Rights Groups Say Age-Based Laws on Absentee Voting Are Unconstitutional

(CN) — As the coronavirus pandemic continues to prompt concerns about the safety of in-person voting, a coalition of voting rights groups argues in a new report that Texas, South Carolina and multiple other U.S. states are violating the U.S. Constitution by only letting older citizens vote by mail.

In the report released Thursday, the Voting Rights Project at the University of California Los Angeles, the National Vote at Home Institute and other groups claim that placing age restrictions on absentee voting violates the 26th Amendment, which guarantees Americans the right to vote at the age of 18.

“These laws use age to create two classes of voters – one with easier access to the ballot box than the other – and work to abridge the voting rights of younger voters,” the groups behind the report said in a statement.

The coalition is pushing for “immediate litigation” against states with age restrictions on absentee voting.

The national debate over expanding mail-in voting options during the pandemic has led to hurried legal battles, debates in Congress and even a high-profile dustup between Twitter and President Donald Trump, who has used the social media platform to spread misleading claims about mail-in voting leading to fraud.

Republicans in Texas and other states have sided with the president and sought to block the expansion of absentee voting, while Democrats have pushed for widespread access to mail-in voting ahead of the November election. Research has suggested that absentee voting doesn’t particularly favor either party.

Thursday’s report takes aim at states where voters younger than 65 can’t obtain an absentee ballot unless they meet certain requirements. The groups claim the courts are likely to find those laws unconstitutional, though they acknowledge in the report that no federal appellate court has “definitively addressed” the question.

In a closely watched legal fight in Texas, Democrats are hoping to convince the courts that all Texans, regardless of age, should be allowed to vote by mail if they’re afraid of contracting Covid-19 at polling stations.

A federal judge in May paved the way for that to happen, though the judge’s decision was later put on hold while the Fifth Circuit considers whether the expansion of mail-in voting should be blocked for longer, throughout the duration of the appeals process in the case.

In a separate but related case, the Texas Supreme Court has sided with Ken Paxton, the state’s Republican attorney general, who has repeatedly insisted that voters younger than 65 cannot use their fear of contracting Covid-19 as a “disability” that would qualify them under state law for a mail-in ballot.

“A voter ill with Covid-19 and who meets those requirements may apply for a ballot by mail,” Paxton said in a statement praising the state high court’s latest ruling on the matter in late May. “Fear of contracting Covid-19, however, is a normal emotional reaction to the current pandemic and does not amount to an actual disability that qualifies a voter to receive a ballot by mail.”

“Look, the vast majority of states have widescale, no-excuse vote by mail,” Chad Dunn, a co-founder of the UCLA Voting Rights Project, said in an interview.

Dunn, an attorney with the Houston-based firm Brazil & Dunn, is also representing the Texas Democratic Party in its fight against state Republican leaders to expand mail-in voting.

“You see the officials in Texas arguing, well, we shouldn’t have vote by mail, it’s dangerous, there’s all this fraud,” Dunn said. “Okay, well, then pass a law to get rid of vote by mail. I think that’s a wrong policy choice, but you can’t live in the middle where you let your preferred voters vote by mail, and the others not.”

The dispute from Texas could find its way to the U.S. Supreme Court – Dunn said he would be “very surprised” if that didn’t happen – but the coalition behind Thursday’s report hopes the broader constitutional argument against age restrictions on mail-in voting will be taken up at some point as well.

“Only a remedy in a Twenty-Sixth Amendment context can fully repair the unconstitutionality harm of sorting voters by age,” the report said.

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