Texas Democratic Party v. Abbott

[politicallefty]

Link

Texas law permits voters over the age of 65 to request absentee ballots without difficulty. But most voters under the age of 65 are not allowed to vote absentee. During a pandemic election, that means that older voters — a demographic that has historically favored Republicans over Democrats — will have a fairly easy time participating in the November election. But younger voters will likely have to risk infection at an in-person polling site if they wish to cast a ballot.

This arrangement is difficult to square with the 26th Amendment, which provides that “the right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.”

How does Texas law comport with the 26th Amendment? I see no way that it does. It goes beyond simple denial and bars any abridgement on the right to vote on account of age of anyone at least 18. Age preferences are a direct violation of the 26th Amendment.

[brucejoel99]

How does Texas law comport with the 26th Amendment? I see no way that it does. It goes beyond simple denial and bars any abridgement on the right to vote on account of age of anyone at least 18. Age preferences are a direct violation of the 26th Amendment.

It's a pretty disingenuous argument, but I could imagine an argument that not providing absentee ballots to people 65 & older would be what would abridge the right to vote for those people based on age (especially during a pandemic, where they're by far at the highest risk), whereas for younger people, it's not based on age.

Yes, the 26th Amendment specifically sets the age at which the right to vote "shall not be infringed" at 18, but the Court has already determined that's not necessarily what that phrase means, because what constitutes an "abridgement" is a matter of interpretation. Providing for 2 groups to have unequal opportunities/abilities to vote seems like a prime candidate, but that doesn't always mean 2 groups have to be treated the same in order to achieve that. Since we rely on the Court for interpretation, there's not much that can be done here unless & until another case gets (or another hearing on this case gets back) to them & we get a reinterpretation.

Random example: allowing absentee ballots for people who are actually out of the area makes their ability to vote similar to those in the area. Allowing everybody absentee ballots, it could be argued, makes people who are locally present more able to vote (i.e. more ways) than people who happen to be remote (because, after all, voting by mail is technically just a supplementary process that's only officially there to be able to guarantee the fundamental right to vote to everybody with a handicap).

Similarly, one could imagine an argument that there's a valid reason to treat seniors differently in order to make their access to voting more similar to that of other ages, as their circumstances are, in fact, different, especially during a pandemic (i.e. the pandemic is actually an argument in favor of the distinction, not against).

Note that I'm not arguing that it's good to do anything that makes it harder to vote for anybody, I'm just saying there's a reasonable argument for disparate treatment of people in disparate situations to make their access equal.