The 5th Circuit Court of Appeals held a hearing Monday on the Texas Democratic Party’s vote-by-mail lawsuit. In their lawsuit, the TDP references the 26th amendment, which was adopted in 1971 and prohibits states from denying citizens the right to vote on the basis of age. In light of the COVID-19 pandemic, the TDP is asking the court to enforce the amendment in time for the November presidential election, especially as the pandemic.
On Monday, Texas Democratic Party’s General Counsel Chad Dunn discussed the hearing, the lawsuit and the next steps to stop the state from discriminating against voters by age in regards to the 26th Amendment to the U.S. Constitution.
*The Q&A has been edited for clarity.
Question: Can you expand on why the state is saying the appellate court doesn’t have the jurisdiction and why you disagree?
Well, the state seems to argue that the Secretary of State has no authority over election rules. And that this is really all just a county matter. We’ve sued Travis County and Bexar County and election administrators so even were the court to determine that it’s a county matter, those counties would be ordered to comply with the constitution. And I feel confident the rest of the counties would get the message as to what the law was going to be.
But for those of you who saw the news just over the last 72 hours where the Secretary of State tries to manage the affairs of the Harris County elections department, know that the Secretary of State does have a role to play in elections in Texas. The election code chapter 31 provides the secretary certain authorities over elections. We think it’s a non-starter of an argument. The Fifth Circuit has rejected it more times than I can count. But it’s their argument and I think that’s why it didn’t play much after role in the arguments today because there is very little support for it.
Question: What is the timeline for a decision and do you think this will go to the Supreme Court and get appealed if this doesn’t go in the way of the state?
I think as the state pointed out, the deadline to submit an application to vote by mail is October 23rd. So obviously we need a resolution of this matter in advance of that. Our position is the sooner the better. The sooner the voters are able to learn about the rights and exercise them, the better it is for all of us.
The court decides at what speed it wants to handle its business. It can decide to rule this week and it could wait weeks or months to get its ruling out the door.
So I think that ultimately however that turns out you can expect whether it’s the state or us, who might be dissatisfied with it to go and seek further review. I mean, when it comes down to the constitutional rights of voting during a presidential election, I don’t think anybody is surprised that the parties are going to press the cases as long as they need to get finality.
Question: If you prevail how quickly could you get mail-in ballots and how could you assure people their ballots will be received in time and counted? if you prevail, how quickly could you get mail-in ballots and how can you assure people their ballots will be received and counted?
So mail ballots don’t begin to go out until September 19th, and often it’s on a rolling basis the county sends out mail ballots as they get in applications. All the way up to October 23rd you can submit an application for a mail ballot. So I’m confident that the counties in the state can deal with the increase in mail voting. A number of the urban counties, which would presumably be the ones that would be most taxed by this change have already moved forward with having the equipment and personnel and dollars in place to be ready to adjust for the change.
In fact, the counties argued – every county that filed a brief with the Fifth Circuit argued that not only do they agree with our position in this case but that they need this solution because they’ve got to somehow increase the demand on in-person voting and voting by mail is the way to do that.
That’s why we’re seeing nearly every other state go to this. Even South Carolina during the summer passed its Legislature, which is largely Republican, passed a bill extending vote by mail for people by reason of the COVID excuse.
So Texas is really the outlier here. And so our system is set up, it’s early enough to get this process done, and the constitution requires it. And as I said in the argument, we don’t have constitutional rights unless we practice them. We don’t have voting rights unless we’re practicing them in presidential elections so that’s what this case is asking the court to ensure.
Question: Based on today’s arguments, do you feel optimistic or pessimistic that Texans will be able to vote by mail this election by November?
Well, as I mentioned earlier, I’ve been around long enough to have one of these arguments and walk out and be certain that I was going to lose and then prevailed. And I’ve had other arguments where I walked out certain I was going to prevail and lose. I can’t give you a prediction. I will say this. It’s extremely difficult to write an opinion that the state wants written that says the 26th Amendment is just surplus. It’s language in the constitution that has no additional meaning outside of the existing provisions.
And it doesn’t comport with Texas which is the judicial trend at this moment in time. We follow the text wherever it takes us. So I think it’s very hard to write an opinion that rules for the state, but again, I can’t give you a prediction on how this starts out in the end.
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