New Report Condemns Age Discrimination in Voting at Home Across Seven States as Unconstitutional

Today, a coalition of democracy advocacy organizations and constitutional scholars released a comprehensive report titled "Age Discrimination In Voting At Home." It argues that laws in seven states--Indiana, Kentucky, Louisiana, Mississippi, South Carolina, Tennessee, and Texas--that provide no-excuse vote-at-home options only to elderly voters violate the Twenty-Sixth Amendment. It also questions the constitutionality of a bill likely to become law in Missouri that expands vote-at-home options in 2020 but explicitly makes it easier for those over 65 to utilize it. The authors call for immediate litigation to challenge these statutes.

The report is by a joint project of Equal Citizens, The Andrew Goodman Foundation, The UCLA Voting Rights Project, Stris & Maher, National Vote at Home Institute, and University of Kentucky law professor Joshua A. Douglas.

"The [Twenty Sixth] Amendment's history and Congress's intent show that courts will likely find these laws unconstitutional, particularly in light of new challenges presented amid the COVID-19 pandemic," the report's authors explain. "These laws use age to create two classes of voters--one with easier access to the ballot box than the other--and work to abridge the voting rights of younger voters. That practice is impermissible under the Twenty-Sixth Amendment."

This report contains novel data analysis to concretely demonstrate the harm caused by these discriminatory statutes. The authors, for example, find: "in states where voters under 65 cannot vote at home without an excuse, voters who are 65 and older comprise nearly 65% of all such ballots. But in states without these provisions, the use of at-home ballots is much more evenly distributed, as older voters make up only 39% of the votes from home in those states."

This report is made public just weeks after a federal court granted a preliminary injunction in Texas in Texas Democratic Party v. Abbott on, in part, Twenty-Sixth Amendment grounds.

Statement from Jason Harrow, Executive Director and Chief Counsel of Equal Citizens and co-author of the report: "This report reveals that there will be substantial barriers to conducting a safe, secure election this year--especially for younger voters. But the Constitution does not permit states to pick and choose who can vote easily and who cannot. The 26th Amendment prevents any age discrimination at all in the process of voting. We're thrilled to partner with this great group to spread the word and far and wide that these laws are impactful and cannot stand."

"Fifty years ago, our nation came together across partisan lines to certify that young voices were vital to the health of our democracy by ratifying the Twenty-Sixth Amendment. Despite that, many states today use various tactics to suppress the youth vote. This important report uncovers blatant age discrimination in absentee voting and its impact across age cohorts. I hope it is a wake-up call that helps us fulfill the promise of the Twenty-Sixth Amendment and ensure that young voices and votes are a powerful force in democracy, in part by shedding light on how laws that may appear innocuous nonetheless unconstitutionally discriminate on account of age for the youth class and beyond," says Yael Bromberg, Esq., Chief Counsel for Voting Rights at The Andrew Goodman Foundation and Twenty-Sixth Amendment expert and co-author of this report.

Statement from Professor Joshua A. Douglas of the University of Kentucky J. David Rosenberg College of Law and co-author of this report: "The right to vote is the most fundamental, crucial right in our democracy. It cannot be denied or abridged--especially during a pandemic. This report explains an important development in that continued struggle as we seek to achieve a more perfect union."

Statement from Chad Dunn, co-founder and Director of Litigation of the UCLA Voting Rights Project: "Fortunately states all over the country, in a bipartisan way, are finding a way to hold democratic elections during these pandemic times. Those few states who insist on trying to pick and choose the voters they want will run right into the U.S Constitution. The 26th Amendment guarantees the right to vote be administered equally without regard to age and it remains in effect even during a national health emergency."

Statement from Matt Barreto, co-founder and Faculty Director of the UCLA Voting Rights Project: "When the 26th amendment extended the right to vote to 18 year-olds in 1971 it clearly stated that states could not discriminate against voters by age. Absentee voting systems that advantage 65 and older citizens, but require people under age 65 to jump through extra hoops are a violation of the 26th amendment. This research is important in advancing legal theories and empirical evidence that the 26th amendment can, and should be used to uphold the voting rights of all American regardless of age."

Statement from Michael Donofrio of Stris & Maher and co-author of this report: "Stris & Maher is proud to partner with this outstanding coalition of election law advocates and scholars, political scientists, and nonpartisan election security experts to help make sure every citizen can safely and freely exercise their fundamental right to vote".

Statement from Amber McReynolds, CEO, National Vote at Home Institute and Coalition: "A strong democracy depends on our collective right to vote. That right cannot be denied on the basis of age. This report is crucial in advancing and highlighting the urgent need for some states to modify their voting laws to meet the clear intent set forth by the 26th amendment and ensure every eligible voter can vote in a safe, secure, and accessible way."