In the latest, and most dramatic, stage of the battle between voting rights advocates and Texas Republicans battling to restrict voting by mail, a federal judge in San Antonio has agreed that Texas’s statute allowing voters over 65 to cast absentee ballots denied to younger voters violates the 26th amendment’s ban on age discrimination at the ballot box. He cited legitimate fears of coronavirus infections as offsetting the state’s unsupported claims that voting by mail encourages voter fraud.
Federal district court judge Fred Biery (a Clinton appointee) ordered Texas officials to immediately begin making absentee ballots available to all eligible voters asking for one, citing the previous loophole for seniors as an unconstitutional burden on other voters, the Texas Tribune reports:
Days after a two-hour preliminary injunction hearing in San Antonio, U.S. District Judge Fred Biery agreed with individual Texas voters and the Texas Democratic Party that voters would face irreparable harm if existing age eligibility rules for voting by mail remain in place for elections held while the coronavirus remains in wide circulation. Under his order, which will surely be appealed, voters under the age of 65 who would ordinarily not qualify for a mail-in ballot would now be eligible.
Texas attorney general Ken Paxton will undoubtedly appeal Biery’s decision to the conservative Fifth Circuit Court of Appeals, though the 26th Amendment is pretty clear about age discrimination. Texas is the largest of the 16 states that still require an excuse for casting absentee ballots, and one of seven that provide loopholes for seniors.
There are now two separate challenges to Texas’s limitations on voting by mail working through the courts. Last month a state judge ruled that fears of coronavirus infection qualified as a “disability” under another “excuse” loophole allowing absentee voting. But the state Supreme Court put that ruling on hold pending appellate review of the case.
With Texas potentially emerging as a 2020 battleground state, these judicial skirmishes may matter, particularly if Republicans there and elsewhere continue to echo Donald Trump’s claims that voting by mail is fraud-bait — unless it’s conducted among voters of whom the president and his party approve.