{"id":2470,"date":"2021-04-04T12:01:00","date_gmt":"2021-04-04T17:01:00","guid":{"rendered":"https:\/\/blog.northwesternlaw.review\/?p=2470"},"modified":"2021-04-04T10:12:47","modified_gmt":"2021-04-04T15:12:47","slug":"mail-in-voting-and-the-twenty-sixth-amendment-in-the-time-of-coronavirus","status":"publish","type":"post","link":"https:\/\/blog.northwesternlaw.review\/?p=2470","title":{"rendered":"Mail-In Voting and the Twenty-Sixth Amendment in the Time of Coronavirus"},"content":{"rendered":"\n

The right to vote is one of the most essential tenets<\/a> of our liberal democracy, but in the chaos of the COVID-19 pandemic, many United States citizens had to weigh the importance of their health against the importance of exercising their suffrage. Accordingly, several states considered and promulgated new voting rules allowing for far safer voting means such as early and mail-in voting<\/a>. That is not to say that these procedures were not already widespread; before 2020, the majority of states already allowed no-excuse mail-in voting<\/a>. However, in Texas, where mail-in voting rights are available only for some classes of citizens but not others, eligible voters challenged these unequally distributed voting rights by invoking serious constitutional concerns under the Twenty-Sixth Amendment<\/a>\u2014the constitutional guarantee that the right to vote \u201cshall not be denied or abridged . . . on account of age.\u201d<\/p>\n\n\n\n

A recent Fifth Circuit ruling upheld a Texas voting law<\/a> that allows mail-in voting (i.e., the ability of voters, in or out of state<\/a>, to mail in their votes rather than vote in person) only for those age 65 and older. The appellate court\u2019s decision constitutes a failure to fully recognize that \u201c[t]he authors of the Twenty-Sixth Amendment consciously modeled it after the Fifteenth and the Nineteenth,\u201d<\/a> and that, therefore, the Amendment\u2019s protections against age-based voter discrimination should not be so cursorily disregarded. Contrary to common understanding<\/a>, both the text and the legislative history of the Twenty-Sixth Amendment indicate that the Amendment did more than simply lower the eligible voting age to eighteen. First, the language of the Twenty-Sixth Amendment is virtually identical to that of the Fifteenth<\/a> and the Nineteenth<\/a> Amendments, and thus \u201creading the amendments together seems to be the most obvious approach.\u201d<\/a> Second, several legislators expressly indicated that the Twenty-Sixth Amendment was created to prevent age discrimination in voting \u201c[j]ust as the 15th amendment prohibits racial discrimination in voting and just as the 19th amendment prohibits sex discrimination in voting.<\/a>\u201d Were mail-in voting eligibility based on race or sex, it would unquestionably run afoul of the earlier voting amendments. However, the history<\/a> of improperly watering down the Twenty-Sixth Amendment led the Fifth Circuit astray in this decision, which construes \u201cdeny or abridge\u201d too narrowly, impermissibly unequally distributes a voting privilege, and fails to apply the proper standard of review.<\/p>\n\n\n\n

InTexas Democratic Party v. Abbott<\/em><\/a>, the Fifth Circuit refused to find a violation of the Twenty-Sixth Amendment\u2019s prohibition on laws, which deny or abridge the right to vote \u201con account of age.\u201d<\/a> First, the court determined that voting rights are not \u201cdenied or abridged\u201d where a voting privilege is conferred to a certain class of voters but not to others. In doing so, the court argued that \u201cabridgment\u201d of the right to vote occurs only when laws \u201cotherwise make it more difficult to vote[] relative to the baseline<\/a>.\u201d Accordingly, Texas\u2019s voting law did not constitute an abridgment of the right to vote for those under age 65, as the right to mail-in voting is not considered \u201cfundamental<\/a>,\u201d and the law only made it easier <\/em>for others to vote relative to the baseline. Second, while the court held that because there was no denial or abridgement to scrutinize, there was no reason to rule on the precise standard of review to apply, the Fifth Circuit noted in dicta that it \u201cha[d] not seen any authority to support that it would require strict scrutiny<\/a>.\u201d State laws that appear to encroach on enumerated constitutional rights may receive different levels of \u201cscrutiny\u201d when reviewed by the court. \u201cStrict scrutiny\u201d is a high standard that applies to, for example, race-based classifications, under which a state law will be struck down unless it is shown to be \u201cnarrowly tailored<\/a>\u201d to \u201cfurther compelling government interests.\u201d<\/p>\n\n\n\n

The Fifth Circuit\u2019s principal error in its ruling was construing \u201cdeny or abridge\u201d too narrowly, ignoring the facially discriminatory nature of this Texas mail-in voting provision. In the context of the identically worded Fifteenth Amendment, Supreme Court precedent supports a broader reading of \u201cdeny or abridge,\u201d which invalidates voting procedures that are \u201cdiscriminatory on their face or in practice.\u201d<\/a> The fact that mail-in voting is a privilege that states are not constitutionally required to provide does not justify an unequal distribution of this voting right based on age. Dicta from a recent Eleventh Circuit decision<\/a> considering a Twenty-Fourth Amendment challenge explained this concept in the context of \u201creenfranchisement\u201d of felons. The court elaborated that while \u201cStates may deny all felons the right to vote<\/a>,\u201d they may not\u2014under the Fifteenth, Nineteenth, or<\/em> Twenty-Sixth Amendment\u2014extend the right to vote to somefelons but not to others on the basis of race, sex, or age, despite the fact that ordinarily felons have \u201cno cognizable rights\u201d to vote at all and thus their \u201creenfranchisement is \u2018an act of grace<\/a>.\u2019\u201d The same should be true for the \u201cact of grace\u201d of providing mail-in voting rights. While the general public may not have a \u201ccognizable right\u201d to mail-in voting, if a state chooses to grant its citizens this privilege, it may not do so unequally on account of race, sex, or <\/em>age.<\/p>\n\n\n\n

Furthermore, the Fifth Circuit\u2019s distinction between reducing some people\u2019s voting rights versus enhancing others\u2019 voting rights is inapposite when analyzing discriminatory laws like the one at issue in Abbott<\/em>. Enhancing the accessibility of one class of voters but not others may very well have the same suffrage-diluting effect as actively diminishing voting rights for specific groups. That is, while conferring a voting privilege to some does not reduce the already existing voting rights of another, \u201cthe right to have one\u2019s vote aggregated in a way that it is more likely to elect one\u2019s preferred candidate is zero-sum: my candidate and your candidate cannot both win.\u201d<\/a> Indeed, some federal courts have already recognized this fact in the context of the Twenty-Sixth Amendment. In a 2018 case in the Northern District of Florida<\/a>, university students challenged the Secretary of State\u2019s interpretation of a law\u2014which had the sole purpose of expanding <\/em>access to early voting sites\u2014such that college- or university-related facilities were excluded. The court held that an unequal distribution of a voting privilege (here, access to early voting sites) based on a clear proxy for age was impermissible under the Twenty-Sixth Amendment.<\/p>\n\n\n\n

Finally, despite the Fifth Circuit\u2019s failure to resolve the question as to what standard of review should apply to voting laws that encroach on Twenty-Sixth Amendment rights, the particular level of scrutiny, in this case, is likely inconsequential. As the Abbott <\/em>dissent put it, this law is not just \u201cdiscriminatory in normal times [but] dangerous in the time of a global pandemic<\/a>,\u201d and should not survive any form of judicial review under any level of scrutiny. Even if a rational basis standard of review were adopted, this age-based classification would be invalidated if found to \u201crest[] on grounds wholly irrelevant to the achievement of the State\u2019s objective<\/a>.\u201d That is, to survive rational basis review, there still must be \u201csome footing in the realities of the subject addressed by the legislation.<\/a>\u201d While other conceivable state objectives might exist, the defendants in this case made clear that Texas\u2019s interest behind this age-based classification was preventing \u201cvoter fraud<\/a>.\u201d Thus, for the law to pass constitutional muster under even a rational basis standard, there must exist some <\/em>reason to believe that (1) voter fraud is a larger risk with mail-in votes and (2) voters age 64 and under are somehow more likely to commit voter fraud with mail-in ballots. Yet, as the final months of 2020 have certainly shown, these are no more than harmful myths. In fact, with the 2020 election (finally) over, this \u201cvoter fraud\u201d rationale can be decisively proven<\/em> as illegitimate<\/a>.<\/p>\n\n\n\n

Despite their identical language, the Twenty-Sixth Amendment has received oddly disparate treatment relative to its fellow voting rights amendments. While the Fifth Circuit chose to interpret the Twenty-Sixth Amendment narrowly, hopefully increased focus on issues such as early and mail-in voting rules prompted by the pandemic will raise further age-discrimination concerns that will prompt the Supreme Court to finally clarify the Amendment\u2019s role in our constitutionally protected suffrage.<\/p>\n\n\n\n

Victor Hiltner is a student at Northwestern University Pritzker School of Law and a teaching assistant for Constitutional Law. He would like to thank his girlfriend, Naz Gocek, for providing him with the inspiration for this piece.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

The right to vote is one of the most essential tenets of our liberal democracy, but in the chaos of the COVID-19 pandemic, many United States citizens had to weigh the importance of their health against the importance of exercising their suffrage. Accordingly, several states considered and promulgated new voting rules allowing for far safer voting means such as early and mail-in voting. That is not to say that these procedures were not already widespread; before 2020, the majority of…<\/p>\n

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