The Heritage Guide to the Constitution


Amendment XXVI

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.

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 constitutionally do.

Earlier in 1970, Congress had amended the Voting Rights Act of 1965 (see P.L. 91–285, 84 Stat. 314), 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 that Congress had no power to change the voting age in either state or local elections. Four justices in two separate opinions agreed with Black’s conclusion regarding voting age, although they disagreed about other issues in the case (literacy tests and residency requirements). See also 42 U.S.C. 1971 et seq. The remaining four justices argued that Congress could change the minimum voting age in both state and local elections using its enforcement power under Section 5 of the Fourteenth Amendment.

Thus, Black’s opinion, which no other justice joined in full, left us with the rule that Congress had the authority to extend the vote to eighteen-year- olds in federal elections but not in state or local contests. The Twenty-sixth Amendment changes that.

After Oregon v. Mitchell, states unwilling to set their minimum voting age at eighteen would have to maintain separate voting systems for federal and nonfederal elections. The great majority of people thought that eighteen-year-olds should have the right to vote, and the states ratified the Twenty-sixth Amendment in record time—a mere 107 days after Congress proposed it.

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—violated the Twenty-sixth Amendment; the Court held that the amendment 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). The amendment does not mandate that persons under twenty-one years of age be seated as jurors under state law. Johnson v. State (1972); Commonwealth v. Cobbs (1973); State ex rel. McNary v. Stussie (1974). Nor does the amendment cover an Indian tribal election, unless the secretary of the interior called the election to ratify or amend a tribal constitution, in which case the election is federal and the amendment applies. Wounded Head v. Tribal Council of Oglala Sioux Tribe of Pine Ridge Reservation (1975); Cheyenne River Sioux Tribe v. Andrus (1977).

Robert Levy

Chairman of the Board of Directors, Cato Institute

William H. Danne, Jr., Annotation: Residence of Students for Voting Purposes, 44 A.L.R. 3d. 797 (1972)

Kenneth J. Guido, Student Voting and Residency Qualifications: The Aftermath of the Twenty-sixth Amendment, 47 N.Y.U. L. Rev. 32 (1972)

Oregon v. Mitchell, 400 U.S. 112 (1970)

Jolicoeur v. Mihaly, 5 Cal. 3d 565 (1971)

Colorado Project-Common Cause v. Anderson, 178 Colo. 1, 495 P.2d 220 (1972)

Johnson v. State, 260 So.2d 436 (Miss. 1972)

Opatz v. City of St. Cloud, 293 Minn. 379, 196 N.W.2d 298 (1972)

Worden v. Mercer County Board of Elections, 61 N.J. 325, 294 A.2d 233 (1972)

Commonwealth v. Cobbs, 452 Pa. 397, 305 A.2d 25 (1973)

State ex rel. McNary v. Stussie, 518 S.W.2d 630 (Mo. 1974)

Wounded Head v. Tribal Council of Oglala Sioux Tribe of Pine Ridge Reservation, 507 F.2d 1079 (8th Cir. 1975)

Cheyenne River Sioux Tribe v. Andrew, 566 F.2d 1085 (8th Cir. 1977)