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.