Updated at 12:10 p.m.: to include arguments by state and by Democrats.
AUSTIN — A legal duel on which time expired before the July primary runoff elections — over whether Texas should take a more permissive approach to vote-by-mail during a pandemic — is back and faces a new set of mail-ballot deadlines before the November election.
On Monday, a three-judge panel of the 5th U.S. Circuit Court of Appeals heard arguments from lawyers for the Texas Democratic Party, its leader Gilberto Hinojosa and three voters who want wider access to mail ballots, and from three top state GOP leaders, who don’t.
Kyle Hawkins, the state’s solicitor general, defended the Legislature’s decision to grant a privilege to request an absentee ballot to specific groups, telling the judges that “that doesn’t abridge anyone else’s right to vote.”
The Legislature “had carefully crafted” election laws “to reject universal mail balloting” over concerns over possible voter fraud, said Hawkins, who represented Gov. Greg Abbott, Attorney General Ken Paxon and Secretary of State Ruth R. Hughs, the defendants in the case.
“Courts should not rewrite state election laws over the objections of state officials a mere nine weeks before a major national election,” he said.
Chad Dunn, general counsel of the Texas Democratic Party, though, said it’s impermissible — as age discrimination — for the state to confer a mail-voting privilege on all Texas voters who are 65 or older, but deny it to those who are younger.
“What the state can’t do by statute is say a bracket of people based on their age get a voting benefit that others do [not],” he said.
Speaking of older voters, Dunn asked, “What makes those votes so much more valuable, that they’re worthy of the potential voter fraud, that the others get excluded from it? The state put on no evidence of widespread voter fraud.”
Earlier rounds of the fight, in both state and federal courts, focused on whether an excuse for not going to the polls long recognized in Texas election law as a valid ticket to an absentee ballot — having a disability or illness — should be extended to all who fear their lack of immunity to COVID-19 puts them at risk of infection.
But the latest chapter at the 5th Circuit, based in New Orleans,elevated a part of the legal fight that drew less attention — whether the benefit to seniors is unconstitutional.
The panel of appellate judges hearing the case includes Judges Carolyn Dineen King, an appointee of former President Jimmy Carter; Carl Stewart, named to the 5th Circuit by former President BIll Clinton; and Leslie Southwick, appointed by former President George W. Bush.
So far, state Democrats have lost in their push for a court ruling that would liberalize vote-by-mail. In April, the state Democratic Party began filing suits. It cited a messy primary election in Wisconsin, where voters faced long lines, with many fearing they risked exposure to COVID-19.
This summer, the Texas Supreme Court and the 5th Circuit blocked lower-court rulings that said people’s lack of immunity to the virus amounted to a disability, qualifying people for an absentee ballot.
The U.S. Supreme Court also rejected the party’s attempt to expand mail-in voting.
It’s not clear when the 5th Circuit panel that heard Monday’s arguments will rule.
The deadline for county election officials to mail ballots to members of the armed services, merchant marines and Texans living abroad is Sept. 19. Mail ballots must be received at election administrators’ offices by Oct. 22. In-person early voting begins Oct. 13 and ends Oct. 30. Election Day is Nov. 3.
Judge Stewart, who presided over the hearing, said at its conclusion, “We’ll get it decided as soon as we can.”
Either way the panel rules, a follow-up appeal to the Supreme Court is expected.
Mail voting has become highly politicized as election watchers expect a large uptick in the number of Americans using absentee ballots in November because of concerns over contracting COVID-19. Democrats have pushed for the expansion of voting by mail, saying it’s the only safe way to vote.
Republicans, including President Donald Trump, have mostly opposed it by raising the specter of voter fraud.
But the GOP message is dissonant, as Donald Trump Jr., the president’s son, last week made appeals in robocalls in Texas and a dozen other states for voters to use absentee ballots to support his father’s re-election.
Experts say that while mail ballots can tip the scales in small local elections, there is no evidence that the method leads to widespread voter fraud that can impact larger elections.
Mail voting: Texas tussle
State Republican leaders have adamantly opposed any mail voting expansion, saying a quick expansion would open the door to voter fraud and technical problems with the voting infrastructure.
The Legislature should decide how elections are run, as the U.S. Constitution envisions, and judges should stay in their lanes, deferring to state lawmakers, Paxton has said.
“The Texas Legislature’s preference for in-person voting is among the State’s many policies protecting the integrity of elections,” Paxton said in a brief filed in late July.
“The Legislature has determined that other forms of voting, including mail-in ballots, should be limited because in-person voting is the surest way to prevent voter fraud and guarantee that every voter is who he claims to be,” he wrote.
The Wisconsin primary in April “may have seen as few as 19 cases of transmission among approximately 300,000 in-person voters,” Paxton said.
Over the past 103 years, Texas lawmakers carefully balanced election security against convenience for voters who would be traveling at the time of the election or were physically ill or disabled, the Republican attorney general has argued. In 1975, after 18 year olds won the right to vote with ratification of the 26th Amendment, the Legislature lowered the voting age from 21 and at the same time allowed all voters who are over 65 to vote by mail, he has noted.
Currently, Texas law limits mail balloting to those who have a disability, are 65 and older, will be out of the county or are in jail but still eligible to vote. Democrats are trying to use the courts for a late-hour, unwarranted override of legislative decisions, Paxton said.
“It is settled that the Constitution does not guarantee a right to vote by mail,” Paxton wrote.
Dunn, the Democratic party lawyer, though, has dismissed that as a “straw man” argument.
“The 26th Amendment claim does not argue for a constitutional right to vote by mail,” he said in a brief last month. “Instead, the 26th Amendment requires that if the state has chosen to offer vote-by-mail as an option (as Texas has), it may not restrict that option on the basis of age.”
State officials have “lost control” of COVID-19 this summer, endangering voters if they have to go to polling places this fall, Dunn said.
“The manner in which they are being forced to vote creates a higher likelihood that they will be exposed to COVID-19,” he wrote.
Paxton said courts can’t issue injunctions against him, Abbott and Hughs, because the enforcers of who gets mail ballots are county and city election officials, not state officials.
Dunn, though, said it’s unconstitutional to force voters between the ages of 18 and 65 to weigh their rights as citizens to vote against their need to avoid potentially lethal infection — if seniors aren’t required to make the same choice.
“That injury is directly traceable to the Texas Election Code and the state actors (i.e., the defendants here) who enforce it,” he wrote.
Democrats: Texas among most restrictive states
This year, at least 35 states are letting all eligible voters vote by mail, Dunn said. Among the rest, some limit the mail-in option to a prescribed set of “excuses,” but they “apply that requirement to all voters,” regardless of age, he said.
By November, he told the judges, Texas will be among the five most restrictive states in limiting use of mail ballots.
In Texas in late June, he noted, the highest number of COVID-19 cases was among people in their 30s and 40s.
“The State of Texas can choose whether to offer vote by mail as an option to its citizens,” Dunn argued. “But once it has chosen to do, it may not restrict that option on the basis of a citizen’s age.”
In late June, the U.S. Supreme Court refused to hear Texas Democrats’ appeal of the 5th Circuit’s lifting of trial judge Fred Biery’s injunction that would have expand mail-in voting to all who are scared of catching the disease.
However, Justice Sonia Sotomayor said plaintiffs had raised “weighty but seemingly novel questions regarding the 26th Amendment” that should be considered before the Nov. 3 election.
Last month, Abbott expanded the early voting period for the November election by six days, giving voters nearly a week longer to cast their ballots. He similarly extended the early voting period for the primary runoffs.
Abbott’s order also extended the amount of time people could turn in their mail ballots in person to the county elections office. Usually, mail-in voters could only do that while polls are open on Election Day. Abbott’s order extended that for the entire early voting period.
But most voting is still done on Election Day and voting rights advocates fear that crowded polling locations could spread the coronavirus.
In May, Hughs rolled out minimum health protocols for in-person voting, which critics said didn’t go far enough.
Vote-by-mail qualifications
Currently, voters are eligible for mail ballots if they:
— are 65 years of age or older,
— will be away from the county during an election period,
— are members of the military,
— have a disability or sickness that prevents them from going to the polls.
