TEXAS DEMOCRATIC PARTY; GILBERTO HINOJOSA; JOSEPH DANIEL CASCINO; SHANDA MARIE SANSING; BRENDA LI GARCIA, Plaintiffs—Appellees, versus GREG ABBOTT, GOVERNOR OF THE STATE OF TEXAS; RUTH HUGHS, TEXAS SECRETARY OF STATE; KEN PAXTON, TEXAS ATTORNEY GENERAL, Defendants—Appellants.
No. 20-50407
United States Court of Appeals for the Fifth Circuit
October 14, 2020
Appeal from the United States District Court for the Western District of Texas USDC No. 5:20-CV-438
Before KING, STEWART, and SOUTHWICK, Circuit Judges.
The opinion entered on September 10, 2020 is withdrawn.
A Texas statute allows mail-in voting for any voter at least 65 years old but requires younger voters to satisfy conditions, such as being absent from the county on election day or having a qualifying disability. Amid an election-year pandemic, the district court entered a preliminary injunction requiring Texas officials to allow any Texan eligible to vote to do so by absentee ballot. This court stayed the injunction pending appeal. The plaintiffs defend the injunction at this stage of the proceedings only on the basis that the vote-by-mail privilege for older voters is unconstitutional under the Twenty-Sixth Amendment’s prohibition against denying or abridging the right to vote on account of age. The statutory provision withstands that challenge. We VACATE and REMAND.
FACTUAL AND PROCEDURAL BACKGROUND
In Texas, in-person voting is the rule.
The 2020 COVID-19 pandemic prompted Texas state officials to adopt various emergency measures. In March, Governor Greg Abbott declared a state of disaster for all of Texas. He also postponed the May primary runoff election until July. In May, he extended the period for early voting for the July primary to help the election proceed efficiently and safely. Texas Secretary of State Ruth Hughs issued a proclamation in May concerning early voting hours and federal funding to combat the pandemic. Secretary Hughs also issued guidance concerning health and safety measures for in-person voting. The guidance encouraged voters to wear masks, disinfect their hands, and
State-court litigation preceded the current suit. In March, the Texas Democratic Party, its Chairman, and two voters sued a county clerk in Texas state court, and the State intervened. The plaintiffs sought a declaration that under the disability provision, Section 82.002 of the Texas Election Code, “any eligible voter, regardless of age and physical condition” may vote by mail “if they believe they should practice social distancing in order to hinder the known or unknown spread of a virus or disease.” Under their interpretation, lack of immunity as well as concern about transmission qualified as a disability for the purpose of eligibility for mail-in voting. After the State intervened, the state court entered an injunction barring Texas officials from “prohibit[ing] individuals from submitting mail ballots based on the disability category” during the pandemic. The State immediately filed a notice of interlocutory appeal, which superseded and
Texas Attorney General Ken Paxton sought to reduce confusion surrounding the state-court action by sending a letter to Texas judges and election officials in early May. It explained: “Based on the plain language of the relevant statutory text, fear of contracting COVID-19 unaccompanied by a qualifying sickness or physical condition does not constitute a disability under the Texas Election Code for purposes of receiving a ballot by mail.” The letter ordered public officials to refrain from advising voters who lacked a qualifying condition but nonetheless feared COVID-19 to vote by mail. The letter warned third parties that if they advised voters to vote by mail without a qualifying disability, then the party could be subject to criminal liability under the Texas Election Code. The plaintiffs characterize this guidance as a threat underlying some of the claims not before the court today and rely on it for part of their argument opposing sovereign immunity.
After a Texas Court of Appeals reinstated the initial injunction, the State sought an emergency mandamus from the Supreme Court of Texas. On May 27, the Supreme Court of Texas held “that a lack of immunity to COVID-19 is not itself a ‘physical condition’ for being eligible to vote by mail within the meaning of [Section] 82.002(a).” In re Texas, 602 S.W.3d at 560. A voter may “take into consideration aspects of his health and his health history” in deciding whether to apply to vote by mail, but COVID-19 is not itself a ground for voting by mail. Id. The In re Texas court found it unnecessary to issue a writ of mandamus, id. at 561, and the plaintiffs dismissed that suit with prejudice on June 9.
While the state-court litigation was pending, the plaintiffs filed this lawsuit in early April in the United States District Court for the Western District of Texas and added a third voter as a plaintiff. The plaintiffs’ operative complaint requested relief on seven grounds. The plaintiffs’ motion for a preliminary injunction slimmed down the claims and argued that Texas’s statute allowing voting by mail for any persons aged at least 65 violated the First, Fourteenth, and Twenty-Sixth Amendments,1 and that it was void for vagueness. They also asserted that the Attorney General’s May letter constituted voter intimidation and suppression of political speech.
On May 19, the district court issued an order requiring no-excuse mail-in balloting in Texas, meaning that “[a]ny eligible Texas voter who seeks to vote by mail in order to avoid transmission of COVID-19” could do so. The court’s preliminary injunction prohibited the defendants from issuing any guidance, threats, or pronouncements, or otherwise taking any action inconsistent with the order. The district court concluded that the plaintiffs were likely to succeed on the merits of each of their claims. On the only claim that remains for us on this appeal, namely, a violation of the Twenty-Sixth Amendment, the district court applied strict scrutiny to the law. Voters under 65, according to the district court, bear a disproportionate burden because of the age restrictions set out in Section 82.003 of the Texas Election Code, which the court concluded “violates the [Twenty-Sixth] Amendment, as applied, during the COVID-19 pandemic.” Going one step further, the district court added that neither
Just eight days after entering this injunction, the Supreme Court of Texas issued its decision in In re Texas. Meanwhile, the defendants appealed the federal injunction. The defendants also filed an emergency motion for a stay pending appeal and a temporary administrative stay.
In June 2020, a panel of this court that had the responsibility to resolve motions filed in the appeal prior to completion of briefing granted the defendants’ motion to stay the district court’s preliminary injunction pending the decision on the merits — which we now are entering. See Tex. Democratic Party v. Abbott, 961 F.3d 389, 397 (5th Cir. 2020). That panel concluded that the defendants were likely to succeed on the merits of each claim. See id. at 402–11. As to the Twenty-Sixth Amendment claim, it found “plenty of evidence that the Amendment’s most immediate purpose was to lower the voting age from twenty-one to eighteen.” Id. at 408. Relying on a Supreme Court opinion slightly predating the Amendment, the motions panel concluded that rational-basis review applied to the Texas age-based absentee-voting law. Id. at 408–09 (citing McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 802, 807–08 (1969)). The court reasoned that giving a benefit of voting by mail to one class does not affect plaintiffs’ right to vote because the Twenty-Sixth Amendment concerns only the denial or abridgement of voters’ rights. Id. at 409. That meant that the plaintiffs were unlikely to succeed on the merits of their Twenty-Sixth Amendment claim, just as they were similarly unlikely to succeed on their other claims. Consequently, the district court’s injunction was stayed.
We remark here that though we are greatly benefitted by the earlier panel’s analysis of the issues before us, under our circuit’s procedures, opinions and orders of a panel with initial responsibility for resolving motions filed in an appeal are not binding on the later panel that is assigned the appeal for resolution. Northshore Dev., Inc. v. Lee, 835 F.2d 580, 583 (5th Cir. 1988). We agree with much but not quite all of the earlier opinion.
DISCUSSION
The district court granted a preliminary injunction based on four claims for relief — the First, Fourteenth, and Twenty-Sixth Amendments as well as the void-for-vagueness doctrine. The defendants’ appeal suggests three jurisdictional bars and challenges all of the bases on which the injunction was granted. The plaintiffs defend the injunction only on their Twenty-Sixth Amendment claim.2 Unclear, though, is the breadth of the Twenty-Sixth Amendment claim now being made by the plaintiffs. The point of uncertainty is whether the effect of the COVID-19 pandemic, even though it was central to arguments at the district court level, has been withdrawn from our review. We explain the competing indications.
Following this court’s decision in June to enter a stay of the preliminary injunction, briefs were filed that guide the decision we are issuing today. As we just said, the plaintiffs’ brief stated that it would defend the preliminary injunction only on Twenty-Sixth Amendment grounds. The plaintiffs
If in fact the plaintiffs withdrew their reliance on the pandemic and are instead making a facial challenge, that could transform the appeal into a constitutional argument that has little relevance to the district court’s reasons for granting a preliminary injunction. For example, that court’s analysis of harm to the plaintiffs and their likelihood of success on the merits — two criteria for the preliminary injunction — relied exclusively on the pandemic. Yes, a facial challenge would be a legal issue subject to our de novo review had the district court decided it, but that court did not do so. We need not resolve whether the plaintiffs indeed are now trying to have us consider the facial challenge even though that was not considered by the district court. Appellate rules regarding how we treat absent issues differ depending on whether it is the appellant or the appellee who has neglected them. An appellant can intentionally waive or inadvertently forfeit the right to present an argument by failure to press it on appeal, a higher threshold than simply mentioning the issue. Nichols v. Enterasys Networks, Inc., 495 F.3d 185, 190 (5th Cir. 2007). On the other hand, even an appellee’s failure to file a brief does not cause an automatic reversal of the judgment being appealed. By appellate rule, so extreme a lapse does cause the appellee to lose the right to appear at oral argument.
There are a few cases that consider waiver rules for appellees.4 For example,
We consider the ambiguity in the plaintiffs’ briefing to present another variant of these principles. Regardless of whether the plaintiffs were abandoning the defense of the injunction on the grounds on which it was issued, and we cannot discern if they were, we will review the validity of the actual judgment, not some alternative.
We begin with the defendants’ arguments about standing, sovereign immunity, and the political question doctrine.
I. Plaintiffs’ standing
The first jurisdictional question is whether the plaintiffs have standing to challenge Texas’s election law. A plaintiff must show: (1) an injury in fact to the plaintiff that is concrete, particularized, and actual or imminent; (2) the injury was caused by the defendant; and (3) the injury would likely be redressed by the requested judicial relief. Thole v. U. S. Bank N.A., 140 S. Ct. 1615, 1618 (2020). In the preliminary-injunction context, plaintiffs must make a “clear showing” of standing to maintain the injunction. Barber v. Bryant, 860 F.3d 345, 352 (5th Cir. 2017). Standing is a question we review de novo. Pederson v. La. State Univ., 213 F.3d 858, 869 (5th Cir. 2000).
This case involves two groups of plaintiffs: (1) three registered Texas voters under 65 years old who desired to vote in the July 14 Texas Democratic Primary and the November election; and (2) the Texas Democratic Party and its Chairman. We have held that, in the context of injunctive relief, one plaintiff’s successful demonstration of standing “is sufficient to satisfy Article III’s case-or-controversy requirement.” Texas v. United States, 945 F.3d 355, 377–78 (5th Cir. 2019). The voter plaintiffs contend that they suffer a sufficient injury in fact because they are, unlike older voters, forced to vote in person and risk contracting or spreading COVID-19. They assert that the injury is fairly traceable to the defendants’ enforcement of Section 82.003, and that their injury would be redressed by an injunction requiring what they consider to be non-discriminatory access to mail-in voting. The defendants challenge only the causation prong, arguing that the voter plaintiffs lack standing because their injury is caused by COVID-19, not the defendants. The injury alleged in the brief actually is the result of the combination of COVID-19 and Texas officials’ continuing enforcement of Section 82.003 as written. The defendants argue that the officials have no authority to relent in enforcement of the statute.
We conclude that a voter under the age of 65 has clear standing to challenge Section 82.003. In the next section, we will discuss the Secretary’s duty to design the required application form for absentee ballots that identifies voter-eligibility categories.
II. Defendants’ sovereign immunity
The defendants assert that they are entitled to sovereign immunity.
The plaintiffs contend that sovereign immunity does not bar their Twenty-Sixth Amendment claim under the exception carved out in Ex parte Young, 209 U.S. 123 (1908). Suits for injunctive or declaratory relief are allowed against a state official acting in violation of federal law if there is a “sufficient ‘connection’ to enforcing an allegedly unconstitutional law.” In re Abbott, 956 F.3d 696, 708 (5th Cir. 2020). This circuit has not spoken with conviction about all relevant details of the “connection” requirement. Tex. Democratic Party, 961 F.3d at 400. An en banc plurality of this court explained that “the officers [must] have ‘some connection with the enforcement of the act’ in question or be ‘specially charged with the duty to enforce the statute’ and be threatening to exercise that duty.” Okpalobi v. Foster, 244 F.3d 405, 414–15 (5th Cir. 2001) (en banc) (plurality op.). Without a majority, no controlling precedent was made. See K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010). In K.P., we declined to “resolve whether Ex Parte Young requires only ‘some connection’ or a ‘special relationship’ between the state actor and the challenged statute,” because the defendant fell within the exception under either standard. Id.
Although the precise scope of the requirement for a connection has not been defined, the plaintiff at least must show the defendant has “the particular duty to enforce the statute in question and a demonstrated willingness to exercise that duty.” Morris v. Livingston, 739 F.3d 740, 746 (5th Cir. 2014) (quotation marks omitted). That means the official must be “statutorily tasked with enforcing the challenged law.” In re Abbott, 956 F.3d at 709. Enforcement typically means “compulsion or constraint.” K.P., 627 F.3d at 124. A “scintilla of ‘enforcement’ by the relevant state official with respect to the challenged law” will do. City of Austin, 943 F.3d at 1002.
Determining whether Ex parte Young applies to a state official requires a provision-by-provision analysis, i.e., the official must have the requisite connection to the enforcement of the particular statutory provision that is the subject of the litigation. See, e.g., In re Abbott, 956 F.3d at 709. This is especially true here because the Texas Election Code delineates between the authority of the Secretary of State and local officials. A “case-by-case approach to the Young doctrine has been evident from the start.” Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 280 (1997). The plaintiffs claim that Section 82.003, the age-based absentee-voting provision, violates the Twenty-Sixth Amendment of the Constitution. The plaintiffs have included the Secretary of State as a defendant, understandable since the Secretary is the “chief election officer of the state.”
The statutory duties that matter today are the ones for the Secretary regarding applications for absentee ballots. She has the specific and relevant duty to design the application form for mail-in ballots,
The Secretary’s form currently includes an option for a voter to indicate entitlement to an absentee ballot because that voter is at least 65 years old. It is permissible under Ex parte Young for a court to “command[] a state official to do nothing more than refrain from violating federal law.” Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255 (2011). Thus, a finding that the age-based option denies or abridges younger voters’ right to vote might lead to prohibiting the Secretary from using an application form that expressed an unconstitutional absentee-voting option.
The plaintiffs present far broader reasons for holding the Secretary to be a proper defendant. The Secretary’s general duties under the Code include issuance of directives and instructions, being willing to “assist and advise” local officials, and endeavoring to “obtain and maintain uniformity in the application, operation, and interpretation” of the Election Code.
In sum, the Secretary’s specific duties regarding the application form under Section 31.002 are enough for us to conclude that the Secretary has at least a scintilla of enforcement authority for Section 82.003. We do not need to consider whether other duties of the Secretary might suffice. Sovereign immunity does not bar suit against the Secretary in this case.
As to the Governor, we conclude he lacks a sufficient connection to the enforcement of an allegedly unconstitutional law. In re Abbott, 956 F.3d at 708–09. As the motion’s panel in this case stated, the actions the Governor took — to postpone the May 2020 primary and to expand the early voting period — were exercises of the Governor’s emergency powers unrelated to the Election Code. The Governor is not “statutorily tasked with enforcing the challenged law.” Id. at 709. The challenged Section 82.003 certainly operates independently of influence or enforcement from the Governor. As a result, the connection between the Governor and enforcement of the challenged provision is insufficient, and Ex parte Young does not apply to him.
The plaintiffs also focus us on the letter sent by the Attorney General. True, we applied the Ex parte Young exception to this Attorney General after his office sent to a manufacturer numerous “threatening letters” that “intimat[ed] that formal enforcement” of the Texas Deceptive Trade Practices Act “was on the horizon.” NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389, 392, 397 (5th Cir. 2015). Conversely, we have declined to apply Ex parte Young where the Attorney General issued a press release warning that anyone who violated the Governor’s recent emergency order would be “met with the full force of the law.” In re Abbott, 956 F.3d at 709. We explained that “our cases do not support the proposition that an official’s public statement alone establishes authority to enforce a law, or the likelihood of his doing so, for Young purposes.” Id.
Unlike NiGen, the Attorney General’s letter in this case was sent to judges and election officials, not to the plaintiffs. The letter did not make a specific threat or indicate that enforcement was forthcoming. Nor did it state that the Texas Democratic Party or the other plaintiffs had violated any specific law, as the letter did in NiGen, 804 F.3d at 392. Instead, the letter explained that advising voters to pursue disability-based mail-in voting without a qualifying condition constituted a felony under Sections 84.0041 and 276.013 of the Texas Election Code. As a result, we conclude that the letter here did not “intimat[e] that formal enforcement was on the horizon.” Id. Instead, it closely reflected the Attorney General’s letter in In re Abbott, 956 F.3d at 709. Accordingly, the Attorney General lacks a requisite connection to the challenged law, and Ex parte Young does not apply to him.
III. Political question doctrine
The defendants insist the plaintiffs’ as-applied challenge based on Texas officials’ response to the COVID-19 pandemic presents a nonjusticiable political question. In their view, our answering whether the pandemic presents a need to change election rules to protect voters is a question constitutionally committed to other branches of government. See Baker v. Carr, 369 U.S. 186, 217 (1962). The Supreme Court has warned that “lower federal courts should ordinarily not alter . . . election rules on the eve of an election.” Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020). Further, they argue that we must refrain from judgment out of respect for the executive and legislative branches of the state of Texas. See Baker, 369 U.S. at 217. Finally, they assert that there is no “judicially discoverable and manageable standard[]” for resolving whether Texas’s age-based absentee-voting law meets constitutional muster in the context of the pandemic. See id. The plaintiffs disagree, arguing they have presented a “straightforward constitutional claim” capable of
The motions panel on this case rejected the political question doctrine as an impediment, concluding that it “need not — and will not — consider the prudence of Texas’s plans for combating [COVID-19] when holding elections.” Tex. Democratic Party, 961 F.3d at 398. Instead, resolution of the appeal was said to turn on “whether the challenged provisions of the Texas Election Code run afoul of the Constitution, not whether they offend the policy preferences of a federal district judge.” Id. at 398–99.
We agree that no political question bars our review of the Twenty-Sixth Amendment challenge. We are tasked with determining whether Section 82.003 of the Texas Election Code violates the Twenty-Sixth Amendment as applied during the pandemic, a question susceptible to judicial resolution without interfering with the political branches of Texas government. Even when “matters related to a State’s . . . elective process are implicated by this Court’s resolution of a question,” as our resolution of this appeal will do, that “is not sufficient to justify our withholding decision of the question.” Elrod v. Burns, 427 U.S. 347, 351–52 (1976). Judicially discoverable and manageable standards exist to help us determine whether the law runs afoul of the Twenty-Sixth Amendment. Namely, we determine whether the law denies or abridges the plaintiffs’ right to vote based on age. If it does, then we will apply an appropriate level of scrutiny. The effects of the pandemic are relevant to answering whether the law denies or abridges the right to vote, but the standards themselves do not yield to the pandemic.
For these reasons, we hold that the political question doctrine does not bar our review of the plaintiffs’ challenge. Our analysis will not focus on policy determinations from Texas’s executive and legislative officials. Regardless of whether the plaintiffs are presenting on this appeal a facial or as-applied challenge, our analysis does not turn on the effect of the pandemic and therefore avoids a political question.
Because we conclude there are no jurisdictional impediments to the plaintiffs’ bringing these claims, we now turn to the merits of the injunction. The defendants in their opening brief challenged all the grounds used by the district court. The plaintiffs defend only on the basis of the Twenty-Sixth Amendment. We exercise our discretion to review only that basis and not examine the alternative grounds to determine if any of them would sustain the judgment. The plaintiffs, as appellees, defend only the one ground, and the parties need a ruling.
We also forewarn on a seeming inconsistency to what we have just said about not ruling on a facial challenge. It is impossible to consider the as-applied challenge based on the pandemic without addressing what is generally required to violate the Twenty-Sixth Amendment. The difference between the two forms of challenge “is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 331 (2010). We reach conclusions as to what is necessary to deny or abridge the right to vote on the basis of age, as we can do no other.
IV. Twenty-Sixth Amendment
Section 1 of the Twenty-Sixth Amendment provides: “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.” Section 2 gives
The parties have widely different interpretations of the Amendment. The plaintiffs contend that the Amendment creates a sweeping prohibition against any age-based denial or abridgment of the right to vote. Further, they contend that any differential treatment in terms of voting on the basis of age is a plainly unconstitutional denial or abridgment. Such an interpretation is said to be consistent with the Fifteenth, Nineteenth, and Twenty-Fourth Amendments. Under their reading, Section 82.003 is unconstitutional under the Twenty-Sixth Amendment because it offers mail-in voting to those who are at least age 65 without offering the same benefit to younger voters. Even if not facially unconstitutional, the plaintiffs argue that the election law is unconstitutional as applied “during the COVID-19 pandemic.”
The defendants argue that the Twenty-Sixth Amendment was simply an extension of the right to vote to individuals between the ages of eighteen and twenty-one, not to eliminate all age-based distinctions in election-related laws. They further contend that Texas’s mail-in ballot rules do not affect the right to vote under the Amendment because the laws neither abridge nor deny the right of voters younger than 65 to vote.
Also divergent are the arguments about the level of scrutiny to give to the challenged provision. Texas argues for rational-basis review, but the district court applied strict scrutiny. Perhaps because another panel of this court entered a stay of the preliminary injunction by finding only rational-basis review applied, Tex. Democratic Party, 961 F.3d at 409, the plaintiffs’ current briefing exercised some caution by not explicitly identifying a standard. Still, the plaintiffs’ disagreement with the motions panel is pressed, as is their belief that some heightened level of scrutiny is required.
A. An individual right
We first examine whether the Twenty-Sixth Amendment confers an individual right to be free from any denial or abridgment of the right to vote. We acknowledge this has not been an issue in the case, but we need to walk through the only recently developing analysis of this Amendment with care.
The language and structure of the Twenty-Sixth Amendment mirror the Fifteenth, Nineteenth, and Twenty-Fourth Amendments.5 Each of those amendments
Fifteenth, Nineteenth, and Twenty-Fourth Amendments predating the 1971 submission and ratification of the Twenty-Sixth Amendment.
We hold 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, the violation of which allows for pursuing a claim in court. We now turn to what denial and abridgment in this context mean.
B. Scope of the Twenty-Sixth Amendment’s protection
For Section 82.003 of the Texas Election Code to be constitutional, its granting to those at least 65 years of age an excuse-free right to a mail ballot cannot be a denial or abridgment of not-as-old voters’ right to vote, either facially or during the pandemic. Because we conclude that by definition no denial or abridgement has occurred, it is unnecessary for us to assess the applicable level of scrutiny to apply had there been either. On remand, the issue may arise. For that reason, we will discuss levels of scrutiny generally at the end of the opinion.
As we search for the meaning of the key terms, we find direction from a time not too long ago when the Supreme Court began to give meaning to a different amendment long ignored in litigation as this one has been, namely, the Second. District of Columbia v. Heller, 554 U.S. 570 (2008). The Court considered how the words and phrases of that amendment had been used and interpreted in other constitutional provisions. Id. at 579–81. The Court wrote a lengthy exegesis of each significant term in the Second Amendment and its usage at the time of ratification. Id. at 579–95. That time was contemporaneous with the adoption of the Constitution itself. Among its lengthier explanations was the understanding at that time of “keep and bear Arms,” and each of the key words had a discernable late-Eighteenth-Century meaning. Id. at 581–92. A focus as well was how the same or at least similar terms that also appeared elsewhere in the Constitution had been interpreted.
For example, the
Similarly, in the statutory context, “there is a natural presumption that identical words used in different parts of the same act are intended to have the same meaning.” Atl. Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932). Different here than in most statutory interpretation contexts, though, are the large gaps in time between the adoption of different amendments that use language similar to each other or to the original Constitution itself.
Just as Heller examined such questions as what to “keep and bear arms” meant in the Founding Era, relevant for us is how broad or limited the phrase “right to vote” was interpreted at the time the Amendment was ratified. This will establish our baseline. That meaning is the context for the use of the phrase, and with “textual interpretation, context is everything.” ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 37 (1997).
Understanding what the right to vote meant at the time the
We also consider some Congressional sources. Though we find no utility in examining the individual statements of various members of Congress who spoke to their beliefs — or perhaps only their hopes in guiding future interpretations — as to the meaning of the Amendment, we are willing to examine materials that accurately reflect what Congress was willing to adopt by joint action and present to a President who then was willing to register agreement. Enacted revisions to statutes are part of “statutory history,” not “the sort of unenacted legislative history that often is neither truly legislative (having failed to survive bicameralism and presentment) nor truly historical (consisting of advocacy aimed at winning in future litigation what couldn‘t be won in past statutes).” BNSF Ry. Co. v. Loos, 139 S. Ct. 893, 906 (2019) (Gorsuch, J., dissenting).
Congress did not in this instance revise earlier enacted legislation by passing a new bill. Instead, after the Supreme Court invalidated part of its earlier effort, Congress revised by proposing a constitutional amendment through proper bicameral procedures, then presented it to the states where it was ratified. We explain.
The
years of age or older.”6 The slogan for some who urged this change was “old
Perhaps Congress was willing to hazard lowering the voting age by legislation even for state elections because the Supreme Court had upheld the 1965
The
as having a narrower sweep than the other constitutional amendments affecting voting, which in this instance was to fulfill what Congress tried but failed to do in 1970 in lowering the voting age for all elections.
We also look at details of absentee voting nationwide, data that was provided to Congress when it was considering the 1970 Voting Rights Act Amendments as well as what became the
Maine has the most sweeping statute; it provides that any registered voter may cast an absentee ballot. Presumably, those who are able to vote in person do so, but the statute does not require applicants for absentee ballots to demonstrate an inability to reach the polls. In all other states, voters who wish
to cast an absentee ballot must demonstrate that they fall within a statutory classification.
Although most states provide absentee ballots in all elections, four restrict their use to general elections. In many states, eligibility is determined by the voter’s actual distance from his home. The majority of states require absence from the county of the voter’s residence; others require absence from the state, the city, or the precinct. Some absentee-ballot legislation encompasses classes of voters who are within the election district but cannot reach the polls. Almost all states allow the physically incapacitated to cast absentee ballots. Some also furnish absentee ballots to students, to election workers stationed at precincts other than their own, to persons over sixty-five years of age, and to persons whose religious beliefs prevent them from attending the polls on election day.11
Other variants among the states were permitting absentee voting for those who participated in the election process itself, or whose religious tenets prevented attendance at the polls.12
Though this data provided to Congress when considering the 1970 and 1971 enactments indicate that almost all states at the time of submission of the
were eliminated in part by the 1970 Voting Rights Act Amendments: “[E]ach State shall provide by law for the casting of absentee ballots for . . . President and Vice President . . . by all duly qualified residents of such State who may be absent from their election district or unit in such State on the day such election is held and who have applied therefor not later than seven days immediately prior to such election,” then who timely return their ballots. See Voting Rights Act Amendments of 1970, Pub. L. No. 91-285, § 202, 84 Stat. 314, 316-17, codified as
The significance we give to this status quo for absentee voting at the time of the
The Supreme Court distinguished between a right to vote and a right to vote absentee: “It is thus not the right to vote that is at stake here but a claimed right to receive absentee ballots.” McDonald, 394 U.S. at 807. Judge Ho was correct when concurring to the entry of a stay during the pendency of this appeal when he wrote: “For nearly a century, mail-in voting has been the exception — and in-person voting the rule — in Texas.” Tex. Democratic Party, 961 F.3d at 414 (Ho, J., concurring).
In summary, the right to vote in 1971 did not include a right to vote by mail. In-person voting was the rule, absentee voting the exception. Though we identify this historical context for the Amendment, certainly our
imperative is to focus on the text. “Only the written word is the law, and all persons are entitled to its benefit.” Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020). Even “small gestures can have unexpected consequences,” id., which is relevant when considering whether the nearly forgotten
We now consider when the right to vote is “denied” or “abridged.”
1. To deny the right to vote
Before ratification, the Supreme Court held that the right to vote was not “denied” where there was no indication that the challengers were “in fact absolutely prohibited from voting.” McDonald, 394 U.S. at 807-08 & n.7. After ratification, the Court held that a person’s right to vote is denied when an election law “absolutely prohibits them from voting.” Goosby v. Osser, 409 U.S. 512, 521 (1971). Under the
2. To abridge the right to vote
To abridge is “[t]o reduce or diminish.” Abridge, BLACK’S LAW DICTIONARY 7 (10th ed. 2014). Evaluating whether there has been a denial of a right will rarely involve a comparison. On the other hand, “[i]t makes no sense to suggest that a voting practice ‘abridges’ the right to vote without some baseline with which to compare the practice.” Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 334 (2000). More, later, on Bossier Parish. We are not focused today on how important that right is, but it is one of importance, central to a democratic system. Instead, we are seeking a clear understanding of the right itself, from which we then can determine whether something the government has done in its election rules has abridged the right.
The plaintiffs insist that an abridgment occurs any time a new election law makes voting more difficult for one age group than it is for another.
Under that construct, when Texas in 1975 legislated a privilege for older voters to cast absentee votes without needing to claim a reason such as being out of the county, it abridged younger voters’ rights even though no change was made as to them.14 In essence, a new baseline for voting arises
Our first reaction is that this seems an implausible reading of “abridge.” Conceptually, plaintiffs are converting the
The point just made, though, needs to take into account a possible exception. We return to the Bossier Parish decision concerning the
necessary, the Court continued by distinguishing two parts of the
In § 2 or
Fifteenth Amendment proceedings, by contrast, which involve not only changes but (much more commonly) the status quo itself, the comparison must be made with a hypothetical alternative: If the status quo “results in [an] abridgement of the right to vote” or “abridge[s] [the right to vote]” relative to what the right to vote ought to be, the status quo itself must be changed.
Id. The Court then stated that “abridging” for purposes of the
Even if this concept applies to the
Secondly, we examine the two Supreme Court decisions on which plaintiffs rely in defining “abridge” in this manner. The earlier of the opinions used the
was administered, effectively denied most black
Three decades later, the Supreme Court held that Virginia abridged the right to vote in violation of the
(which might have been many years before under Virginia’s system of permanent registration) and that they do not presently intend to leave the city or county.” Id. at 541. The Court held that to demonstrate the invalidity of the measure, “it need only be shown that it imposes a material requirement solely upon those who refuse to surrender their constitutional right to vote in federal elections without paying a poll tax.” Id. The
Forssenius invalidated the law requiring voters choose between paying an unconstitutional tax or engaging in an onerous registration. The plaintiffs emphasize the Court‘s calling the registration an invalid “material requirement,” but here, too, the plaintiffs seek more than can be found in one of the Court‘s opinions. The
Rejecting the plaintiffs’ arguments, we hold that an election law abridges
On the other hand, a law that makes it easier for others to vote does not abridge any person‘s right to vote for the purposes of the
Sophisticated attempts to circumvent this rule could arise. The Supreme Court, though, has these constitutional amendments “nullif[y] sophisticated as well as simple-minded modes of impairing the right guaranteed.” See Forssenius, 380 U.S. at 540-41 (quotation marks omitted). Courts will be able to respond properly to any artful efforts.
We now examine some of the caselaw urged upon us by the plaintiffs. We have discussed Lane and Forssenius already and concluded they do not counsel a different approach. We now review some other decisions in which other courts considered claimed violations of the
voters constitutes an abridgement due to age.
We also consider a decision by the Supreme Court of Colorado, which held that the
The final decision we examine is one that the district court cited in the present case. See United States v. Texas, 445 F. Supp. 1245 (S.D. Tex. 1978), aff’d sub nom. Symm v. United States, 439 U.S. 1105 (1979). The 1978 district court opinion applied strict scrutiny to a claim under the
We hold, based on the meaning of the word “abridged,” that the right to vote under the
C. The Texas Election Code and the Twenty-Sixth Amendment
It has taken much discussion, but we finally arrive at the dispositive question: Does Section 82.003 of the Texas Election Code deny or abridge the plaintiffs’ voting rights during the pandemic? The statutory background for voting in Texas prior to election day is the following. Early voting was first permitted in 1917. In re Texas, 602 S.W.3d at 558. Gradually adding classes of voters to those who qualify for absentee voting, the state did not extend no-excuse absentee voting to persons 65 and older until 1975, after the adoption of the
For all the reasons we already have discussed, the Texas Legislature‘s conferring a privilege to those at least age 65 to vote absentee did not deny or abridge younger voters’ rights who were not extended the same privilege. Thus,
We now consider if the pandemic affects the validity of that age-based privilege. We start with what the Texas Supreme Court stated regarding the extent of that state‘s adjustment of its election rules during the pandemic. That court held that “a voter can take into consideration aspects of his health and his health history that are physical conditions in deciding whether, under the circumstances, to apply to vote by mail because of disability.” Id. at 560. Further, “elected officials have placed in the hands of the voter the determination of whether in-person voting will cause a likelihood of injury due to a physical condition.” Id. at 561. The “lack of immunity to COVID-19, without more, is not a ‘disability’ as defined by the Election Code.” Id. at 550. Although “lack of immunity” alone is not a
apply to vote by mail under that section. This undermines the plaintiffs’ as-applied argument because at-risk voters of any age can utilize the Texas Election Code‘s disability provision to mitigate the risk of COVID-19.
The record indicates Texas is taking the kinds of precautions for voting that are being used in other endeavors during the pandemic. None of them guarantees protection. There are quite reasonable concerns about voting in person, but Texas‘s mandating that many continue to vote in that way does not amount to an absolute prohibition of the right to vote. As to
We will remand. Before we send this case on its way, we pause to discuss the concept of levels of scrutiny. The decision in June to grant a stay in this case was based on a holding that “employing McDonald‘s logic leads inescapably to the conclusion that rational-basis review applies.” Tex. Democratic Party, 961 F.3d at 409 (citing McDonald, 394 U.S. at 807-08). The Supreme Court‘s 1969 McDonald opinion, predating the 1971 Amendment at the center of our analysis, was a challenge by pretrial detainees who were either charged with nonbailable offenses or could not afford bail. McDonald, 394 U.S. at 803. They had no right under Illinois law to an absentee ballot due to their detention, despite that they had not been convicted of the charged offenses. Id. The claim was that the state made an arbitrary distinction, violative of equal protection, between those physically incapacitated by illness who could vote absentee and those judicially incapacitated who could not. Id. at 806. The Court concluded that no heightened scrutiny was needed because the state‘s distinction did not “impact” the detainees’ “fundamental right to vote.” Id. at 807. The right
to vote had not been denied because there was no evidence that Illinois would not provide alternative means for the detainees to vote, as the state might “furnish the jails with special polling booths or facilities on election day, or provide guarded transportation to the polls themselves for certain inmates,” or offer other options. Id. at 808 & n.6.
We are hesitant to hold that McDonald applies. One reason is that the decision predated the ratification of the
There has been no denial or abridgement of a right to vote under the
concluding that no denial or abridgment of the right to vote under the
To be clear, we are not stating, even as dicta, that rational basis scrutiny is incorrect. Indeed, age-based distinctions are evaluated in that manner in the usual case. See Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 312 (1976). On the other hand, some courts have applied what is known as the Anderson-Burdick balancing analysis to claims that an election law violates equal protection, and they provide noteworthy reasons for doing so. See, e.g., Luft v. Evers, 963 F.3d 665, 671 (7th Cir. 2020) (citing Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992)). The right level of scrutiny for an equal protection claim on remand is for the district court initially to analyze. An answer now by us would be only dicta. Even so, we state that we have not seen any authority to support that it would require strict scrutiny as the district court initially applied.
In sum, the plaintiffs claim that the
We VACATE the injunction and REMAND for further proceedings consistent with this opinion.
CARL E. STEWART, Circuit Judge, concurring in part and dissenting in part:
Before us is an appeal of a preliminary injunction issued in July 2020 by the District Court in the Western District of Texas. The preliminary injunction required Texas officials to allow any Texan eligible to vote to do so by mail. In April, Plaintiffs filed this lawsuit requesting relief on seven grounds: race and language discrimination in violation of the
The Court concludes, that the COVID-19 pandemic, younger voters bear a disproportionate burden because the age restrictions of [§ 82.003], that [§ 82.003] is a government classification based on age and discriminates against voters under the age of 65 based on age, and that [§ 82.003] violates the [Twenty-Sixth] Amendment, as applied, during the COVID-19 pandemic.
Defendants appealed the preliminary injunction order and a motions panel of this court granted a motion to stay the injunction pending appeal. Tex. Democratic Party v. Abbott, 961 F.3d 389 (5th Cir. 2020). The panel noted that
The issue before us now on appeal is whether the district court erred in issuing this preliminary injunction, and to resolve this appeal, we must consider three jurisdictional arguments: whether Plaintiffs have standing, whether Defendants can claim sovereign immunity, and whether this lawsuit poses a nonjusticiable political question. As to the merits, we must determine whether the court erred when it determined that Plaintiffs were likely to succeed on their
The panel majority ably considers these jurisdictional questions, and I concur in their resolution of these threshold issues. However, because I differ with the panel majority in their determination that
A district court’s ultimate decision to issue a preliminary injunction is reviewed for abuse of discretion, but “a decision grounded in erroneous legal principles is reviewed de novo.” Women‘s Med. Ctr. of Nw. Hous. v. Bell, 248 F.3d 411, 419 (5th Cir. 2001). A plaintiff must establish four elements to secure a preliminary injunction:
- a substantial likelihood of success on the merits,
- a substantial threat of irreparable injury if the injunction is not issued,
- that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and
- that the grant of an injunction will not disserve the public interest.
See Speaks v. Kruse, 445 F.3d 396, 399-400 (5th Cir. 2006).
The statute in question facially discriminates based on age, which in the context of the pandemic leads to dramatically different outcomes for different age groups. A consideration of the statute under the plain text of the
I. Twenty-Sixth Amendment Analysis
“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.”
Neither party argues that
As the panel majority notes, BLACK’S LAW DICTIONARY defines abridge as “[t]o reduce or diminish.” Abridge, BLACK’S LAW DICTIONARY 7 (10th ed.
2014). The panel majority concludes that because no voter is made worse off by Texas’s mail-in ballot provisions, the State of Texas has not abridged voting rights. The panel majority holds that “an election law abridges a person‘s right to vote for the purpose of the
Precedent supports a different outcome. The panel majority cites Reno v. Bossier Parish School for the proposition that “abridge” requires a comparison to a baseline. See 528 U.S. 320, 334 (2000) (discussing the use of baseline comparisons in preclearance proceedings under § 5 of the
Furthermore, the panel majority misreads Reno. While Reno holds that the appropriate comparison in preclearance proceedings is between the status quo and the proposed changes, Reno expressly identifies a broader definition of abridge within § 2 of the
challenging voter qualification and election mechanisms — an equal opportunity to participate. 963 F.3d 665, 672 (7th Cir. 2020) (citing Reno, 528 U.S. at 334).
The Seventh Circuit also construed “denial or abridgment” in the context of § 2(a) of the
Reno, Katzenbach, and Luft persuade me to read “denial or abridge” in the
complicated scheme with severely discriminatory impacts without a facial classification.
The panel majority also cites Harman v. Forssenius, which similarly outlines an unconstitutional method of burdening voters. 380 U.S. 528 (1965). Harman also cites Lane for the proposition that the
Suffice it to say, I respectfully differ with my panel colleagues about how these Supreme Court cases should be read and construed in the context of this case.
Though the legislative history here is unclear, there are more legislative arguments in favor of construing “abridge” broadly than there are in favor of construing the term narrowly. On balance, I conclude that the legislative history does not favor the panel majority‘s holding.
In 1970, Congress attempted to lower the voting age from 21 to 18, which was invalidated in Oregon v. Mitchell. Voting Rights Act Amendments of 1970, Pub. L. No. 91-285, § 302, 84 Stat. 314, 318, invalidated in part by Oregon v. Mitchell, 400 U.S. 112 (1970). The
Enforcement Power, 121 Yale L.J. 1168, 1194-95 (2012). The
Except as required by the Constitution, no citizen of the United States who is otherwise qualified to vote in any State or political subdivision in any primary or in any election shall be denied the right to vote in any such primary or election on account of age if such citizen is eighteen years of age or older.
Voting Rights Act Amendments of 1970, Pub. L. No. 91-285, § 302, 84 Stat. 314, 318, invalidated in part by Oregon v. Mitchell, 400 U.S. 112 (1970).
Several legislators expressed the intent to have the
The content and naming of the 1970 Voting Rights Amendment also indicates that Congress considered regularized access to absentee ballots a
significant part of “voting rights.” § 5 of the
The panel majority relies on various aspects of statutory and legislative history as support for its holding. The panel majority also cites McDonald v. Board of Election Commissioners of Chicago for the proposition that the framers understood the right to vote as the right to cast a ballot. 394 U.S. 802, 807 (1969). I am unpersuaded that McDonald controls the outcome of this case. McDonald affirmed a summary judgment grant in favor of Illinois on inmates’ Equal Protection Claims. Id. at 809, 810. The inmates argued that their rights were violated by the state‘s refusal to provide them with mail-in ballots, and the court granted the motion noting that there was “nothing in the record to indicate that the Illinois statutory scheme has an impact on appellants’ ability to exercise the fundamental right to vote.” Id. at 807. McDonald is a limited holding on its own terms because it is based on a lack of evidence in the record. To be sure, McDonald has not been overruled by the Supreme Court. However, that truism is unremarkable; the Court does not routinely overrule its cases. The point is that McDonald has limited vitality for the purposes of this appeal.
Beyond McDonald‘s limited scope, the Supreme Court has limited McDonald at least three times. See Goosby v. Osser, 409 U.S. 512, 521-22 (1973) (discussion of McDonald‘s inapplicability in a situation where there was greater evidence); see O‘Brien v. Skinner, 414 U.S. 524, 529 (1974) (same); see Am. Party 415 U.S. at 794-95. American Party held that Texas violated the
I conclude that the options granted to voters to cast their vote are part of “the right to vote” under the
As the panel majority observes, there remains a question of what level of scrutiny the district court should have applied to
severely burdens ballot access and intermediate scrutiny to a law that imposes lesser burdens.” Esshaki v. Whitmer, 813 F. App‘x 170, 171 (6th Cir. 2020).
Even if strict scrutiny is not the appropriate standard to be applied here, as the district court applied to Plaintiffs’
To the extent there is any risk of voter fraud, Texas has mechanisms in place to protect the integrity of its elections. For instance, to obtain an absentee ballot, a Texas voter must provide identifying information, under penalty of perjury, that allows election officials to confirm the applicant is eligible to vote. See Elections Adm‘rs and Cty. Br. 10 (citing
Given the dearth of evidence of voter fraud and the ample tools available to promote election integrity, Defendants have
III. Remaining Preliminary Injunction Factors
As Plaintiffs are likely to succeed on the merits of their argument that
The district court concluded that Plaintiffs faced a substantial threat of irreparable injury, noting the serious dangers posed by in-person voting during the pandemic. The district court found that the threatened harm if the injunction is denied outweighs Defendants’ concerns about voter fraud, which the district court determined were “unsupported.” The district court finally determined that granting the injunction was in the public interest by safeguarding constitutional rights and limiting the spread of disease. The district court did not abuse its discretion in reaching these findings.
The preliminary injunction was properly issued, and for that reason, I respectfully dissent.