulnerable to the virus, rather than fear of COVID-19 alone, may
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apply to vote by mail under that section. This undermines the plaintiffs’ as-
applied argument because at-risk voters of any age can utilize the Texas
Election Code’s disability provision to mitigate the risk of COVID-19.
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 Texas’s mandating that many continue to vote in that
way does not amount to an absolute prohibition of the right to vote. As to
abridgement, voters under age 65 did not have no-excuse absentee voting
prior to the pandemic. Further, requiring many to vote in person during this
crisis, with safety measures being imposed and some flexibility as to
“disability” being shown, does not amount to an unconstitutional status quo.
The real issue here is equal protection, and that is not before us.
We will remand. Before we send this case on its way, we pause to
discuss the concept of levels of scrutiny. The decision in June to grant a stay
in this case was based on a holding that “employing McDonald’s logic leads
inescapably to the conclusion that rational-basis review applies.” Tex.
Democratic Party, 961 F.3d at 409 (citing McDonald, 394 U.S. at 807–08).
The Supreme Court’s 1969 McDonald opinion, predating the 1971
Amendment at the center of our analysis, was a challenge by pretrial
detainees who were either charged with nonbailable offenses or could not
afford bail. McDonald, 394 U.S. at 803. They had no right under Illinois law
to an absentee ballot due to their detention, despite that they had not been
convicted of the charged offenses. Id. The claim was that the state made an
arbitrary distinction, violative of equal protection, between those physically
incapacitated by illness who could vote absentee and those judicially
incapacitated who could not. Id. at 806. The Court concluded that no
heightened scrutiny was needed because the state’s distinction did not
“impact” the detainees’ “fundamental right to vote.” Id. at 807. The right
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to vote had not been denied because there was no evidence that Illinois would
not provide alternative means for the detainees to vote, as the state might
“furnish the jails with special polling booths or facilities on election day, or
provide guarded transportation to the polls themselves for certain inmates,”
or offer other options. Id. at 808 & n.6.
We are hesitant to hold that McDonald applies. One reason is that the
decision predated the ratification of the Twenty-Sixth Amendment, which
means it did not consider the potential — argued by the plaintiffs here — that
the Amendment requires the same heightened analysis as McDonald stated
applied to classifications based on race and wealth. See id. at 807. Further,
the Court seemed to analyze only whether the challenged action “den[ied]
appellants the exercise of the franchise.” Id. at 807–08. The Twenty-Sixth
Amendment prohibits age-based denials but also abridgments of the right to
vote. In addition, the Supreme Court interpreted a post-McDonald limitation
on absentee voting as potentially violative of equal protection even though,
like the statute in McDonald, it left open other options for voting. Am. Party
of Tex. v. White, 415 U.S. 767, 794–95 (1974) (discussing McDonald). No
party’s brief cited American Party either to the motions panel or to us, and
only an amicus brought it to our attention.
There has been no denial or abridgement of a right to vote under the
Twenty-Sixth Amendment. On remand, equal protection questions may
come to the fore. Though we cannot, in the current posture of this appeal,
decide the issue of the proper scrutiny to give to this statutory provision
under equal protection analysis, we need to take one further step so the issue
can be considered on remand in light of this opinion. Before granting a stay,
the motions panel had to decide the likelihood of the defendants’ success on
appeal on each of the grounds on which the district court relied in issuing a
preliminary injunction. It held both that McDonald applied and that rational-
basis review was appropriate. In our more limited opinion today, though, by
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concluding that no denial or abridgment of the right to vote under the
Twenty-Sixth Amendment ever occurred, we had no denial or abridgement
to scrutinize. We have uncertainties about McDonald and do not wish that
the earlier necessity for a preliminary decision on the merits by the motions
panel control the remand on an issue we never reached. We therefore use
our authority as the panel resolving the merits to declare that the holdings in
the motions panel opinion as to McDonald are not precedent.
To be clear, we are not stating, even as dicta, that rational basis
scrutiny is incorrect. Indeed, age-based distinctions are evaluated in that
manner in the usual case. See Mass. Bd. of Retirement v. Murgia, 427 U.S. 307,
312 (1976). On the other hand, some courts have applied what is known as
the Anderson-Burdick balancing analysis to claims that an election law violates
equal protection, and they provide noteworthy reasons for doing so. See, e.g.,
Luft v. Evers, 963 F.3d 665, 671 (7th Cir. 2020) (citing Anderson v. Celebrezze,
460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992)). The right
level of scrutiny for an equal protection claim on remand is for the district
court initially to analyze. An answer now by us would be only dicta. Even so,
we state that we have not seen any authority to support that it would require
strict scrutiny as the district court initially applied.
In sum, the plaintiffs claim that the Twenty-Sixth Amendment
prohibits allowing voters who are at least 65 years old to vote by mail without
excuse. This claim fails because conferring a benefit on another class of
voters does not deny or abridge the plaintiffs’ Twenty-Sixth Amendment
right to vote. The preliminary injunction was not properly granted on the
plaintiffs’ Twenty-Sixth Amendment claim as it has been defended here.
We VACATE the injunction and REMAND for further
proceedings consistent with this opinion.
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Carl E. Stewart, Circuit Judge, concurring in part and dissenting in
part:
Before us is an appeal of a preliminary injunction issued in July 2020
by the District Court in the Western District of Texas. The preliminary
injunction required Texas officials to allow any Texan eligible to vote to do
so by mail. In April, Plaintiffs filed this lawsuit requesting relief on seven
grounds: race and language discrimination in violation of the Voting Rights
Act, race discrimination and non-race discrimination in violation of the
Fourteenth Amendment, race discrimination in violation of the Fifteenth
Amendment, denial of free speech under the First Amendment, denial of due
process for vagueness, and violation of the Twenty-Sixth Amendment.
Plaintiffs’ motion for a preliminary injunction narrowed the claims. They
argued that Texas’s election statute, § 82.003 (allowing no-excuse voting for
voters 65 and older) was void for vagueness and violated the First,
Fourteenth, and Twenty-Sixth Amendments. After conducting a hearing,
the district court determined in a seventy-three-page opinion that Plaintiffs
were likely to succeed on all their claims, including their Twenty-Sixth
Amendment claim, especially in light of the tremendous threat to public
health posed by the COVID-19 pandemic. The district court noted that
“COVID- 19 has become one of the leading causes of death in the United
States. Data to date in Texas demonstrates higher than expected infection
rates in younger persons.” Regarding the Twenty-Sixth Amendment claim,
the district court stated:
The Court concludes, that the COVID-19 pandemic, younger
voters bear a disproportionate burden because the age
restrictions of [§ 82.003], that [§ 82.003] is a government
classification based on age and discriminates against voters
under the age of 65 based on age, and that [§ 82.003] violates
the [Twenty-Sixth] Amendment, as applied, during the
COVID-19 pandemic.
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Defendants appealed the preliminary injunction order and a motions
panel of this court granted a motion to stay the injunction pending appeal.
Texas Democratic Party v. Abbott, 961 F.3d 389 (5th Cir. 2020). The panel
noted that § 82.003 “facially discriminates on the basis of age,” id. at 402,
but concluded that the state officials were likely to show that the statute’s
“age distinction survives.” Id. at 406.
The issue before us now on appeal is whether the district court erred
in issuing this preliminary injunction, and to resolve this appeal, we must
consider three jurisdictional arguments: whether Plaintiffs have standing,
whether Defendants can claim sovereign immunity, and whether this lawsuit
poses a nonjusticiable political question. As to the merits, we must determine
whether the court erred when it determined that Plaintiffs were likely to
succeed on their Twenty-Sixth Amendment claim, as applied.
The panel majority ably considers these jurisdictional questions, and
I concur in their resolution of these threshold issues. However, because I
differ with the panel majority in their determination that § 82.003 does not
violate the Twenty-Sixth Amendment, I dissent as to that claim.
A district court’s ultimate decision to issue a preliminary injunction is
reviewed for abuse of discretion, but “a decision grounded in erroneous legal
principles is reviewed de novo.” Women’s Med. Ctr. of Nw. Hous. v. Bell, 248
F.3d 411, 419 (5th Cir. 2001). A plaintiff must establish four elements to
secure a preliminary injunction:
(1) a substantial likelihood of success on the merits, (2) a
substantial threat of irreparable injury if the injunction is not
issued, (3) that the threatened injury if the injunction is denied
outweighs any harm that will result if the injunction is granted,
and (4) that the grant of an injunction will not disserve the
public interest.
See Speaks v. Kruse, 445 F.3d 396, 399–400 (5th Cir. 2006).
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The statute in question facially discriminates based on age, which in
the context of the pandemic leads to dramatically different outcomes for
different age groups. A consideration of the statute under the plain text of the
Twenty-Sixth Amendment leads me to conclude that the statute, as applied
during the pandemic, is likely unconstitutional and that therefore the district
court did not err in determining Plaintiffs have a substantial likelihood of
success on the merits. I further conclude that the district court did not abuse
its discretion in deciding that the other three factors were met and in issuing
the preliminary injunction. Therefore, I respectfully dissent.
I. Twenty-Sixth Amendment Analysis
“The right of citizens of the United States, who are eighteen years of
age or older, to vote shall not be denied or abridged by the United States or
by any State on account of age.” U.S. Const. amend. XXVI, § 1. Though few
courts have interpreted the meaning of “denied or abridged” in the context
of the Twenty-Sixth Amendment, the phrase has been interpreted in the
context of the Fifteenth and Nineteenth Amendments. In the absence of an
unambiguous definition, much effort has been devoted to unearthing the
legislative history of the Twenty-Sixth Amendment. In my view, neither
precedent nor legislative history compels a narrow definition of “abridged.”
Neither party argues that Section 82.003 denies individuals the right
to vote by permitting some individuals to vote via mail-in ballot. Plaintiffs
argue that the statute abridges voting rights through a facial classification that
permits individuals 65 years and older to vote via mail-in ballot. Defendants
argue on appeal that the statute does not abridge the right to vote by giving
the benefit of mail-in ballots to certain members of the electorate. The
definition of abridge is central to this appeal.
As the panel majority notes, Black’s Law Dictionary defines abridge
as “[t]o reduce or diminish.” Abridge, Black’s Law Dictionary 7 (10th ed.
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2014). The panel majority concludes that because no voter is made worse off
by Texas’s mail-in ballot provisions, the State of Texas has not abridged
voting rights. The panel majority holds that “an election law abridges a
person’s right to vote for the purpose of the Twenty-Sixth Amendment only
if it makes voting more difficult for that person than it was before the law was
enacted or enforced.”
Precedent supports a different outcome. The panel majority cites Reno
v. Bossier Parish School for the proposition that “abridge” requires a
comparison to a baseline. See 528 U.S. 320, 334 (2000) (discussing the use of
baseline comparisons in preclearance proceedings under § 5 of the Voting
Rights Act); see Maj. Op. at 27. They further explain that plaintiffs cannot
prevail under the Twenty-Sixth Amendment without proof that their voting
rights were reduced by the addition of a privilege for older voters. See Maj.
Op. at 33 (emphasis added). What the panel majority refers to as a privilege
here has been recognized as a right in other contexts. See Am. Party of Tex. v.
White, 415 U.S. 764, 796 (1974) (holding that a state’s decision to only offer
absentee ballots to major party primary voters violated the Equal Protection
Clause).
Furthermore, the panel majority misreads Reno. While Reno holds that
the appropriate comparison in preclearance proceedings is between the
status quo and the proposed changes, Reno expressly identifies a broader
definition of abridge within § 2 of the Voting Rights Act and the Fifteenth
Amendment. Reno, 528 U.S. at 334. In the context of the Fifteenth
Amendment, Reno indicates that the proper comparison is a hypothetical
one—one between the status quo and what the hypothetical right to vote
“ought to be”. Id. “If the status quo ‘results in [an] abridgement of the right
to vote’ or ‘abridge[s] [the right to vote]’ relative to what the right to vote
ought to be, the status quo itself must be changed.” Id. Luft v. Evers
considered Reno and persuasively offered what the baseline should be in cases
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challenging voter qualification and election mechanisms—an equal
opportunity to participate. 963 F.3d 665, 672 (7th Cir. 2020) (citing Reno, 528
U.S. at 334).
Section 82.003 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. Though all individuals
can seemingly vote in person, those without the opportunity to vote by mail
have less opportunity to participate than others. Though Luft interpreted §
2 of the Voting Rights Act in respect to protected classes, there is little reason
to think the term “abridge” should carry a distinct meaning within the
Twenty-Sixth Amendment.
In South Carolina v. Katzenbach, 1 the Supreme Court held that
Congress has broad authority to enforce § 1 of the Fifteenth Amendment
(“the right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any state on account of race, color, or
previous condition of servitude.”). 383 U.S. 301, 325 (1966). The Court
stated that § 1 “has always been treated as self-executing and has repeatedly
been construed, without further legislative specification, to invalidate state
voting qualifications or procedures which are discriminatory on their face or in
practice.” Id. at 305 (emphasis added). Though Katzenbach predates the
Twenty-Sixth Amendment, § 1 of the Fifteenth Amendment and § 1 of the
1
South Carolina v. Katzenbach refused to invalidate § 5 of the 1965 Voting Rights
Act, which required that for certain jurisdictions to make changes to a “standard, practice,
or procedure with respect to voting,” they must seek a declaratory judgment that those
policy changes do not have the purpose or effect of abridging or denying the right to vote
on the basis of race. 383 U.S. 301, 337 (1966) (quoting 42 U.S.C. § 1973c(a)). The Supreme
Court has since held that the formula of the Voting Rights Act which determines if a state
is covered is unconstitutional but declined to issue a holding on § 5 itself. Shelby Cty. Ala.
v. Holder, 570 U.S. 529, 556 (2013).
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Twenty-Sixth Amendment both include language prohibiting states from
denying or abridging the right to vote. Katzenbach interprets “deny or
abridge” as invalidating procedures that are facially discriminatory or applied
in a discriminatory manner with regard to race. Katzenbach does not cabin its
language to the word “deny” but rather interprets the phrase in total to
prevent an array of discriminatory practices including facial classifications.
Katzenbach supports a broad understanding of “deny or abridge” that is
inconsistent with the panel majority’s holding.
The Seventh Circuit also construed “denial or abridgment” in the
context of § 2(a) of the Voting Rights Act. Luft v. Evers, 963 F.3d at 672. The
court states that § 2 was violated when the voting system was “not equally
open to participation by members of a protected class so that groups members
have less opportunity than other members of the electorate to participate.”
Id. The court recognized an equality requirement in § 2(b) of the Voting
Rights Act that requires states to treat voters equally with regard to their
opportunity to participate in the electoral process. Id.
Reno, Katzenbach, and Luft persuade me to read “denial or abridge”
in the Twenty-Sixth Amendment as generally prohibiting states from
depriving individuals of the equal opportunity to vote based on a protected
status. The panel majority does not cite any case that compels an
understanding of “abridge” in the context of a voting rights amendment that
requires a plaintiff’s position to be worsened. Though the panel majority
relies on Lane v. Wilson and an “onerous procedural requirement” as
violative of the Fifteenth Amendment, the Supreme Court does not state that
such an onerous procedural requirement is necessary to find abridgment. 307
U.S. 268, 275 (1939). In fact, Lane states that “[t]he Amendment nullifies
sophisticated as well as simple-minded modes of discrimination.” Id. In this
case, we have straightforward facial discrimination, while Lane dealt with a
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complicated scheme with severely discriminatory impacts without a facial
classification.
The panel majority also cites Harman v. Forssenius, which similarly
outlines an unconstitutional method of burdening voters. 380 U.S. 528
(1965). Harman also cites Lane for the proposition that the Twenty-Fourth
Amendment “nullifies sophisticated as well as simple-minded modes of
impairing the right guaranteed.” Id. at 540–41 (internal quotations omitted).
Harman concludes that the Twenty-Fourth Amendment does not require an
outright poll tax, but that a violation can be found if it is shown that the statute
“imposes a material requirement solely upon those who refuse to surrender
their constitutional right to vote in federal elections without paying a poll
tax.” Id. at 541. In this case, I see both a facial classification and a material
requirement to vote in person imposed on younger voters. Harman seems to
stand for the proposition that this material requirement suffices when the
statute itself does not plainly violate the Amendment but does not suggest
that it is necessary.
Suffice it to say, I respectfully differ with my panel colleagues about
how these Supreme Court cases should be read and construed in the context
of this case.
Though the legislative history here is unclear, there are more
legislative arguments in favor of construing “abridge” broadly than there are
in favor of construing the term narrowly. On balance, I conclude that the
legislative history does not favor the panel majority’s holding.
In 1970, Congress attempted to lower the voting age from 21 to 18,
which was invalidated in Oregon v. Mitchell. Voting Rights Act Amendments
of 1970, Pub. L. No. 91-285, § 302, 84 Stat. 314, 318, invalidated in part by
Oregon v. Mitchell, 400 U.S. 112 (1970). The Twenty-Sixth Amendment was
ratified the following year. Eric S. Fish, Note, The Twenty-Sixth Amendment
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Enforcement Power, 121 Yale L.J. 1168, 1194–95 (2012). The Twenty-Sixth
Amendment did more than merely raise the voting age in a constitutionally
permissible manner. Congress’s 1970 effort to lower the voting age stated:
Except as required by the Constitution, no citizen of the United
States who is otherwise qualified to vote in any State or political
subdivision in any primary or in any election shall be denied the
right to vote in any such primary or election on account of age if
such citizen is eighteen years of age or older.
Voting Rights Act Amendments of 1970, Pub. L. No. 91-285, § 302, 84 Stat.
314, 318, invalidated in part by Oregon v. Mitchell, 400 U.S. 112 (1970).
Several legislators expressed the intent to have the Twenty-Sixth
Amendment create protections against discrimination akin to those in the
Fifteenth and Nineteenth Amendments. See, e.g., 117 Cong. Rec. H7534
(daily ed. March 23, 1971) (statement of Rep. Richard Poff) (“What does the
proposed constitutional amendment accomplish? It does not grant the right
to vote to all citizens 18 years of age or older. Rather, it guarantees that
citizens who are 18 years of age or older shall not be discriminated against on
account of age. Just as the 15th amendment prohibits racial discrimination in
voting and just as the 19th amendment prohibits sex discrimination in voting,
the proposed amendment would prohibit age discrimination in voting . . . In
this regard, the proposed amendment would protect not only an 18-year-old,
but also the 88-year-old . . . ”) (emphasis added); 117 Cong. Rec. H7539 (daily
ed. Mar. 23, 1971) (statement of Rep. Claude Pepper) (“What we propose to
do . . . is exactly what we did in . . . the 15th amendment and . . . the 19th
amendment . . .”; see also id. at H7533 (Rep. Emanuel Celler noting that the
Twenty-Sixth Amendment is “modeled after similar provisions in the 15th
amendment . . . and the 19th amendment . . .”).
The content and naming of the 1970 Voting Rights Amendment also
indicates that Congress considered regularized access to absentee ballots a
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significant part of “voting rights.” § 5 of the Voting Rights Act concerned
evaluating practices and procedures for potential abridgement, and most
likely the method by which a person is permitted to vote would constitute
such a practice or procedure. This persuades me that the right to vote should
be construed more broadly than the mere right to cast a ballot in person.
The panel majority relies on various aspects of statutory and
legislative history as support for its holding. The panel majority also cites
McDonald v. Board of Election Commissioners of Chicago for the proposition
that the framers understood the right to vote as the right to cast a ballot. 394
U.S. 802, 807 (1969). I am unpersuaded that McDonald controls the outcome
of this case. McDonald affirmed a summary judgment grant in favor of Illinois
on inmates’ Equal Protection Claims. Id. at 809, 810. The inmates argued
that their rights were violated by the state’s refusal to provide them with
mail-in ballots, and the court granted the motion noting that there was
“nothing in the record to indicate that the Illinois statutory scheme has an
impact on appellants’ ability to exercise the fundamental right to vote.” Id.
at 807. McDonald is a limited holding on its own terms because it is based on
a lack of evidence in the record. To be sure, McDonald has not been overruled
by the Supreme Court. However, that truism is unremarkable; the Court
does not routinely overrule its cases. The point is that McDonald has limited
vitality for the purposes of this appeal.
Beyond McDonald’s limited scope, the Supreme Court has limited
McDonald at least three times. See Goosby v. Osser, 409 U.S. 512, 521–22
(1973) (discussion of McDonald’s inapplicability in a situation where there
was greater evidence); see O’Brien v. Skinner, 414 U.S. 524, 529 (1974)
(same); see Am. Party 415 U.S. at 794-95. American Party held that Texas
violated the Fourteenth Amendment by allowing some party primary voters
to cast absentee ballots while requiring other party primary voters to vote in
person. Id. at 794.
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I conclude that the options granted to voters to cast their vote are part
of “the right to vote” under the Twenty-Sixth Amendment. By giving
younger voters fewer options, especially in the context of a dangerous
pandemic where in-person voting is risky to public health and safety, their
voting rights are abridged in relation to older voters who do not face this
burden. 2 This implicates the Twenty-Sixth Amendment.
II. Scrutiny Analysis
As the panel majority observes, there remains a question of what level
of scrutiny the district court should have applied to § 82.003. In McDonald,
the Supreme Court applied rational-basis review to a law burdening the right
to vote by mail. 394 U.S. at 808–09. 3 But in Anderson v. Celebrezee, 460 U.S.
780 (1983) and Burdick v. Takusi, 504 U.S. 428 (1992), the Supreme Court
articulated a framework that “applies strict scrutiny to a State’s law that
2
The burden is severe. During the primaries, the pandemic led to a shortage in
polling workers as individuals seek to avoid exposure to COVID-19. Elections Adm’rs and
Cty. Br. at 23. Moreover, “securing an adequate number of polling places has been a
challenge” since facilities that normally serve as election precincts are not large enough to
accommodate social distancing. Id. This in turn has led to crowding and long lines at the
polls, which increased the risk of exposure to the virus. Id. 22–23. And more people have
gotten sick. For instance, following the Wisconsin primary, health officials identified 52
people who tested positive for COVID-19 after either voting in person or working at a
polling site. NAACP Legal Defense Fund Br. at 12 (citing The Latest: 52 Positive Cases
Tied to Wisconsin Election, The Associated Press (Apr. 28, 2020),
https://apnews.com/b1503b5591c682530d1005e58ec8c267). Other individuals may have
contracted the virus while voting, but were never tested. There is reason to think that
forcing millions of voters under the age of 65 to vote in person on November 3, 2020 may
place them in significant danger.
3
In addition to the reasons offered by the panel majority for why rational basis may
not be the correct standard of review here, I agree with then Chief Judge Frank Coffin who
opined: “It is difficult to believe that [the Twenty-Sixth Amendment] contributes no added
protection to that already offered by the Fourteenth Amendment” for age discrimination.
See Walgren v. Bd. of Selectmen of Town of Amherst, 519 F.2d 1364, 1367 (1st Cir. 1975).
Consequently, a heightened standard of review is likely warranted here.
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severely burdens ballot access and intermediate scrutiny to a law that imposes
lesser burdens.” Esshaki v. Whitmer, 813 F. App’x 170, 171 (6th Cir. 2020).
Even if strict scrutiny is not the appropriate standard to be applied
here, as the district court applied to Plaintiffs’ Twenty-Sixth Amendment
claim, Defendants have not identified an interest in the application of §
82.003 during the pandemic that would allow that application to withstand
any level of judicial review. Defendants argue that Texas’s interest in
preventing voter fraud justifies its limitations of voting by mail to individuals
65 years or older, but they do not present any evidence, let alone argue, that
voters 64 years or younger present any more risk of committing voter fraud
than those over that age threshold. Indeed, the risk of fraud is exceedingly
rare. As the district court found, between 2005 and 2018, there were just 73
prosecutions of voter fraud in Texas out of millions of votes casted. In two-
thirds of the states, any qualified voter can vote absentee without providing
an excuse. National Conference of State Legislatures, Voting Outside the
polling Place: Absentee, All-Mail and Other Voting at Home Options,
https://www.ncsl.org/research/elections-and-campaigns/absentee-and-
early-voting.aspx. However, “[n]one of these states have experienced
widespread fraud as a result of mail-in voting.” NAACP Legal Defense Fund
Br. 16 n.18 (citing The Brennan Center, The False Narrative of Vote-by-Mail
Fraud, https://www.brennancenter.org/our-work/analysis-opinion/false-
narrative-vote-mail-fraud). Hence, I am not convinced that allowing the
district court’s order to stand would cause “widespread voter fraud and
election chaos.” See Tarrant Cty. GOP Br. 1–2.
To the extent there is any risk of voter fraud, Texas has mechanisms
in place to protect the integrity of its elections. For instance, to obtain an
absentee ballot, a Texas voter must provide identifying information, under
penalty of perjury, that allows election officials to confirm the applicant is
eligible to vote. See Elections Adm’rs and Cty. Br. 10 (citing Tex. Elec. Code
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§ 84.001). Texas also has a variety of criminal sanctions available to deter any
misuse of absentee ballots. See, e.g., Tex. Elec. Code § 84.0041 (providing
that a person is liable for “intentionally caus[ing] false information to be
provided on an application for ballot by mail”), 276.013 (providing that an
individual is liable for knowingly or intentionally causing a ballot to be
obtained under false pretenses).
Given the dearth of evidence of voter fraud and the ample tools
available to promote election integrity, Defendants have not identified a
legitimate government interest in enforcing § 82.003 within the context of a
global pandemic.
III. Remaining Preliminary Injunction Factors
As Plaintiffs are likely to succeed on the merits of their argument that
§ 82.003 violates the Twenty-Sixth Amendment for the aforementioned
reasons, I now turn to the other injunction factors.
The district court concluded that Plaintiffs faced a substantial threat
of irreparable injury, noting the serious dangers posed by in-person voting
during the pandemic. The district court found that the threatened harm if the
injunction is denied outweighs Defendants’ concerns about voter fraud,
which the district court determined were “unsupported.” The district court
finally determined that granting the injunction was in the public interest by
safeguarding constitutional rights and limiting the spread of disease. The
district court did not abuse its discretion in reaching these findings.
The preliminary injunction was properly issued, and for that reason, I
respectfully dissent.
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