//  9/15/20  //  In-Depth Analysis

A divided panel of the Fifth Circuit recently held that Texas’s provision of no-excuse absentee ballots to senior citizens does not violate the Twenty-Sixth Amendment. Ratified in 1971, the Twenty-Sixth Amendment provides that the “right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” This litigation was initiated in response to the COVID-19 pandemic, but the flaws in Texas’s absentee ballot law are facial and long-standing. Most disturbingly, the Fifth Circuit’s narrow interpretation of what it means to abridge the right to vote applies to the functionally equivalent Fifteenth, Nineteenth, and Twenty-Fourth Amendments, creating new avenues for discriminating based on race, sex, and wealth.

The Fifth Circuit’s decision in Texas Democratic Party v. Abbott makes several missteps. In this post, I’ll flag three of them.

First, the Fifth Circuit calcified the “right to vote” as it existed in 1971, when the Twenty-Sixth Amendment was ratified. After canvassing evidence from congressional hearings and a 1969 Supreme Court decision holding that prisoners have no right to vote absentee under the Equal Protection Clause, the Fifth Circuit concluded that “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.”

That logic, however, conflicts with how the Supreme Court and circuit courts have construed the “right to vote” in the other voting rights amendments. Given our country’s sordid history of racial discrimination in voting, it is unsurprising that the textually protected “right to vote” has been interpreted most often under the Fifteenth Amendment.

The Supreme Court has repeatedly construed the Fifteenth Amendment to protect against racial discrimination in political party primaries. The Ninth Circuit recently held that the Fifteenth Amendment applies to a non-binding plebiscite. Those decisions did not suspend the “right to vote” in amber in 1870, when the Fifteenth Amendment was ratified. Indeed, if they had, the cases would have come out the other way, since primaries and referenda are modern forms of democracy.

Second, the Fifth Circuit held that abridging the right to vote presumes a baseline. According to the Fifth Circuit, abridgment of the right vote occurs when an election law “makes voting more difficult for that person than it was before the law was enacted or enforced.” If this standard sounds familiar, that’s because it is. It mirrors Section 5 of the Voting Rights Act’s retrogression principle, and the Fifth Circuit relied on a seminal Section 5 case,Bossier Parish II, in fashioning that standard. But as Judge Carl Stewart pointed out in dissent, both the Fifteenth Amendment and Section 2 of the VRA also employ the “deny or abridge” phrase and have been interpreted more broadly than Section 5’s retrogression principle, something the Supreme Court itself noted in Bossier Parish II. Despite nearly identical language to Section 5, neither Section 2 nor the Fifteenth Amendment require a showing of retrogression.

To be sure, the Fifth Circuit left some wiggle room to its definition of abridgment, carving out situations where “the status quo itself is unconstitutional.” The Fifth Circuit, however, did not elaborate on what situations would be unconstitutional regardless of any baseline. As Josh Douglas has noted, the Fifth Circuit grandfathered in Texas’s status quo in “a conclusory statement without any reasoning whatsoever.” One would presume that a facially discriminatory election law would satisfy that standard, but the Fifth Circuit failed to adopt that easily administrable bright-line rule.

Rather, in justifying its definition of abridgment, the Fifth Circuit complained that the plaintiffs sought to “convert[] 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.” Put simply, the Fifth Circuit read an anti-discrimination principle out of the Constitution’s voting rights amendments, notwithstanding those amendments’ plain language.

To see how the Fifth Circuit’s standard is self-refuting, let’s apply its logic to various voting situations:

  •       Texas could allow all voters to participate in a caucus but only voters under 40 years old could cast a secret ballot.
  •       Texas could provide old-fashioned paper ballots to all voters but provide touch-screen machines to only white voters.
  •       Texas could permit voters to appear at any polling place in their county but could limit certain voting booths to those willing to pay $85 for an expedited experience.
  •       Texas could have in-person voting but send absentee ballots only to white voters or to male voters without violating the Fifteenth or Nineteenth Amendments, respectively.

Perhaps most galling, Texas Solicitor General Kyle Hawkins actually made this last point affirmatively in his oral argument rebuttal—you can listen here starting around 41:20. To his credit, Hawkins acknowledged that sending absentee ballots to only white voters would violate the Equal Protection Clause, on the grounds that such a policy would be an express racial classification. That concession may provide cold comfort, however, given the growing influence of originalism on the Court and the fact that the Fourteenth Amendment was originally understood to exclude protections for voting rights.

Third, the parties and judges in this litigation have confused the role that the Fourteenth Amendment’s tiers of scrutiny play under the Twenty-Sixth Amendment. Because it concluded that Texas’s absentee ballot law neither denied nor abridged the right to vote on account of age, the Fifth Circuit rightly declined to decide the proper tier of scrutiny under the Twenty-Sixth Amendment. Judge Stewart’s dissenting opinion argued that Texas’s law failed “any level of judicial review” given the ongoing pandemic. The district court, by contrast, concluded that strict scrutiny was appropriate. Predictably, Texas contended that rational basis is the governing standard. For their part, the plaintiffs hedged, claiming that some form of heightened scrutiny is appropriate.

It is understandable why this debate over the Fourteenth Amendment’s tiers of scrutiny might arise in this litigation. Shaw’s racial gerrymandering cause of action triggers strict scrutiny if race predominates during the redistricting process. And the Anderson-Burdick framework determines the level of scrutiny in cases involving the fundamental right to vote—an issue that may arise on remand once the plaintiffs’ Fourteenth Amendment claims are presented more fully. After all, both doctrines are derived from the Fourteenth Amendment.

But this debate ignores that precedent clearly establishes that the tiers of scrutiny have no place under the Fifteenth Amendment—and therefore the same should be true under the Twenty-Sixth. Consider the Supreme Court’s most recent discussion of the Fifteenth Amendment’s substantive scope. In Rice v. Cayetano, the Court simply invalidated Hawaii’s exclusion of non-Hawaiians from voting for trustees of the Office of Hawaiian Affairs on the grounds that it was an express racial classification. The Court never asked whether such a policy was narrowly tailored to achieve a compelling governmental interest; it did not apply strict scrutiny to an express racial classification in stark contrast to Fourteenth Amendment cases involving affirmative action. The Ninth Circuit followed a similar approach in striking down a law that permitted only “native inhabitants of Guam” to vote in a non-binding plebiscite. Given Texas’s explicit discrimination on the basis of age, it’s no-excuse absentee ballot law must fail.

Texas’s law granting no-excuse absentee ballots for voters who are at least 65 years old was unconstitutional the day it was enacted because it facially discriminates on the basis of age. Unfortunately, that law stood unchallenged until the COVID-19 pandemic raised the public health stakes of in-person voting. And now, in the rush of election-year litigation, the Fifth Circuit has adopted an ill-conceived definition of abridgment that will have disastrous consequences in this and future elections.

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