In 2020, Texas Democrats sued to change state election law to allow statewide no-excuse voting by mail. A District Court Judge ordered that this be permitted, but the 5th Circuit overturned that decision, upholding the longstanding Texas statute requiring an excuse to vote by mail.
Texas state law allows no-excuse mail-in voting only for voters over age 65. All other voters are required to provide an excuse – such as absence from their county on election day or a qualifying disability – to vote by mail. The Texas Democratic Party sued in District Court while their lawsuit was pending in state court to extend no-excuse mail-in voting to all eligible voters during the COVID-19 pandemic. They alleged that the Texas age and excuse requirement for voting by mail violated the First, Fourteenth, and Twenty-sixth Amendments, abridging the right to vote on account of age.
U.S. District Court Judge Fred Biery granted the plaintiffs’ motion for a preliminary injunction, requiring by order that “[a]ny eligible Texas voter who seeks to vote by mail in order to avoid transmission of COVID-19” could do so and ruling that the Texas statute at issue likely did violate the Twenty-sixth Amendment.
Texas appealed to the U.S. Court of Appeals for the 5th Circuit, which put the District Court’s order on hold pending the appeal. During this time, the plaintiffs asked the United States Supreme Court to reinstate the order, but the Court rejected their request. The 5th Circuit ultimately lifted the District Court’s order on appeal, concluding that there was no violation of the Twenty-sixth Amendment despite the circumstances during the pandemic.
The 5th Circuit cited McDonald v. Board of Election Commissioners to indicate that the right to vote absentee is not synonymous with the right to vote. The judges noted in their ruling that since the state did not absolutely prohibit voting, as voters were free to vote in person as was standard practice in Texas, and the state’s interest in maintaining secure elections was facilitated by the statute at issue, no abridgment of voting rights took place. The 5th Circuit declared that the real issue was one of equal protection, but that that issue was not before them.