A part of the Constitution – the only part that deals with discrimination based on age – has existed for 47 years, but has mostly been ignored. It is suddenly getting a revival now, as newly energized teenagers with a stronger sense of civic involvement seek easier access to polling places. They are winning it in the state of Florida, and that could set a precedent with wider impact.
The 26th Amendment is one of only four alterations of the Constitution that were explicitly adopted to directly overrule a Supreme Court decision. In December 1970, the Court split 5-to-4 in the case of Oregon v. Mitchell, striking down a provision of a then-new federal voting rights law that lowered the voting age in state (as well as federal) elections from 21 to 18. Setting the voting age for state elections, the majority found, was a matter not for Congress, but for state governments.
By the following March, Congress had adopted and sent to the states the proposed 26th Amendment, explicitly lowering the voting age to 18 in all elections. The amendment, using the same language as other amendments that expanded the right to vote in America, declared that the vote could not be “denied or abridged” for those who were 18 or older. Within 100 days – by July 1, 1971 – enough states had approved it to complete ratification.
The main argument (and it was the one that had been used for decades as politicians debated the issue over and over again) was that, if 18-year-olds were mature enough to have to go to war, they could handle the civic task of voting. When the Amendment finally took effect, it thus was a kind of non-discrimination promise to those who had reached ages 18, 19 and 20 and wanted to vote.
The courts have seldom had reason to interpret what the Amendment means since election officials at all levels simply fell in line and let the newly enfranchised voters exercise their right. Few if any instances of suppressing the vote based on age arose, so the Amendment sat for decades without interpretation of what discrimination might look like.
A group of six college students in Florida joined with their state’s League of Women Voters chapter, filed a federal lawsuit when state election officials interpreted state law to mean that college campuses could not be the sites for polling booths in the early-voting periods allowed in Florida for primary or general elections. (Voting has been allowed on college campus polling places on the day of the election itself, but that has resulted in long lines or significant delays in casting ballots there; election-day voting at campus sites is not an issue in the lawsuit by the college students and the League. Their focus was on the option – and the convenience – of early voting, prior to election day.)
Last month, U.S. District Judge Mark E. Walker of Tallahassee, writing on a nearly-clean slate of court precedents, ruled that the younger voters were likely ultimately to win their argument that denial of polling places for early primary voting elections was an abridgment of the right to vote based on age, under the 26th Amendment. The judge, using a more lenient standard under the Fourteenth Amendment guarantee of legal equality, also declared that the challenger was likely to prevail as discriminatory in effect even if not intentional.
That was not a final ruling on either issue, but it was enough for Judge Walker to issue an order telling county election officials that it was up to them, if they wished, to place early voting stations on the state’s 30 publicly-run universities or colleges. If all 99 counties’ officials went along, that would reach some 830,000 students who would be eligible to vote early and on campus, the judge noted. (Judge Walker stressed that he was not ordering that to be done anywhere; it was, he said, only an order to give local election boards the option to place early voting sites on campuses without being blocked by the state.)
Quickly, a number of counties’ election boards have agreed to set up polling places on what appear to be some of the largest public universities or colleges – the University of Florida in Alachua County, Florida State University in Leon County, and the University of South Florida in Hillsborough County. (So far, only Duval County officials have said they won’t do so this year on the campuses of the University of North Florida and Florida State College.) Other counties have not yet decided.
While Judge Walker’s reasoning on why the restriction violated the Fourteenth Amendment because of the burden it placed on young voters, his ruling on the 26th Amendment aspect of the case was broader. He found that state election officials had intentionally singled out younger voters for restricting their rights, based directly on their age.
They did it on purpose, the judge said, “to stymie young voters from early voting.” While the state legislature, in passing the 2013 law that state officials interpreted as barring early voting on college campuses, had taken several steps to expand voting rights, the only loss of broader rights was that for younger voters living on campuses, the judge said.
The restriction, according to Walker’s opinion, cannot be explained “on grounds under than age because it bears so heavily on younger voters than all other voters” in the state.
The state had the option of appealing the judge’s temporary ban on enforcing the restriction, but chose for the time being to withdraw the restriction and leave county election boards with the option of putting polling places on college campuses.
The state has the option of trying to defend the restriction on the merits when the case moves on to a full trial later, but it asked the judge to keep any further developments in the case on hold until after election day in November.
In the meantime, Judge Walker’s ruling sets a significant new precedent on the power of the 26th Amendment to block attempts to suppress the votes of younger citizens. If there are dependable signs that such suppression was intentional, the Amendment would have a significant impact. Early voting has been very popular with college students in Florida, and new activism among younger voters may well push the precedent in other states in coming years. If states resist, the issue may ultimately reach the Supreme Court.
Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.
