I somehow missed the Fifth Circuit ruling a week ago (in Texas Democratic Party v. Abbott) that overturned a flamboyant district-court order that would have required Texas officials to allow mail-in voting by any voter who claims disability because of lack of immunity from or fear of contracting coronavirus.
In his majority opinion, Judge Jerry E. Smith excoriates district judge Fred Biery for “an order that will be remembered more for audacity than legal reasoning.” Rejecting the proposition that federal judges have “a roving commission to rewrite state election codes,” Smith rejects the argument that Texas violates the Equal Protection Clause by not providing all voters the vote-by-mail privilege that Texas provides to persons aged 65 and over. (Slip op. at 16-25.) He similarly concludes that plaintiffs’ claim that Texas is discriminating “on account of age” in violation of the Twenty-Sixth Amendment fails under rational-basis review. (Pp. 25-28.)
In addition to joining Smith’s opinion, Judge James C. Ho wrote his own concurring opinion. Ho’s opinion makes two important points. First, he emphasizes that “courts have repeatedly found that mail-in ballots are particularly susceptible to fraud.” That factor makes it all the more appropriate that any “expansion of mail-in voting … be done by legislators, not judges.” (Pp. 35-40.) Second, if Texas law were deemed to violate the Twenty-Sixth Amendment, the appropriate remedy under Supreme Court precedent (Justice Ginsburg’s majority opinion in Sessions v. Morales-Santana) would appear to be a “leveling-down” injunction that would remove the special privilege from voters 65 and over, not a leveling up that would extend mail-in voting to those under 65. (Pp. 40-42.)
Judge Gregg Costa concurred in the judgment on the ground that the district court should have invoked the doctrine of Pullman abstention and declined to rule on the plaintiffs’ claims. (Pp. 43-47.)
(Smith was appointed by Reagan, Ho by Trump, Costa by Obama, and Biery by Clinton.)