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.

During the 1960s, public support for lowering the minimum voting age increased as the U.S. Armed Forces became directly involved in defending South Vietnam from North Vietnam and the Viet Cong guerilla forces.1 Although men as young as 18 could be drafted to fight in the Vietnam War,2 only a few states allowed persons under the age of 21 to vote.3 As U.S. involvement in the war reached its peak in the late 1960s, President Lyndon B. Johnson wrote a message to Congress calling for an amendment to the Constitution lowering the voting age.4 Referring to the ballot box as the “anvil of democracy, where government is shaped by the will of the people,” Johnson remarked that “reason does not permit us to ignore any longer the reality that eighteen-year-old young Americans are prepared—by education, by experience, by exposure to public affairs of their own land and all the world—to assume and exercise the privilege of voting.” 5

When extending the Voting Rights Act of 1965 in 1970, Congress included a provision lowering the age qualification to vote in all elections—federal, state, and local—to 18.6 In the findings section accompanying this provision, Congress explained that the law was necessary to protect the “inherent constitutional rights” of 18- to 20-year-old citizens, particularly in light of “the national defense responsibilities imposed upon such citizens.” 7 Congress asserted that it possessed the authority to enact the youth enfranchisement provision because it was necessary to enforce the Fourteenth Amendment’s equal protection and due process guarantees against the states.8

On June 22, 1970, President Richard Nixon signed the Voting Rights Act Amendments into law but issued a statement questioning the constitutionality of the legislation’s provision lowering the voting age in all elections to 18.9 Nixon wrote, “Although I strongly favor the 18-year-old vote, I believe—along with most of the Nation’s leading constitutional scholars—that Congress has no power to enact it by simple statute, but rather it requires a constitutional amendment.” 10 Nixon directed the U.S. Attorney General to file a lawsuit seeking a court’s judgment on the provision’s constitutionality and called upon Congress to propose an amendment to the Constitution lowering the minimum voting age.11

Subsequently, the Supreme Court considered several challenges to the constitutionality of the Voting Rights Act Amendments of 1970, including Title III, which lowered the minimum voting age.12 In a divided decision in the 1970 case Oregon v. Mitchell, the Supreme Court held that Congress was empowered to lower the age qualification in federal elections, but voided the application of Title III of the Act in all other elections as beyond congressional power.13 Confronted with the possibility that they might have to maintain two sets of registration books and incur the expense of running separate election systems for federal elections as compared to all other elections, many states were receptive to Congress proposing a constitutional amendment to establish a minimum age qualification of 18 for all elections.14

Footnotes

1

Vietnam War, Naval Hist. & Heritage Command, >https://www.history.navy.mil/browse-by-topic/wars-conflicts-and-operations/vietnam-war0.html.

2

Changes from Vietnam to Now, Selective Serv. Sys., >https://www.sss.gov/history-and-records/changes-from-vietnam-to-now/.

3

These states included Alaska, Georgia, Hawaii, and Kentucky. See Sen. Birch Bayh, S. Comm. on the Judiciary, 92d Cong., Passage and Ratification of the Twenty-Sixth Amendment: Report of Constitutional Amendments Subcommittee 3 (Comm. Print 1971).

4

President Lyndon B. Johnson, Special Message to the Congress, To Vote at Eighteen: Democracy Fulfilled and Enriched (June 27, 1968), Am. Presidency Project, >https://www.presidency.ucsb.edu/documents/special-message-the-congress-vote-eighteen-democracy-fulfilled-and-enriched.

5

Id. In 1963, a commission established by President John F. Kennedy to investigate low voter registration and turnout recommended to President Johnson that “each State should carefully consider reducing the minimum voting age to 18.” Report of the President’s Commission on Registration and Voting Participation 43 (1963), >https://babel.hathitrust.org/cgi/pt?id=umn.31951d029875154&view=1up&seq=3.

6

This provision covered primary and general elections. See Voting Rights Act Amendments of 1970, Pub. L. No. 91-285, § 302, 84 Stat. 314, 318, invalidated in part by Oregon v. Mitchell, 400 U.S. 112, 117–19 (1970). The Voting Rights Act of 1965 prohibits states from denying or abridging the right to vote on the basis of race or color. See 52 U.S.C. §§ 10301–10314.

7

Voting Rights Act Amendments of 1970, Pub. L. No. 91-285, § 301, 84 Stat. 314, 318.

8

Id.; see also U.S. Const. amend. XIV, § 5. In March 1970, Senator Ted Kennedy of Massachusetts argued in testimony before the Senate Judiciary Committee’s Subcommittee on Constitutional Amendments that Congress could lower the minimum voting age by statute through the exercise of its Fourteenth Amendment enforcement power as supplemented by the Necessary and Proper Clause:

Congress is given the power under Section 5 [of the Fourteenth Amendment] to enact legislation to enforce the Equal Protection Clause, the Due Process Clause, and all the other great provisions contained in Section 1 of the Amendment. It is Section 5 that gives Congress the power to legislate in the area of voting qualifications, as well as in many other areas affecting fundamental rights. Thus, the authority of Congress to reduce the voting age by statute is based on Congress’s power to enforce the Equal Protection Clause by whatever legislation it believes is appropriate.

See 116 Cong. Rec. 6649–51 (1970) (discussing Katzenbach v. Morgan, 384 U.S. 641 (1966), among other Supreme Court decisions); see also, e.g., id. at 6142 (statement of Sen. Moss) ( “Under the [ Fourteenth Amendment], Congress has the power to find that a distinction between those who are 18 to 21 and those who are over 21 is an invidious classification and, therefore, a denial of equal protection under the law.” ); id. at 5950 (amendment offered by Sen. Mansfield to the Voting Rights Act Amendments of 1970 to lower the minimum voting age to 18 in federal, state, and local elections).

9

President Richard Nixon, Statement on Signing the Voting Rights Act Amendments of 1970 (June 22, 1970), Am. Presidency Project, >https://www.presidency.ucsb.edu/documents/statement-signing-the-voting-rights-act-amendments-1970.

10

Id.

11

Id.

12

Oregon and Texas, which each maintained a minimum voting age of 21, sought a federal court injunction preventing the U.S. Attorney General from enforcing the minimum voting age provisions on the grounds that they exceeded Congress’s power and infringed on the states’ constitutional authority to regulate elections. In separate lawsuits that the Supreme Court consolidated with Oregon’s and Texas’s actions, the U.S. Attorney General sought a court order directing Arizona and Idaho to comply with Title III and other provisions of the Act. Oregon v. Mitchell, 400 U.S. 112, 117 n.1 (1970).

13

Oregon, 400 U.S. at 117–18. None of the Justices’ opinions garnered a majority of votes. Justices William O. Douglas, William J. Brennan, Jr., Byron White, and Thurgood Marshall agreed that Congress could lower the minimum voting age in both federal and state elections. However, Chief Justice Warren E. Burger and Justices John Marshall Harlan, Potter Stewart, and Harry Blackmun agreed that none of Congress’s constitutional powers, including its power to enforce the Fourteenth Amendment’s Equal Protection Clause, authorized it to lower the minimum voting age to 18 in federal or state elections. Justice Hugo Black cast the deciding votes in the case. He voted to uphold Title III insofar as it lowered the voting age in federal elections based on his view that Congress’s power under the Elections Clause in Article I, Section 4, Clause 1, as supplemented by the Necessary and Proper Clause, gave Congress the power to lower the age in federal elections. However, he voted to strike down Title III insofar as it lowered the voting age in state and local elections based on his view that Congress had not acted to enforce “the Civil War Amendments’ ban on racial discrimination.” See id. at 117–31.

14

S. Rep. No. 92-26, at 12–18 (1971); H.R. Rep. No. 92-37, at 6–7 (1971) (observing that many states would have to amend their constitutions in order to lower their voting ages and that, in many cases, this could not be done before the next election).