Interpretation & Debate

The Twenty-Sixth Amendment

Matters of Debate

Common Interpretation

by Jocelyn Benson

Secretary of State for the State of Michigan

by Michael T. Morley

Assistant Professor of Law at Florida State University College of Law

The Twenty-Sixth Amendment provides, “The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.” It prohibits states from discriminating among voters based on age, for people who are at least 18 years old, and grants Congress power to “enforce” that prohibition through “appropriate legislation.” The Twenty-Sixth Amendment is the last in a series of amendments enacted over more than a century expanding constitutional protection for voting rights. Like many other amendments, it was enacted as a direct repudiation of a U.S. Supreme Court ruling. 

Traditionally, Americans had to be at least 21 years old to vote. Section 2 of the Fourteenth Amendment, enacted after the Civil War, protects the right to vote for the “male inhabitants of [each] state, being twenty-one years of age, and citizens of the United States.”  States were permitted to lower the voting age, but not required to do so. By the time of the Vietnam Conflict, most states still limited the franchise to people 21 and older. Because so many men between 18 and 20 were being drafted to fight in Vietnam, Congress came under substantial pressure to expand the franchise to them. Congress consequently enacted the Voting Rights Act of 1970, which lowered the voting age to 18 for all federal, state, and local elections. 

In Oregon v. Mitchell (1970), a deeply divided Supreme Court held that Congress had authority to lower the voting age in federal elections, but lacked power to do so for state and local elections. Thus, states were statutorily required to allow people between 18 and 20 to vote for President, U.S. Senate, and the U.S. House of Representatives, but retained discretion to limit state and local elections to voters who were at least 21. In response to Oregon, Congress proposed the Twenty-Sixth Amendment to lower the voting age to 18 for all elections. The Amendment was ratified in less than four months—the shortest ratification period of any constitutional amendment.  

The Senate Report accompanying the Twenty-Sixth Amendment explained that it was proposed for three main reasons. First, “younger citizens are fully mature enough to vote.”  Most people between 18 and 21 had completed high school, and many had received at least some higher education. Second, 18-year-olds “bear all or most of an adult’s responsibilities.” This consideration assumed special importance since over half the American servicemen killed in Vietnam were between 18 and 20. Third, younger voters should be given the chance “to influence our society in a peaceful and constructive manner.” Excluding 18-year-olds from the political process contributed to violent protests.

The Twenty-Sixth Amendment is worded very similarly to the Fifteenth Amendment, which prohibits states from denying or abridging the right to vote on account of race. Some courts have expressed doubt, however, whether the Twenty-Sixth Amendment’s protections against age-based discrimination are as broad as the Fifteenth Amendment’s protections against racial discrimination. Others have held, in contrast, that the Twenty-Sixth Amendment should be interpreted similarly to the Fifteenth, since the provisions have nearly identical wording and purposes. Under this approach, states may not enact laws with the intent of making it more difficult for younger voters to vote.

It is well established that, in addition to lowering the voting age for all elections to 18, the Twenty-Sixth Amendment also prohibits states from imposing special restrictions or residency rules just on voters who are between 18 and 20 years old. For example, shortly after the Amendment was adopted, the California Supreme Court held that election officials may not presume that unmarried people between 18 and 20 live with their parents, but instead must apply the same residency rules that apply to everyone else. 

The Twenty-Sixth Amendment is most frequently invoked, along with the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment, in disputes concerning college students’ residency for voting purposes. A person generally may vote only at her “domicile,” which is the place in which she has established her home, where she intends to remain indefinitely, and to which she intends to return when she travels. Controversies have arisen over whether a dormitory or apartment where a college student lives while attending school may qualify as that student’s “domicile,” allowing the student to register to vote at that address.

Courts have continuously reaffirmed that a student who moves to a new place solely to attend college or graduate school and does not otherwise intend to make that place her home neither acquires domicile nor may register to vote there. She must instead register at her former residence (presumably, the home of her parents or guardians). Many courts have made it difficult for election officials to enforce this restriction, however. They have held that the Twenty-Sixth Amendment, the Equal Protection Clause, or both, prevent election officials from imposing special evidentiary requirements or restrictions solely on college students living in dormitories or off-campus housing. Most courts to consider the issue have similarly held that election officials may not single out college students and either ask them questions or require them to fill out a special questionnaire to confirm they intend to establish domicile where they are attending school. Courts have eliminated other obstacles to college student voting as well, for example by requiring election officials to accept dormitories as valid residences for voter registration purposes.  

Courts repeatedly have confirmed that the Twenty-Sixth Amendment does not confer any protections outside the realm of voting. They have rejected arguments that the Amendment requires states to lower the age to 18 for jury service, holding public office, or drinking. The Twenty-Sixth Amendment has most recently been invoked in voter identification cases. Most Twenty-Sixth Amendment challenges to voter identification laws—including laws that do not allow students to vote using college identification cards—have failed, due to the lack of evidence that legislators adopted them to intentionally discriminate against voters between 18 and 20 years old.

The Twenty-Sixth Amendment and Domicile

by Michael T. Morley

Assistant Professor of Law at Florida State University College of Law

The Twenty-Sixth Amendment has played an important role in expanding the franchise to younger Americans, allowing them to participate more fully in the political process. It ensures that citizens between 18 and 20 years old cannot be deprived of the opportunity to vote on account of age. College students pose particular challenges for voting laws, however. Although everyone agrees that they are entitled to vote, a recurring question is whether they may register to vote at their school address, or instead must register at their home (or their parents’) address.   

Some jurisdictions have periodically attempted to address this issue in overbroad, ham-fisted ways that needlessly discriminated against college students. When a student registers at a dormitory address, however, election officials should be permitted to inquire further. Many—perhaps most—students living in dormitories do not intend to reside there indefinitely but instead retain their previous domiciles at their (or their parents’) homes. At many schools, students are not even permitted to remain in their dormitory year-round, but rather are required to move out at the end of the academic year. Election officials should not be required to ignore recurring uncertainties about domicile that reasonably arise in these circumstances. 

The state may not impose unreasonable barriers to voting. When a student attempts to register at a dormitory address, however, neither the Twenty-Sixth Amendment nor the Equal Protection Clause should prohibit election officials from seeking further information to ensure that the student has actually abandoned his or her previous domicile. They should confirm that the student has demonstrated an intent to remain in the new jurisdiction indefinitely (such as by getting a new driver’s license), rather than for the sole purpose of attending school. Should a student properly qualify to register at a school address, election officials from that jurisdiction should confirm—as with all new registrants—that the student’s previous voter registration from his or her previous address has been cancelled.  

Additionally, while the Twenty-Sixth Amendment protects voters between the ages of 18 and 20 from discrimination, it does not entitle them to special privileges or exemptions from generally applicable laws. For example, when a statute specifies the forms of identification a person must show in order to vote, the Twenty-Sixth Amendment does not entitle college students to demand to use their college identification card instead.

It is worth noting that the Twenty-Sixth Amendment protects against age-based discrimination in voting for anyone who is at least 18 years old. While its original intent was to expand the franchise to younger voters, and most litigation surrounding the Amendment has concerned college students, it also prevents Congress and states from attempting to deprive senior citizens of the right to vote based on age. Congress has enacted the Voting Accessibility for the Elderly and Handicapped Act to provide basic protections for older voters, and most states make special accommodations to facilitate voting in nursing homes. Particularly when absentee ballots or “assistants” are used, however, precautions should be taken to ensure that the elderly are truly being enabled to vote how they wish, rather than instead being pressured to vote in certain ways, or having their votes harvested by unscrupulous political operatives. 

The Twenty-Sixth Amendment and Congressional Authority

by Jocelyn Benson

Secretary of State for the State of Michigan

Democracy works best when all voters are informed and actively engaged, and when the system for participation and representation is equally open to all. The Twenty-Sixth Amendment is a critical component of the fabric of the laws and constitutional mandates that seek to recognize and enforce those principles in our American democracy. But our federal government—particularly Congress—has yet to fully embrace the full authority granted in this Amendment.

Enacted in response to the critique that 18-year-old citizens were “old enough to fight” but not “old enough to vote” during Vietnam, the movement towards the passage of the Twenty-Sixth Amendment actually began during World War II. It was then, on November 11, 1942, that President Roosevelt lowered the age for service in the military to 18, while the minimum age to vote remained at 21 in every state. This dichotomy launched a debate on lowering the voting age to 18. Within a month, a West Virginia Congressman introduced the first piece of federal legislation to mandate that all states lower the voting age to 18. The legislation failed, but several states embraced the charge: Georgia was the first state to affirmatively respond, lowering its voting age to 18 in 1943.

It took nearly 30 years and a United States Supreme Court case for the requirement to extend nationwide. But when the Twenty-Sixth Amendment was enacted in 1971, it was more than simply an amendment to lower the voting age. It not only restricted states from denying or restricting the right to vote based on age for any citizen over the age of 18. Like the Fourteenth, Fifteenth, and Nineteenth Amendments, it also gave Congress the “power to enforce” the mandate “by appropriate legislation.”

Scholars have since debated the true strength of this authority. Some argue that it should only give Congress the ability to issue a legislative federal override of any state law or policy that explicitly intends to restrict the right to vote on account of age. Others argue that it would also allow Congress to supersede state laws enacted with seemingly neutral intent but that have the effect of disproportionately burdening the voting rights of a particular age group. To this end, Congress could bar states from enacting identification laws that don’t include student IDs or residency requirements that restrict college students’ ability to register from their college address, regardless of whether the laws were intentionally targeting young voters.

This latter interpretation is particularly potent because many state residency requirements appear neutral on their face but have the effect of making it more difficult for college students to vote with ease. And while the Supreme Court has struck down the most onerous residency requirements impacting students, many states do not treat college residences as sufficient for establishing domicile in a particular geographic area. In addition, several states require first time voters who register by mail to vote in person the first time. This presents unique challenges to students who register for the first time in an on-campus registration drive, using their home address due to residency requirements, and who cannot return to their home address to vote in the middle of the week during their fall semester. 

Such is the case in Michigan, under a law enacted in 1999, proposed by then-State Senator Mike Rogers as he prepared to run for the United States Congress the following year. The rule, which became known as “Rogers Law,” required that in order to vote a person’s voting address must match the address on their driver’s license or state ID. This, combined with an existing requirement that Michigan voters vote in person in their first election, meant that a majority of students at Michigan State University—which comprised a sizeable portion of the future-Congressman’s district—would face unique challenges voting in the 2000 election.

An expansive interpretation of the Twenty-Sixth Amendment would suggest that it gives Congress the authority to bar states from enacting these types of restrictions that are neutral on their face but have the effect of making it uniquely challenging for young citizens to vote. This interpretation would also enable Congress to enact legislation to streamline residency requirements across the country, even in nonfederal elections, and impose a uniform standard that could alleviate some of the confusion many students encounter as they come of age in a democracy with a patchwork of election laws that can often confuse—and thus deter—citizen participate in our elections. In taking a more aggressive stand to use the Twenty-Sixth Amendment to enforce the right to vote for all voters over the age of 18, Congress can promote a democratic system that seeks to welcome our newest voices into the body politic.

Matters of Debate