policy determination to generally require everyone to vote in person while making an exception for the elderly and for certain other groups like the sable and offering them the option to vote by mail the texas legislature felt that was the appropriate policy balance to strike between offering more choices to the elderly while minimizing the risk of voter fraud that comes with mail in ballot letting us disagree with the legislature policy decision and they now ask this court to override it just weeks before a major national election their view of the th amendment is that when texas agreed to let the elderly vote by mail it necessarily committed itself to allowing everyone else to vote by mail too but the plaintiffs are wrong on the merits and any of them federal courts don't have jurisdiction to enter the relief they want i will briefly begin by addressing the two jurisdictional defects sovereign immunity and standing and then i will turn to the merits first the plaintiff's claims are barred by sovereign immunity largely for the reasons this court adopted in the city of austin case and the inri abbot case just a few months ago the most straightforward way to put it is that if the court were to issue an injunction ordering the governor or the secretary of state where the attorney general to allow everyone to vote by mail not a single one of those executive officers would do anything differently their day to day would not change at all allows federal courts to enjoin state officers to halt their ongoing violations of federal law xmarks going to young says that the defendant must have some connection to the challenge  now the panel decision judge southwick which you were hers the moment ago that the state handle the situation lean heavily on the o c a greater houston case but i don't think that this court should similarly rely on o c a greater houston that's distinguishable for a couple of important reasons st o c a says nothing at all about sovereign immunity so it has no bearing on the sovereign immunity analysis that's now before this court that's secretary of state used it because it's not necessary the conclusion that there was federal jurisdiction in that case and the reason is that the state itself was a party you know see greater houston so the court there seem to be reasoning that when the state itself is a party and when you have a facial challenge to a state law then there's no standing problem because traceability and addressability can be satisfied one way or another those considerations are not in play here light of city of austin and in at the end of the day neither the governor nor the attorney general nor the secretary of state are doing anything can force eighty two point zero three all the plaintiffs of pointed to is the exact type of theoretical connection to enforcement the city of austin riyadh say is not enough of a list the court has further questions about the jurisdictional bars i'm happy to shift gears and discuss the merits of their claims the order below rests on a fundamental misunderstanding of the th amendment the twenty six members forbids a state taking action to deny or abridge the right to vote based on age and mcdonnell the supreme court squarely rejected the notion that offering some groups the option of voting by mail of bridges the voting rights of other groups as wanted to appear rather a bit more carefully than i have i see mcdonnell's imitation is they seem to be talking more about it or not with the th amendment as you just pointed out also talks about a bridge that is in the terminology of mcdonnell more consistent with and so to brief dead even if made down not even but my doll says what it says but even the supreme court backed away from it a couple decisions later in other opinions limited to you know the pretrial  says that that you know get a leaps over mcdonnell in terms of the reasoning in it back rejects mcdonnell's reasoning in moreover ses you meaning the state at the motions pal level etc didn't address you know american parties so two parts of a question one what do you do with the argument made in a variety of cases and even some of the circuits that have been argued to american party texas or other cases that will ease cast some question about the forcefulness so the argument you make about my gun no doubt was convoluted asking you now apologise no judge short let me see if i follow the question binding law as the state panel correctly held but even if we take mcdonald out of the equation the plaintiffs are still lose for a couple of different first cases like harmon and subsequent cases like the o'brien he's indicate that a bridge requires the construction of a barrier to the enforcement of a right and what's lacking in this case is that when the state of texas gave the option of voting by mail to senior citizens but not to everybody else you did not erect a barrier to the exercise of the franchise for everybody else that's the st point i will make and that i think addresses the subsequent one hundred and seventy four case to nd even i'm wrong about that as well the plaintiffs and the record on appeal in this court have not put on any evidence that outside of pandemic circumstances voting by mail is any less burdensome than voting by personal appearance of course and district court to them this case was all about the pandemic now in the th circuit they have changed their approach this case and they now say that eighty two three has been on constitutional since nine hundred and seventy one they judge short will begin with the text the right of the citizens of the united states who are eighteen years of april to vote shall not be denied or abridged on account of age and i think there is a couple of key terms in the tex ratified as we know from heller now we learn from subsequent from cases around that time including mcdonald which was decided only two years before that texas pass that does not deny or ridge the right to vote we make war voting war available to some groups as opposed to a ridge the right to vote does not mean giving other groups more options it means taking away something from a certain group we know that from the cases are referred to or you know that means and understanding what a bridge means trying to figure out what other supreme court decisions would be helpful in this can you point us to a supreme court decision maybe mentioned here already maybe this one of them in restrictions you want to include with my word miss wrong word but qualifiers that existed but only wanted to lower and expand expand the age period for what for voting how do we look two thousand and eight supreme court decision saying that constitutional amendments must be read according to their original public meeting and part of the original public meaning analysis looks into what the understanding of those terms was benefit to everyone but both the texas supreme court and the texas code construction act say otherwise the code construction act does not allow the court to merely sever the language restricting mail in voting to the elderly because that would render the other parts of chapter easy to sue purports specifically eighty two point ten thousand two hundred and four would all be rendered superfluous by the district court's remedy the tax code construction acts as that's not appropriate and indeed in may the texas supreme court in the in re texas decision recognized that the texas legislature had carefully crafted chapter eighty two to reject universal mail in ballot now that means that of eighty two three is constitutionally defective the proper remedy is to eliminate that statutory nd exception in its entirety and the supreme court has recently indicated even just a couple of weeks ago that courts should not rewrite state election laws over the objection of state officials a mere nine weeks before the major national election if we follow that on which the early voting clerks mail ballots to certain members of the armed forces and merchant marines and individuals living abroad the deadline by which an application to vote by mail has to be received upcoming presidential election as a court has heard this case is premised at this point in the in poker shootings on the th amendment the th amendment is one for amendments that prohibit discrimination in voting and explicitly say that both the united states and states may not deny or branch the right to vote the th amendment does so on race the th amendment on gender the th amendment on ability to pay and finally the twenty six dollars amendment on age with regard to those four restrictions i have to respectfully disagree with mr hawkins the policy debate is over the framers of those amendments the ratifiers of those amendments in trying to those guaranteed rights in the constitution precisely so that legislatures debating the policy of them could no longer take action the violence of those amendments now your honour's have asked about cases involving the twenty six amendment and to be candid of course there's no on point u s supreme court case  considering the twenty six member came claims but there are a number of cases that were ended down in advance of the amendments adoption in one thousand nine hundred and seventy one they gave some indication about why congress included the term denying a bridge one of those that's been spoken about  harmon and that case a state in lieu of charging a poll tax allowed citizens to vote in order but in order to do so i had to fill out a certificate and the court said even though that's a minor burden it is still an abridgment it's an run around a prohibition on discrimination on the basis of of having a poll tax and there are other cases rino verse repairers the us supreme court says there this necessarily draws a distinction between what one group of rights is and what the other group of rights is and is just as black said in the casting back decision any method of abridgement no matter how of however subtle is captured by the denying abridge language in that case he was talking about the th amendment so when the drafters of the constitutional amendment issue here have that impact had the supreme court decisions available to them and intentionally included that language therefore we submit that we don't get into the intent or the legislative purpose behind the amendment but i will spend a nd on that since it's been raised congress st tried to raise the lower the voting age to age eighteen by act of congress many this was of course reaction of the vietnam war a slogan at the time old enough to fight old enough to vote and congress reacted by passing a bill explicitly lowering the voting age to eighteen in oregon versus mitchell the us supreme court struck that down instead it found that congress lacked constitutional authority to adjust the voting age for state elections therefore the th amendment ratification process began and if the court wants to look at legislative history the senate report ninety two day twenty six talks about what the senate considered in adopting the twenty six amendment and how it explicitly chose not just to lower the voting age but to enshrine a promise a guarantee of right against age discrimination and all facets of voting so not like to turn to the cases that are on point and that's the slew of cases that came after the university were expected to be out of town and the argument of the government then just like it is now as well if those students want to register where they go to school they can choose to vote absentee and the st circuit found that is abridgement under the th amendment then there are a number of state court cases and my apologies to my french speaking friends but the jhala kerr case at the california supreme court also addressed this issue of whether or not students could register where they were going to school and instead required them to do so back  where they were raised and again the government argued look they can vote absentee if they're away from their childhood home and of course if that's a bridgeman under the th amendment and the colorado supreme court in colorado common cause said that you can't prohibit individuals from circulating petitions based on their age because that is part and parcel of their right to vote and is and has brought it about the th amendment then i'm sure i understand where your argument t maybe i don't think you're challenging the if you're out of town you vote absentee whatever but anything based on age is going to fall on the twenty's it's the members that your position out there is no question that when there is a facial restriction in statute whether it's gender age race ability to pay then it is struck down it is prohibited by the amendment now does that mean the government is without action to facilitate voting to certain groups of individuals no and i'll give the court example let's say for example the government were to decide local officials or otherwise to place a polling location next to an elderly care facility or  older community in order to facilitate their ability to vote as long as under that circumstance there was no purpose and there was no effect of discriminating on younger voters that's absolutely permissible but what the state can't do by statute is say a bracket of people based on their age get a voting benefit the other people do in the same way that if congress or the legislature were to pass a bill it said presumably women are at home during the day we want them to vote from nine dollars to three  men coming home from work are going to vote in the shoulder hours that would be prohibited around the th amendment and under the state's argument here if it goes that way it goes the other way imagine if the legislature decided that individuals older individuals are at times perhaps subjected to manipulation of their vote perhaps they don't have the mental capacity to vote we're going to require them to vote in person and everybody under the age of sixty five will also have the advantage of voting by mail that way we can make sure there's something untoward going on with the older voters that would be prohibited on the this in a different context and you pull it back out to make it fit where you want to be but as soon the evidence would be and i don't think it's  and when they said the ira bridge or right to vote not be denied or abridged based on age that was the landscape that was the legal landscape of that terminology and that's the way it's been for forty years my math is off but  almost fifty years how does that understanding get ignored in a area of law that is very poorly developed judge this was the reality of voting and that was being attacked by this woman what's wrong with that with two responses you're our st and i agree there's and there's not this evidence in the record but i have to disagree with you respectfully that it was the history or the of this citizens but denying it to african american citizens and there's no question the th amendment when required striking down that provision and age is no different also i think it's important to note in response to your honor's question that the point of these amendments is to not allow laws to shape the electorate so that the electorate the electorate across the board has an equal opportunity to engage in a political response in the political process and these four matters there's no longer a policy debate and stepped away from and in the cases as judge stuart mentions american party of texas vs white the court there explicitly found that individuals in texas that were denied the ability to vote for minor party candidates absentee border what to do with their i understand there was a rematch you're on about the holding the holding senate seat or section five as it is plain that permitting absentee voting by some classes of voters and denying the privilege to other classes or otherwise qualified voters in similar circumstances without affording a comparable turned of comparable alternative means to vote is an arbitrary discrimination violence of of equal protection clause you know him yeah draw lines out of that opinion as it would mean to me verdict play out in it we don't believe anderson verdict applies to the th amendment analysis on this understood in your arguments here and you don't need to i mean sure you can if you answer my question but i'm just asking straight up if we make that error in your viewpoint and apply that those principles how does that out is that affect the outcome of the case what we've asked the court to remount on the additional climbs so if we do not prevail into the th amendment we cannot prevail in this appeal and the rest of case there is irreparable harm because the plaintiffs and other individual voters that are members of the democratic party are having their rights abridge there and in some cases they'll be denied i mean look everything we know from economics and political sciences the more difficult you make it to vote the fewer people they go into so what we've seen in recent elections is people standing in line for hours on end the state's restrictions that are still under preparation for november do not require the wearing of maxim polling locations so now we're asking individuals to go and vote in person potentially stand in line and subject themselves to the current pandemic circumstances and the state says well we're we're doing what we can to make it better but one that as es that it is in fact dangerous we've gone from inconvenient to dangerous not because of the state's poll but because of the pandemic and we're asking voters certain ones of them get excused from heaven that insurance tests and others based purely on their age are suffer are to suffer through it the fact of the matter is that when individuals characteristics are used by the government to divvy up who gets to vote those are prohibited by these four constitutional amendments now what's the state's injury that they  are st they argue that there's necessarily fraud that comes in with vote by mail want to think it's worth pointing out that come november texas is going to be one of twenty three dollars maybe five of the maximum states that don't allow absentee voting under these circumstances we have states that never did any meaningful absence of voting outside of what federal government requires in the move act that have gone towards absentee voting a vote by mail process for their entire state the whole it's as if a hurricane blew through the city houston market where i come from the rules changes you could see the states are attempting to add an extra week to the early voting schedule that's been challenge though in state court the state's attempting to offer curbside voting for some people even though the disability definition under that statute reads essentially the same as the disability definition interpreted by the texas supreme court in this case all the rules are in flux and if older votes can be tolerated these other forty five dollars states and plus the rest of the folks less under sixty five age and if it can be tolerated in this state then what makes those votes so much more valuable that they're worthy of the potential voter fraud that the others get excluded from it the state put on no evidence of widespread voter fraud and as this court found in the v c on bond decision you can't waive voter fraud as a talisman against constitutional protections the legislature of texas has not decided what folk by male rights there ought exist under these circumstances the circumstances in which the court in which the legislature considered this back decades ago were completely different as i mentioned earlier everything's changing including this very perceiving that we're doing remote it let me ask you this you two lines of course and one address mr hopkins argument about the texas construction or benefit subject based on an individual or group that the rest of the statute to the extent possible shall remain in effect in order to provide relief in this case all the court need to do is take section eighty two point zero zero three and strike out the last few words about the age of sixty five and the rest of the statute remains in effect all of the signature matching provisions all of the fraud protection measures the criminal often says every other part of the vote by mail scheme in texas remains i think he alluded to in somewhere in the briefing i guess the push back on that was one of the supreme court cases from this some of the name is this gaping me in which there's some language in a name is good to me now you know what i'm context of that litigation suggested that what you just argued in terms of quote all we have to do is strike the language from this dad she didn't do that that's that's what's got my attention is said m stat take it down a rabbit hole but i'm just trying to keep in since this is that was a major part of their argument he's got rebuttal to make sure we got shit down on your view boehm own these pieces because some of these are not  out did allow some affirmative injunctive relief that decision was made that day before the election and there were various parameters of the state's absentee voting system changes the court order that were allowed to stand so there's clearly when  constitution to play in force what of it leading up to the actual days of the election you know we don't have constitutional rights unless we practice them and if the rule is that we don't have constitutional rights to three months out from the actual general election then the four amendments that i'm here speaking of becoming less if the state can't an act for example a fee to charge people because a pandemic elections cost so much more everybody will need to pay five dollars that it has to be struck down no matter when it's in acted at the end of the day this case is about it's about a fair electoral system where nobody has to go through additional burdens in order to vote nine and eighty two point zero two and eighty two four superfluous he had no response to that he didn't address those statutory sections and did not explain why it would be permissible in violation of the code construction act to render those statutory provisions for courts and it's the in re state of texas case that the texas supreme court decided earlier this summer that indicates the legislature's or that holds that the legislature did and extended to everybody that controls the remedy here and it controls the concur compels the conclusion that the district court's remedy is unlawful i'd like to address mr dunn's arguments about the  th amendment if i might if the state were to pass a law saying that white people must vote by personal appearance but black people can vote by personal appearance or by mail  dolling that law would almost certainly be unconstitutional under the equal protection clause of the th amendment it would be a race based fast occasion and i doubt that any government could overcome strict scrutiny in justify that race based classification but the th amendment would not prohibit that law because that lawyer does not deny or abridge the right to vote within the meaning of that and i would say the same thing as to sex in the adapted based on the other members and so so you know the argument is that the twenty six move has some force of its own separate apart the whether other claims might be made you know under th amendment or something else so you  start where again where i was initially saying ok straight on textual argument about the twenty six amendment make dahlan some of the other cases talked about the now ok clear we all have the now here so you know we that judge stuart is that harmon o'brian goosby a mcdonald's shelf all underscore that ridge the right to vote means that the state needs to obstruct or construct a barrier to the exercise  operational definition no words in this going your argument would be we apply an operational definition to abridgement construct constructing that there must be some overt action the state barring it which an argument could be made that's kind of close to did not but that's that your argument as a as i get it right as opposed to their argument is that looking straight at the language stead if you've got one classification sixty five and some males and apply the language there so so so my question at all that is to say are you saying going forward when we are core the look at the words  bridge as opposed to the straight up textual meaning of that word that we've got apply or some kind of operational context that's looking at a bridge would then the straight up language of the constitution are you saying the methodological approach is to construe clear about this the arrow is good i don't plan to google the word of breeds to fan i what it means and so i'm trying to see beyond this case that if we're looking at the constitutional provision that uses the word denied is pretty easy to understand so a bridge if there was a lot isn't it more helpful to look at how a bridge has been construed where that same language is in another constitutional textual view overbridge my pappy to go through them if your honor would like but just to take one example he talks about joel a court case of the california supreme court you've got state action there that is preventing young people from taking term saw mean to say a breeze means some eyes done something no fail to do something right right to a bridge well to a bridge something means to take action to lessen or reduce that right and that's the core of the job stewards that when the state gave this option to the elderly it didn't restrict the rights of anybody else it simply offer more options to the elderly and mcdonald says that that is not a original rights all right