On Tuesday, a federal district court held that Texas must allow all eligible voters to obtain an absentee ballot during the coronavirus pandemic, regardless of the voter’s age. The case, Texas Democratic Party v. Abbott, involves a state law that, at least according to Texas’s Republican attorney general, permits voters over the age of 65 to obtain absentee ballots very easily but prevents most voters under 65 from doing so.
Indeed, Attorney General Ken Paxton has even threatened criminal prosecutions against organizations that encourage healthy voters under the age of 65 to request absentee ballots.
In recent elections, older voters have tended to prefer Republicans to Democrats. So Paxton’s interpretation of this state law could give Republicans an edge by preventing many (presumably Democratic-leaning) voters younger than 65 from voting — at least assuming that the pandemic still forces most Texans to remain at home during November’s general election.
Nor is Paxton the only prominent Republican fighting to restrict access to absentee ballots. President Trump is a vocal opponent of widespread access to mail-in ballots, claiming that when states make it easy to vote by mail, it “doesn’t work out well for Republicans.” Similarly, Republicans fought all the way to the Supreme Court to prevent many absentee ballots from being counted in a recent Wisconsin election — although that effort did not turn out so well for the GOP.
It’s difficult to overstate the stakes in Abbott. Nearly 30 million people live in Texas, and more than half of them are between the ages of 18 and 64. That means that millions of Texans could potentially be disenfranchised if they are unable to obtain absentee ballots and are forced to stay home because of polling place closures, lockdown orders, or understandable fears that they could become infected.
And all of this is happening as Texas is growing more and more competitive. In 2018, Democrat Beto O’Rourke came within 3 points of winning one of Texas’s US Senate seats. Polls show presumptive Democratic presidential nominee Joe Biden performing similarly against Trump, with one poll even showing Biden leading Trump in Texas.
But Abbott is also hugely significant for another reason. There are very few court decisions, and no relevant Supreme Court cases, explaining how courts should handle cases alleging that a state law discriminates on the basis of age. So it’s not just millions of Texans’ voting rights at stake. If the Supreme Court hears the Abbott case, it could hand down a historic age discrimination decision that will guide all future 26th Amendment cases.
The United States adopted the 26th Amendment in 1971; it provides that “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.” Yet the amendment has lain surprisingly dormant ever since, at least in federal court.
Though courts have heard some cases involving this amendment, few of those cases reached the Supreme Court. Indeed, the Court has never handed down a decision fleshing out the meaning of the 26th Amendment. A handful of justices have mentioned the amendment in passing, often in concurring or dissenting opinions. And in Symm v. United States (1979), the Court affirmed a lower court decision striking down a Texas official’s attempt to prevent college students from voting, because that effort violated the 26th Amendment.
But the Court did not explain its decision in Symm. The Supreme Court’s entire decision is four words: “The judgment is affirmed.”
All of this means that Judge Fred Biery, the federal judge who decided the Texas Democratic Party case, had very little guidance from higher courts when he reached his decision. Biery’s decision, moreover, will be reviewed by the notoriously conservative US Court of Appeals for the Fifth Circuit — and potentially by a Supreme Court that is often quite hostile to voting rights claims.
And those courts will paint on a largely blank canvas when they hand down their own interpretations of the 26th Amendment.
Abbott is one of two lawsuits seeking to make absentee ballots available to younger voters
Abbott is one of two lawsuits seeking to ensure that voters under the age of 65 may cast an absentee ballot if the pandemic discourages them from voting in person. The second, Texas Democratic Party v. DeBeauvoir, is currently winding its way through Texas state courts.
Unlike Abbott, the federal case, DeBeauvoir turns less on the Constitution and more on the proper interpretation of Texas’s absentee ballot law.
The overwhelming majority of states either automatically mail ballots to all registered voters or permit any voter to request a mail-in ballot from state election officials without having to explain why. Texas is one of a handful of outlier states that permit only certain voters to obtain an absentee ballot.
In Texas, voters over the age of 65 may obtain an absentee ballot by requesting one from the state. A separate provision of the state’s absentee ballot law provides that “a qualified voter is eligible for early voting by mail if the voter has a sickness or physical condition that prevents the voter from appearing at the polling place on Election Day without a likelihood of needing personal assistance or of injuring the voter’s health.” DeBeauvoir turns on the proper meaning of the words “physical condition.”
In DeBeauvoir, the plaintiffs argue that all Texas voters should be allowed to vote absentee during the coronavirus pandemic. The best argument for this position was raised by a team of civil rights lawyers led by the American Civil Liberties Union, who argue that the words “physical condition” includes the physical condition of being susceptible to coronavirus. Thus, during a pandemic that requires social distancing to control the spread of a deadly disease, everyone has a “physical condition” that should enable them to obtain an absentee ballot.
Yet there are also plausible arguments that the state law should be read narrowly, to prevent people who don’t actually have an illness or disability from receiving an absentee ballot (I lay out those arguments in more detail here). More importantly, all nine justices on the Texas Supreme Court are Republicans. So it is probably unlikely that, given two plausible ways to read the state law, five of those justices will choose the interpretation preferred by Democrats and opposed by the state’s Republican attorney general.
That means that the fate of younger voters is likely to be decided by the federal courts hearing the Abbott case.
The Abbott litigation, briefly explained
It should be noted that the plaintiffs in Abbott raise several claims other than their argument that discriminating in favor of older voters violates the 26th Amendment.
Among other things, they argue that the state violates the 14th Amendment’s guarantee that no one will be deprived the “equal protection of the laws” because it is treating older voters differently than younger ones. They argue that, by threatening criminal prosecutions against organizations that encourage younger people to seek absentee ballots, Paxton violated a ban on voter intimidation. They also suggest that Paxton may be excluding Republicans from this threat, which would violate the First Amendment’s prohibition on viewpoint discrimination.
But it’s not clear that many of these claims would do much to help Texas voters. If Paxton is selectively making threats, for example, the proper remedy would be to order him to stop making those threats. It wouldn’t necessarily be to allow younger voters to obtain absentee ballots. Additionally, the Roberts Court has generally been hostile to claims that restrictions on voting rights violate the vague language of the 14th Amendment.
But the 26th Amendment’s language is not the least bit vague. To the contrary, it speaks in clear, sweeping terms. The right of citizens over the age of 18 to vote “shall not be denied or abridged . . . on account of age.” The six words “shall not be denied or abridged” are categorical. They suggest that any law that causes someone’s voting rights to be restricted because of their age is constitutionally suspect.
Moreover, unlike the 14th Amendment, the 26th is unshackled by the Roberts Court’s decisions interpreting its language narrowly. It’s likely that at least some judges will engage in grammatical gymnastics to rescue Paxton’s preferred reading of the Texas law, but those gymnastics will have to be quite advanced.
The Abbott plaintiffs could be defeated by a Catch-22
It is possible, however, that higher courts will never even reach the question of whether Texas is violating the 26th Amendment. Indeed, there is a very real risk that either the Fifth Circuit or the Supreme Court will effectively conclude that it is never possible to challenge Texas’s effort to prevent younger voters from voting during the pandemic.
Pullman sometimes requires federal courts to abstain from deciding a pending case — if the outcome of that case turns upon the proper way to read a state law, the meaning of which is currently being litigated in state court. Purcell, meanwhile, warned that “Court orders affecting elections can themselves result in voter confusion and consequent incentive to remain away from the polls” and that “as an election draws closer, that risk will increase.”
More recent Supreme Court decisions drawing on Purcell suggest that federal courts must avoid deciding many voting rights cases altogether as an election nears.
So it’s not hard to see how these two decisions could work together to thwart the plaintiffs in Abbott. Until the Texas Supreme Court decides DeBeauvoir, the Fifth Circuit and the US Supreme Court are likely to conclude that Pullman prevents them from weighing the constitutional claims in Abbott. Then, when the Texas Supreme Court does hand down its decision in DeBeauvoir, the Fifth Circuit and the US Supreme Court could just as easily conclude that it’s too close to Election Day — and Purcell prevents federal courts from weighing in.
It’s a trap that often arises in voting rights cases that reach the Roberts Court. Plaintiffs who file lawsuits early frequently lose because they filed too early to develop enough evidence to win their case, or because a doctrine like Pullman abstention prevents them from pursuing their case right away. But plaintiffs who take the time to develop their case frequently lose because Purcell does not allow them to bring a voting rights case too close to an election.
Meanwhile, millions of Texans could lose their right to vote, simply because they are too young.