Age-Based Absentee Voting Rules: The Widespread and Blatantly Unconstitutional Red-State Practice Nobody Is Talking About

This yr’s election is unsurprisingly producing a deluge of voting-related lawsuits within the runup to November. Already, the U.S. Supreme Court docket weighed in final month on an Arizona proof-of-citizenship voting requirement. The U.S. Court docket of Appeals for the Fifth Circuit earlier this week heard oral arguments in a case (on which certainly one of us wrote earlier) a few Mississippi regulation that (just like the legal guidelines of many different states) permits the counting of mail-in ballots which might be postmarked on or earlier than Election Day however which might be delivered to the precincts a number of days after Election Day. These authorized disputes relating to technical points of voter registration and poll counting are impactful. However obsessive give attention to these guidelines can threat lacking the forest for among the timber. Hidden in plain sight—within the state statutes of eight states, to be exact—are absentee-ballot-eligibility necessities that explicitly favor people over a sure age, and in so doing violate the unambiguous language and plain public that means of the Twenty-Sixth Modification to the U.S. Structure. For individuals who haven’t checked out that Modification not too long ago, its phrases present, fairly straightforwardly, that, for residents of the USA who’re at the very least eighteen, the fitting to vote “shall not be denied or abridged by the USA or any state on account of age” (emphasis added).

Indiana, Louisiana, Mississippi, South Carolina, and Texas grant absentee-voting eligibility particularly for all voters sixty-five or older, whereas Tennessee makes use of the decrease threshold of sixty. West Virginia statutorily grants absentee ballots to people due to “immobility as a result of excessive superior age,” however to not younger individuals with mobility points (which is distinguished from a incapacity, which is a separate justification). Maybe most offensive (as a result of the state’s statutory phrases practically completely observe the textual prohibition of the Twenty-Sixth Modification itself) is Kentucky’s granting of absentee eligibility for these not capable of seem on the polls “on the account of age.”

Whereas the Twenty-Sixth Modification absolutely encompassed the enactors’ short-term goal of permitting eighteen-year-olds to vote, its clear language and constitutional historical past require extra broadly that, besides as in any other case offered particularly within the Structure, authorities merely not use age as a criterion for figuring out entry to voting (and different political rights like jury service and officeholding).

To see why, begin with the Modification’s textual content. The wording is an identical to that of the Fifteenth and Nineteenth Amendments (save for the respective references to age, race, and intercourse). As an intratextualist matter, these provisions ought to typically be interpreted in the identical approach. So simply because the Fifteenth Modification didn’t say merely that every one grownup Black males shall benefit from the franchise (and as an alternative prohibits race discrimination in voting extra broadly), the Twenty-Sixth Modification didn’t present solely that eighteen-year-olds might vote.

The latter Modification’s public legislative historical past confirms this studying. As Consultant Richard Poff put it, “Simply because the Fifteenth Modification prohibits racial discrimination in voting and simply because the Nineteenth Modification prohibits intercourse discrimination in voting, the proposed [Twenty-Sixth] modification would prohibit age discrimination in voting.” And if additional proof that the Modification prohibits all types of age discrimination have been wanted, Poff added that it “would defend not solely an 18-year-old, but additionally the 88-year-old.” There are numerous different statements within the public document by which promoters of the Twenty-Sixth Modification made clear their intent to sample its phrases and implications on these of the Fifteenth and Nineteenth.

The state legal guidelines listed above clearly fly within the face of the Twenty-Sixth Modification’s textual content and historical past. Whereas sixty-five-year-olds who will not be in any other case absent from the state or disabled are eligible for absentee voting primarily based on age alone in Indiana, Louisiana, Mississippi, South Carolina, and Texas (and sixty-year-olds in Tennessee), equally located sixty-four-year-olds in these states (and fifty-nine-year-olds in Tennessee) are denied that proper solely on account of their age distinction. (Related discrimination operates in West Virginia towards younger individuals with mobility points. And though Kentucky doesn’t specify how age elements into its choices about absentee ballots, presumably older individuals extra typically, quite than these above a transparent age threshold, are given extra entry to absentee ballots merely due to their age.) These distinctions violate the clear textual command of the Modification, a command buttressed by public discussions on the time of enactment. (And though age isn’t a so-called “suspect classification” in relation to financial and civil rights underneath the Equal Safety Clause of the Fourteenth Modification, that’s irrelevant in relation to voting and different political rights, given the Twenty-Sixth Modification’s express ban on voting discrimination “on account of age.”)

Sadly, the 2 U.S. Courts of Appeals to have thought of age-discriminatory absentee-eligibility guidelines have botched the evaluation and fully missed the central level that the Twenty-Sixth Modification, just like the Fifteenth and Nineteenth Amendments, isn’t about voting rights generically, however about voting equality.

In 2020, the Fifth Circuit by a 2-1 vote rejected a Twenty-Sixth Modification problem to Texas’s regulation in Texas Democratic Get together v. Abbott. As certainly one of us wrote simply days later, that call was “deeply misguided.” Whereas the opinion rightly rejected the defendants’ claims that the Modification did not more than decrease the voting age to eighteen, two judges (one 70 years outdated and the opposite over 80 years outdated on the time) held that the regulation didn’t “deny or abridge” the fitting of these youthful than sixty-five to vote. In response to the court docket, a regulation runs afoul of the Modification “provided that it makes voting harder for [a] particular person than it was earlier than the regulation was enacted or enforced.” As a result of individuals underneath sixty-five had no choice to vote early by mail earlier than the statute’s 1975 enactment, they didn’t lose any rights following the regulation’s passage. That the absentee-eligibility regulation “makes it simpler for others to vote doesn’t abridge any particular person’s proper to vote for the needs of the Twenty-Sixth Modification.”

This interpretation of “deny or abridge” is mindless. First, it situations voting rights on historic accidents. If early, absentee voting occurred to be pervasive earlier than 1975, the Fifth Circuit’s reasoning suggests, then the statute would have been unconstitutional, though the impact and phrases of the 1975 regulation would have been unchanged. Second, the opinion opens the door to manipulation:

Suppose Texas desires to make it more durable for younger individuals to vote however has in place a regulation that permits everybody to vote early. Exempting solely younger individuals would . . . represent an abridgment within the eyes of the [Fifth Circuit] panel. So what ought to Texas do? Repeal early voting for all, wait some time, after which reinstate it just for older individuals—voila! How is a court docket to know when such a sequence displays a good-faith effort at legislative experimentation, or a cynical effort to bypass a manipulable take a look at?

Extra basic, nevertheless, is how the Fifth Circuit missed the core equality rules undergirding the Twenty-Sixth Modification. This failure is putting contemplating that the court docket purported to acknowledge that the Twenty-Sixth Modification’s phrasing consciously copied the identical phrases of the Fifteenth and Nineteenth Amendments, and emphasised that deciphering the Twenty-Sixth required a “focus [on] . . . how the identical or at the very least related phrases that additionally appeared elsewhere within the Structure ha[ve] been interpreted.” Certainly, if Texas had permitted solely white or male voters to vote absentee, the Fifth Circuit would have understood that such legal guidelines would violate the Fifteenth and Nineteenth Amendments, respectively. But these apparent comparisons didn’t even happen to the judges.

In Tully v. Okeson, the Seventh Circuit fared maybe barely higher—though it nonetheless reached the outrageously mistaken consequence. The court docket there handled Indiana’s sixty-five-or-older absentee-eligibility provision. To its credit score, the Seventh Circuit made among the proper analytic strikes. It too acknowledged the Twenty-Sixth Modification’s parallelism with the Fifteenth and Nineteenth Amendments. Citing the Fifth Circuit, it acknowledged that the Twenty-Sixth goes past granting political rights to eighteen-year-olds. It even rejected the Fifth Circuit’s fully untenable (and borderline weird) strategy of evaluating voting rights earlier than and after the challenged regulation’s enactment, as an alternative holding that the “start line is the fitting to vote, which can or is probably not secured by the established order of state regulation.”

But following an in depth dialogue of Supreme Court docket precedent on the phrases “abridgement” and “proper to vote,” it devoted simply three paragraphs—with no citations to caselaw—to reject the Twenty-Sixth Modification problem. These paragraphs laid out the statutorily offered avenues for voting and concluded that these underneath sixty-five had not had their proper to vote abridged though they’d no entitlement to vote absentee just because their different voting choices weren’t too dangerous. The absentee eligibility for these sixty-five and older was an “lodging of the aged” that “hardly creates a fabric burden on the train of the franchise of different residents.”

Just like the Fifth Circuit, the Seventh missed the boat by lacking the Twenty-Sixth Modification’s broad and easy command of equality. The difficulty isn’t whether or not anybody is in reality capable of vote; it’s whether or not individuals are being handled unequally with respect to the power to vote primarily based on some prohibited classification or criterion. Just like the Fifth Circuit, the Seventh Circuit didn’t see, and thus had no reply to, analogies to race and gender. If the regulation in query “hardly creates a fabric burden” on youthful voters, then why would a regulation giving solely whites (whose increased employment charges would possibly lead some individuals to assume they want “lodging”) absentee-voting choices create “a fabric burden” on non-white voters? Certainly, the court docket justified the Indiana regulation as “characterize[ing] a sound legislative judgment that [elderly] people encounter particular boundaries in exercising their proper to vote.” But have been a state to determine and doc that white workers work extra hours than workers of different races and thus want absentee ballots as a result of getting time without work work is more durable for whites, such a regulation would nonetheless be squarely foreclosed by the Supreme Court docket’s Fifteenth Modification determination in Rice v. Cayetano: “Coloration and former situation of servitude . . . are forbidden standards or classifications.” This implication of the Fifteenth Modification ought to maintain for intercourse and age, given the identically worded Nineteenth and Twenty-Sixth Amendments. For a Supreme Court docket that believes in following plain that means of enacted phrases and in addition in prohibiting odious authorities classifications (quite than specializing in which explicit teams are helped or damage by varied legal guidelines), the textual content of the Twenty-Sixth Modification couldn’t be any clearer.

However even when we focus much less on forbidden classifications and extra on whether or not teams are being helped or damage, we can not ignore the probably partisan points of the legal guidelines in query. One motive the Framers of the Twenty-Sixth Modification cared a lot about enshrining age equality within the Structure was their perception that older voters and youthful voters are inclined to see the world—and thus vote—otherwise. Exit polls from the 2020 presidential election present that voters forty-four and youthful broke for Joe Biden, voters between forty-five and sixty-four have been virtually evenly cut up, and voters sixty-five and older broke for Donald Trump. A Pew Analysis Heart report from April 2024 discovered that whereas voters of their forties and fifties exhibited a partisan skew inside 3%, these youthful than forty favored Democrats and people older than sixty leaned Republican.

Is it any surprise or shock that the states that make use of age and that favor older voters with respect to absentee eligibility—all eight out of eight—are reliably crimson states? And whereas the Republican presidential candidate will, for the foreseeable future, probably seize all of the electoral votes from all these states no matter absentee eligibility, there are many contested U.S. Senate, U.S. Home, and down-ballot state-office races in these states for which small partisan benefits in voter turnout matter. To quote only a few examples from latest federal elections: incumbent Republican Senator Ted Cruz of Texas gained reelection in 2018 by 2.6%, and he appears to be in an in depth race this yr; the 2018 and 2020 elections in South Carolina’s First Congressional District have been determined by lower than 1.4% (or 6,000 votes) and; within the 2019 Kentucky gubernatorial election Democrat Andy Beshear bested incumbent Republican Matt Bevin by solely 0.4% (a margin of simply over 5,000 votes).

The underside line is that the Twenty-Sixth Modification prohibits voting rules that discriminate primarily based on age—whether or not these rules are well-intentioned or purely partisan. Such overtly discriminatory legal guidelines (and it’s essential to notice we’re speaking right here about legal guidelines that brazenly classify on account of age, not legal guidelines that may merely have disparate impacts alongside age strains) will not be more likely to be repealed anytime quickly. Whereas the Purcell doctrine counsels towards courts altering these rules so near the November election, trustworthy interpreters and defenders of the Structure ought to, after the mud of the 2024 election settles, take direct intention at these legal guidelines that violate the Modification’s command of equality. Though the Fifth and Seventh Circuits haven’t acquitted themselves nicely, there may be nonetheless a possibility for the Sixth Circuit (which homes Kentucky and Tennessee) and the Fourth Circuit (which homes South Carolina and West Virginia) to do higher. And whether or not or not there emerges any circuit cut up, a U.S. Supreme Court docket that has any remotely principled dedication to originalism and unique public that means of the U.S. Structure must vindicate the plain phrases and clear function of the Twenty-Sixth Modification.