Breaking: 5th Circuit Panel, on 2-1 Vote, Rejects 26th Amendment Age Discrimination Claim Against Texas Law That Allows Only Those Over 65 to Vote by Mail Without Excuse (During the Pandemic and Otherwise)

You can find the opinion here. The case is up on a preliminary injunction, and the case now goes back to the trial court, which is likely to again find for the plaintiffs (given the trial court’s earlier opinion) triggering another appeal. It is also possible that plaintiffs will try en banc or Supreme Court review of this decision. Although I agree with Judge Stewart’s dissent that the failure to extend the right to vote absentee to those below age 65 likely violates the 26th Amendment (and I’d also say the equal protection clause, though that was not at issue at this stage of the case), I think getting a reversal of this panel ruling from either the full 5th Circuit or the Supreme Court is unlikely.

The discussion of the scope of the 26th amendment and the meaning of abridgment is fascinating, and it will spawn a fair number of law review notes and further thinking about this question no doubt.

(Leah Litman and I pursued similar broad thinking about the scope of the 19th Amendment in Thin and Thick Conceptions of the Nineteenth Amendment and Congress’s Power to Enforce It, 108 Georgetown Law Journal 27 (19th Amendment edition 2020).)

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