This is part of a series I’m writing analyzing the Constitution of the United States. You can find the start of the series here.
The 26th Amendment provides:
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.
It prohibits states from discriminating among voters who are at least 18 years old, and grants Congress power to “enforce” the prohibition through “appropriate legislation.”
The 26th Amendment is the latest in a series of amendments enacted over more than a century expanding constitutional protection for voting rights. Like many other amendments, it was enacted as a direct repudiation of a U.S. Supreme Court ruling.
Traditionally, Americans had to be at least 21 years old to vote. Section 2 of the 14th Amendment, enacted after the Civil War, protects the right to vote for the “male inhabitants of [each] state, being 21 years of age, and citizens of the United States.” States were permitted, but not required, to lower the voting age. By the time of the Vietnam Conflict, most states still limited the franchise to people 21 and older. Because men between 18 and 20 were drafted to fight in Vietnam, Congress came under substantial pressure to expand the franchise to them. Congress consequently enacted the Voting Rights Act of 1970, which lowered the voting age to 18 for all federal, state, and local elections.
In Oregon v. Mitchell (1970), a deeply divided Supreme Court held Congress had authority to lower the voting age in federal elections, but lacked power to do so for state and local elections. This meant states were statutorily required to allow people between 18 and 20 to vote for President, U.S. Senate, and the U.S. House of Representatives, but retained discretion to limit state and local elections to voters who were at least 21, creating a very murky situation.
In response to Oregon, Congress proposed the 26th Amendment to lower the voting age to 18 for all elections. The Amendment was ratified in less than four months—the shortest ratification period of any constitutional amendment, suggesting there was a wide consensus on the subject.
The Senate Report accompanying the 26th Amendment explained it was proposed for three main reasons.
Younger citizens are fully mature enough to vote. Most people between 18 and 21 had completed high school, and many had received at least some higher education.
18-year-olds bear all or most of an adult’s responsibilities. Over half the American servicemen killed in Vietnam were between 18 and 20. Several states at the time allowed 18-year-olds to drink alcohol. And you can buy a house and car and assume consumer debt in your own name at 18, sign contracts, etc.
Younger voters should be given the chance to influence our society in a peaceful and constructive manner. Advocates insisted excluding 18-year-olds from the political process contributed to violent protests.
Congress worded the 26th Amendment very similarly to the 15th Amendment, which prohibits states from denying or abridging the right to vote on account of race.
Some courts have expressed doubt whether the 26th Amendment’s protections against age-based discrimination are as broad as the 15th Amendment’s protections against racial discrimination while others have held the 26th Amendment should be interpreted similarly to the 15th because of the nearly identical wording. The courts have interpreted the Amendment to mean states may not enact laws with the intent of making it more difficult for younger voters to vote.
In addition to lowering the voting age for all elections, the 26th Amendment also prohibits states from imposing special restrictions or residency rules just on voters between 18 and 20 years old.
Shortly after the Amendment passed, the California Supreme Court held election officials may not presume unmarried people between 18 and 20 live with their parents, but instead must apply the same residency rules applying to everyone else. Consequently, the 26th Amendment frequently invoked, along with the Due Process Clause and Equal Protection Clause of the 14th Amendment, in disputes concerning college students’ residency for voting purposes. A person generally may vote only withing the jurisdiction surrounding his “domicile,” which is the place in which he has established her home, where she intends to remain indefinitely, and to which he intends to return when he travels. Does a dormitory or apartment where a college student lives while attending school qualify as that student’s “domicile,” allowing the student to register to vote at that address?
Courts have continuously reaffirmed a student who moves to a new place solely to attend college or graduate school and doesn’t otherwise intend to make that place his home neither acquires domicile nor may register to vote there. He must instead register at his former residence (presumably, the home of her parents or guardians). Many courts have made it difficult for election officials to enforce this restriction, holding the 26th Amendment, the Equal Protection Clause, or both, prevent election officials from imposing special evidentiary requirements or restrictions solely on college students living in dormitories or off-campus housing. Most courts have similarly held election officials may not single out college students and either ask them questions or require them to fill out a special questionnaire to confirm they intend to establish domicile where they attended school. Courts have eliminated other obstacles to college student voting such as requiring election officials to accept dormitories as valid residences for voter registration purposes.
Courts repeatedly have confirmed the 26th Amendment doesn’t confer any protections outside the realm of voting, rejecting arguments the Amendment requires states to lower the age to 18 for jury service, holding public office, or drinking…making for a large degree of inconsistency on just what constitutes legal age.
The 26th Amendment has most recently been invoked in voter identification cases—including laws that do not allow students to vote using college identification cards—have failed, due to the lack of evidence showing legislators adopted them to intentionally discriminate against voters between 18 and 20 years old. If you’re 22 and trying to use your student ID as an identification card off campus, you may be denied the right to vote because you’re not using a government-issued ID.
You may also lack the mental capacity to vote since it’s really not that high of a bar. You need government-issued ID for a lot of things…like, banking, boarding a plane to go home to visit Mom and Dad, and purchasing alcohol.
Why is this hard?