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A legal analysis of age discrimination in voting

Here’s an interesting report by a group of lawyers about age restrictions and the 26th Amendment, with specific commentary about the federal age discrimination lawsuits over voting by mail in Texas. A brief excerpt:

In the immediate wake of the Amendment’s ratification, a few states persisted in making it much harder for younger voters, especially students and military voters, to vote than others. Plaintiffs challenged several such state and local laws, and courts applied strict scrutiny to those claims. In other words, the laws could survive only if states could demonstrate (1) a compelling state interest for the age discrimination, and (2) that the law was narrowly tailored to meet that interest. In many cases, courts struck down the laws. See Ownby v. Dies, 337 F. Supp. 38, 39 (E.D. Tex. 1971) (invalidating, under the Twenty-Sixth and Fourteenth Amendments, a state statute providing different criteria for determining voting residency for voters age 18–21 than for voters over the age of 21); cf. Dunn v. Blumstein, 405 U.S. 330 (1972) (applying strict scrutiny to Tennessee durational residency requirement for voter registration because the law forced voters to choose between the right to vote and the right to travel); Worden v. Mercer County Bd. Of Elections, 61 N.J. 325 (1972)(reviewing Twenty-Sixth Amendment legislative history and jurisprudence, applying strict scrutiny to invalidate a county policy of refusing voter registration to students domiciled on campus).18

The Supreme Court’s lone ruling on a case directly involving a Twenty-Sixth Amendment claim occurred in 1979, towards the end of the initial wave of post- ratification litigation. In that case, the Court summarily affirmed a three-judge district court’s decision to overturn voter registration restrictions in Waller County, Texas, because the registrar had been imposing unconstitutional burdens on students wishing to vote. Symm v. United States, 439 U.S. 1105 (1979) (reviewing the legislative history and bevy of litigation brought following ratification, finding consistency with the right to vote doctrine’s application of strict scrutiny), aff’g United States v. Texas, 445 F. Supp. 1245 (S.D. Tex. 1978). That summary affirmance has precedential weight.19

After Symm, however, few cases challenged laws that discriminate against voters based on age. Thus, Twenty-Sixth Amendment jurisprudence largely froze in the decade following its ratification. Meanwhile, courts have considered numerous voting rights cases invoking the Fourteenth Amendment’s due process and equal protection clauses.20 Recently, litigants have turned back to the Twenty-Sixth Amendment in cases where politicians are discriminating against young voters or student voters. Enforcing the Twenty-Sixth Amendment’s guarantee in the context of laws that allow only older voters to vote at home—especially during a pandemic when in-person voting is fraught with health concerns—is particularly appropriate.

For instance, one court recently noted that the Twenty-Sixth Amendment contributes “added protection to that already offered by the Fourteenth Amendment.” League of Women Voters of Fla., Inc. v. Detzner, 314 F. Supp. 3d 1205, 1221 (N.D. Fla. 2018). Given the Twenty-Sixth Amendment’s express identification of age as an impermissible axis of discrimination in voting, the more state-friendly balancing test that the Supreme Court uses under the Equal Protection Clause would be “unfitting” in a case alleging direct age discrimination in voting. Id. (citing One Wisconsin Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 926 (W.D. Wis. 2016)). This heightened scrutiny is consistent with courts’ use of strict scrutiny in the decade following ratification of the Twenty-Sixth Amendment, as well as with the reality that courts should interpret the Twenty-Sixth Amendment as prohibiting states from discriminating against any otherwise-eligible voter on the basis of age.

There’s more, so go read the rest. These lawyers conclude that the plaintiffs have an excellent chance of winning, though as noted there’s not a lot of precedent to guide us. And of course, this was written before the Fifth Circuit ruling from last week, so who knows how or if that changes the calculus.

Ian Millhiser in Vox, writing a few days before this analysis was published, largely agrees with the conclusion about the plaintiffs’ chances, but offers this warning:

It is possible, however, that higher courts will never even reach the question of whether Texas is violating the 26th Amendment. Indeed, there is a very real risk that either the Fifth Circuit or the Supreme Court will effectively conclude that it is never possible to challenge Texas’s effort to prevent younger voters from voting during the pandemic.

The reason turns on two fairly obscure Supreme Court decisions, Railroad Commission of Texas v. Pullman (1941) and Purcell v. Gonzalez (2006).

Pullman sometimes requires federal courts to abstain from deciding a pending case — if the outcome of that case turns upon the proper way to read a state law, the meaning of which is currently being litigated in state court. Purcell, meanwhile, warned that “Court orders affecting elections can themselves result in voter confusion and consequent incentive to remain away from the polls” and that “as an election draws closer, that risk will increase.”

More recent Supreme Court decisions drawing on Purcell suggest that federal courts must avoid deciding many voting rights cases altogether as an election nears.

So it’s not hard to see how these two decisions could work together to thwart the plaintiffs in Abbott. Until the Texas Supreme Court decides DeBeauvoir, the Fifth Circuit and the US Supreme Court are likely to conclude that Pullman prevents them from weighing the constitutional claims in Abbott. Then, when the Texas Supreme Court does hand down its decision in DeBeauvoir, the Fifth Circuit and the US Supreme Court could just as easily conclude that it’s too close to Election Day — and Purcell prevents federal courts from weighing in.

It’s a trap that often arises in voting rights cases that reach the Roberts Court. Plaintiffs who file lawsuits early frequently lose because they filed too early to develop enough evidence to win their case, or because a doctrine like Pullman abstention prevents them from pursuing their case right away. But plaintiffs who take the time to develop their case frequently lose because Purcell does not allow them to bring a voting rights case too close to an election.

Doesn’t mean that’s how this will go, but be forewarned. And remember, the way to fix voting rights problems is to elect legislators and state executives who want to fix them. The Current has more.

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3 Comments

  1. brad says:

    Attended a racial justice protest yesterday. At its conclusion a volunteer deputy registrar shouted out she was there if there was any late 17 year olds or newly 18 years.

    She was inundated by high schoolers registering. Beautiful.

  2. Wolfgang says:

    Good luck to the election Law Profs. At least there will be good law review material.

    Note that the one jurist that has signed on the to the age-discrimination argument has since been declared a rogue district judge by the Fifth Circuit for his audacity, and has been denounced for taking matters of policy into his own hands, among other anti-compliments. And the Texas Democratic Party and their fellow-traveling co-plaintiffs were analogized to kids who killed their parents. Gee. How low can they go?

    MEANWHILE, ON THE STATESIDE LEGAL FRONT:

    In related mail-vote news, the Texas Democratic Party threw in the towel today, with a nonsuit in the Travis County vote-by-mail lawsuit. That’s a voluntary dismissal of their claims. It kills the Sulak order (which was a temporary injunction order, not a final one) and the interlocutory appeal of it by the Attorney General (who had asked them to nonsuit, gloating about the success of the by-pass mandamus on trumped-up charges against the election clerks, if I recall correctly).

    What’s wrong with the Democrats and their lawyers?

    At least the League of Women Voters should/could have stuck around for a ruling on the merits in the 14th COA. Things were going right there. They could still have nonsuited after an opinion was issued in that court, and thus avoided further review by the SCOTX, or not, and have them take the blame for the outcome. After the SCOTX ruling in the contrived election clerk mandamus, it could hardly have gotten any worse than what it already is.

    Am I missing something?

    Perhaps there is some grand strategy that is too grand for an ordinary mortal to fathom?

  3. […] here for the background. You know how I feel, about the merits of this case. The arguments for the state’s restrictions on voting by mail make no sense, not […]