As my co-bloggers Joshua Douglas and Travis Crum have pointed out here and here, the run up to this most unusual election has seen a series of bad-to-awful decisions regarding the scope of the rarely-litigated Twenty-Sixth Amendment. While that Amendment lowered the voting age to 18, it also prohibited states from denying or abridging the right to vote "on account of age." Despite this prohibition, eight states have laws that facially discriminate on age when it comes to absentee voting, including Texas. Texas lets voters 65 and older vote by mail with no excuse but makes it very hard for everyone else—even in the midst of a pandemic.
The Supreme Court has run out of time to reverse the narrow and atextual readings that lower courts have given the Twenty-Sixth Amendment. But the issue will be with us after the election too, and it demands the Court's attention then. The Court will consider sometime in January whether to hear a case from Texas on the issue, and I, along with my wonderful co-counsel Yael Bromberg and Michael Donofrio, and with the assistance of Harvard Law student Amy Frieder, wrote an amicus brief on behalf of The Andrew Goodman Foundation, Equal Citizens, and Common Cause urging the Court to do just that. The full brief is here.
We cite overlooked caselaw, legislative history, and two federal statutes that the courts have ignored, and we also have produced a novel dataset revealing just how impactful these discriminatory laws are. The introduction is:
The Twenty-Sixth Amendment could not be clearer: “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.” U.S. Const. amend. XXVI. Texas law violates that unequivocal command by providing that “[a] qualified voter is eligible for early voting by mail if the voter is 65 years of age or older on election day,” Tex. Elec. Code § 82.003, while requiring voters younger than 65 to provide a statutorily-mandated reason to become eligible. Id. § 82.001–82.002, 82.004. Seven other states have similar unconstitutional laws. See Report, “Age Discrimination In Voting At Home,” available at https://voteathome26.us.
As current events and experience painfully demonstrate, unforeseen events like the COVID-19 pandemic put extra pressure on voting rights and the laws and systems in place to protect them. The Twenty-Sixth Amendment is a critical part of that infrastructure, especially as more voters, and more younger voters, participate via absentee ballots and vote-by-mail. Unfortunately, a series of necessarily rushed decisions from Courts of Appeals, issued during an election season unlike any other, have nearly written the Twenty-Sixth Amendment out of the Constitution. This Court should therefore grant review immediately to restore the text of the Amendment—no less a part of the Constitution than any other part—to its rightful place.