The past month has seen dozens of unsuccessful lawsuits in which President Trump and his allies have sought to challenge the reported voting outcomes in several states in the 2020 presidential election. In many cases, the claims were rejected because there was no factual evidence to support the ambitious allegations. In others, the legal theories themselves were flawed. (One legal theory that has been bandied about whose deep flaws I have written about is that state legislatures cannot be constrained by state courts, state constitutions, or other institutions within state government when it comes to regulating presidential and congressional elections.) In still other cases, the claims were rejected because of laches, a legal doctrine that prevents people from suing later than is reasonable, in light of the disruption that the lawsuit and possible remedies might create. In particular, some challenges to state laws or administrative practices concerning voting laws and practices were dismissed because they could and should have been brought months earlier, before rather than after people voted in reliance on the challenged rules and practices.
When courts (rightly) reject cases on laches (or similar legal reasoning), they often leave unaddressed the merits of the challenges. But the failure of courts to resolve some post-election disputes on the merits makes it harder to ensure that future elections are administered in full compliance with the law in a way that ensures public confidence.
All of this means that we need ways of considering and redressing flaws in our election laws well in advance of the next election cycle. (My Verdict colleague Mike Dorf has recently written about this very topic.)
And when we do think carefully about upcoming elections, there is one kind of blatantly unconstitutional and recurring feature of some states’ election systems that needs to be addressed—age discrimination.
A few months ago the U.S. Court of Appeals for the Fifth Circuit, with reasoning that would earn law students very poor grades if they were to employ it, gravely erred in permitting Texas to favor elderly voters in being able to vote absentee. It turns out Texas isn’t the only state to be guilty of this constitutional sin—a similarly illegal aspect of Georgia’s election system could help determine the outcome in the U.S. Senate runoff elections there next month.
Georgia explicitly makes it easier for older folks to vote than younger folks. In particular, Georgia allows persons 75 years and older to get absentee ballots for all elections in an election cycle with a single request, whereas younger voters must request absentee ballots separately for the primary election, general election, runoff election, etc. In this way, Georgia facilitates the absentee voting device (which we saw this year is a very important method of voting) for older voters more than for younger voters.
Why is that illegal? Because the Twenty-Sixth Amendment of the U.S. Constitution explicitly says “[t]he right of citizens of the United States, who are 18 years of age or older, to vote shall not be denied or abridged by . . . any State on account of age.” Georgia is facially violating this simple and clear-cut constitutional command.
A rejoinder might be: since anyone can (for any reason) request and obtain an absentee ballot in Georgia, no voters are actually having their rights denied or abridged. Really? The Fifteenth and Nineteenth Amendments use the same operative words as the Twenty-Sixth to prohibit denial or abridgement of the right to vote on account of race and sex, and would any sober person think a state could facilitate absentee ballot access for Whites on different terms than Blacks? Or for men on different terms than women? It would be absurd to say these laws did not “abridge” the Fifteenth and Nineteenth Amendments simply because the laws weren’t taking anything away from Blacks or women, but instead were simply giving something special to other groups. (In this vein, it bears noting that, because of differential life expectancies, race and age correlate, so giving advantages to older voters in fact gives more weight to White votes and less to voters of color.)
Nor would it be a good argument to suggest that because one clear objective of the Twenty-Sixth Amendment was to give 18-year-olds the vote, the Amendment should cover only discrimination directly targeting young adults. First, the text of the Amendment does not say merely people 18 years of age can vote. It says, again, that the right to vote cannot be extended or withheld “on account of age.” Moreover, giving older voters special access denied to younger voters does explicitly discriminate against young adults, for the simple and compelling reason that the essence of the Twenty-Sixth Amendment (like the essence of the Fifteenth and Nineteenth on which it was patterned) is not voting access in the abstract, but voting equality. The Twenty-Sixth Amendment makes clear not only that young people are responsible enough to vote, but also that they—as a class—are equally valuable and equally entitled as to have their voices heard, as older folks.
Why does age inequality matter so much? Because the framers of the Twenty-Sixth Amendment fully understood that older voters and younger voters vote differently. Take the recent presidential election. According to exit polls, President Trump lost big among voters under 45, broke even among voters 45-64, and won significantly (by 5 points) among voters 65 or older. The only age demographic group he carried in a significant way was older voters (which, as noted earlier, has more Whites and fewer Blacks relative to other age groups). As I have explained in academic writings, the Twenty-Sixth Amendment is just one provision (the age requirements for eligibility to serve in the House, the Senate, and the Presidency being others) in which the Constitution recognizes that age is particularly relevant to the exercise of political rights.
And given the closeness of the presidential contest in Georgia, giving even a small edge in voting access to a group known to favor Republicans could easily, if unconstitutionally, tip the result of the Senate runoffs. It is quite possible that in at least one of the two Senate races the margin of victory will be in the thousands or the tens of thousands, in which case voter turnout (in turn affected by ease of accessing and returning ballots) along age lines will be crucial.
But it is likely too late for this problem to addressed before January’s runoffs. A month ago it might have been remediable. Certainly we can’t undermine the reliance that older voters might have placed on Georgia’s scheme, so we can’t ask that the absentee ballots already sent to them don’t count. But a court could have ordered Georgia to send absentee ballots to all voters—not just those 75 or older—who requested absentee ballots earlier in this election cycle. There are always two ways to cure inequality—by “leveling up” or “leveling down.” Here, a court would have been ordering Georgia to “level up” and give everybody the same, equal access to voting that the state has wrongly tried to reserve to its elderly voters.
Timing may prevent this age discrimination from being redressed in 2020. But legislatures and courts need to understand what the Twenty-Sixth Amendment says and means to prevent this invidious disparate treatment from continuing to affect election outcomes in future years.