Suffrage—Age

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.

Amendment XXVI

The Vietnam War provoked many draft-age youngsters and like-minded adults to proclaim, "If eighteen-to-twenty-year-olds are old enough to die for their country, they're old enough to vote." That slogan is commonly cited as the impetus for the Twenty-sixth Amendment. The truth is somewhat less colorful. The amendment was crafted primarily to overturn the holding of a fractured Supreme Court in Oregon v. Mitchell (1970). That case had invalidated an attempt by Congress to regulate voting age in state and local elections. Essentially, the Twenty-sixth Amendment did what Congress could not do.

Earlier in 1970, Congress had amended the Voting Rights Act of 1965, lowering the minimum voting age to eighteen in all federal, state, and local elections. When the revised law was challenged, primarily on federalism grounds, Justice Hugo L. Black wrote an opinion reflecting the position of two separate five-Justice majorities. One contingent agreed with Black that Congress could establish a minimum voting age for federal elections, but found contrary to Black that Congress could also exercise that power over state and local elections. A different four Justices joined Black in restricting Congress's power over state and local elections, but would have restricted its power over federal elections as well. Thus, Black's opinion became the Court's holding: Congress had the authority to extend the vote to eighteen-year-olds in federal elections but not in state or local contests.

After Oregon v. Mitchell, states unwilling to set their minimum voting age at eighteen would have been required to maintain separate voting systems for federal and nonfederal elections. To avoid that complication and expense, the states opted for national uniformity and ratified the Twenty-sixth Amendment in record time—a mere 107 days after it was proposed by Congress.

Almost immediately, the courts had to resolve issues peripheral to the new amendment. For example, did the right to vote for a candidate include eligibility to sign and vote for initiative petitions? In Colorado Project-Common Cause v. Anderson (1972), a state court found that enactment of the Twenty-sixth Amendment entailed participation by young voters in the entire political process—initiatives included.

Could states restrict voting by minors by denying them residency at schools or other places away from their parents? In Jolicoeur v. Mihaly (1971), the California Supreme Court found that denying minors voting residence where they actually lived—whether at school or elsewhere—constituted a violation of the Twenty-sixth Amendment; the amendment was held to have emancipated minors for all purposes related to voting. In the same vein, a New Jersey court added that the Twenty-sixth Amendment secured the rights of bona fide campus residents to register in the counties where their campuses were located. Worden v. Mercer County Board of Elections (1972).

On the other hand, a state constitution could, without offending the Twenty-sixth Amendment, institute twenty-one as the minimum age for holding elective public office. Opatz v. City of St. Cloud (1972). And the amendment does not mandate that persons under twenty-one years old be seated as jurors under state law. Johnson v. State (1972); Commonwealth v. Cobbs (1973); State ex rel. McNary v. Stussie (1974).

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Robert Levy
Chairman
Cato Institute