North Dakota’s Measure 1 Asks “How Old is Too Old to Serve in DC?” The Constitution Has its Own Answers.

Posted in: Constitutional Law

People are talking (and fretting) a lot these days about the advanced age of candidates for federal office. Last week North Dakota tried to do something about it, adopting an amendment to its state constitution, Initiated Measure 1, that prohibits any North Dakotan from serving in the U.S. House or U.S. Senate (or appearing on a congressional ballot) if the individual in question would turn 81 (or older) near the very end of her elected or appointed term.

A few commentators have wondered whether Measure 1 runs afoul of the U.S. Supreme Court’s 1995 U.S. Term Limits v. Thornton case, where the Court held that states cannot exclude long-time incumbents from serving in Congress because states are not free to add qualifications for congressional office beyond those provided for in the Constitution: “If the qualifications set forth in the text of the Constitution are to be changed, that text must be amended.”

Measure 1 does violate the spirit of the Court’s ruling in Thornton. In fact, advocates of Measure 1 may very well hope the measure is a vehicle for overturning Thornton; in this regard it bears noting that the same U.S. Term Limits organization from Thornton (which in the 1990s orchestrated a nationwide, state-by-state campaign to accomplish term limitations), contributed to the Measure 1 campaign. But Measure 1 has bigger problems than Thornton: the measure runs afoul of the Constitution’s carefully crafted provisions concerning the relevance, vel non, of age when it comes to so-called “political rights” such as voting and officeholding (and jury service, as one of us recently wrote about). So even if the Court were to overrule Thornton’s general holding that states cannot add qualifications beyond those listed in Article I of the Constitution for House members and Senators (which the current Court certainly might be willing to do given the divergent views voiced in the closely divided—5-4, in fact—ruling in Thornton, the changes in the makeup of the Court since 1995, and the Court’s amenability in recent years to undo past rulings it considers constitutionally mistaken), Measure 1 (and other similar measures in other states that Measure 1’s enactment might spur) would nevertheless be invalid, for two reasons.

First, were the Court to reject Thornton’s conclusion that Article I’s list of qualifications for members of Congress occupies the qualifications field, so to speak, and thus displaces all additional state-imposed qualifications, a strong argument could still be made that because Article I speaks specifically to age requirements for House Members and Senators (a minimum of 25 and 30, respectively, with no maximum) states are barred from adding age qualifications in particular, even if they can permissibly add other kinds of qualifications (such as lack of long-term incumbency, etc.). Indeed, could anyone imagine a state being able to say (perhaps because of a belief in the immaturity of young adults today) that House members from that state need to be at least 30, and Senators need to be at least 35?

As if all of this weren’t enough, proponents of Measure 1 have an even more basic problem under the specific terms of the Constitution, namely the words and meaning of the Twenty-Sixth Amendment. That provision explicitly prohibits federal and state discrimination among persons 18 or older “on account of age” with respect to the “right to vote.” That Amendment was passed and ratified in 1971, a year after the Court in Oregon v. Mitchell held, by a 5-4 vote, that a federal statute could not constitutionally prohibit age discrimination against persons over 18 voting in elections for state offices, for lack of federal power.

But, a skeptic might ask, does the Twenty-Sixth Amendment’s protection of the “right to vote” include the right to be voted for?

Certainly the leading proponents of the Fifteenth Amendment (which prohibits race discrimination in voting and on whose words the nearly identical Twenty-Sixth Amendment was patterned) thought there is a strong constitutional presumption that the right to vote subsumes the right to hold office. Thus, when the Fifteenth Amendment was written, many of its backers said repeatedly and publicly that it covered race-based exclusion from officeholding. As Congressman Benjamin Butler of Massachusetts put the point during the deliberations over the Amendment:

I had supposed if there was anything which was inherent as a principle in the American system and theory of government . . . it was this: that the right to elect to office carries with it the inalienable and indissoluble and indefeasible right to be elected to office.

This issue was especially important to Fifteenth Amendment advocates at the time they were acting, given a recent episode in the reconstructed state of Georgia. That state had been readmitted to the Union after the Civil War on the promise that it would not racially discriminate with respect to suffrage. Georgia in the summer of 1868 adopted a state constitution that prohibited racial discrimination concerning suffrage, but then later that year expelled its newly elected Black legislators based on their race. Backers of the Fifteenth Amendment took the position that Georgia had flouted its promise, and thus the state’s reconstruction ought to be reopened. Accordingly, they argued in 1869 when the text of the Fifteenth Amendment was finalized, the words of the Amendment didn’t need to (and indeed shouldn’t) mention office-holding specifically because the right to vote already presumptively included the right to be voted for. If there were no such presumption in the meaning of the right to vote, then Georgia would not have flouted its promise and there would be no basis for reconsidering its readmission to the Union.

The Nineteenth Amendment guaranteeing women’s suffrage, which was ratified in 1920 and which features the precise same “[t]he right. . . to vote shall not be denied or abridged. . . on account of” formulation, was similarly understood prior to and after enactment to include, as a presumptive matter, the right to hold office free from sex discrimination. To be sure, some states took a few decades after 1920 to fully permit women to hold public offices (just as some states took decades to comply with other constitutional amendments dealing with equality). But that doesn’t mean their foot-dragging was plausibly supported by prevailing legal understandings surrounding the implications of women’s suffrage, and even prominent people who would have preferred the Nineteenth Amendment to explicitly refer to office-holding would acknowledge that the majority of enactors understood (both because the right to vote generally includes the right to be voted for and because office-holding eligibility had generally and historically been keyed to voter eligibility) that adoption of the Nineteenth Amendment’s specific prohibitions would permit women to hold office free of sexist exclusion. (That, by the way, is why no self-respecting constitutional interpreter, originalist or otherwise, would credibly argue today that women are ineligible to become President even though a contrary general implication might otherwise be drawn from the Constitution’s repeated use, all the way from the founding to the Twenty-Fifth Amendment adopted in 1965, of masculine pronouns only to refer to the President.)

But should age be treated the same as race and sex? After all, under the Fourteenth Amendment’s Equal Protection Clause, age is not a problematic classification, which means, for example, that states can require civil-service employees to retire at a certain age or subject older drivers to additional scrutiny when licenses are renewed, even as states could obviously not have race- or sex-based rules for mandatory retirement or the issuance of driving privileges.

Yet while the Equal Protection Clause applies to access to employment and travel, it doesn’t govern political rights like voting and office-holding. During Reconstruction, it was generally agreed that nothing in the Fourteenth Amendment applied to political rights, a consensus that explains why the Fifteenth Amendment was needed in the first place. For a Court with even a passing interest in originalism, the Fourteenth Amendment is simply not a tenable basis on which to ground political rights.

Instead, when it comes to political rights, the Fifteenth, Nineteenth, and Twenty-Sixth Amendments are key. And they are identically worded (save for the respective reference to race, sex, and age), using the same constitutional formulation. That strongly suggests, as an intratextualist matter, that these provisions generally ought to be construed the same way.

Two aspects of the Twenty-Sixth Amendment’s text—“The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age”—cannot be overemphasized. First, as just suggested, the striking parallelism between it and the Fifteenth (and the Nineteenth as well) was obviously intentional. That is, the Twenty-Sixth self-consciously tracks the language of the Fifteenth and Nineteenth Amendments (and with a long formulation, not just a word or two), with the same intended consequences.

Unsurprisingly, the public legislative history corroborates this. As prominent House member Claude Pepper announced in an uncontested statement explaining the Twenty-Sixth Amendment’s scope: “What we propose to do . . . is exactly what we did in . . . the 15th amendment and . . . the 19th amendment. Therefore, it seems to me that this proposed amendment is perfectly in consonance with those precedents.” And certainly by the early 1970s when the Twenty-Sixth Amendment was debated and ratified, it was clear that government could not use racial or sex-based classifications with regard to office-holding.

Representative Richard Poff likewise amplified the connections between all three, functionally identically worded, amendments: “What does the proposed constitutional amendment accomplish? . . . [It] guarantees that citizens who are 18 years of age or older shall not be discriminated against on account of age. Just as the 15th amendment prohibits racial discrimination in voting and just as the 19th amendment prohibits sex discrimination in voting, the proposed amendment would prohibit age discrimination in voting. . . . [T]he proposed amendment would protect not only an 18-year-old, but also the 88-year-old.”

Second, as these passages make clear and as was true with the Fifteenth and Nineteenth, the Twenty-Sixth Amendment does not merely confer the franchise on any particular group of people, but instead outlaws discriminatory treatment based on a particular criterion. Thus, the operative text of the Twenty-Sixth does not say merely that each state shall reduce its voting age to eighteen (just as the operative words of the Fifteenth do not merely say that adult Black men shall enjoy the franchise) but instead provides that the right of persons eighteen or older to vote cannot be denied or abridged on account of age: textually, then, age cannot be used as a criterion for withholding the core political rights.

Relatedly, as to what attentive folks at enactment understood as to the amendment’s reach, the text of the Twenty-Sixth Amendment’s reference to the “right to vote” was, as was true of the Fifteenth and Nineteenth before it, a shorthand for a broad package of political-participation rights. For anyone who may not have been sure, Representative Poff was explicit about how the Amendment was meant to facilitate the fullest possible political participation. Addressing the House and quoting the committee report, he described the Amendment as “confer[ring] a plenary right on citizens 18 years of age or older to participate in the political process, free of discrimination on account of age.” Poff also explained that “[t]he ‘right to vote’ is a constitutional phrase of art whose scope embraces the entire process by which the people make their political choices.” Thus, noted Poff, unlike the federal statute at issue in Oregon v. Mitchell, the Amendment was not limited to particular kinds of voting, but rather applied even to voting by which individuals make law—which on its face would include voting to enact an initiative or voting done by an elected assembly like Congress.

What about the fact that elsewhere in the Constitution, age requirements for federal office (above eighteen) are specified? These are specific exceptions to the general rule in the Twenty-Sixth Amendment that age should not be considered in setting qualifications for the exercise of political rights. And the presumptive linkage between voting and office holding illustrated above can be broken by clear constitutional text to the contrary. But like all exceptions, they should be construed so as not to swallow the rule. The requirements that House Members must be at least 25 and Senators 30 are minimums, not maximums.

Just as people can’t be denied the right to vote for federal office because they are too old, neither can they be denied the right to run for those offices on the same ground. States can set their own age restrictions for state offices that mirror the federal age floors, and both the backers and opponents of the Twenty-Sixth Amendment explicitly and publicly recognized this limitation to the otherwise “plenary” nature of the Twenty-Sixth Amendment’s conferral of rights. But for federal offices, states are not merely forbidden (under Thornton) from adding qualifications generally, they are explicitly and specifically forbidden from adding age-based requirements.

For these reasons, North Dakota’s backup plan (should its ballot-access limitation be struck down) to overtly note the age of each candidate on the ballot is also flawed.  Drafters of Measure 1 inserted provisions like this seemingly out of a recognition that the bar to congressional election and service provided for under the plebiscite might be invalidated under Thornton and Article I. But, as argued above, Thornton and even Article I more generally are not the only problems with the measure. For that reason, the backup device of listing candidates’ ages on the ballot doesn’t cure the constitutional defect. Just as in Anderson v. Martin in 1964, when the Court barred Louisiana from including candidates’ racial identities on the ballot, the Twenty-Sixth Amendment prohibits the government itself from inducing people at the moment of voting to take age into account. If voters choose to do so as private individuals, that is one thing. But the Twenty-Sixth Amendment generally forbids, in the exercise of political rights, actions by the “United States or any State” “on account of age.”

(As an aside, our provisional view is that this would be true not just for congressional ballot-access, but for presidential-elector selection as well. States don’t have to use popular elections for presidential electors the way Article I and the Seventeenth Amendment require elections “by the people” for House members and Senators, such a state is generally free to “add,” under state law, requirements for presidential candidates if such candidates want to vie for a state’s electors, beyond those qualifications mentioned in Article II. But these additional requirements cannot violate the Fifteenth, Nineteenth, or Twenty-Sixth Amendment norms of equality with respect to political rights.)

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