There is no place for age discrimination in voting

Holding safe and fair elections in the midst of a pandemic is challenging for everyone—but eight states make it even harder for voters under a certain age to participate this year. That’s unconstitutional, because the Constitution prohibits age discrimination in voting. Unfortunately, last week, the Missouri legislature and a federal appeals court in Texas both entrenched this discrimination when they could have eliminated it. Both of these actions should be overturned.

In sixteen states, voters must provide an excuse to vote at home (voting from home is also known as voting “by mail” or “absentee”). In these states, voters may vote at home only if they are away from the jurisdiction, are physically disabled, or have another specific excuse. Before last week, seven states—Texas, South Carolina, Indiana, Tennessee, Louisiana, Mississippi and Kentucky—grant an automatic excuse for voters above a certain age: usually age 65, but sometimes 60. In these states, older voters do not need any other excuse to vote at home, but younger voters do.

That is unconstitutional age discrimination under the Twenty-Sixth Amendment, which was ratified in 1971. That Amendment says that the right to vote for all citizens age 18 or older “shall not be denied or abridged . . . on account of age.” This amendment was the culmination of civil rights activism in the middle of the 20th century, and achieved nearly unanimous bipartisan support—making it the quickest amendment to be ratified in U.S. history. It immediately lowered the voting age to 18 in all states, but the amendment did much more: it said that states may not confer burdens in voting to one age group that they do not assign to voters of any other age. Young voters, middle-aged voters, and older voters must be treated equally in the eyes of the law. It’s a great example—written right into our Constitution—of the sensible principle of equality summarized by “one person, one vote.”

That principle was lost last week on the legislature in Missouri and a federal court in Texas. In Missouri, the governor signed a bill that will make it somewhat easier to vote at home for the rest of this year. But, for no good reason, the state will permit voters 65 or older to vote absentee automatically, but younger voters will have to jump through additional hoops: they’ll either need to invoke a specific health-related excuse or will need to find and pay a notary (good luck!) to notarize their ballot. And just a few days before that unconstitutional new law was signed, a federal appeals court put on hold a decision by a lower court that would have required Texas to permit anyone to vote by mail in upcoming elections, regardless of their age, because that state’s 65-and-over preference was likely unconstitutional. Stunningly, the appeals court found no problem with the discriminatory law, according to the court, absentee voting doesn’t implicate the “right to vote” at all. That reasoning would surely surprise the 31 million voters—including approximately 500,000 Texans—who exercised their “right to vote” by using a mail ballot in 2018.

Indeed, the novel statistics in a new report on the 26th Amendment shows just how wrong the Texas court was. For instance, we looked at the percent of all at-home ballots by age group in states with these discriminatory laws versus states that require excuses from all voters—and we noticed a big gap. It turns out that in states that discriminate by age, voters who are 65 and older comprise nearly 65 percent of all at-home ballots. But in states that require valid excuses from all voters, the use of at-home ballots is much more evenly distributed, as older voters make up only 39 percent of the votes from home in those states. Moreover, according to our data, nationally, about 20 percent of younger voters 18 to 34 used at-home ballots in 2018, while 30 percent of voters over 65 voted at home nationally in 2018—a higher number, to be sure, but not overwhelmingly so. But that gap ballooned in states that discriminate by age. In those states, 21 percent of adults over 65 voted at home, but less than 6 percent of voters 18 to 34 did so. The trend appeared across age cohorts. That’s a huge depression that shows that discriminatory laws take away something many voters, of all ages, want: to be able to exercise the “right to vote” at home.

Troublingly, those statistics were from normal times, but if these laws stand, the effect of this age discrimination will likely be far worse in 2020. Although the effects of COVID-19 are generally more severe in older people, all Americans are at risk of contracting or transmitting the virus: that’s why today, everyone must take precautions against it. Over two-thirds of Americans in a recent poll said that anyone who wants to vote at home this year should be able to: not any older person, any person.

Fortunately, our Constitution already demands equal treatment. In the next six months, it will be critical for all of us to demand that every state follow our nation’s highest law.

Yael Bromberg is Chief Counsel for Voting Rights for The Andrew Goodman Foundation, Jason Harrow is Chief Counsel of EqualCitizens.US and Joshua Douglas is Thomas P. Lewis Professor of Law at University of Kentucky.