Twenty-Sixth Amendment

Section 1:

The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Section 2:

The Congress shall have power to enforce this article by appropriate legislation.

The Supreme Court has not decided any cases interpreting the Twenty-Sixth Amendment.1

, the Supreme Court summarily affirmed the judgment of a three-judge district court, which had enjoined a Texas county voter registrar’s discriminatory use of a complex residency questionnaire for certain prospective student voters living on college campuses. The questionnaire required the students to demonstrate their intent to remain in the county after graduation in order to register to vote. The lower court held this to be a violation of the Twenty-Sixth Amendment as enforced under Title III of the Voting Rights Act Amendments of 1970, and the Supreme Court affirmed the lower court’s judgment without a written opinion. , summarily aff’g ; see also (observing that a summary affirmance does not necessarily imply the Supreme Court’s endorsement of the lower court’s reasoning). However, lower federal courts and state courts have grappled with questions about the scope of the Amendment’s prohibitions on laws, policies, or practices that “deny” or “abridge” adult citizens’ voting rights on the basis of age.2 These lower court decisions help to elucidate issues that the Supreme Court has not addressed. For example, shortly after the Twenty-Sixth Amendment’s ratification, several lower courts considered whether the Amendment prohibits state officials from declining to register persons at least 18 years of age, who are otherwise eligible to vote, at the place where they actually reside, such as a college campus, rather than where their parents live.3

Beyond securing young citizens’ voting rights, lower courts have also considered whether the Twenty-Sixth Amendment protects youth participation in various other aspects of the political process. For example, lower courts have addressed whether the Twenty-Sixth Amendment grants otherwise qualified persons between 18 and 20 years of age the right to hold elective public office;4

(upholding a provision of the Minnesota constitution prohibiting persons under the age of 21 from holding certain elective state offices as consistent with the federal Constitution’s Fourteenth Amendment Equal Protection Clause and Twenty-Sixth Amendment while observing that “there are many provisions in the Minnesota and in the United States Constitutions fixing the age at which certain individuals may hold office” ); ( “The Twenty-Sixth Amendment conferred only the right to vote on the 18-year-olds, and extended no concurrent right to hold office.” ). serve on juries;5 and participate in the initiation of legislation through a state’s referendum process by signing and circulating initiative petitions.6 Lower courts have also examined whether the Amendment requires states to allow persons under 18 to participate in primary elections when they will be 18 years old at the time of the general election.7 In the 21st century, lower court decisions addressed whether a state may make it easier for adult voters in a particular age group (e.g., adults over the age of 65) to vote without abridging the Twenty-Sixth Amendment rights of other age groups of adult voters.8

Because of a lack of Supreme Court precedent interpreting the Twenty-Sixth Amendment, it is unclear how courts should evaluate laws that allegedly “deny” or “abridge” adult citizens’ voting rights on account of age. In the decade after the Amendment’s ratification, lower courts often applied strict scrutiny to election laws that were found to impose significant burdens on Twenty-Sixth Amendment rights.9

, in which the Supreme Court summarily affirmed a lower court decision that had applied strict scrutiny to enjoin a Texas county voter registrar’s discriminatory use of a complex residency questionnaire for certain prospective student voters living on college campuses); (holding that, in the absence of a compelling state interest, the Fourteenth Amendment’s Equal Protection Clause and Twenty-Sixth Amendment prohibited local officials from requiring college students who resided in college communities to undertake additional steps in order to register to vote there because they were students); Yael Bromberg, Youth Voting Rights and the Unfulfilled Promise of the Twenty-Sixth Amendment, 21 U. Pa. J. Const. L. 1105, 1119 (2019) ( “[C]ourts originally applied heightened scrutiny to Twenty-Sixth Amendment claims based on the fundamental right to vote.” ). However, subsequent court decisions have not definitively identified the proper analytical framework for considering claims that a law violates the Twenty-Sixth Amendment.10 Some lower courts have required plaintiffs to show that state legislators intentionally deprived them of their right to vote on the basis of age.11 Other lower courts have applied a balancing test that weighs a state’s asserted nondiscriminatory governmental interests for a particular restriction (e.g., fraud prevention) against an individual’s voting rights.12

The scope of Congress’s power to enforce the Twenty-Sixth Amendment under Section 2 against state laws or practices that “deny” or “abridge” voting rights of persons in specific age groups is also unclear.

Footnotes

1

In

Symm v. United States

, the Supreme Court summarily affirmed the judgment of a three-judge district court, which had enjoined a Texas county voter registrar’s discriminatory use of a complex residency questionnaire for certain prospective student voters living on college campuses. The questionnaire required the students to demonstrate their intent to remain in the county after graduation in order to register to vote. The lower court held this to be a violation of the Twenty-Sixth Amendment as enforced under Title III of the Voting Rights Act Amendments of 1970, and the Supreme Court affirmed the lower court’s judgment without a written opinion.

439 U.S. 1105, 1105 (1979)

, summarily aff’g

United States v. Texas,

445 F. Supp. 1245, 1257–58, 1261 (S.D. Tex. 1978)

; see also

Anderson v. Celebrezze,

460 U.S. 780, 784 n.5 (1983)

(observing that a summary affirmance does not necessarily imply the Supreme Court’s endorsement of the lower court’s reasoning).

2

Under the Constitution, states have principal authority for regulating the “Times, Places and Manner of holding Elections,” subject to congressional override. See U.S. Const. art. I, § 4, cl. 1. This group of essays does not examine the potential enforcement of youth voting rights under provisions of the Constitution other than the Twenty-Sixth Amendment. The Supreme Court has held that, under the Fourteenth Amendment’s Equal Protection Clause, regulatory classifications based on age are neither suspect nor entitled to intermediate scrutiny. Thus, they receive rational basis review, which is deferential to legislatures.

Mass. Bd. of Ret. v. Murgia,

427 U.S. 307, 313–14 (1976)

; .

3

See, e.g.,

Ownby v. Dies,

337 F. Supp. 38, 39 (E.D. Tex. 1971)

(striking down a provision of the Texas Election Code as violative of the Fourteenth Amendment’s Equal Protection Clause and Twenty-Sixth Amendment because it “provide[d] for a determination of voting residency of persons under twenty-one years of age on a different basis than persons twenty-one years of age and older” );

Jolicoeur v. Mihaly,

5 Cal. 3d 565, 569, 582 (1971)

(holding that state officials violated the Twenty-Sixth Amendment when they treated unmarried “minor” citizens of at least 18 years of age who did not live with their parents “differently from adults” for voting purposes by declining to allow the minors to register to vote in the place where they had actually established a permanent residence rather than their parents’ address);

Worden v. Mercer Cnty. Bd. of Elections,

61 N.J. 325, 327, 333–348 (1972)

(holding that, in the absence of a compelling state interest, the Fourteenth Amendment’s Equal Protection Clause and Twenty-Sixth Amendment prohibited local officials from requiring college students who resided in college communities to undertake additional steps in order to register to vote there because they were students);

Palla v. Suffolk Cnty. Bd. of Elections,

31 N.Y.2d 36, 46, 50 (1972)

(holding that a New York election law that determined voter residency did not discriminate against 18-year-old college students in violation of the Twenty-Sixth Amendment, in part because its criteria were uniformly applied to “all prospective registrants, student and nonstudent alike” ).

4

E.g.,

Opatz v. St. Cloud,

293 Minn. 379, 379–83 (1972)

(upholding a provision of the Minnesota constitution prohibiting persons under the age of 21 from holding certain elective state offices as consistent with the federal Constitution’s Fourteenth Amendment Equal Protection Clause and Twenty-Sixth Amendment while observing that “there are many provisions in the Minnesota and in the United States Constitutions fixing the age at which certain individuals may hold office” );

Spencer v. Bd. of Educ.,

39 A.D.2d 399, 402 (N.Y. App. Div. 1972)

( “The Twenty-Sixth Amendment conferred only the right to vote on the 18-year-olds, and extended no concurrent right to hold office.” ).

5

E.g.,

United States v. Olson,

473 F.2d 686, 687–88 (8th Cir. 1973)

(holding that the states’ ratification of the Twenty-Sixth Amendment did not render unconstitutional a federal statute setting the minimum age to serve on a federal jury at 21);

Johnson v. State,

260 So. 2d 436, 437 (Miss. 1972)

(rejecting an 18-year-old criminal defendant’s argument that the Twenty-Sixth Amendment requires persons between the ages of 18 and 20 to appear on state jury lists).

6

E.g.,

Common Cause v. Anderson,

178 Colo. 1, 4, 8 (1972)

(striking down provisions of a Colorado law prohibiting otherwise qualified electors between the ages of 18 and 20 from participating in the initiative process while observing that “public policy, as prescribed by the United States Congress in the Twenty-Sixth Amendment, ratified by the Colorado Legislature May 24, 1971, has moved in a direction favoring full participation of young voters in the political process” ).

7

E.g., Gaunt v. Brown, 341 F. Supp. 1187, 1191 (S.D. Ohio 1972) (surveying the Twenty-Sixth Amendment’s drafting history and concluding that the Amendment does not protect the rights of persons under age 18 to vote in a primary election); Totton v. Murdock, 482 S.W.2d 65, 66–68 (Mo. 1972) (deciding that the Twenty-Sixth Amendment did not protect the right of 17-year-olds to vote in a primary election even if they would be 18 by the time of the general election).

8

E.g.,

Tully v. Okeson,

78 F.4th 377, 378–79, 387–88 (7th Cir. 2023)

(determining that Indiana could accommodate voters over the age of 65 at higher risk for complications from COVID-19 by allowing them to vote absentee by mail upon request, without having to claim that they fell within a specific category of voter entitled to such privileges, consistent with the Twenty-Sixth Amendment rights of younger voters, who retained other options for exercising the franchise (e.g., early in-person voting));

Tex. Dem. Party v. Abbott,

978 F.3d 168, 174, 192–94 (5th Cir. 2020)

(determining that a Texas absentee voting law that allowed any voter at least 65 years of age to vote by mail without excuse did not deny or abridge the Twenty-Sixth Amendment rights of younger voters who were not accorded that privilege because it did not make voting more difficult for younger voters than it had been prior to the law’s enactment or the Amendment’s ratification); L. Paige Whitaker, Cong. Rsch. Serv., LSB10470, Election 2020 and the COVID-19 Pandemic: Legal Issues in Absentee and All-Mail Voting, >https://www.crs.gov/Reports/LSB10470.

9

See supra note 119 (discussing

Symm v. United States,

439 U.S. 1105 (1979)

, in which the Supreme Court summarily affirmed a lower court decision that had applied strict scrutiny to enjoin a Texas county voter registrar’s discriminatory use of a complex residency questionnaire for certain prospective student voters living on college campuses);

Worden v. Mercer Cnty. Bd. of Elections,

61 N.J. 325, 327, 333–348 (1972)

(holding that, in the absence of a compelling state interest, the Fourteenth Amendment’s Equal Protection Clause and Twenty-Sixth Amendment prohibited local officials from requiring college students who resided in college communities to undertake additional steps in order to register to vote there because they were students); Yael Bromberg, Youth Voting Rights and the Unfulfilled Promise of the Twenty-Sixth Amendment, 21 U. Pa. J. Const. L. 1105, 1119 (2019) ( “[C]ourts originally applied heightened scrutiny to Twenty-Sixth Amendment claims based on the fundamental right to vote.” ).

10

See, e.g.,

Tex. Dem. Party,

978 F.3d at 193–94

(expressing, in dicta, uncertainty as to whether courts should apply rational-basis review or a heightened standard of review to laws that allegedly abridge Twenty-Sixth Amendment rights).

11

Some lower courts have applied a test for intentional discrimination from the Supreme Court’s Fourteenth Amendment Equal Protection Clause reasoning in

Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,

429 U.S. 252 (1977)

. See, e.g.,

One Wis. Inst., Inc. v. Nichol,

186 F. Supp. 3d 958, 976 (W.D. Wis. 2016)

(applying the

Arlington Heights

framework and stating that “plaintiffs must adduce evidence that the Wisconsin legislature passed the challenged regulations with the purpose of making it harder for younger citizens to vote. . . . [E]vidence of a disparate impact on younger voters will not be sufficient.” );

League of Women Voters of Fla., Inc. v. Detzner,

314 F. Supp. 3d 1205, 1221–22 (N.D. Fla. 2018)

(applying the

Arlington Heights

framework and observing that, in the absence of a “stark” pattern of discrimination, a law’s disparate impact on a protected class is not “determinative” but that the Florida Secretary of State’s legal opinion interpreting Florida law to forbid early voting on college campuses was intentional discrimination “unexplainable on grounds other than age” ).

12

Some lower courts have applied a balancing test from the Supreme Court’s Fourteenth Amendment reasoning on voting restrictions in

Burdick v. Takushi,

504 U.S. 428, 432–34 (1992)

and

Anderson v. Celebrezze,

460 U.S. 780, 789 (1983)

, which weighs asserted nondiscriminatory governmental interests for a particular restriction (e.g., fraud prevention) against an individual’s voting rights. See

One Wis. Inst., Inc.,

186 F. Supp. 3d at 970–71

(discussing the Anderson-Burdick standard); see also Bromberg, supra note 9, at 1105, 1164 (suggesting that courts evaluate Twenty-Sixth Amendment claims that a government actor has “abridged” voting rights on the basis of age using a “hybrid test” that allows plaintiffs to establish a violation by showing “[d]irect evidence of prima facie intentional discrimination,” “factors . . . probative of intent to discriminate,” or that “[a]n undue burden specifically and disproportionally affects an age-based class” ); Alison Ge, The Twenty-Sixth Amendment and Protecting the Youth Vote, 25 N.Y.U. J. Legis. & Pub. Pol’y 167, 171 (2022) (discussing relevant cases).