The U.S. Supreme Court may soon weigh in on the interpretation of the 26th Amendment, following a recent federal appeals court ruling that struck down a South Carolina law offering broader mail-in voting access to those over 65 compared to younger voters. The Fourth Circuit Court of Appeals, in the case of Grant v. Belangia, determined that the state's law violated the 26th Amendment, which prohibits denying or abridging the right to vote based on age for citizens 18 and older.
This decision adds to a growing divergence among federal appellate courts on how the 26th Amendment applies to voting access, creating a three-way split that increases the likelihood of Supreme Court intervention. The implications are significant for the ongoing political debate surrounding mail-in voting, a practice that has become increasingly partisan.
The core of the dispute centers on whether states can offer preferential access to mail-in voting for older citizens without violating the 26th Amendment. The Fourth Circuit's interpretation suggests that any unequal allocation of voting access based on age is unconstitutional, meaning if older voters can vote by mail, younger voters must have the same option. However, the Fifth and Seventh Circuits have previously taken different stances in challenges to similar laws in Texas and Indiana, respectively.
The issue gained prominence during the COVID-19 pandemic in 2020, when concerns about in-person voting led to lawsuits arguing for expanded absentee ballot access for younger voters who feared contracting the virus. While the Fifth Circuit rejected such claims regarding Texas law, the legal questions persist.
Democrats are generally more inclined to vote by mail than Republicans, making laws that ease or restrict this method a point of partisan contention. Republicans, while often voicing skepticism about mail-in voting's security, have also engaged in legal battles concerning ballot counting rules, as seen in the Watson v. Republican National Committee case, which involved the counting of mail-in ballots arriving shortly after Election Day. In that instance, a 5-4 decision revealed divisions on the court regarding ballot counting procedures, with four justices, all Republican appointees, favoring the Republican party's position.
The 26th Amendment, ratified in 1971 amid the Vietnam War, quickly became law with broad support, stemming from the slogan "old enough to fight, old enough to vote." Its relatively infrequent interpretation by courts has left its precise meaning in cases of differential age-based access to voting unclear. The amendment states that the right to vote shall not be "denied or abridged by the United States or by any State on account of age."
The Fourth Circuit's reasoning in Grant draws parallels to the 15th and 19th Amendments, which prohibit denial or abridgment of voting rights based on race and sex, respectively. This suggests a broad prohibition against age discrimination in voting access. Conversely, the Seventh Circuit, in Tully v. Okeson, and the Fifth Circuit, in Texas Democratic Party v. Abbott, have argued for narrower interpretations. These courts suggested that a voting law does not violate the amendment unless it outright prohibits voting or imposes "onerous procedural requirements" that significantly impede the exercise of the franchise, particularly if alternative voting methods remain available.
Given the conflicting interpretations from the circuit courts and the clear partisan implications of mail-in voting policies, the Supreme Court is likely to take up the issue. The composition of the current court, with a 6-3 Republican majority, suggests a potential for a narrower interpretation of the 26th Amendment, though the court's precedents offer support for various legal arguments. The court's previous denial of a request for temporary relief to expand absentee ballot access during the pandemic may also indicate a leaning toward less expansive voting access rules. The ultimate decision could significantly shape voting procedures and access in future elections.