Opposition Brief — Texas Democratic Party, et al., Petitioners v. Greg Abbott, Governor of Texas, et al.
Supreme Court briefNov 23, 2020
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No. 19-1389
In the Supreme Court of the United States
TEXAS DEMOCRATIC PARTY; GILBERT HINOJOSA, CHAIR OF
THE TEXAS DEMOCRATIC PARTY;
JOSEPH DANIEL CASCINO; SHANDA MARIE SANSING; AND
BRENDA LI GARCIA, Petitioners
v.
GREG ABBOTT, GOVERNOR OF TEXAS, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF IN OPPOSITION
KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney
General
KYLE D. HAWKINS
Solicitor General
Counsel of Record
LANORA C. PETTIT
Assistant Solicitor General
OFFICE OF THE TEXAS
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Kyle.Hawkins@oag.texas.gov
(512) 936-1700
QU E S TIO NS PR E SE NTE D
The Twenty-Sixth Amendment states 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.”
Three years before its adoption, this Court unequivocally
stated that the “right to vote” does not include a right to
vote by mail. McDonald v. Bd. of Election Comm’rs of
Chi., 394 U.S. 802, 807 (1969). Relying on that holding,
numerous States have taken measures to facilitate the
exercise of the franchise among older voters by making
it easier for them to vote by mail. Many of these laws
have stood unchallenged for nearly fifty years.
Petitioners believe that section 82.003 of the Texas
Election Code, which was passed shortly after the ratification of the Twenty-Sixth Amendment and which permits those 65 or over to vote by mail, violates the
Twenty-Sixth Amendment. They sued the Texas Governor, Attorney General, and Secretary of State—none of
whom enforces section 82.003. The questions presented
are:
1. Whether petitioners can establish Article III jurisdiction and overcome respondents’ sovereign immunity;
and
2. Whether section 82.003 unconstitutionally abridges
the right to vote of those under the age of 65 by permitting those 65 and over to vote by mail.
(I)
RE L ATE D P RO C E E D ING S
In addition to the proceedings identified in the petition per Supreme Court Rule 14.1(b)(iii), the following
cases should be considered related proceedings as they
involve the same parties and arise out of the same common nucleus of operative fact.
Texas Democratic Party v. Debeauvoir, No. D-1-GN20-001610, 201st Judicial District (Travis County) (TDP
I). Voluntarily dismissed with prejudice on June 9, 2020.
State of Texas v. Texas Democratic Party, No. 14-2000358-CV, Texas Court of Appeals for the Fourteenth
Judicial District (Houston). Dismissed on July 16, 2020,
in light of dismissal of TDP I.
In re State of Texas, No. 20-0401, Supreme Court of
Texas. Dismissed on July 24, 2020, in light of dismissal of
TDP I.
(II)
TA BLE O F C O NTE N TS
Page
Questions Presented ........................................................ I
Related Proceedings ...................................................... II
Table of Authorities ........................................................ V
Opinions Below................................................................. 1
Jurisdiction ....................................................................... 1
Statement ......................................................................... 1
I. Voting by Mail in Texas ....................................... 1
II. State Officials Work Tirelessly to Make
In-Person Voting Safe.......................................... 2
III. Petitioners Pursue Unsuccessful Claims in
State Court ........................................................... 4
IV. Petitioners Bring this Duplicative Litigation
in Federal Court ................................................... 6
Summary of Argument .................................................. 11
Argument........................................................................ 12
I. The Interlocutory Posture of this Case
Raises a Strong Presumption Against
Review ................................................................. 12
II. There Is No Reason to Depart from the
Court’s Settled Practice of Denying Review
in Interlocutory Matters .................................... 18
A. The Fifth Circuit correctly held that
section 82.003 does not abridge the right
to vote for those under the age of 65 ........... 18
B. The only other appellate court to address
the question held that laws like section
82.003 do not implicate the right to vote ..... 29
III. Petitioners’ Claims Are Barred by Sovereign
Immunity, and in Any Event, Their Claims
Are Not Redressable by Respondents ............. 32
(III)
IV
Conclusion ...................................................................... 33
Appendix – Court of appeals opinion and dissent
(October 14, 2020) .................................... 1a
V
TA BLE O F AU T HO R I TIE S
Page(s)
Cases:
Abbott v. Anti-Defamation League of Austin,
No. 20-0846, 2020 WL 6295076
(Tex. Oct. 27, 2020) ......................................................... 3
Abbott v. Perez,
138 S. Ct. 2305 (2018) ..................................................... 3
Abbott v. Veasey,
137 S. Ct. 612 (2017) ............................................ passim
Am. Constr. Co. v. Jacksonville T. & K.W. Ry.,
148 U.S. 372 (1893) ....................................................... 12
Am. Party of Tex. v. White,
415 U.S. 767 (1974) ..................................... 10, 21, 22, 30
Anderson v. Celebrezze,
460 U.S. 780 (1983) ....................................................... 29
Armour v. City of Indianapolis,
566 U.S. 673 (2012) ....................................................... 26
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ....................................................... 15
Auerbach v. Rettaliata,
765 F.2d 350 (2d Cir. 1985) .......................................... 31
Barr v. Am. Ass’n of Political Consultants, Inc.,
140 S. Ct. 2335 (2020) ................................................... 17
Bhd. of Locomotive Firemen & Enginemen v.
Bangor & Aroostoock R.R.,
389 U.S. 327 (1967) (per curiam)................................. 12
Box v. Planned Parenthood of Ind. & Ky., Inc.,
139 S. Ct. 1780 (2019) (per curiam)............................. 26
Branzburg v. Hayes,
408 U.S. 665 (1972) ....................................................... 22
VI
Page(s)
Cases (ctd.):
Burdick v. Takushi,
504 U.S. 428 (1992) ..................................... 20, 24, 28, 29
Bush v. Gore,
531 U.S. 98 (2000) (per curiam)................................... 26
California v. Texas,
140 S. Ct. 1262 (2020) ................................................... 16
Chaplinsky v. New Hampshire,
315 U.S. 568 (1942) ....................................................... 22
Colo. Project-Common Cause v. Anderson,
495 P.2d 220 (Colo. 1972) ............................................. 31
Crawford v. Marion Cty. Election Bd.,
553 U.S. 181 (2008) .............................................. passim
Cutter v. Wilkinson,
544 U.S. 709 (2005) ....................................................... 11
District of Columbia v. Heller,
554 U.S. 570 (2008) ....................................................... 22
Edelman v. Jordan,
415 U.S. 651 (1974) ....................................................... 33
Epps v. Fowler,
351 S.W.3d 862 (Tex. 2011) .......................................... 16
Estelle v. Gamble,
429 U.S. 97 (1976) ......................................................... 12
Eu v. S.F. Cty. Democratic Cent. Comm.,
489 U.S. 214 (1989) ....................................................... 29
Ex parte Young,
209 U.S. 123 (1908) ....................................................... 32
FCC v. Beach Commc’ns, Inc.,
508 U.S. 307 (1993) ....................................................... 26
VII
Page(s)
Cases (ctd.):
Fitzgerald v. Racing Ass’n of Cent. Iowa,
539 U.S. 103 (2003) ....................................................... 26
Goosby v. Osser,
409 U.S. 512 (1973) ........................................... 20, 21, 30
Griffin v. Roupas,
385 F.3d 1128 (7th Cir. 2004) ...................................... 27
Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,
240 U.S. 251 (1916) ....................................................... 12
Harman v. Forssenius,
380 U.S. 528 (1965) ....................................................... 25
Heller v. Doe ex rel. Doe,
509 U.S. 312 (1993) ....................................................... 26
Herbert v. Lando,
441 U.S. 153 (1979) ....................................................... 22
In re Abbott,
956 F.3d 696 (5th Cir. 2020) ........................................ 32
In re State of Texas,
602 S.W.3d 549 (Tex. 2020) ................................. passim
Jacobson v. Massachusetts,
197 U.S. 11 (1905) ........................................................... 3
Jolicoeur v. Mihaly,
488 P.2d 1 (Cal. 1971) ............................................. 30, 31
Kimel v. Fla. Bd. of Regents,
528 U.S. 62 (2000) ......................................................... 24
Kramer v. Union Free Sch. Dist. No. 15,
395 U.S. 621 (1969) ....................................................... 25
Lane v. Wilson,
307 U.S. 268 (1939) ....................................................... 25
VIII
Page(s)
Cases (ctd.):
Luft v. Evers,
963 F.3d 665 (7th Cir. 2020) ........................................ 24
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ....................................................... 33
Marsh v. Chambers,
463 U.S. 783 (1983) ....................................................... 23
Matsushita Elec. Indus. Co. v. Epstein,
516 U.S. 367 (1996) ....................................................... 17
Mazurek v. Armstrong,
520 U.S. 968 (1997) (per curiam)................................. 16
McDonald v. Bd. of Election Comm’rs of Chi.,
394 U.S. 802 (1969) .............................................. passim
Morales v. Trans World Airlines, Inc.,
504 U.S. 374 (1992) ....................................................... 32
Moreland v. Fed. Bur. of Prisons,
547 U.S. 1106 (2006) ..................................................... 14
Mount Soledad Mem’l Ass’n v. Trunk,
567 U.S. 944 (2012) ....................................................... 14
Nat’l Football League v. Ninth Inning, Inc.,
No. 19-1098, 2020 WL 6385695
(U.S. Nov. 2, 2020) ........................................................ 14
O’Brien v. Skinner,
414 U.S. 524 (1974) ....................................................... 21
O’Caña v. Salinas,
No. 13-18-00563-CV, 2019 WL 1414021 (Tex.
App.—Corpus Christi–Edinburg Mar. 29, 2019) ...... 27
Plyler v. Doe,
457 U.S. 202 (1982) ....................................................... 24
Purcell v. Gonzalez,
549 U.S. 1 (2006) (per curiam)..................................... 28
IX
Page(s)
Cases (ctd.):
R.R. Comm’n of Texas v. Pullman Co.,
312 U.S. 496 (1941) ......................................... 7, 8, 10, 17
Ret. Plans Comm. of IBM v. Jander,
140 S. Ct. 592 (2020) (per curiam) .............................. 11
S. Bay United Pentecostal Church v. Newsom,
140 S. Ct. 1613 (2020) .................................................. 2-3
San Antonio Indep. Sch. Dist. v. Rodriguez,
411 U.S. 1 (1973) ........................................................... 19
Sessions v. Morales-Santana,
137 S. Ct. 1678 (2017) ............................................... 9, 17
State v. Hollins,
No. 20-0729, 2020 WL 5919729
(Tex. Oct. 7, 2020) (per curiam) .................................. 28
Tex. Democratic Party v. Abbott,
140 S. Ct. 2015 (2020) ..................................................... 9
Thornburg v. Gingles,
478 U.S. 30 (1986) ......................................................... 24
Town of Greece v. Galloway,
572 U.S. 565 (2014) ....................................................... 23
Tully v. Okeson,
977 F.3d 608 (7th Cir. 2020) ............................... passim
United States v. Stevens,
559 U.S. 460 (2011) ....................................................... 22
Veasey v. Abbott,
830 F.3d 216 (5th Cir. 2016) (en banc)............ 13, 25, 27
Veasey v. Abbott,
888 F.3d 792 (5th Cir. 2018) ........................................ 14
Va. Military Inst. v. United States,
508 U.S. 946 (1993) ....................................................... 14
X
Page(s)
Cases (ctd.):
Va. Office for Prot. & Advocacy v. Stewart,
563 U.S. 247 (2011) ....................................................... 32
Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338 (2011) ....................................................... 15
Walgren v. Board of Selectmen of Town of Amherst,
519 F.2d 1364 (1st Cir. 1975) ....................................... 31
Walgren v. Howes,
482 F.2d 95 (1st Cir. 1973) ........................................... 31
Washington v. Glucksberg,
521 U.S. 702 (1997) ....................................................... 25
Wash. State Grange v.
Wash. State Republican Party,
552 U.S. 442 (2008) ....................................................... 16
Will v. Hallock,
546 U.S. 345 (2006) ....................................................... 15
Will v. Mich. Dep’t of State Police,
491 U.S. 58 (1989) .................................................... 32-33
Williams v. Salerno,
792 F.2d 323 (2d Cir. 1986) .......................................... 31
Wrotten v. New York,
560 U.S. 959 (2010) ........................................... 13, 14, 18
Constitutional Provisions, Statutes, and Rules:
U.S. Const.:
art. III.................................................................. I, 12, 33
amend. I..................................................................... 6, 22
amend. VI ...................................................................... 13
amend. VIII .................................................................. 12
amend. XIV .......................................................... passim
amend. XV ............................................................... 24, 30
XI
Page(s)
Constitutional Provisions, Statutes, and Rules (ctd.):
U.S. Const. (ctd.):
amend. XVIII ......................................................... 24, 30
amend. XXIV .......................................................... 24, 30
amend. XXVI ....................................................... passim
28 U.S.C.:
§ 1254(1) .......................................................................... 1
§ 2101(e)........................................................................... 1
52 U.S.C.:
§ 20101 ........................................................................... 23
§ 20104 ........................................................................... 23
Ariz. Rev. Stat. § 16-541(B)(3) (1980) ............................... 23
Colo Rev. Stat. § 1-8-102 (1980) ........................................ 23
Ga. Code § 21-2-381(a)(1)................................................... 23
Haw. Rev. Stat. § 15-2 (1984) ............................................ 23
Ind. Code § 3-11-10-24(a)(5) .............................................. 23
Ky. Rev. Stat. § 117.085(a)(8) ............................................ 23
La. Stat. § 18.1303(J) ......................................................... 23
Me. Rev. Stat. tit. 21A, § 751(7) (1992)............................. 23
Mich. Comp. Laws § 168.758(1)(d) (1996) ........................ 23
Miss. Code § 23-15-715(b).................................................. 23
N.M. Stat. § 1-6-3(5) (1989) ............................................... 23
Ohio Rev. Code § 3509.02(A) (1990) ................................. 23
R.I. Gen. Laws § 17-20-2 ................................................... 23
S.C. Code § 7-15-320(B)(8) ................................................ 23
Tenn. Code § 26-201(5)(A) ................................................. 23
XII
Page(s)
Constitutional Provisions, Statutes, and Rules (ctd.):
Tex. Elec. Code:
ch. 64 .......................................................................... 1, 27
ch. 87 .............................................................................. 28
§§ 82.001-.004 .................................................................. 2
§ 82.003 ................................................................. passim
§ 82.005 ............................................................................ 1
§ 85.001 ............................................................................ 1
§ 86.001 .......................................................................... 33
§ 86.006(a-1) .................................................................... 3
Tex. Gov’t Code § 311.032.................................................. 17
W. Va. Code § 3-3-1(b)(1)(B) ............................................. 23
Wash. Rev. Code § 29.36.013 (1987) ................................. 23
Wis. Stat. § 6.87(2) (1986) .................................................. 23
Sup. Ct. R. 10(a) ................................................................. 30
Miscellaneous:
Act of May 26, 1917, 35th Leg., 1st C.S., ch.
40, 1917 Tex. Gen. Laws 62 ........................................... 1
Act of Oct. 30, 1935, 44th Leg., 2d C.S., ch. 437,
§ 1, 1935 Tex. Gen. Laws 1700 ...................................... 1
Act of May 30, 1975, 64th Leg., R.S., ch. 682,
§ 5, 1975 Tex. Gen. Laws 2080 ...................................... 2
ANTONIN SCALIA & BRYAN A. GARNER, READING LAW:
INTERPRETING LEGAL TEXTS (2012) ......................... 22
Ben Russell & Lili Zheng, Printing Issue
Affects 1/3 of Mail-in Ballots in
Tarrant County, Administrator Says,
NBCDFW (Oct. 27, 2020),
https://tinyurl.com/y2srpapj ....................................... 28
XIII
Page(s)
Miscellaneous (ctd.):
BENJAMIN FRANKLIN, POOR RICHARD’S ALMANAC
(1758) (G.P. Putnam’s Sons eds. 1889) ......................... 8
BLACK’S LAW DICTIONARY (4th ed. 1968) ....................... 24
BLACK’S LAW DICTIONARY (10th ed. 2014) ..................... 24
Brad Streicher, Travis County Admits
13,600 Mail-in Ballot Errors, Asks
Some to Vote Again, KVUE (Oct. 22,
2020), https://tinyurl.com/y4eccthg ............................ 28
Br. of States of Ind., et al., as Amici Curiae,
Abbott v. Veasey, 137 S. Ct. 612 (2017) ...................... 13
Chad W. Dunn, et al., Legal Theories to
Compel Vote-by-Mail in Federal Court,
11 CAL. L. REV. ONLINE 166 (2020) ..................... 11, 18
David Wildstein, Evidence of Massive Voter
Fraud in Paterson Election, Court
Records Show, N.J. GLOBE (June 14,
2020), https://tinyurl.com/y95z3q92............................ 28
House Comm. on Elections, Bill Analysis,
Tex. SB. 1047, 64th Leg., R.S. (1975),
https://tinyurl.com/y5tm2pz3 ........................................ 2
H.J. of Tex., 64th Leg., R.S., 4204 (1975),
https://tinyurl.com/y372s9of .......................................... 2
Jessica A. Fay, Note, Elderly Electors Go
Postal: Ensuring Absentee Ballot
Integrity for Older Voters,
13 ELDER L.J. 453 (2005) ............................................ 23
XIV
Page(s)
Miscellaneous (ctd.):
Katie Hall, Voters who received mail-in
ballots without runoff races now told to
vote in person, AUSTIN AMERICANSTATESMAN (July 2, 2020) ........................................... 28
Michael King, Paxton Threatens Election
Officials with Prosecution, AUSTIN CHRON.
(May 4, 2020), https://tinyurl.com/yy2qmjoq .............. 5
National Conference of State Legislatures,
Voting Outside the Polling Place: Absentee,
All-Mail, and Other Voting at Home
Options, Qualifying for an Absentee Ballot
(Sept. 24, 2020), https://tinyurl.com/t4xaa7z ............ 4-5
S.J. of Tex., 64th Leg., R.S., 1932 (1975),
https://tinyurl.com/y2hpwp3g ....................................... 2
S. Rep. No. 92-26 (1971)..................................................... 25
STEPHEN M. SHAPIRO, ET AL., SUPREME
COURT PRACTICE (10th ed. 2013) ............................... 15
Tessa Weinberg, Paxton Warns Local
Officials Against Encouraging Vote-byMail Due to Coronavirus Fears,
FORT WORTH STAR-TELEGRAM (May 1,
2020), https://tinyurl.com/y52cujwk ............................. 5
Tex. Gov. Proclamation No. 41-3752, July 27, 2020,
45 Tex. Reg. 5456, 5456-57 ............................................ 3
Tex. Gov. Proclamation No. 41-3772, Oct. 1, 2020,
45 Tex. Reg. 7080, 7080-81 ............................................ 3
XV
Page(s)
Miscellaneous (ctd.):
Texas Health and Human Services, Long Term
Care, https://hhs.texas.gov/services/aging/longterm-care (last accessed Nov. 22, 2020) ..................... 26
Texas Secretary of State, Election Advisory
No. 2020-19: Voting in Person During COVID-19
(June 18, 2020), https://tinyurl.com/yyrgeb4v............. 4
Texas Secretary of State, Health Protocol for Voters
(May 26, 2020), https://tinyurl.com/y2xmmgbv........... 4
Tex. S. Con. Res. 65, 62d Leg., R.S., 1971
Tex. Gen. Laws 3867 ...................................................... 2
William J. Brennan, Some Thoughts on the
Supreme Court’s Workload,
66 JUDICATURE 230 (1983) .......................................... 14
O PI NIO NS BE LO W
The district court’s opinion granting a preliminary injunction is reported at 461 F. Supp. 3d 406 (Pet. App.
59a-148a). Petitioners sought review of the Fifth Circuit’s stay of that injunction pending appeal. That opinion is reported at 961 F.3d 389 (Pet. App. 1a-58a). Since
then, the court of appeals has vacated the preliminary injunction in both an original opinion and a revised opinion.
The operative version of the Fifth Circuit’s merits decision is reported at 978 F.3d 168 (BIO App. 2a-60a).
JU R ISD IC T IO N
Petitioners have invoked this Court’s jurisdiction under 28 U.S.C. §§ 1254(1), 2101(e). As set out below, federal courts lack jurisdiction to enter the relief requested
because petitioners’ claims are barred by sovereign immunity and not subject to redress by respondents.
ST ATE ME N T
I. Voting by Mail in Texas
Texas law has long required most voters to cast their
ballots in person either on Election Day, Tex. Elec. Code
ch. 64, or during an early-voting period prescribed by the
Texas Legislature, id. §§ 82.005, 85.001. It has, however,
recognized that certain voters face unique hardships in
going to the polls. During World War I, the Legislature
passed its first absentee voting law to allow voters who
expect to be away from their jurisdictions on Election
Day to vote. Act of May 26, 1917, 35th Leg., 1st C.S., ch.
40, 1917 Tex. Gen. Laws 62, 63-64 . In 1935, the Legislature extended absentee voting to the ill and physically
disabled. Act of Oct. 30, 1935, 44th Leg., 2d C.S., ch. 437,
§ 1, 1935 Tex. Gen. Laws 1700, 1700-01.
(1)
2
In 1975, the Legislature “extended absentee voting to
voters 65 years of age or older.” In re State of Texas, 602
S.W.3d 549, 558 & n.42 (Tex. 2020) (Texas) (citing Act of
May 30, 1975, 64th Leg., R.S., ch. 682, § 5, 1975 Tex. Gen.
Laws 2080, 2082). This was part of a significant revision
of the Election Code passed after Texas (among other
States) ratified the Twenty-Sixth Amendment. 1 One purpose of this law was “to bring the Texas Election Code
into conformity with” that Amendment. 2 The Legislature
adopted this bill by overwhelming majorities in both
chambers, which both lowered the voting age to 18 and
allowed voters 65 or older to vote by mail. 3
Texas currently allows a voter to vote by mail if he
(1) anticipates being absent from his county of residence
on Election Day; (2) “has a sickness or physical condition
that prevents the voter from appearing at the polling
place”; (3) is 65 years of age or older; or (4) is confined to
jail. Tex. Elec. Code §§ 82.001-.004.
II. State Officials Work Tirelessly to Make InPerson Voting Safe.
“Our constitution principally entrusts ‘[t]he safety
and health of the people’ to the politically accountable officials of the States ‘to guard and protect.’” S. Bay
United Pentecostal Church v. Newsom, 140 S. Ct. 1613,
See generally Tex. S. Con. Res. 65, 62d Leg., R.S., 1971 Tex.
Gen. Laws 3867.
1
House Comm. on Elections, Bill Analysis, Tex. S.B. 1047, 64th
Leg., R.S. (1975), https://tinyurl.com/y5tm2pz3.
2
H.J. of Tex., 64th Leg., R.S., 4204 (1975), https://tinyurl.com/y372s9of; S.J. of Tex., 64th Leg., R.S., 1932 (1975),
https://tinyurl.com/y2hpwp3g.
3
3
1613 (2020) (Roberts, C.J., concurring) (quoting Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905)). It likewise
places primary responsibility on state officials to conduct
elections—a duty courts presume to be discharged in
good faith. See Abbott v. Perez, 138 S. Ct. 2305, 2325
(2018).
To those ends, Texas officials worked diligently to ensure both the safety and integrity of the 2020 elections.
On March 13, 2020, Governor Abbott declared a state of
disaster in all of Texas’s 254 counties. ROA.990-92. For
the November general election, he extended the time
available for in-person early voting, Tex. Gov. Proclamation No. 41-3772, Oct. 1, 2020, 45 Tex. Reg. 7080, 7080-81
(amending Tex. Gov. Proclamation No. 41-3752, July 27,
2020, 45 Tex. Reg. 5456, 5456-57). He also allowed voters
eligible to vote by mail to hand-deliver their marked
mail-in ballots to a designated location in their home
counties at any time before Election Day, id., rather than
just on Election Day, Tex. Elec. Code § 86.006(a-1).
These measures expanded early-voting options and reduced the lines and crowds on Election Day while protecting the integrity of the election by ensuring that voters still presented identification to ensure that they were
who they claimed to be. Cf. Abbott v. Anti-Defamation
League of Austin, No. 20-0846, 2020 WL 6295076, at *67 (Tex. Oct. 27, 2020) (per curiam) (citing Crawford v.
Marion Cty. Election Bd., 553 U.S. 181, 198 (2008) (plurality op.) (discussing general problem of absentee-ballot
fraud)).
Texas’s Secretary of State also issued numerous advisories and other forms of guidance to ensure the safety
of voting by personal appearance. For example, on May
26, the Secretary issued detailed guidelines in
4
consultation with the Texas Department of State Health
Services, drawing heavily on guidance from the Centers
for Disease Control and recommending steps that both
voters and poll workers should take to ensure safety at
the polls. Texas Secretary of State, Health Protocol for
Voters, https://tinyurl.com/y2xmmgbv. She supplemented those guidelines on June 18 with additional recommended protocols regarding (among other things) the
spacing and cleaning of polling equipment, the provision
of protective equipment, and how to address voters who
show symptoms of COVID-19. Texas Secretary of State,
Election Advisory No. 2020-19: Voting in Person During COVID-19 (June 18, 2020), https://tinyurl.com/yyrgeb4v.
These safeguards were employed during both the
July primary runoff and the November general election
as state officials adapted to protect “the health and
safety of voters, election workers, and local election officials and their staff.” Id.
III. Petitioners Pursue Unsuccessful Claims in State
Court.
Beginning in late March, petitioners began a twopronged effort to rewrite Texas’s Election Code to permit no-excuse-mail-in ballots. 4 They began in state court,
Petitioners mischaracterize Texas law by asserting (e.g., Pet.
4) that it allows no-excuse-mail-in ballots for those 65 or older.
Texas does not have no-excuse-mail-in ballots for anyone. Being 65
years old or older is one of the reasons that the Legislature has provided to allow mail-in voting. In jurisdictions that restrict mail-in
ballots to certain classes, “[i]t is . . . common to provide this option
to elderly voters.” National Conference of State Legislatures, Voting Outside the Polling Place: Absentee, All-Mail, and Other
4
5
where they asked for declaratory and injunctive relief allowing all voters to vote by mail due to COVID-19 based
on the Election Code’s definition of “disability.”
ROA.41. 5 The state trial court obliged, ROA.1904-05, but
its order was immediately stayed when the State filed a
notice of interlocutory appeal, Texas, 602 S.W.3d at 552.
Nevertheless, petitioners continued to act as if the
state-court injunction remained in effect. The Texas
Democratic Party (TDP) and its counsel engaged in a
media blitz to convince the public that the injunction remained in force. 6 This caused significant public confusion
requiring the Attorney General to provide guidance to
county officials about the meaning of state law, ROA.857,
as well as to explain that the then-stayed state-court injunction “does not change or suspend these requirements,” ROA.858. To establish standing here, TDP’s
representative explained that it had expended considerable resources on unspecified “voter contact
Voting at Home Options, Qualifying for an Absentee Ballot (Sept.
24, 2020), https://tinyurl.com/t4xaa7z (cataloguing current laws).
Petitioner Garcia was not a plaintiff in the state-court action,
but that suit was on behalf of TDP’s members. ROA.306. TDP asserts that Garcia is a member to establish standing here, ROA.961,
and she has never disputed that she stands in privity with the statecourt plaintiffs.
5
Michael King, Paxton Threatens Election Officials with ProsCHRON.
(May
4,
2020),
https://tiecution,
AUSTIN
nyurl.com/yy2qmjoq (“Dunn also rejected Paxton’s assertion that
District Judge Sulak’s order is ‘stayed’ pending appeal.”); Tessa
Weinberg, Paxton Warns Local Officials Against Encouraging
Vote-by-Mail Due to Coronavirus Fears, FORT WORTH STAR-TELEGRAM (May 1, 2020), https://tinyurl.com/y52cujwk (substantively
same).
6
6
methodologies” and “supporting voters who are planning
to vote-by-mail” in response to the Attorney General’s
guidance. ROA.1611-12.
As a result of the confusion caused by petitioners’
out-of-court conduct, the State asked the Texas Supreme
Court to issue a writ of mandamus to five county clerks
who were refusing to abide by the text of the Election
Code. ROA.1830-59. On May 27, 2020, the Texas Supreme Court held that Texas’s legislature had deliberately chosen to limit absentee ballots, and that “lack of
immunity to COVID-19 is not itself a ‘physical condition’
that renders a voter eligible to vote by mail within the
meaning” of the Election Code. Texas, 602 S.W.3d at 561.
Petitioners voluntarily dismissed their state-court
claims with prejudice on June 9, three weeks to the day
after the injunction underlying this petition was entered.
IV. Petitioners Bring this Duplicative Litigation in
Federal Court.
A. Hedging against such an unfavorable outcome, petitioners filed this action in the Western District of Texas
on April 7. ROA.19. Petitioners asserted a litany of facial
and as-applied claims, including (among other things)
that the Texas Election Code: (1) violates the TwentySixth Amendment; (2) discriminates on the basis of age
and race in violation of the Equal Protection Clause;
(3) violates the First Amendment; and (4) is void for
vagueness. ROA.112-23, 125-28. At that time, they disclaimed any request for preliminary relief on their various facial challenges, ROA.112, 2153-54; and for their asapplied challenges, they sought relief that is virtually indistinguishable from what they sought (unsuccessfully)
in state court, compare ROA.1904-05, with ROA.2028-29.
7
Because petitioners sought preliminary relief solely
on the ground that section 82.003 was unconstitutional
as-applied during the pandemic, respondents’ evidence
focused entirely on the pandemic. For example, respondents offered the testimony of a Professor of Medicine and
Public Health at UCLA with over 520 peer-reviewed
publications regarding infectious-disease prevention, an
award from the CDC for contributions to public health,
and experience both as a Medical Director in a COVID19 laboratory and a volunteer poll-worker in Los Angeles
County. ROA.567-68, 571. He opined that the State’s precautions are “reasonable and effective measures to reduce the likelihood of exposure to [COVID-19] for voters
and poll workers.” ROA.571. Respondents also offered
testimony by way of affidavit regarding how local election officials were implementing these protections on the
ground. ROA.572-74.
On May 19, the district court issued a lengthy opinion
and order requiring no-excuse-mail-in balloting in Texas.
Pet. App. 59a-148a. The court refused to abstain under
Railroad Commission of Texas v. Pullman Co., 312 U.S.
496 (1941), though it knew that the Texas Supreme Court
would hear argument on whether petitioners could vote
by mail under state law in less than 24 hours. ROA.203136. And it ignored respondents’ evidence of the significant measures they took to protect the safety of in-person voting. Nevertheless, the district court held that due
to the dangers of the pandemic, all voters in Texas could
vote by mail either as a matter of state law, Pet. App. 69a,
or under one of petitioners’ multiple constitutional theories, id. at 126a.
The precise grounds for the district court’s ruling are
unclear. The order petitioners seek to vindicate turns
8
more on “[q]uot[ations] [from] the Declaration of Independence, the Gettysburg Address, the Bible, and various poems” than any legal standard. Id. at 5a. Its core
analysis of whether the Constitution protects a right to
vote by mail ignores this Court’s landmark ruling in
McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802 (1969) (holding that the Constitution
does not protect a right to vote by mail), in favor of Poor
Richard’s Almanac. Pet. App. 70a & n.22 (citing BENJAMIN FRANKLIN, POOR RICHARD’S ALMANAC 275 (1758)
(G.P. Putnam’s Sons eds. 1889)).
Moreover, because petitioners disclaimed any facial
challenges at the preliminary-injunction stage, ROA.112,
the record contains no evidence regarding the impact of
section 82.003 in non-pandemic circumstances. Because
the district court refused to wait for the outcome of petitioners’ state-court case before issuing its injunction,
ROA.2127-30, it has not yet addressed the claim-preclusive effect of the dismissal of that action. And because
petitioners delayed serving their complaint on any of the
respondents for weeks, ROA.8-9, respondents have not
yet filed an answer, and thus have not asserted any affirmative defenses such as laches.
B. A panel of the Fifth Circuit unanimously stayed
the injunction pending appeal. Faced with a nearly incomprehensible opinion, the panel identified multiple
reasons that respondents were likely to succeed on appeal: “a threshold procedural error,”—namely, the district court’s refusal to abstain under Pullman, Pet. App.
56a (Costa, J., concurring in the stay); a likelihood of success on the merits, id. at 19a (Smith, J., writing for the
majority); and the district court’s impermissible remedy,
id. at 50a-51a (Ho, J., concurring). Regarding the
9
remedy, Judge Ho noted that “[u]nder Texas law, in-person voting is the rule, and mail-in voting is the exception.” Pet. App. 50a. Thus, under this Court’s precedent,
the appropriate remedy was to “level down” and eliminate the exception allowing those 65 and over to vote by
mail, not to extend that ability to all voters. Id. (citing
Sessions v. Morales-Santana, 137 S. Ct. 1678, 1698
(2017)).
It is that stay opinion that is the subject of the current petition. Petitioners asked (in No. 19A1055) this
Court to vacate the stay and grant certiorari before judgment. This Court denied those requests. Tex. Democratic Party v. Abbott, 140 S. Ct. 2015 (2020).
C. Since this Court last considered the petition, petitioners have reversed their litigation tactics: As discussed above, in the district court, they argued—and the
district court agreed—that relief was necessary because
of COVID-19, and that any facial challenge should wait
for trial on the merits. ROA.112, 2153-54. Before the
Fifth Circuit, they defended the preliminary injunction
based only on a facial Twenty-Sixth Amendment challenge and asserted that any other claim needed to wait
for a trial on the merits. See BIO App. 7a n.2.
A divided Fifth Circuit merits panel declined to affirm on the only basis pressed by petitioners. Though its
exact reasoning differed from the stay panel, the majority agreed that section 82.003 does not violate the
Twenty-Sixth Amendment. Id. at 7a. The panel expressly declined to decide whether petitioners have met
their burden of showing that section 82.003 lacks a rational basis. Id. at 44a. The court nonetheless concluded
that petitioners failed to meet their burden to show that
their right to vote—if implicated—had been “abridged”
10
within the meaning of the Twenty-Sixth Amendment because section 82.003 does not “create[] a barrier to voting
that makes it more difficult for the challenger to exercise
her right to vote relative to the status quo.” Id. at 40a. In
light of its holding, the panel majority did not revisit
Judge Costa’s analysis of Pullman or Judge Ho’s discussion of the appropriate remedy.
Judge Stewart dissented. In his view, McDonald is
no longer good law following American Party of Texas
v. White, 415 U.S. 767 (1974). BIO App. 50a. In his view,
“the options granted to voters to cast their vote are [now]
part of ‘the right to vote’ under the Twenty-Sixth
Amendment.” Id. at 56a. He opinioned that section
82.003 has a “severe” impact on the right to vote because
“in the context of the pandemic,” it “leads to dramatically
different outcomes for different age groups.” Id. at 48a.
Like the district court, he did not appear to express an
opinion about the effect of section 82.003 outside pandemic circumstances.
Even though petitioners declined to defend the district court’s holding that petitioners’ other constitutional
claims also justified the injunction, the panel unanimously remanded for further proceedings where “equal
protection questions may come to the fore.” Id. at 44a;
see also id. at 7a n.2 (declining to hold the claims abandoned in light of petitioners’ stated preference for a remand).
Following the Fifth Circuit’s ruling, rather than filing
anew, petitioners asked this Court to consider their
“pending petition for a writ of certiorari [before judgment] as a conventional writ for certiorari.” Letter from
C. Dunn to S. Harris, Clerk of Court (Sept. 18, 2020). The
district court later requested the parties to file proposals
11
about how to proceed regarding petitioners’ remaining
claims by December 16. Order, TDP v. Abbott, No. SA20-CA-438-FB (Nov. 16, 2020) (ECF No. 121).
SU M MA RY O F AR GU ME NT
This case came to the Court in an interlocutory posture, and it remains unripe for review at this time. This
Court has repeatedly stated that it is “a court of review,
not of first view.” Ret. Plans Comm. of IBM v. Jander,
140 S. Ct. 592, 595 (2020) (per curiam) (quoting Cutter v.
Wilkinson, 544 U.S. 709, 718 n.7 (2005)). As a result of
petitioners’ own litigation choices, there are numerous
factual and legal issues on which the lower courts have
yet to opine. Under such circumstances, this Court’s
practice is to defer review until after judgment. Abbott v.
Veasey, 137 S. Ct. 612, 613 (2017) (Roberts, C.J., respecting the denial of certiorari) (Veasey II).
This case does not merit an exception. As petitioners’
counsel has candidly admitted, when this case began, it
presented a question that had never previously been addressed by any appellate court. 7 Three panels of two federal courts of appeals have now considered the question
and come to one conclusion: A State does not abridge the
rights of younger voters by allowing older voters the option to vote by mail. Pet. App. 21a-31a; BIO App. 40a41a; Tully v. Okeson, 977 F.3d 608, 613 (7th Cir. 2020).
This conclusion is consistent with the language of the
Twenty-Sixth Amendment, its history, and this Court’s
jurisprudence. And the absence of disagreement
Chad W. Dunn, et al., Legal Theories to Compel Vote-by-Mail
in Federal Court, 11 CAL. L. REV. ONLINE 166, 167 (2020).
7
12
demonstrates that there is no need for this Court to become involved at this time, ahead of final judgment.
In any event, petitioners cannot win relief. They have
sued state officials who play no role in enforcing section
82.003. Petitioners’ claims are thus barred by sovereign
immunity (not to mention Article III’s standing requirement).
ARGU ME N T
I. The Interlocutory Posture of this Case Raises a
Strong Presumption Against Review.
A. For more than a century, it has been this Court’s
“normal practice [to] deny[] interlocutory review,” even
where cases present significant statutory or constitutional questions. Estelle v. Gamble, 429 U.S. 97, 114-15
(1976) (Stevens, J., dissenting) (criticizing deviation from
that rule to address novel Eighth Amendment claims as
“inexplicable”). Indeed, this Court has stated that lack of
finality “alone [can] furnish[] sufficient ground for the
denial of the application.” Hamilton-Brown Shoe Co. v.
Wolf Bros. & Co., 240 U.S. 251, 258 (1916). This Court has
recognized that the circumstances where it should grant
interlocutory review are “very rare[] indeed.” Am. Constr. Co. v. Jacksonville T. & K.W. Ry., 148 U.S. 372, 385
(1893); see Bhd. of Locomotive Firemen & Enginemen v.
Bangor & Aroostoock R.R., 389 U.S. 327, 328 (1967) (per
curiam) (concluding that case was “not yet ripe for review by this Court” where it was remanded by the court
of appeals).
The Chief Justice articulated this Court’s policy in
Veasey II, a case which is in many ways a precursor to
this one. There, the en banc Fifth Circuit concluded that
Texas’s undisputed interest in protecting against voter
13
fraud did not justify requiring a voter to present an ID
at the polls largely because the law did not apply to mailin ballots where fraud is “far more prevalent.” Veasey v.
Abbott, 830 F.3d 216, 263 (5th Cir. 2016) (en banc) (Veasey I). The Fifth Circuit remanded, however, “for further proceedings on an appropriate remedy.” Veasey II,
137 S. Ct. at 613 (Roberts, C.J., respecting the denial of
certiorari). Texas sought—and this Court denied—immediate review. Id. As the Chief Justice explained, the
denial was warranted despite the undisputed national
importance of the question because “[t]he issues will be
better suited for certiorari review” “after entry of final
judgment.” Id. 8
Similarly, Wrotten v. New York involved a question
about the use of video testimony at a criminal trial in a
way that implicated the Confrontation Clause. 560 U.S.
959, 959 (2010). Wrotten raised an “important” question
implicating the most fundamental liberty of all—freedom from wrongful imprisonment—and it did so in a
“strikingly different context” from this Court’s closest
precedent. Id. Nonetheless, the Court denied review because the New York Court of Appeals remanded “for further review, including of factual questions.” Id. As Justice Sotomayor explained, denial of review was warranted because “procedural difficulties” arise “from the
interlocutory posture,” which impeded the Court’s ability to give full consideration to the constitutional question. Id.
Nearly three dozen States had laws that were implicated by
the Fifth Circuit’s conclusion. Br. of States of Ind., et al., as Amici
Curiae, at 1, Veasey II, 137 S. Ct. 612.
8
14
It is undisputed that prompt review in Veasey, Wrotten, and cases like them could have obviated the need for
years of litigation. Yet the Court has repeatedly and routinely deemed it “prudent” to wait until the lower courts
have completed their review of all claims and defenses
and ruled on the requested remedies. Va. Military Inst.
v. United States, 508 U.S. 946, 946 (1993) (Scalia, J., respecting the denial of certiorari); see also, e.g., Nat’l
Football League v. Ninth Inning, Inc., No. 19-1098, 2020
WL 6385695, at *1 (U.S. Nov. 2, 2020) (Kavanaugh, J.)
(citing Veasey II); Mount Soledad Mem’l Ass’n v. Trunk,
567 U.S. 944, 944 (2012) (Alito, J.); Moreland v. Fed. Bur.
of Prisons, 547 U.S. 1106, 1107 (2006) (Stevens, J.).
This prudential rule serves a highly salutary purpose:
Litigation is inherently unpredictable, and later developments may change the character of—or entirely obviate
the need to address—the question presented. See William J. Brennan, Some Thoughts on the Supreme Court’s
Workload, 66 JUDICATURE 230, 231-32 (1983). Again, this
can be seen in Veasey II. That case never returned to the
Court because “[d]uring the remand, the Texas Legislature passed a law designed to cure all the flaws” identified by the plaintiffs. Veasey v. Abbott, 888 F.3d 792, 795
(5th Cir. 2018) (Veasey III). Because “[t]he Legislature
succeeded in its goal,” id., this Court did not need to address difficult questions about whether the superseded
statute complied with federal law.
Further proceedings below may obviate the need for
this Court’s review. At petitioners’ request, the Fifth
Circuit remanded this case to the district court for consideration of their remaining claims, particularly their
argument that section 82.003 violates the Equal Protection Clause. BIO App. 7a n.2, 44a. In the unlikely event
15
that the lower courts rule for petitioners on one or more
of their other constitutional claims, petitioners could end
up receiving the relief they request without any need for
the Court (or anyone else) to further consider the
Twenty-Sixth Amendment issue presented here.
B. The Court should apply its settled practice here.
This Court accepts review ahead of final judgment only
in a small handful of “extraordinary cases.” STEPHEN M.
SHAPIRO, ET AL., SUPREME COURT PRACTICE 283 (10th
ed. 2013). Those cases involve situations where “the
lower court’s decision is patently incorrect and the interlocutory decision” will “have immediate consequences.”
Id. (emphasis added) (collecting cases). This is not such
an extraordinary case. Indeed, due to their own litigation
choices, the majority of petitioners’ claims remain in
their infancy.
This Court grants review ahead of final judgment in
that narrow sliver of cases where the circuit court’s decision will become “effectively unreviewable” if the Court
were to wait until final judgment. Cf. Will v. Hallock, 546
U.S. 345, 351-52 (2006) (addressing related collateral-order doctrine). For example, such cases can involve questions of a sovereign or public official’s immunity from suit
that would be lost if the Court were to wait until final
judgment. E.g., Ashcroft v. Iqbal, 556 U.S. 662, 671-72
(2009). Or the Court may hear a case involving class certification where an adverse decision leads to such in terrorem pressure to settle that it is unlikely that any case
presenting the issue will reach final judgment. E.g., WalMart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). Or the
Court may hear a case where the petitioner can demonstrate that some unique aspect of the interim order itself
is likely to cause the petitioner, or society more
16
generally, specific, concrete harm before final judgment.
E.g., California v. Texas, 140 S. Ct. 1262, 1262 (2020)
(disruption of the health-care market); Mazurek v. Armstrong, 520 U.S. 968, 975-76 (1997) (per curiam) (extremely burdensome preliminary injunction).
Petitioners’ claims will not become unreviewable at
final judgment. Instead, as in Veasey II, the Fifth Circuit
has resolved the merits of a constitutional question, but
other questions have yet to be addressed. Indeed, this
case is less appropriate for review than Veasey II where
the remand was to formulate an appropriate remedial order. 137 S. Ct. at 613. Here, the parties and the district
court have yet to litigate or resolve most of petitioners’
claims, BIO App. 7a n.2, 44a-45a. Many of those claims—
including the one currently before the Court—are facial
challenges that require petitioners to “establish[] that no
set of circumstances exist under which the [law] would
be valid.” Wash. State Grange v. Wash. State Republican
Party, 552 U.S. 442, 449 (2008) (cleaned up). Because petitioners expressly disclaimed any request for preliminary relief on facial theories, ROA.112, there is no evidence in the record regarding the impact of section
82.003 outside of pandemic circumstances.
Nor is there any evidence regarding respondents’ defenses. Petitioners delayed serving their complaint for
weeks, meaning that respondents have never filed an answer or litigated any affirmative defenses—of which
there are several. ROA.8-9. 9 For example, petitioners’
dismissal of their state-court action has claim-preclusive
effects under state law, Epps v. Fowler, 351 S.W.3d 862,
868-69 (Tex. 2011), and therefore in this case,
9
Governor Abbott was never served.
17
Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 374
(1996). Because the district court refused to abstain under Pullman—itself reversible error—petitioners’ dismissal of their claims in state court occurred after the
district court’s order. As a result, the district court has
never addressed those consequences or whether any remaining claims are otherwise barred (for example, by
laches). The Fifth Circuit similarly reserved all questions other than its ruling on the petitioners’ TwentySixth Amendment claim for further consideration on remand. BIO App. 7a n.2.
Even if the district court ultimately were to rule in
petitioners’ favor (which it should not), the district court
would still need to hold “further proceedings on an appropriate remedy.” Veasey II, 137 S. Ct. at 613. Though
pleaded under multiple constitutional amendments, all of
petitioners’ claims turn on concepts of inequality. “How
equality is accomplished . . . is a matter on which the Constitution is silent.” Morales-Santana, 137 S. Ct. at 1698.
Instead, the question is to be resolved by the political
branches. Barr v. Am. Ass’n of Political Consultants,
Inc., 140 S. Ct. 2335, 2354-55 (2020) (Kavanaugh, J., writing for plurality). So when the constitutional problem is
caused by an exception to a general rule, the presumption is that the exception should be severed to preserve
the general rule that the political branches settled on.
Id.; accord Tex. Gov’t Code § 311.032 (codifying Texas
law regarding severability). As the Texas Supreme
Court confirmed, Texas’s political branches have allowed
voting by mail only as a limited exception to the general
rule of in-person voting. Texas, 602 S.W.3d at 558. The
district court will need to consider that conclusion in
18
formulating any permanent remedy. Pet. App. 50a-51a
(Ho, J., concurring).
These open issues create “procedural difficulties”
that militate strongly against granting review at this
time. Wrotten, 560 U.S. at 959 (Sotomayor, J., respecting
the denial of certiorari).
II. There Is No Reason to Depart from the Court’s
Settled Practice of Denying Review in
Interlocutory Matters.
This Court should not allow petitioners to leap-frog
lower-court consideration of issues they chose not to litigate based on their cursory assertion that this case “require[s] urgent attention.” Letter from C. Dunn to S.
Harris, supra. The Fifth Circuit correctly held that section 82.003 comports with the Twenty-Sixth Amendment. BIO App. 8a, 44a. Though this case began as a
“first-of-its kind lawsuit to compel the state to provide its
voters with relatively unrestricted vote-by-mail,” Dunn,
supra at 167; see also id. at 177 (asking readers to send
in “additional theories” to test), the Seventh Circuit has
now reached the same conclusion as the Fifth: The
Twenty-Sixth Amendment does not prohibit eligibility
rules for mail-in ballots from distinguishing voters based
on age. In the face of this unanimity, there is no reason
for this Court to weigh in—particularly ahead of final
judgment.
A. The Fifth Circuit correctly held that section
82.003 does not abridge the right to vote for
those under the age of 65.
The Twenty-Sixth Amendment does not, as petitioners suggest (at 26-27), “forbid[] states from acting on any
age-based distinction with respect to voting—full stop.”
19
It prohibits laws that “abridge” the right to vote based
on age. See BIO App. 22a-24a, 32a. To “abridge” the right
to vote, a law must “place a barrier or prerequisite to voting, or otherwise make it more difficult to vote, relative
to the baseline.” Id. at 38a. Section 82.003 of the Texas
Election Code does not create any sort of barrier to voting for anyone; it simply permits an additional option to
vote by mail to those 65 or older.
1. Though petitioners assert that section 82.003
abridges the right to vote guaranteed by multiple constitutional amendments, their theories “hinge on one question: what is ‘the right to vote’?” Tully, 977 F.3d at 611.
Based on historical practices from the time that the
Twenty-Sixth Amendment was ratified, the Fifth Circuit
concluded that “the right to vote in 1971 did not include
a right to vote by mail,” BIO App. 32a. That holding comports with this Court’s declaration in McDonald that the
“right to vote” does not include a “claimed right to receive [and cast] absentee ballots.” McDonald, 394 U.S.
at 807.
In McDonald, the plaintiffs were incarcerated persons who claimed a right to vote by mail because they
could not “readily appear at the polls.” Id. at 803. Like
Texas, Illinois “made absentee balloting available to
[only] four classes of persons,” including (among others)
those absent from their precincts and the disabled. Id. at
803-04. There, the plaintiffs’ claims sounded in equal protection, but they required the Court to consider whether
the right to vote was implicated because laws implicating
fundamental rights receive heightened scrutiny even if
they do not distinguish based on an otherwise suspect
class. See San Antonio Indep. Sch. Dist. v. Rodriguez,
411 U.S. 1, 38 (1973). The Court concluded that Illinois’s
20
law did not implicate the right to vote. See McDonald,
394 U.S. at 807. The Court explained that “absentee statutes, which are designed to make voting more available
to some groups who cannot easily get to the polls, do not
themselves deny [plaintiffs] the exercise of the franchise.” Id. at 807-08. And without evidence “that Illinois
ha[d] in fact precluded [plaintiffs] from voting,” whether
it might have been easier for an inmate to vote by mail
was irrelevant. Id. at 808. Because Illinois’s laws did not
“impact [plaintiffs’] ability to exercise the fundamental
right to vote,” id. at 807, the statute was subject to rational-basis review, id. at 808.
McDonald remains good law. Though the Fifth Circuit questioned McDonald’s continued validity, BIO
App. 43-44a; id. at 55a (Stewart, J., dissenting in relevant
part), this Court cited it with approval in Burdick v. Takushi, 504 U.S. 428, 434 (1992), one of the two cases establishing the modern test for when a law abridges the
right to vote. See also Crawford, 553 U.S. at 209 (opinion
of Scalia, J.) (noting that the ability to cast “absentee or
provisional ballots, is an indulgence—not a constitutional
imperative that falls short of what is required”).
Applying McDonald, this Court has held that a State
may not “affirmatively exclude[]” a class of voters from
mail-in ballots if doing so—when combined with other
state action—entirely prevents them from casting their
ballots. Goosby v. Osser, 409 U.S. 512, 521-22 (1973). For
example, in Goosby, the Court found that “McDonald
[did] not ‘foreclose’” the plaintiffs’ challenge because
there was a question whether, as a whole, “the Pennsylvania statutory scheme” “absolutely prohibit[ed]” incarcerated persons from voting. Id. They could not obtain
absentee ballots, and requests for access to polling
21
places or for transportation to the polls “had been denied.” Id. That is, far from departing from or undercutting McDonald, the Court concluded that the plaintiffs
had “allege[d] a situation that McDonald itself suggested might make a different case.” Id. at 522. Even
then, the Court in Goosby simply remanded for reconsideration; it expressed no view as to whether the plaintiffs
were “entitled to the relief sought.” Id. The Court came
to a similar conclusion in O’Brien v. Skinner, 414 U.S.
524, 530 (1974).
In his dissent, Judge Stewart asserted that this Court
abandoned McDonald in American Party of Texas v.
White. BIO App. 55a-56a. The White plaintiffs challenged several aspects of Texas’s voting laws as they applied to minor political parties. See generally 415 U.S.
767. For example, the plaintiffs challenged the requirement that to obtain access to the ballot, they must
“demonstrate support from electors equal in number to
1% of the vote for governor at the last general election.”
Id. at 782. This Court held that some of the challenged
laws abridged the right to vote or equal protection and
thus were subject to strict scrutiny. Id. at 780 & n.11.
Texas’s restriction that absentee ballots would include
only two names were not among them. Id. at 770-71. Instead, like in Goosby and O’Brien, the Court remanded
for the lower courts to consider whether the State had
engaged in “arbitrary discrimination” against minor political parties that “violat[es] the Equal Protection
Clause.” Id. at 795. This is entirely consistent with
McDonald because, at the time White was decided, absentee voting in Texas was limited to those who could
not vote in person due to absence from the jurisdiction
or physical disability. Supra at 1-2. Thus, exclusion from
22
the absentee ballot raised a question whether Texas had
entirely denied this class of voters the franchise or
whether it had provided a “comparable alternative
means to vote.” White, 415 U.S. at 795.
2. The Twenty-Sixth Amendment, passed two years
after McDonald, incorporated this understanding of the
“right to vote.” When determining whether a law infringes or abridges an individual right, courts examine
how the right was understood at the time of ratification.
District of Columbia v. Heller, 554 U.S. 570, 580-81
(2008). For example, the First Amendment forbids any
law abridging the freedom of speech, but this Court has
long recognized that such freedom does not “include the
lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942); accord Branzburg v.
Hayes, 408 U.S. 665, 696 (1972) (looking to American and
English common law to determine whether “freedom of
the press” includes a media privilege against testifying
in a grand jury). Laws regulating such activities might
limit speech in some sense, but they do not “abridge” the
“freedom of speech” because such limits “were well-established in the common law when the First Amendment
was adopted.” Herbert v. Lando, 441 U.S. 153, 158 (1979);
see also United States v. Stevens, 559 U.S. 460, 468-69
(2011).
Under McDonald, the right to vote extended by the
Twenty-Sixth Amendment to those between the ages of
18 and 21 similarly does not include a right to vote by
mail. See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: INTERPRETING LEGAL TEXTS 322 (2012).
Because the “right to vote” guaranteed by the
Twenty-Sixth Amendment does not include a right to
23
vote by mail, mail-in ballot regulations have often differentiated based on age. Many States either include age as
one reason that a voter may vote by mail 10 or did so until
they permitted no-excuse-mail-in voting. 11 Even States
that do not determine eligibility based on age have made
it easier for older voters to obtain mail-in ballots—e.g., by
allowing them to permanently register for mail-in ballots,
rather than requiring periodic re-enrollment. 12 Indeed,
for thirty-five years, Congress has required States to assist older voters in obtaining mail-in ballots as part of a
national policy “to promote the fundamental right to vote
by improving access to handicapped and elderly individuals.” 52 U.S.C. §§ 20101, 20104. That these laws have existed since the Twenty-Sixth Amendment’s ratification is
strong evidence that they are consistent with that Amendment. E.g., Town of Greece v. Galloway, 572 U.S. 565, 576
(2014); Marsh v. Chambers, 463 U.S. 783, 788-90 (1983).
Petitioners suggest (at 18) that adopting this view
would allow a State to determine who might vote by mail
based on race, gender, or wealth in violation of the
10
Ind. Code § 3-11-10-24(a)(5); Ky. Rev. Stat. § 117.085(a)(8);
La. Stat. § 18.1303(J); Miss. Code § 23-15-715(b); S.C. Code § 7-15320(B)(8); Tenn. Code § 26-201(5)(A); Tex. Elec. Code § 82.003;
W. Va. Code § 3-3-1(b)(1)(B); cf. R.I. Gen. Laws § 17-20-2.
Ariz. Rev. Stat. § 16-541(B)(3) (1980); Colo Rev. Stat. § 1-8-102
(1980); Mich. Comp. Laws § 168.758(1)(d) (1996); N.M. Stat. § 1-63(5) (1989); Ohio Rev. Code § 3509.02(A) (1990); Wis. Stat. § 6.87(2)
(1986); cf. Haw. Rev. Stat. § 15-2 (1984); Me. Rev. Stat. tit. 21A,
§ 751(7) (1992); Wash. Rev. Code § 29.36.013 (1987).
11
E.g., Ga. Code § 21-2-381(a)(1); Jessica A. Fay, Note, Elderly
Electors Go Postal: Ensuring Absentee Ballot Integrity for Older
Voters, 13 ELDER L.J. 453, 471-76 (2005) (collecting laws facilitating
voting among the elderly).
12
24
Fifteenth, Nineteenth, and Twenty-Fourth Amendments. This argument fails to account for the Fourteenth
Amendment, which raises the level of scrutiny applied to
all regulations based on suspect classifications, regardless of whether they implicate the right to vote. E.g.,
Plyler v. Doe, 457 U.S. 202, 216 & n.14 (1982). Age, however, is not a suspect classification, meaning that any
regulation that does not implicate the right to vote is subject to rational-basis review. E.g., Kimel v. Fla. Bd. of
Regents, 528 U.S. 62, 83-84 (2000).
3. Petitioners and the Fifth Circuit dissent are also
incorrect that laws like section 82.003 abridge the right
to vote because they do not provide the same “options”
to all voters “to cast their vote” and make voting more
difficult than petitioners think it “ought to be.” BIO App.
56a, 58a. To “vote,” however, is the “expression of one’s
preference or opinion by ballot, show of hands, or other
type of communication.” BLACK’S LAW DICTIONARY 1807
(10th ed. 2014); accord BLACK’S LAW DICTIONARY 274,
1748 (4th ed. 1957). The right to vote does not guarantee
the right to vote “in any manner” the voter might prefer.
Burdick, 504 U.S. at 433.
Moreover, since before the Twenty-Sixth Amendment, the term “abridge” has meant “[t]o reduce or contract.” BLACK’S LAW DICTIONARY 2-3 (4th ed. 1957). The
concept of “abridgment” has not been understood to refer to “options” for voting—that is, the manner by which
people vote. Supra at 19-21. Instead, that term has most
often been understood to include practices like cracking
and packing of racial blocs, which do not eliminate the
right to vote but do dilute the value of certain votes.
Thornburg v. Gingles, 478 U.S. 30, 43 (1986); see also,
e.g., Luft v. Evers, 963 F.3d 665, 672-73 (7th Cir. 2020).
25
The Fifth Circuit correctly held that section 82.003
does not abridge the right to vote of the young because
it does not “place a barrier or prerequisite to voting” that
would not otherwise exist. BIO App. 38a. This Court has
squarely distinguished “a statute which ma[kes] casting
a ballot easier for some who were unable to come to the
polls” from a “statute absolutely prohibit[ing]” someone
else “from exercising the franchise.” Kramer v. Union
Free Sch. Dist. No. 15, 395 U.S. 621, 626 n.6 (1969). Ordinary procedural rules may make voting more or less
convenient to certain groups of voters depending on the
circumstances, 13 but minor inconvenience does not
“abridge” the right to vote. Crawford, 553 U.S. at 198.
And this Court has held that a procedural rule
“abridges” the right to vote only if it “erects a real obstacle” to the individual’s right to cast a ballot. Harman
v. Forssenius, 380 U.S. 528, 540-41 (1965) (applying Lane
v. Wilson, 307 U.S. 268, 275 (1939)). Even assuming section 82.003 implicates the right to vote, it does not
abridge that right because it does not erect an obstacle
to anyone trying to cast a ballot.
4. Though the Fifth Circuit majority declined to address the issue, section 82.003 is also “rationally related
to legitimate government” interests including preventing voter fraud and preserving an efficient election.
Washington v. Glucksberg, 521 U.S. 702, 728 (1997).
“[R]ational-basis review . . . is not a license for courts to
Due to petitioners’ litigation tactics, there is no evidence in
the record about the comparative burdens of in-person and mail-in
voting outside pandemic circumstances. Historically, mail-in voting
has been considered the more cumbersome option. Veasey I, 830
F.3d at 255; see also S. Rep. No. 92-26 at 14 (1971).
13
26
judge the wisdom, fairness, or logic of legislative
choices.” Heller v. Doe ex rel. Doe, 509 U.S. 312, 319
(1993) (quotation marks omitted). Moreover, the burden
is not on Texas to prove the law valid but “on the one
attacking the legislative arrangement to negative every
conceivable basis which might support it.” Armour v.
City of Indianapolis, 566 U.S. 673, 685 (2012) (quotation
marks omitted). Petitioners have not met that burden
and do not claim otherwise—for good reason.
Section 82.003’s distinction is rational. Even outside
the context of COVID-19, individuals 65 or older (as a
group) face greater challenges in attending the polls. For
example, many reside in nursing homes and have limited
mobility. 14 Though others may have difficulties in reaching the polls, the line section 82.003 draws need not be
“perfectly tailored to that end,” so long as the distinction
is not arbitrary. Box v. Planned Parenthood of Ind. &
Ky., Inc., 139 S. Ct. 1780, 1782 (2019) (per curiam) (citing
Armour, 566 U.S. at 685). Texas’s Legislature may “take
one step at a time, addressing itself to the phase of the
problem which seems most acute.” FCC v. Beach
Commc’ns, Inc., 508 U.S. 307, 316 (1993); see also, e.g.,
Fitzgerald v. Racing Ass’n of Cent. Iowa, 539 U.S. 103,
108 (2003).
It is also entirely rational not to extend that privilege
to the entire electorate. This Court has recognized that
the “risk of voter fraud is real,” and it “could affect the
outcome of a close election.” Crawford, 553 U.S. at 19596; accord Bush v. Gore, 531 U.S. 98 (2000) (per curiam)
Texas Health and Human Services, Long Term Care,
https://hhs.texas.gov/services/aging/long-term-care (last accessed
Nov. 22, 2020).
14
27
(addressing election contest over fewer than 500 votes).
Moreover, the “potential and reality of [voter] fraud is
much greater in the mail-in ballot context than with inperson voting.” Veasey I, 830 F.3d at 239; see also, e.g.,
Crawford, 553 U.S. at 225 (Souter, J., dissenting)
(“[A]bsentee-ballot fraud . . . is a documented problem);
Griffin v. Roupas, 385 F.3d 1128, 1130-31 (7th Cir. 2004)
(“Voting fraud is a serious problem in U.S. elections generally and one with a particularly gamey history in Illinois”); ROA.781-82 (describing absentee-ballot fraud as
a “serious problem,” because vote harvesting is “very
easy” without the safeguards that accompany in-person
voting). And petitioners’ own expert has previously testified that such fraud has existed and potentially impacted elections in Texas. See O’Caña v. Salinas, No. 1318-00563-CV, 2019 WL 1414021, at *1-2 (Tex. App.—
Corpus Christi–Edinburg Mar. 29, 2019) (mem. op.).
“While the most effective means of preventing [such]
fraud may well be debatable, the propriety of doing so is
perfectly clear.” Crawford, 553 U.S. at 196.
Moreover, apart from the risk of fraud, mail-in voting
is a “complex procedure” in Texas, with unique logistical
challenges that cannot be addressed “at the last minute.”
Veasey I, 830 F.3d at 255. These challenges take many
forms, but consider just one: printing ballots for the numerous elections that Texas has in any given year. Because Texas is a diverse State where many languages are
spoken, ROA.795, ballots either need to be printed in
multiple languages or assistance needs to be provided in
a way that the nominal helper does not impose his own
views on the voter, Tex. Elec. Code ch. 64, subch. B. As
some of Texas’s largest counties have learned this year,
failure to manage this process correctly can result in
28
voters who need to vote by mail being told at the last minute that they must vote in person, 15 that technical aspects of their ballots may cause them not to be scanned
properly, 16 or even that they must vote twice. 17
These logistical issues are pervasive. They include
not just printing, but also creating adequate safeguards
to ensure that ballots are sent to the correct address, 18
and that they are actually completed by the registered
voter, Tex. Elec. Code ch. 87. Failure to adequately address any of these issues could “drive[] honest citizens
out of the democratic process and breed[] distrust of our
government.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006)
(per curiam). Limiting mail-in ballots to those who likely
need—as opposed to want—them is entirely rational because it limits that possibility to where the risks and
costs associated with mail-in ballots are most justified.
5. For very similar reasons, section 82.003 would survive even the more stringent test established by Burdick
Katie Hall, Voters who received mail-in ballots without runoff
races now told to vote in person, AUSTIN AMERICAN-STATESMAN
(July 2, 2020), https://tinyurl.com/y5swuerw.
15
16
Ben Russell & Lili Zheng, Printing Issue Affects 1/3 of Mailin Ballots in Tarrant County, Administrator Says, NBCDFW
(Oct. 27, 2020), https://tinyurl.com/y2srpapj.
Brad Streicher, Travis County Admits 13,600 Mail-in Ballot
Errors, Asks Some to Vote Again, KVUE (Oct. 22, 2020), https://tinyurl.com/y4eccthg.
17
David Wildstein, Evidence of Massive Voter Fraud in Paterson Election, Court Records Show, N.J. GLOBE (June 14, 2020),
https://tinyurl.com/y95z3q92; cf. State v. Hollins, No. 20-0729, 2020
WL 5919729, at *5-6 (Tex. Oct. 7, 2020) (per curiam) (discussing requirement in Texas law to provide ballot applications only on request).
18
29
and Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). Under this standard, the Court must first identify the nature of the alleged infringement on the right to vote and
relevant state action, and then “weigh ‘the character and
magnitude of the asserted injury’” to petitioners’ constitutionally protected right “against ‘the precise interests
put forward by the State as justifications for the burden
imposed.’” Burdick, 504 U.S. at 434 (quoting Anderson,
460 U.S. at 780). As discussed above (at 19-21), section
82.003 does not implicate or abridge petitioners’ right to
vote at all. By contrast, the State has a “compelling interest in preserving the integrity of its election process.”
Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214,
231 (1989).
In sum, review is not needed because the panel majority, like the stay panel before it, correctly concluded
that Texas’s law allowing registered voters aged 65 or
over to vote by mail does not violate the constitutional
rights of registered voters under 65.
B. The only other appellate court to address the
question held that laws like section 82.003 do
not implicate the right to vote.
Denying review is also appropriate because the Fifth
Circuit’s conclusion is consistent with the only other appellate court to have considered the issue. When this petition was filed, no circuit had addressed the TwentySixth Amendment issue on the merits. Since then, the
Fifth Circuit merits panel and the Seventh Circuit have
considered the question; both have rejected petitioners’
theory. There is no division of authority meriting this
Court’s involvement.
30
1. Over the last few months, the Seventh Circuit has
also considered “whether Indiana’s age-based absenteevoting law abridges ‘the right . . . to vote’ protected by
the Twenty[-]Sixth Amendment or merely affects a privilege to vote by mail.” Tully, 977 F.3d at 613. And, like
the Fifth Circuit, the Seventh Circuit concluded that Indiana’s law does not violate the Twenty-Sixth Amendment. Id. at 614. It also rejected an argument that “hypothetical laws similarly restricting the ability of African
Americans or women or the poor to vote by mail would
violate the Fifteenth, Nineteenth, and Twenty-Fourth
Amendments.” Id. Pointing specifically to White, the
Seventh Circuit correctly concluded that such laws
would be subject to heightened scrutiny, but it “would
come from the Fourteenth Amendment’s Equal Protection Clause.” Id. (citing White, 415 U.S. at 795).
In arriving at the same conclusion, the Seventh Circuit focused on the content of the “right to vote” as determined by McDonald, id. at 611, whereas the Fifth
Circuit focused on the meaning of the word “abridge,”
BIO App. 41a-42a. These minor differences in reasoning
and focus do not justify this Court’s review. Sup. Ct. R.
10(a) (requiring a conflict of decisions on “the same important matter”).
2. The decisions petitioners cite similarly do not present a conflict of authority justifying this Court’s intervention. Instead, like Goosby and White, those cases involved state actions that entirely prevented voters from
voting in local elections based on their age or a close
proxy to it. For example, in Jolicoeur v. Mihaly, 488 P.2d
1 (Cal. 1971), California’s requirement that college students register at their parents’ homes prevented college
students from voting in local elections at their places of
31
residence. Recognizing that all politics is local, the California Supreme Court held that a State may not deny
“voters the right to help determine the resolution of issues which vitally affect them.” Id. at 7. And Colorado
Project-Common Cause v. Anderson, 495 P.2d 220, 221
(Colo. 1972), invalidated a rule limiting the initiative process to those 21 or older on similar grounds. Walgren v.
Board of Selectmen of Town of Amherst, 519 F.2d 1364,
1365 (1st Cir. 1975), did not address a broadly applicable
rule, but it applied the same principle to invalidate a deliberate effort by election officials to schedule a local
election in such a way as to prevent college students from
voting.
None of these cases holds, as petitioners suggest (at
17), that all election rules that differentiate based on age
are subject to strict scrutiny. Indeed, the First Circuit
expressly rejected that the scheduling decision at issue
in Walgren was per-se subject to strict scrutiny in an
earlier iteration of the same lawsuit precisely because
the scheduling decision may have impeded one option to
vote (in-person voting), but students retained another
(absentee voting). Walgren v. Howes, 482 F.2d 95, 99 (1st
Cir. 1973). The Second Circuit has similarly rejected a
facial challenge to a law that creates a “presumption that
students are not residents of their college communities,”
even though such a rule makes it “somewhat more difficult” for those aged 18 to 20 to vote, so long as that presumption is rebuttable. Auerbach v. Rettaliata, 765 F.2d
350, 352, 354 (2d Cir. 1985); see also Williams v. Salerno,
792 F.2d 323, 328 (2d Cir. 1986) (applying Auerbach).
Those cases, like McDonald, turned on some state action
or statute that “impact[ed] Plaintiffs’ ability to exercise
the fundamental right to vote or absolutely prohibit[ed]
32
Plaintiffs from voting.” Tully, 977 F.3d at 614 (cleaned
up) (quoting McDonald). Here, “only the pandemic is potentially guilty of those charges,” id., and petitioners
have waived any claim based specifically on the impact of
the pandemic, see BIO App. 8a.
Moreover, none of these courts addressed the questions at the heart of this case: whether the “right to vote”
protected by the Twenty-Sixth Amendment necessarily
includes a right to vote by mail, or whether extending
that privilege to older voters abridges the right to vote
of younger voters. Both appellate courts to address those
questions have correctly answered in the negative. There
is no need for this Court’s intervention.
III. Petitioners’ Claims Are Barred by Sovereign
Immunity, and in Any Event, Their Claims Are
Not Redressable by Respondents.
Even if petitioners’ theory of the Twenty-Sixth
Amendment were correct, they cannot win relief because
their claims are barred by sovereign immunity. Ex parte
Young, 209 U.S. 123 (1908), permits declaratory and injunctive relief against state officials 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); see also, e.g., Morales v.
Trans World Airlines, Inc., 504 U.S. 374, 381, (1992)
(permitting Ex parte Young action “[w]hen enforcement
actions are imminent”). Relying on that principle, the
Fifth Circuit correctly concluded that the Governor and
Attorney General cannot be sued because they lack a sufficient connection to the enforcement of section 82.003.
Compare BIO App. 16a-17a, with Va. Office for Prot. &
Advocacy v. Stewart, 563 U.S. 247, 253 (2011); Will v.
33
Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Edelman v. Jordan, 415 U.S. 651, 663-69 (1974).
The same is true of the Texas Secretary of State. Section 82.003 is enforced by local election officials, not the
Secretary. Tex. Elec. Code § 86.001; see also Texas, 602
S.W.3d at 560-61 (discussing role of early-voting clerks).
Sovereign immunity thus forecloses this action.
For similar reasons, any judgment against respondents will not redress petitioners’ injuries. Neither the
Governor, nor the Attorney General, nor the Secretary
does anything to enforce section 82.003. It follows that
the judgment petitioners seek will not alleviate their alleged injury. Article III thus forecloses federal jurisdiction. See Lujan v. Defenders of Wildlife, 504 U.S. 555,
562, 567-69 (1992).
C O NC LU SIO N
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney
General
NOVEMBER 2020
KYLE D. HAWKINS
Solicitor General
Counsel of Record
LANORA C. PETTIT
Assistant Solicitor General
OFFICE OF THE TEXAS
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Kyle.Hawkins@oag.texas.gov
(512) 936-1700
AP PE ND IX
United States Court of Appeals
Fifth Circuit
FILED
October 14, 2020
Lyle W. Cayce
Clerk
United States Court of Appeals
for the Fifth Circuit
___________
No. 20-50407
___________
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
__________________________
(1a)
2a
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 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
3a
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 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).
4a
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 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.
5a
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 law. Voters under 65,
according to the district court, bear a disproportionate
burden because of the age restrictions set out in Section
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.”
1
6a
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 agebased 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
7a
voters’ rights. Id. at 409. That meant that the plaintiffs
were unlikely to succeed on the merits of their TwentySixth Amendment claim, 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-forvagueness 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 TwentySixth 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
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.
2
8a
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 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
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.
3
9a
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.
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
10a
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 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
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.
4
11a
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-orcontroversy 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.
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
12a
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 votereligibility 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).
13a
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
14a
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).
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 absenteeballot 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
15a
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 agebased 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 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
16a
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 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
17a
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 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.
18a
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.
19a
The motions panel on this case rejected the political
question doctrine as an impediment, concluding that it
“need not — and will not — consider 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’
20a
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. 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
21a
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 votingrights 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 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 twentyone, not to eliminate all age-based distinctions in electionrelated laws. They further contend that Texas’s mail-in
ballot rules do not affect the right to vote under the
22a
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. 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
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
5
23a
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 Fifteenth, Nineteenth, and TwentyFourth 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
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.”).
24a
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-EighteenthCentury meaning. Id. at 581–92. A focus as well was how
25a
the same or at least similar terms that also appeared
elsewhere in the Constitution had been interpreted.
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
26a
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.
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.
27a
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 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
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).
6
28a
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 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,
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).
8
29a
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 to cast an absentee ballot must
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 absenteevoting 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).
9
30a
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
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.
11
31a
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 TwentySixth 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 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-
13
Submerged Constitutional Right, supra note 9, at 160.
32a
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 inperson 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
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
33a
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. 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
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.
14
34a
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 necessary, the Court continued by distinguishing two
parts of the Voting Rights Act. Section 5 proceedings, the
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).
15
35a
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
36a
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 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 12day 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
37a
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 (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
38a
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.
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.
39a
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
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–
40a
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.
41a
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 TwentySixth 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
42a
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 apply to vote by
mail under that section. This undermines the plaintiffs’ asapplied 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
43a
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 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
44a
age-based denials but also abridgments of the right to
vote. In addition, the Supreme Court interpreted a postMcDonald 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 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.
45a
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.
CARL E. STEWART, Circuit Judge, concurring in part and
dissenting in part:
46a
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
47a
age of 65 based on age, and that [§ 82.003] violates
the [Twenty-Sixth] Amendment, as applied, during
the COVID-19 pandemic.
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.
48a
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).
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
49a
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. 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
50a
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
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