//  10/12/20  //  Commentary

The Golden Raspberry Awards, or Razzies, “celebrate” the worst movies each year. Perhaps we should have a “razzie” for the worst election law decision of 2020. There would be a lot of nominees. But the winner might be ruling from the U.S. Court of Appeals for the Seventh Circuit involving a case about absentee voting during the pandemic.

The case challenged Indiana’s law that does not allow a voter to request an absentee ballot without an excuse. While many states have determined that concerns about COVID-19 are a valid reason to vote absentee this year, Indiana remains one of only five states that has not expanded its absentee balloting rules.

However, voters over 65 years old may vote absentee in Indiana without an additional reason. Plaintiffs challenged this provision under the Twenty-Sixth Amendment to the U.S. Constitution, which lowered the voting age to 18 and says the right to vote “shall not be denied or abridged” on account of age. The plaintiffs argued that allowing older voters, but not younger voters, to cast an absentee ballot without another excuse violates this command.

The court rejected that argument by suggesting that what was at stake was not the right to vote but instead the “privilege” to vote by mail. That’s a meaningless distinction. The fundamental right to vote is the same regardless of how someone chooses to exercise that right. And the Indiana law plainly discriminates on the basis of age: voters over age 65 have an easier path to the ballot box than younger voters because they do not need an additional excuse to vote using an absentee ballot. The effect of that discrimination is heightened during a pandemic when many people, young or old, will not want to show up in person.

The ruling follows a similar decision from the Fifth Circuit Court of Appeals on Texas’s comparable law, where the court also rejected a Twenty-Sixth Amendment challenge to Texas’s law by too narrowly construing the protection afforded under the Constitution. That court also created a false dichotomy by suggesting that it was the pandemic, not the state’s law, that made it harder for some people to vote and failed to note that the amendment prohibits not just a “denial” of the right to vote but also laws that “abridge” it.

But perhaps more galling in the Indiana case is the court’s rejection of constitutional protection for the right to vote for historically marginalized groups. In suggesting that the Twenty-Sixth Amendment does not forbid this discrimination on the basis of age, the court stated that other constitutional amendments—those that protect against discrimination on the basis of race, sex, and inability to pay a poll tax—also do not by themselves protect voters.

The court responded to a hypothetical: what if a state law restricted the ability of only African American voters, women, or poor people to vote by mail? Wouldn’t those laws violate the Fifteenth Amendment (which forbids discrimination in voting on the basis of race), Nineteenth Amendment (sex), or Twenty-Fourth Amendment (inability to pay a poll tax)? The court said that those potential laws might violate the Constitution, but only under the Equal Protection Clause, not under those voting-specific amendments. The judges said that any relief “would not come from the Fifteenth, Nineteenth, or Twenty-Fourth Amendments because Plaintiffs’ hypothetical laws do not implicate the right to vote.”

This statement is shocking—and dangerous. It is shocking because it completely ignores the history of discrimination in voting and the goal of those amendments to eradicate that discrimination. Requiring people to vote in one way but offering an easier method for other people based on their immutable characteristics surely implicates the right to vote and introduces discriminatory rules. In many situations it means the difference between voting or not.

It’s dangerous because the Supreme Court has narrowed the protection for the right to vote under the Equal Protection Clause with restrictive rulings that have upheld numerous state practices that harm voters. If the only relief to a discriminatory law is under the Equal Protection Clause, then that relief could be quite shallow given recent Supreme Court case law.

The statement is also wrong as a matter of precedent. As the Supreme Court explained in a case in 2000 involving voting rights for native Hawaiians, “Fundamental in purpose and effect and self-executing in operation, the [Fifteenth] Amendment prohibits all provisions denying or abridging the voting franchise of any citizen or class of citizens on the basis of race.”

Although the Seventh Circuit’s statement on these amendments, buried in the decision, was not necessarily central to its ruling to uphold Indiana’s law, the implications are severe. Perhaps that’s why a third judge on the panel wrote separately to say that the judges should “keep our powder dry” on the issue.

Other courts should avoid this analysis, which was unnecessary dicta. Allowing this statement to stand could further erode the fundamental right to vote. 

Joshua A. Douglas is the Ashland, Inc.-Spears Distinguished Research Professor of Law at the University of Kentucky J. David Rosenberg College of Law. He is the author of Vote for US: How to Take Back Our Elections and Change the Future of Voting.  Find him at www.joshuaadouglas.com and follow him on Twitter @JoshuaADouglas.         


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