Fifth Circuit Urged to Expand Mail-In Voting in Texas

(AP Photo/Seth Wenig, File)

NEW ORLEANS (CN) — A Fifth Circuit panel heard arguments Monday over a Texas law that limits mail-in voting to people 65 and older, with an attorney for the state Democratic Party arguing the restriction constitutes discrimination.

Texas Solicitor General Kyle Hawkins argued on behalf of Governor Greg Abbott, Attorney General Ken Paxton and Secretary of State Ruth R. Hughs, the Republican defendants in a lawsuit filed in April by Texas Democrats.  

He defended the law at issue, saying that allowing the elderly to vote by mail does not take rights away from any other group of people and “doesn’t abridge anyone else’s right to vote.”

The Texas Legislature “carefully crafted” election laws “to reject universal mail balloting” out of fear of possible voter fraud, he said, adding that “courts should not rewrite state election laws over the objections of state officials a mere nine weeks before a major national election.”

But Chad Dunn, general counsel for the Texas Democratic Party, disagreed and called the law discriminatory.

“What the state can’t do by statute is say a bracket of people based on their age get a voting benefit while others” do not, Dunn told the judges.

Addressing Republican officials’ stated concern over voter fraud, Dunn asked why the votes of people 65 and older are different than those of anyone else.  

“What makes those votes so much more valuable, that they’re worthy of potential voter fraud, that the others get excluded from it? The state put on no evidence of widespread voter fraud,” he said.  

“Look,” Dunn added, “everything we know, from economics to political science, is the more difficult you make it to vote, the fewer people do so.”

He pointed to Wisconsin’s primary election in April, during which some people stood in line for hours amid the worsening Covid-19 outbreak.  

“The state’s [guidelines] for polling in November do not require people to wear masks. So now we’re asking people to go and vote, in person, potentially standing behind someone in line and subject themselves to the current pandemic circumstances?” Dunn asked.

Dunn concluded his arguments by saying “we don’t have constitutional rights unless we practice them.”

“At the end of the day, this case is about a fair electoral system, where people don’t have to go through undue burdens only in order to vote,” he said, arguing that Texas limiting mail-in voting to only people 65 and older is a violation of voting rights.

Hawkins reiterated during rebuttal that when the state gave the option of mail-in voting to the elderly, “it didn’t take away anyone else’s rights.”

Election Day is Nov. 3. Sept. 19 is the deadline for election officials to mail ballots to those who qualify to vote by mail.  Absentee ballots have to arrive to election administrators’ offices by Oct. 22. Early voting begins Oct. 13 and ends Oct. 30. 

Monday’s hearing was held by teleconference due to Covd-19. After audio of the hearing permanently froze, an official with the Fifth Circuit said more than 250 people had been listening in.

The panel was made up of U.S. Circuit Judges Carolyn Dineen King, Carl Stewart and Leslie Southwick – appointed by Jimmy Carter, Bill Clinton and George W. Bush, respectively. It was not clear how the judges would rule, but Stewart said the panel would try to move quickly.

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