A divided federal appeals court ruled Thursday that Texas can continue allowing no-excuse absentee voting for senior citizens while requiring voters under 65 to provide an excuse if they want an absentee ballot.
The decision is a blow to Texas Democrats, who brought the lawsuit and were hoping to expand access to mail-in voting for the November election. A lower court previously agreed with their claim that the Texas law illegally discriminated against younger voters.
But the appeals court reversed that decision on Thursday and sent the case back for further litigation.
“This claim fails because adding a benefit to another class of voters does not deny or abridge the plaintiffs’ Twenty-Sixth Amendment right to vote,” the judges said, referring to the constitutional amendment that lowered the voting age from 21 to 18.
The judges who sided with Texas – and the GOP elected officials who defended the state law – were appointed by President George W. Bush and President Jimmy Carter. The judge who dissented to part of the ruling was appointed by President Bill Clinton.
Judge Carl Stewart said in his dissenting opinion that “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.”
In a blog post after the ruling, CNN election law analyst Rick Hasen said, “I agree with (the) dissent that the failure to extend the right to vote absentee to those below age 65 likely violates the 26th Amendment,” adding that he believes it is unlikely that Thursday’s decision would be reversed by the full 5th US Circuit of Appeals or by the Supreme Court, if there are further appeals.
Texas Republicans cheered the ruling.
“I am pleased that the Fifth 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,” Texas Attorney General Ken Paxton said in a statement, which also raised the possibility of voter fraud, even though there is no evidence of systematic or widespread fraud in US elections.