The right to vote is one of the most essential tenets of our liberal democracy, but in the chaos of the COVID-19 pandemic, many United States citizens had to weigh the importance of their health against the importance of exercising their suffrage. Accordingly, several states considered and promulgated new voting rules allowing for far safer voting means such as early and mail-in voting. That is not to say that these procedures were not already widespread; before 2020, the majority of states already allowed no-excuse mail-in voting. However, in Texas, where mail-in voting rights are available only for some classes of citizens but not others, eligible voters challenged these unequally distributed voting rights by invoking serious constitutional concerns under the Twenty-Sixth Amendment—the constitutional guarantee that the right to vote “shall not be denied or abridged . . . on account of age.”
A recent Fifth Circuit ruling upheld a Texas voting law that allows mail-in voting (i.e., the ability of voters, in or out of state, to mail in their votes rather than vote in person) only for those age 65 and older. The appellate court’s decision constitutes a failure to fully recognize that “[t]he authors of the Twenty-Sixth Amendment consciously modeled it after the Fifteenth and the Nineteenth,” and that, therefore, the Amendment’s protections against age-based voter discrimination should not be so cursorily disregarded. Contrary to common understanding, both the text and the legislative history of the Twenty-Sixth Amendment indicate that the Amendment did more than simply lower the eligible voting age to eighteen. First, the language of the Twenty-Sixth Amendment is virtually identical to that of the Fifteenth and the Nineteenth Amendments, and thus “reading the amendments together seems to be the most obvious approach.” Second, several legislators expressly indicated that the Twenty-Sixth Amendment was created to prevent age discrimination in voting “[j]ust as the 15th amendment prohibits racial discrimination in voting and just as the 19th amendment prohibits sex discrimination in voting.” Were mail-in voting eligibility based on race or sex, it would unquestionably run afoul of the earlier voting amendments. However, the history of improperly watering down the Twenty-Sixth Amendment led the Fifth Circuit astray in this decision, which construes “deny or abridge” too narrowly, impermissibly unequally distributes a voting privilege, and fails to apply the proper standard of review.
InTexas Democratic Party v. Abbott, the Fifth Circuit refused to find a violation of the Twenty-Sixth Amendment’s prohibition on laws, which deny or abridge the right to vote “on account of age.” First, the court determined that voting rights are not “denied or abridged” where a voting privilege is conferred to a certain class of voters but not to others. In doing so, the court argued that “abridgment” of the right to vote occurs only when laws “otherwise make it more difficult to vote relative to the baseline.” Accordingly, Texas’s voting law did not constitute an abridgment of the right to vote for those under age 65, as the right to mail-in voting is not considered “fundamental,” and the law only made it easier for others to vote relative to the baseline. Second, while the court held that because there was no denial or abridgement to scrutinize, there was no reason to rule on the precise standard of review to apply, the Fifth Circuit noted in dicta that it “ha[d] not seen any authority to support that it would require strict scrutiny.” State laws that appear to encroach on enumerated constitutional rights may receive different levels of “scrutiny” when reviewed by the court. “Strict scrutiny” is a high standard that applies to, for example, race-based classifications, under which a state law will be struck down unless it is shown to be “narrowly tailored” to “further compelling government interests.”
The Fifth Circuit’s principal error in its ruling was construing “deny or abridge” too narrowly, ignoring the facially discriminatory nature of this Texas mail-in voting provision. In the context of the identically worded Fifteenth Amendment, Supreme Court precedent supports a broader reading of “deny or abridge,” which invalidates voting procedures that are “discriminatory on their face or in practice.” The fact that mail-in voting is a privilege that states are not constitutionally required to provide does not justify an unequal distribution of this voting right based on age. Dicta from a recent Eleventh Circuit decision considering a Twenty-Fourth Amendment challenge explained this concept in the context of “reenfranchisement” of felons. The court elaborated that while “States may deny all felons the right to vote,” they may not—under the Fifteenth, Nineteenth, or Twenty-Sixth Amendment—extend the right to vote to somefelons but not to others on the basis of race, sex, or age, despite the fact that ordinarily felons have “no cognizable rights” to vote at all and thus their “reenfranchisement is ‘an act of grace.’” The same should be true for the “act of grace” of providing mail-in voting rights. While the general public may not have a “cognizable right” to mail-in voting, if a state chooses to grant its citizens this privilege, it may not do so unequally on account of race, sex, or age.
Furthermore, the Fifth Circuit’s distinction between reducing some people’s voting rights versus enhancing others’ voting rights is inapposite when analyzing discriminatory laws like the one at issue in Abbott. Enhancing the accessibility of one class of voters but not others may very well have the same suffrage-diluting effect as actively diminishing voting rights for specific groups. That is, while conferring a voting privilege to some does not reduce the already existing voting rights of another, “the right to have one’s vote aggregated in a way that it is more likely to elect one’s preferred candidate is zero-sum: my candidate and your candidate cannot both win.” Indeed, some federal courts have already recognized this fact in the context of the Twenty-Sixth Amendment. In a 2018 case in the Northern District of Florida, university students challenged the Secretary of State’s interpretation of a law—which had the sole purpose of expanding access to early voting sites—such that college- or university-related facilities were excluded. The court held that an unequal distribution of a voting privilege (here, access to early voting sites) based on a clear proxy for age was impermissible under the Twenty-Sixth Amendment.
Finally, despite the Fifth Circuit’s failure to resolve the question as to what standard of review should apply to voting laws that encroach on Twenty-Sixth Amendment rights, the particular level of scrutiny, in this case, is likely inconsequential. As the Abbott dissent put it, this law is not just “discriminatory in normal times [but] dangerous in the time of a global pandemic,” and should not survive any form of judicial review under any level of scrutiny. Even if a rational basis standard of review were adopted, this age-based classification would be invalidated if found to “rest on grounds wholly irrelevant to the achievement of the State’s objective.” That is, to survive rational basis review, there still must be “some footing in the realities of the subject addressed by the legislation.” While other conceivable state objectives might exist, the defendants in this case made clear that Texas’s interest behind this age-based classification was preventing “voter fraud.” Thus, for the law to pass constitutional muster under even a rational basis standard, there must exist some reason to believe that (1) voter fraud is a larger risk with mail-in votes and (2) voters age 64 and under are somehow more likely to commit voter fraud with mail-in ballots. Yet, as the final months of 2020 have certainly shown, these are no more than harmful myths. In fact, with the 2020 election (finally) over, this “voter fraud” rationale can be decisively proven as illegitimate.
Despite their identical language, the Twenty-Sixth Amendment has received oddly disparate treatment relative to its fellow voting rights amendments. While the Fifth Circuit chose to interpret the Twenty-Sixth Amendment narrowly, hopefully increased focus on issues such as early and mail-in voting rules prompted by the pandemic will raise further age-discrimination concerns that will prompt the Supreme Court to finally clarify the Amendment’s role in our constitutionally protected suffrage.
Victor Hiltner is a student at Northwestern University Pritzker School of Law and a teaching assistant for Constitutional Law. He would like to thank his girlfriend, Naz Gocek, for providing him with the inspiration for this piece.