Last week one of my colleagues saw an article in the Sacramento Bee entitled “How Old is Too Old to Serve [on] Jury Duty?” and wanted my reaction to it. He thought of me in particular because he knew I had done a fair amount of academic work and public writing on those parts of the Constitution that deal with age discrimination in access to political participation. For example, in a Notre Dame Law Review article and Justia commentary, I argued that giving (as some states do) older voters more absentee voting options than younger voters are afforded constitutes impermissible age discrimination in violation of the Twenty-Sixth Amendment’s clear command that the right to vote shall not be denied or abridged on account of age. (Note that, contrary to what a casual reader of the Constitution might think, the Amendment does more than lower the voting age to 18; it explicitly provides that for those over 18 the right to vote cannot be abridged “on account of age,” tracking the prohibitions on the use of race or gender to abridge voting rights under the Fifteenth and Nineteenth Amendments, respectively.)
But what does the Twenty-Sixth Amendment have to do to with jury service, as distinguished from elections? Quite a bit, actually. For starters, note that jurors vote—that is what they do when deciding cases. And, not surprisingly, in most jurisdictions, prospective jurors are selected from the rolls of registered voters. But the connection between casting a vote at a ballot box and casting one in a jury box is much, much deeper still. As I wrote in the Cornell Law Review almost three decades ago:
[J]ury service, like [ballot-box] voting and office holding, was conceived [at the founding] of as a political right, as distinguished from a civil right, and . . . the Constitution speaks to the exclusion of groups from jury service most directly through the voting amendments, beginning with the Fifteenth and running through the Twenty-Sixth. And the groups protected from discrimination by these voting amendments are not [necessarily] the same groups that are [afforded special] protect[ion] under a traditional equal protection approach. . . . [T]he link between jury service and other rights of political participation such as [ballot-box] voting is an important part of our overall constitutional structure, spanning three centuries and eight amendments: the Fifth, Sixth, Seventh, Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth. [T]he voting-jury service linkage was recognized by the Framers in the 1780s, by those responsible for drafting the reconstruction amendments and implementing legislation, and still later by authors of twentieth century amendments that protect various groups against discrimination in voting. . . . Age-defined groups, like other groups protected by the Constitution against discrimination in voting, are essential participants in the jury process as well. Thus, the Fifth, Sixth, and Seventh Amendments (providing for juries) must be harmonized with the spirit of the Twenty-Sixth (dealing with age discrimination), just as they have already in effect been brought into alignment with the Fifteenth (dealing with racial discrimination), Nineteenth (dealing with gender discrimination), and Twenty-Fourth (dealing with class, discrimination). In the end, the groups protected from [differential treatment] in jury service should be the same groups protected from [differential treatment] in voting. . .
So it was with great interest that I read the Bee article to see whether California might be unconstitutionally taking age into account in the jury service realm. It turns out that California does not engage in straightforward discrimination against elderly people the way the title of the article might suggest. That is, California does not exclude older persons from being on juries. In fact, as the article explains, “there is no age limit for jury service” in California.
But the California Rules of Court (which govern jury practice in California courts) do nonetheless contain facially and constitutionally problematic age discrimination. More specifically, California Rule of Court 2.1008 provides that individuals who are called for jury service are generally required to serve, but one acceptable basis for excuse is that the prospective juror has a “physical or mental disability or impairment [even if it would not affect that person’s competence as a juror] that would expose the potential juror to undue risk of mental or physical harm.” So far, so good. The Rule then goes on to say: “[U]nless the juror is aged 70 years or older, the juror may be required to furnish [documentation/verification to prove the impairment.]” In other words, people under 70 who allege impairment may have to prove the impairment to be excused, but people 70 and older do not.
Assuming, as I have argued before, that the Twenty-Sixth Amendment (which, again, provides that the right to vote shall not be denied or abridged on account of age) applies to jury service as well as election voting, ought we be troubled by California’s differential treatment of persons 70 and older? Certainly (as discussed above) if older persons are given more (or fewer) options to vote in elections than are young persons, then those young persons (or older persons) have had their right to vote “abridged” (even though they still can vote), since they are not being given equal opportunities. And the Twenty-Sixth Amendment (like the Fifteenth, Nineteenth, and Twenty-Fourth before it) is all about equality in political rights.
But is jury service different from election voting in this regard because there is no duty to vote in an election the way there is a duty to serve on juries? In other words, does the compulsory nature of jury service (as distinguished from the voluntary element in ballot voting) alter what it means for one’s rights to be “denied or abridged”? After all, persons under 70 in California are fully exercising their rights to be included in juries, and for persons 70 and older, California is not erecting any barriers to serving, but instead just giving older folks an option (the way all election voters have an option not to vote).
While tempting, this logic ignores the basic equality values underlying the voting rights amendments. What these amendments say, in effect, is that people of all races, genders, socio-economic classes, and ages (provided they are over 18) are equally important in the administration of government (via elections and jury decisions.) This is not to say that people of one race or one age bracket do not vote differently from people of a different race or age bracket. To the contrary, we know, for example, that people of color do vote (both in elections and on juries) differently from whites, and that older people vote (both in elections and on juries) differently from younger voters. Take the 2020 presidential election: the only standard age-defined group for which data is collected that President Donald Trump carried in 2000 was voters over 65. These different voting preferences are precisely why it is important to have people of all races and all ages represented in political arenas. So “denied or abridged” is best understood in terms of equal access and equal encouragement/incentives to participate, in order to accomplish the goal of inclusion across these demographic dimensions. Insofar as an accepted meaning of “abridge” is “reduce” or “diminish,” voting (in elections or juries) simply should not be reduced or diminished on account of government’s use of age.
And if this is the best way to understand what messages and carrots and sticks government should or should not be sending in the voting/jury service realms, then California’s differential treatment of persons 70 and older is indeed problematic.
Perhaps an analogy will help. Consider that the text of the Nineteenth and Twenty-Sixth Amendments is identical save for the respective references to “sex” and “age.” Imagine California had a statute that said that persons with domestic and familial responsibilities (e.g., child care or elder care) may be excused from jury service, and that men who assert such a basis for excuse may need to document their need whereas women do not.
Such a statute would, I submit, clearly violate the Nineteenth Amendment insofar is it discourages political participation on account of sex and sexual assumptions that have no place (according to the unambiguous words of the Nineteenth Amendment) in this realm. Indeed, the Supreme Court in 1975 in Taylor v. Louisiana invalidated a Louisiana law that required women but not men to affirmatively declare they wanted to be eligible for jury service before they would be called, in seeming recognition of the fact that many women had domestic responsibilities. In the process of reaching this result the Court all but overruled a case from thirteen years earlier (Hoyt v. Florida) that had upheld such a gender-based regime for jury service. Said the Court in Taylor:
The States are free to grant exemptions from jury service to individuals in case of special hardship or incapacity and to those engaged in particular occupations the uninterrupted performance of which is critical to the community’s welfare. . . . It would not appear that such exemptions would pose substantial threats that the remaining pool of jurors would not be representative of the community. A system excluding all women, however, is a wholly different matter. It is untenable to suggest these days that it would be a special hardship for each and every woman to perform jury service or that society cannot spare any women from their present duties. This may be the case with many, and it may be burdensome to sort out those who should be exempted from those who should serve. But that task is performed in the case of men, and the administrative convenience in dealing with women as a class is insufficient justification for diluting the quality of community judgment represented by the jury in criminal trials.
The Taylor Court ultimately rested its judgment on the Sixth Amendment entitlement of criminal defendants to have juries that represent a cross-section of the community, but the constitutional reason that women (but not, say, software engineers) are a distinctive and essential element of cross-sectionality under the Sixth Amendment is the Nineteenth Amendment’s declaration of gender equality and gender inclusion when it comes to electing officials or administering law by meting out criminal or civil justice.
Nor can one avoid the relevance of this analogy by arguing that the Equal Protection Clause of the Fourteenth Amendment (which frowns on most gender-based classifications) means different things for gender than it does for age. Notwithstanding intellectual carelessness by the Court, nothing, including the Equal Protection Clause, in the Fourteenth Amendment was intended, as an originalist matter, to apply to political rights, else the Fifteenth Amendment would have been completely unnecessary, which no one during Reconstruction argued. So regardless of whether and why race, gender, and age classifications may or may not be disfavored under equal protection doctrine, the text of the Fifteenth, Nineteenth, and Twenty-Sixth Amendments eliminate these criteria as regards political rights. (For this reason, we treat age-based limits on drivers’ licenses very differently than age-based limits on voting, insofar as driving is not a political activity the way voting in elections or on juries is.)
All of this, when transferred from the Nineteenth Amendment to the Twenty-Sixth, speaks to California Rule of Court 2.1008: this rule reduces jury participation by persons (70 or older) on basis of their age, and on stereotypes about the linkages between age and disability. By planting the seed that older persons in particular should think about excusing themselves based on disability (and making it easier for them to act on that thought), the Rule encourages and enables people of a certain age bracket to disengage from participating in the important political decisions juries make.
If the rejoinder is that many older people are in reality disabled—that there is a strong real-world correlation between age and disability—I would counter by pointing out that many more women than men do have domestic responsibilities. Indeed, the Court in Taylor acknowledged such a correlation but held that correlations aren’t sufficient in this realm. In both gender and age settings, there is no need to rely on correlations and generalizations that are identified in the voting rights amendments as illicit bases for classification; individuals and all genders and ages can and should be required to document their need for an excuse. (Nor could Rule 2.1008 be justified as a temporary, Covid-related measure to protect vulnerable elderly people; the Rule appears to pre-date Covid, and is being applied post-Covid. Moreover, older persons are not the only demographic group particularly vulnerable to Covid; holding age constant, people of color were also more vulnerable, but singling them out on the basis on their race in a way that reduced their aggregate jury service would seem to be a non-starter.)
To be sure, perhaps a higher percentage of older persons may end up seeking excuse under the case of age-neutral excuse regime I envision, in which everyone (or no one) has to prove impairment. Similarly, more women than men may seek exemptions based on gender-neutral exemption entitlements for persons with family responsibilities. But these consequences are what we constitutional lawyers call disparate impacts, as distinguished from overt, facial disparate treatment on the basis of a problematic classification. And constitutional law generally (including the voting rights Amendments) and rightly treats disparate impacts very differently from overt, facial discrimination. This distinction between overt differential treatment and disparate impacts is particularly compelling in the context of the voting rights amendments, which very clearly take the criteria of race, sex, and age off the table. At the very least, if any of these criteria is used, the government would have to demonstrate a compelling interest, which seems completely lacking in the case of Rule 2.1008.
