In a sweeping opinion complete with lofty language and an odd choice of using Appendices, a federal district court has held that it would be unconstitutional to bar Texas voters who lack immunity from COVID-19 and wish to vote by mail to be able to do so. Texas has taken the position that the statute does not allow voters under 65 to vote by mail without an excuse, and that the potential to contract the virus does not count as a disability under the statute. Among other things, the court found the law violates the 26th amendment (barring discrimination on the basis of age), the Equal Protection Clause, and the First Amendment.

Although I am very sympathetic with the aims of this litigation, there are good reasons to believe it will soon be reversed by the 5th Circuit.

To begin with, there is pending litigation in the Texas courts (including a case before the state supreme court), over whether the Texas statute in fact precludes someone from voting using the “disability” excuse if one lacks immunity to the virus and fears contracting it. Ordinarily a federal court should abstain from deciding a constitutional issue if the issue might be resolved by statutory interpretation, and there is good reason to defer to the state supreme court’s own interpretation of the statute. This looks like the federal court jumping the gun.

Second, although there are strong factual findings about the nature of the virus and the dangers of voting in person during the pandemic, the legal analysis is shakier. Early in the opinion the court writes that the Anderson-Burdick balancing test requires rational basis, and later on the court seems to apply strict (or stricter scrutiny). It is quite novel to apply the 26th amendment in this context, and although I’m quite sympathetic to the argument, it requires much more development and recognition of its novelty. I suspect the much more conservative 5th Circuit is going to be much more skeptical of these arguments than this district court is.

Indeed, when one reads from the opening of the opinion, it is clear where the judge’s sympathy lies. My sympathy lies there too, and I think there’s a VERY STRONG case to be made under both statutory interpretation and constitutional law principles to get there, but this is not the kind of careful, cautious opinion that could potentially survive 5th Circuit review.

Stay tuned.

[This post has been updated.]