WASHINGTON, D.C. — Last week, a group of Texas voters filed a petition asking the U.S. Supreme Court to weigh in on the state’s age-based restrictions on mail-in voting.
Under Texas law, individuals are only eligible to vote by mail without a qualifying excuse (such as sickness) if they are 65 years or older on Election Day. According to the petitioners, the law violates the 26th Amendment of the U.S. Constitution, which expressly prohibits denying the right to vote on account of age.
The voters’ petition for a writ of certiorari stems from a federal lawsuit filed in 2020 on behalf of the Texas Democratic Party and voters amidst the COVID-19 pandemic. At the time the lawsuit was filed, the plaintiffs requested that Texas lift its age-based limitations on no-excuse mail-in voting in light of pandemic-related public health risks.
After a district court judge sided with the plaintiffs in May 2020 — temporarily blocking Texas’ age-based mail-in voting limitations — Texas officials appealed to the 5th U.S. Circuit Court of Appeals, which paused the district court’s ruling pending appeal. In the interim, the plaintiffs asked the Supreme Court to reinstate the district court’s decision or take the case up for review, but it declined to do so.
The 5th Circuit ultimately voided the May 2020 order in full after which the plaintiffs filed an amended complaint in the district court, arguing that Texas’ mail-in voting rules violate the First, 14th , 15th and 26th Amendments along with Section 2 of the Voting Rights Act.
In a July 2022 order, the district court judge dismissed all of the plaintiffs’ claims, holding that they were “based on speculative future election policies and pandemic conditions.” A group of individual Texas voters again appealed to the 5th Circuit, which ultimately affirmed the district court’s dismissal in September 2023.
In last week’s cert petition appealing the 5th Circuit’s September 2023 dismissal, Texas voters underscored how “[t]he ability to vote by mail may be particularly important for younger voters” who often “face substantial barriers to voting in person, including lack of transportation, long lines, inability to find or access their polling place, and limited time off from work.”
“The Fifth Circuit’s decision flouts the text and purpose of the Twenty-Sixth Amendment: to guarantee equal access to voting regardless of age. This Court should reject that construction and hold that the Amendment means what it says,” the petition states.
As the petitioners note, potential Supreme Court review of age-based restrictions on mail-in voting has implications far beyond Texas and could affect millions of voters. According to the cert petition, several aside from Texas limit no-excuse mail-in voting on the basis of age including Indiana, Kentucky, Louisiana, Mississippi and South Carolina.
In August 2023, the 7th U.S. Circuit Court of Appeals upheld Indiana’s mail-in voting restriction for voters under the age of 65, ruling that the limitations do not contravene the 26th Amendment.
While the Texas voters acknowledged that the Court is unlikely able to resolve the matter before the 2024 election cycle, they argued that “at least granting review here will ensure that the question presented [regarding the 26th Amendment] is resolved before Texas conducts elections in 2025 and 2026.”
Last week, Bernadette Reyes of the UCLA Voting Rights Project — who serves as counsel for the petitioners — stated: “We…stand firm in our commitment to upholding the integrity of our Constitution and the democratic process. We strongly believe that challenging the Texas Election Code is crucial in paving the way for a more inclusive and equitable voting system in the state and across the country for voters of all ages.”
Following further briefing and consideration at a conference, the Court will decide whether to accept or reject the petition.