Legal battle over expanded vote-by-mail in Texas returns to court

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AUSTIN (Nexstar) — On Monday, a panel of three federal judges from the 5th Circuit Court of Appeals heard arguments about whether current elections laws discriminate against Texans based on their age.

To be eligible to vote by mail in Texas, a person must be disabled, out of the country on Election Day and during early voting, be confined to jail, and/or be at least 65 years old.

For people like Theresa Bradley, 64, of Austin, vote-by-mail is just out of reach for now.

“I would rather have been able to have that option of having mailed in voting because that’s a lot of people hanging out in one place,” Bradley said.

She does not qualify for a mail-in ballot. She’ll be in Travis County on election day, not in jail, not disabled, and not quite 65.

“I felt that I was not valued as a citizen in the state of Texas,” she said.

Three individual voters, along with the Texas Democratic Party, sued to expand vote-by-mail in Texas amid the pandemic, citing the 26th Amendment— which constitutionally protects the voting rights of citizens older than 18.

“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.”

26th Amendment to the U.S. Constitution

Texas Democrats argue the state’s eligibility requirements are harmful to voters under 65, who largely must vote in person while the novel coronavirus spreads through Texas.

“It’s critically important we get relief, so that all voters have an equal right to vote in this next presidential election,” Chadd Dunn, general counsel for the Texas Democratic Party, said in a virtual press conference after the court hearing Monday.

“The policy debate is over,” Dunn said in court, adding that the Constitutional protections are in place to prevent legislators from acting to violate those protections.

Texas Solicitor General Kyle Hawkins, argued on behalf of the state that the age restriction does not amount to an illegal barrier to voting for younger people.

“What’s lacking in this case is when the State of Texas gave the option of voting by mail to senior citizens, but not to everybody else, it did not erect a barrier to the exercise of the franchise for everybody else,” Hawkins said in court.

It’s unclear when the court will rule, but time is tight.

Mail-in ballots begin going out Sept. 19, the deadline to register to vote in the presidential election is Oct. 5, the deadline to submit a vote-by-mail application is Oct. 23, early voting runs Oct. 13-30, and election day is Nov. 3.

“The sooner, the voters are able to learn about their rights and exercise them, the better it is for all of us,” Dunn said.

“We’ve gone from inconvenient, to dangerous, not because of the State’s fault, but because of the pandemic,” Dunn said, adding that current election law indicates that Texas is “asking voters certain ones of them get excused from having that endurance test, and others based purely on their age… to suffer through it.”

Gov. Greg Abbott extended early voting to run Oct. 13-30, and expanded the period in which marked mail-in ballots may be delivered in person to the early voting clerk’s office.

“By extending the early voting period and expanding the period in which mail-in ballots can be hand-delivered, Texans will have greater flexibility to cast their ballots, while at the same time protecting themselves and others from COVID-19,” Abbott said in a July statement.

There are a handful of other lawsuits involving civil rights groups who are pushing for more options for voters during the pandemic. Those legal challenges are winding their way through the court system as well.

Bradley begrudgingly plans to vote wearing a mask and gloves this fall.

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