The 5th U.S. Circuit Court of Appeals ruled against a lower court’s preliminary ruling that would have required the State of Texas to expand mail-in voting to all eligible registered voters. The Texas Democrat Party claimed that denying universal mail-in voting in Texas is age discrimination.
Texas allows mail-in voting for voters who are age 65 or older, voters who will be out of the county during the voting period, disabled or ill voters, and people incarcerated but eligible to vote. Absentee voting is allowed, as in other states. For absentee voting, a voter has to request a ballot. Democrats want to move to universal voting by mail, with registered voters receiving a ballot by mail automatically, without the step of requesting one.
The 5th Circuit’s majority said the state’s law did not violate the U.S. Constitution’s prohibition on age discrimination because it merely conferred an extra benefit on older residents, rather than limiting the right to vote for younger Texans.
“A law that makes it easier for others to vote does not abridge any person’s right to vote,” the majority wrote.
The three-judge panel was split 2-1. A reference was made to the coronavirus pandemic in the dissent. Democrats, not wanting to let a crisis go to waste, have used the excuse of the coronavirus as a reason that voters should just vote by mail for the November election. This ruling by the Court of Appeals is just the latest concerning voting in the upcoming election. This ruling doesn’t end the lawsuit, either. The case will be sent back down to a lower court to rule on the Democrats’ remaining arguments.
In dissent, U.S. Circuit Judge Carl Stewart (a Clinton appointee) said the law hurt younger voters by limiting their options during a public health crisis.
“The Texas Democratic Party will continue to fight in the district court for every Texan to have an equal right to vote, regardless of their age,” Chairman Gilberto Hinojosa said in a statement.
Texas Attorney General Ken Paxton, a Republican who defended the state in the lawsuit, said in a statement: “We will continue to protect the integrity of Texas elections and uphold the rule of law.”
The Texas Democrats’ claim that Texas election law violates the 26th Amendment is nonsensical. Just as when the voting age dropped from 21 to 18 in order to increase access to voting, the requirement that a voter is 65 or older isn’t to restrict voting but to make the option to vote more available to older voters. As the ruling states, increasing availability to the ballot for a specific group doesn’t take away the opportunity to vote for other segments of the voting population. As Judge Leslie Southwick wrote for the majority, it doesn’t make it any harder for younger voters to vote. Judge Stewart parrots the Democrat talking point that it’s too dangerous to vote in-person due to the coronavirus pandemic.
Writing in dissent, Judge Carl Stewart said the Texas law clearly discriminates based on age.
In the midst of a pandemic, the Texas law “leads to dramatically different outcomes for different age groups,” said Stewart, who was appointed by a Democratic president.
“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,” Stewart wrote.
Voting in-person should be treated as any other activity during the pandemic. Ask the most vulnerable – the elderly and others at risk due to underlying medical conditions – to vote by mail – and everyone else eligible to vote can do so at the polling places. Governor Abbott has extended the early voting period in response to safety concerns and the state has guidelines in place for city and county election officials to implement at polling places. Yes, as Judge Southwick acknowledges, there are no guarantees of complete safety from the virus, but that is the same for any other activity. Judge Carolyn Dineen King voted with Southwick. King is a Democrat. She was appointed to the 5th Circuit Court of Appeals by President Jimmy Carter.
Southwick said Texas officials have taken precautions to improve the safety of in-person voting but acknowledged that “none of them guarantees protection.”
“There are quite reasonable concerns about voting in person, but the state’s mandating that many voters continue to vote in that way does not amount to an absolute prohibition of the right to vote,” he said.
Southwick, appointed by a Republican president, was joined in the majority by Judge Carolyn Dineen King, a Democratic appointee.
The age discrimination part of this lawsuit is clearly malarkey. Democrats are just throwing everything against the wall in hopes that something will stick so that universal mail-in voting will come into play in Texas. The court rightly points out that no such argument can be made. If people can go shop at Walmart or a grocery store, they can go vote in person.
The lawsuit now goes back to the court of U.S. District Judge Fred Biery. In May, he ruled that all Texans can vote by mail because of the coronavirus pandemic. In June, however, the 5th Circuit blasted his ruling and blocked it. Biery is a Clinton appointee. It will fall upon Biery now to rule on the remaining issues in the lawsuit, including whether or not the Texas restrictions on mail-in voting violate equal protection guarantees.
Texas Attorney General Ken Paxton released a brief statement – “I am pleased that the 5th Circuit correctly upheld Texas’s vote-by-mail laws, and I commend the court for concluding that Texas’s decision to allow elderly voters to vote by mail does not violate the 26th Amendment.”