The Minimum Voting Age Amendment

Section 1. 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.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

—Michael R. Dimino

Introduction

The Twenty-Sixth Amendment prohibits the states and the national government from establishing a voting age higher than eighteen. Before the Amendment’s ratification in 1971, nearly all states had a voting age of twenty-one, but Americans were persuaded that people who were old enough to be drafted to fight in Vietnam were also old enough to vote. Beyond raising the minimum voting age, the amendment likely also protects young voters against intentional discrimination, even as a result of laws that make no explicit reference to age.

The Constitution and Voting Rights

The text of the Constitution contains no affirmative right to vote. To be sure, it declares that members of the House of Representatives shall be chosen by the “people” in “elections,” which has been true for Senators as well since the adoption of the Seventeenth Amendment, and requires that voters in congressional races “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”¹ But nowhere does the Constitution say that any particular class of people shall have the ability to vote for federal representatives.

Instead, the Constitution leaves the question of suffrage “to the states, but prohibits states from denying voting rights based on particular criteria.”² Those criteria include religion under the Free Exercise Clause; “race, color, or previous condition of servitude” under the Fifteenth Amendment; sex under the Nineteenth Amendment; and “failure to pay any poll tax or other tax” under the Twenty-Fourth Amendment. The Twenty-Sixth Amendment’s prohibition of age discrimination in voting rights is the most recent of these limitations on the power of states to determine the qualifications for voting.

Minimum Age for Voting and Oregon v. Mitchell

For most of the nation’s history, states determined the minimum age for voting, and that age limit was set consistently at twenty-one.³ Some variation was introduced beginning with World War II when Georgia lowered its voting age, but only three other states had followed suit as of 1970.

That year’s amendments to the Voting Rights Act purported to require the states to allow eighteen-year-olds to vote,⁴ but Congress’s authority to impose such a requirement was questionable.⁵ The Constitution gives Congress the power to “make or alter” state regulations concerning the “Times, Places, and Manner” of federal elections,⁶ but there is no provision explicitly allowing Congress to decide who may vote in federal elections.⁷

The statutory amendments were challenged in Oregon v. Mitchell (1970).⁸ In a 4-1-4 split decision without a majority opinion, four Justices of the U.S. Supreme Court held that Congress had no authority to set a minimum voting age. Another bloc of four Justices opined that Congress could choose to lower the voting age as a way to enforce the Equal Protection Clause.⁹ Justice Hugo Black wrote the controlling opinion, concluding that Congress’s power to alter the “Manner” of federal elections gave it the authority to extend voting rights to eighteen-year-olds in federal elections but not in state contests.¹⁰

The result was that Americans who were eighteen to twenty years old had a right, granted by federal statute, to vote in federal elections but no right to vote in state elections. This situation presented “an administrative and logistical nightmare for state election officials.”¹¹ Only a constitutional amendment could resolve this incongruity and extend voting rights to that age group in both federal and state elections nationwide.

Proposal and Ratification of the Twenty-Sixth Amendment

Oregon v. Mitchell was decided on December 21, 1970. The Senate approved the Twenty-Sixth Amendment on March 10, 1971, by a vote of 94 to 0, and the House approved it on March 23, 1971, by a vote of 401 to 19. The text mirrored the language used in the Fifteenth and Nineteenth Amendments: “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.” The states ratified the amendment a mere 107 days after it was approved by Congress: “by far the most rapid” ratification of a constitutional amendment in the history of the Republic.¹²

The amendment was adopted during the Vietnam conflict. It struck many Americans as unjust that men who were eighteen to twenty years old were being drafted and thousands were dying when they did not have the right to vote in the elections that determined the course of that armed conflict. A similar argument had been made “during or after every major war,” but, until Vietnam, “it had little effect on the traditional consensus that twenty-one was the age of political maturity.”¹³

The amendment faced minimal opposition, perhaps in part because states did not want the administrative hassle of maintaining two separate lists of voters eligible in federal and state elections. There were some skeptics, however, who argued that people in that age group lacked sufficient judgment to vote and would therefore be swayed more easily by appeals that more mature voters would reject.¹⁴

Scope and Enforcement

The Twenty-Sixth Amendment does not require states or the United States to permit every adult to vote, nor does it prohibit states from allowing people to vote before they reach age eighteen. Rather, it prohibits states and the national government from establishing a minimum voting age that is any older than age eighteen. That is, the amendment makes it unconstitutional to deny the right to vote to an adult because of that person’s age. The states retain the power to deny voting rights based on a lack of U.S. citizenship, lack of residence within the jurisdiction, or felony conviction. Somewhat counterintuitively, it prohibits states from establishing a maximum voting age as well. If the government were to deny, for example, people above the age of sixty-five the right to vote, that would be a denial of the right to vote of a person “eighteen years of age or older” “on account of age.”

Like several other rights-granting amendments beginning with the Thirteenth, the Twenty-Sixth Amendment has an enforcement clause (Section 2) empowering Congress to “enforce this article by appropriate legislation.” That grant of power expands congressional authority, enabling Congress to pass laws to protect the right to be free from age discrimination in voting in federal and state elections even if such a law would not be authorized by any of Congress’s other powers. Nevertheless, it remains true that, except as to the kinds of discrimination proscribed by the First, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments, the Constitution leaves to states the determination of who may vote in elections. As the Supreme Court noted in Arizona v. Inter Tribal Council of Arizona, Inc. (2013), “[p]rescribing voting qualifications . . . ‘forms no part of the power to be conferred upon the national government’ by the Elections Clause . . . .”¹⁵

Judicial Precedent

The Supreme Court has decided only one case under the Twenty-Sixth Amendment. The case was Symm v. United States (1979), which held that a voter-registration questionnaire distributed to young college students violated the Twenty-Sixth Amendment.¹⁶ The case was decided without oral argument and without a majority opinion. The Court did not explain its reasoning; it simply affirmed the lower court. Symm would appear to indicate that the amendment does more than simply lower the voting age to eighteen. Rather, it protects people ages eighteen to twenty from voting discrimination. This protection would prohibit laws that do not discriminate on their face but that are motivated by a desire to suppress the votes of people in that age group.

Such an interpretation would bring the Twenty-Sixth Amendment into line with the Constitution’s other provisions barring discrimination in voting. The Fifteenth and Nineteenth Amendments protect not only against facially discriminatory laws, but also against facially neutral laws that are adopted or applied with a discriminatory purpose.¹⁷

In 1972, the Colorado Supreme Court held that the amendment prohibited age discrimination not only in voting qualifications, but also in the rules governing eligibility to circulate initiative petitions. The court found that the amendment’s restrictions apply “to the entire process involving the exercise of the ballot and its concomitants.”¹⁸ However, the Minnesota Supreme Court held that the amendment did not prohibit states from establishing age requirements above age eighteen for holding public office.¹⁹

The U.S. Supreme Court has noted that “the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.”²⁰ Thus, age limits on candidates affect the rights of voters who support those candidates, and one might suppose that young voters disproportionately support young candidates. Nevertheless, age restrictions on officeholding are included in the Constitution itself.²¹ It would be quite remarkable if the Twenty-Sixth Amendment’s protection of eighteen-year-olds’ right to vote gave them, by implication, the right to run for President or governor as well. Accordingly, the extent to which the amendment permits states and the national government to establish an age requirement above age eighteen for participating in the political process in ways other than voting is unclear.

The lower courts have also addressed laws that relax the voting rules for senior citizens, effectively making it harder for younger people to vote than it is for seniors. During the COVID-19 pandemic, Texas law permitted voters who were at least sixty-five years old to vote by mail. Younger voters, however, were denied that option unless they were disabled or absent from the jurisdiction. In Texas Democratic Party v. Abbott (2020), the Fifth Circuit Court of Appeals upheld the distinction.²² The court recognized that the law facially discriminated on the basis of age but found that the law was constitutional because it rationally sought to ease burdens that were disproportionately faced by older voters.

The court’s holding might be suspect because constitutional rights generally may not be overcome merely because a discriminatory law creates a rational distinction. The courts typically review race-based and sex-based distinctions utilizing strict or intermediate scrutiny, rather than rational basis. As a result, discrimination on the basis of race or sex is not rendered constitutional just because it is a rational way to ease burdens faced by the race or sex benefited by the distinction. Accordingly, it remains to be determined whether other courts will follow the Fifth Circuit’s lead in applying the rational-basis test to election laws that apply differently to voters of different ages.

Open Questions

• To what extent does the Twenty-Sixth Amendment prohibit age discrimination in aspects of the political process other than voting?
• Does the Twenty-Sixth Amendment protect against laws that disproportionately harm younger voters even if the laws themselves do not mention age? Would the intent of the legislature enacting such laws matter?
• Would the Twenty-Sixth Amendment be violated if a law limited the voting power of younger voters because of a desire to harm the party or policies favored by younger voters? What if a law sought to augment the voting power of younger voters to compensate for their lower rates of turnout or as a way to help interests favored by younger voters?
• Does the Twenty-Sixth Amendment forbid laws that ease voting requirements for older voters if, in so doing, the laws create a disparity between the voting rules applicable to voters of different ages?
• Is the rational-basis test the appropriate standard of review for claims under the Twenty-Sixth Amendment, or does the amendment mirror the protections against race and sex discrimination in the Fifteenth and Nineteenth Amendments? Courts review alleged violations of these other amendments with heightened judicial scrutiny.

1. Art. I, § 2, cl. 1; amend. XVII. ↩︎
2. Michael R. Dimino et al., Voting Rights and Election Law: Cases, Explanatory Notes, and Problems 4 (3d ed. 2021). ↩︎
3. Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 225 (rev. ed. 2009). ↩︎
4. 84 Stat. 314 (1970). ↩︎
5. Oregon v. Mitchell, 400 U.S. 112, 117–18 (1970). ↩︎
6. Art. I, § 4, cl. 1. ↩︎
7. Arizona v. Inter-Tribal Council of Arizona, Inc., 570 U.S. 1, 16 (2013). ↩︎
8. 400 U.S. 112 (1970). ↩︎
9. U.S. Const. amend. XIV, §§ 1, 5. ↩︎
10. 400 U.S. at 124 (opinion of Black, J.). ↩︎
11. Keyssar, supra at 227. ↩︎
12. Id. at 228. ↩︎
13. Id. at 225. ↩︎
14. Rebecca de Schweinitz, “The Proper Age for Suffrage”: Vote 18 and the Politics of Age from World War II to the Age of Aquarius, in Age in America: The Colonial Era to the Present 209 (Corinne T. Field & Nicholas L. Syrett eds., 2015). ↩︎
15. 570 U.S. 1, 16–17 & n.8 (2013). ↩︎
16. 439 U.S. 1105 (1979). ↩︎
17. White v. Regester, 412 U.S. 755 (1973); Gomillion v. Lightfoot, 364 U.S. 339 (1960). ↩︎
18. Colorado Project-Common Cause v. Anderson, 495 P.2d 220, 223 (Colo. 1972). ↩︎
19. Opatz v. City of St. Cloud, 196 N.W.2d 298 (Minn. 1972). ↩︎
20. Bullock v. Carter, 405 U.S. 134, 143 (1972). ↩︎
21. Art. I, §§ 2, 3; art. II, § 1. ↩︎
22. 961 F.3d 389 (5th Cir. 2020). ↩︎