In May 2019, the Texas Democratic Party filed suit against Texas Governor Greg Abbott, alleging that Tex. Elec. Code § 82.003, which provides for the right to vote by mail without any additional excuse only for voters 65 years of age or older on election day, violates the Twenty-Sixth Amendment.  Plaintiffs argued that forcing those under the age of 65 to risk their health and potentially their lives in order to vote during the ongoing COVID-19 pandemic violates the Twenty-Sixth Amendment’s guarantee that “[t]he 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 District Court for the Western District of Texas concluded that plaintiffs were likely to succeed in their case and entered a preliminary injunction that allowed “[a]ny eligible Texas voter” seeking to avoid COVID-19 transmission to cast an absentee ballot in the upcoming 2020 elections.  On appeal, the Fifth Circuit issued a stay of the district court’s preliminary injunction, determining that Texas could “rationally restrict absentee voting to citizens over the age of 65.”  The Supreme Court subsequently refused to vacate the Fifth Circuit’s stay, and on August 31, 2020 the Fifth Circuit heard oral argument.

CAC filed an amicus curiae brief in the Fifth Circuit in support of the Texas Democratic Party.  Our brief made two key points.  First, we explained that the text and history of the Twenty-Sixth Amendment prohibit laws that deny equal voting opportunities to voters on account of age.  The broad language of the Twenty-Sixth amendment was modeled on the Fifteenth and Nineteenth Amendments, which were specifically designed to outlaw all discrimination in voting on the basis of race and sex. As a result, the Twenty-Sixth Amendment forbids the government from curtailing or diminishing the rights of any adult voter on account of age.  Second, we argued that § 82.003 of Texas’s election code violates the Twenty-Sixth Amendment’s promise of equal voting opportunities.  While the Constitution does not require states to create absentee voting programs, once such a program is created, it cannot discriminate based on age.

The Fifth Circuit, by a 2-1 vote, vacated the district court’s preliminary injunction, holding that Texas’s election code does not violate the Twenty-Sixth Amendment. The majority opinion, written by Judge Leslie Southwick, agreed with our argument that the language and structure of the Twenty-Sixth Amendment “mirror the Fifteenth [and] Nineteenth . . . Amendments” and 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.”  However, the court ruled that under § 82.003 of Texas’s election code, “no abridgment has occurred” because the provision does not make voting “more difficult” for an individual “than it was before the law was enacted or enforced.”

A dissenting opinion, written by Judge Carl Stewart, argued that majority had adopted a crabbed interpretation of unconstitutional abridgments of the right to vote.  As Judge Stewart argued, the Texas law “fails to treat members of the electorate equally with regard to mail-in voting” and “leads to dramatically different outcomes for different age groups.”  Echoing our brief, he would have struck down the Texas law as a violation of the Twenty-Sixth Amendment.