The Twenty-Sixth Amendment provides, “The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.” It prohibits states from discriminating among voters based on age, for people who are at least 18 years old, and grants Congress power to “enforce” that prohibition through “appropriate legislation.” The Twenty-Sixth Amendment is the last 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 Fourteenth Amendment, enacted after the Civil War, protects the right to vote for the “male inhabitants of [each] state, being twenty-one years of age, and citizens of the United States.” States were permitted to lower the voting age, but not required to do so. By the time of the Vietnam Conflict, most states still limited the franchise to people 21 and older. Because so many men between 18 and 20 were being 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 that Congress had authority to lower the voting age in federal elections, but lacked power to do so for state and local elections. Thus, 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. In response to Oregon, Congress proposed the Twenty-Sixth 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.
The Senate Report accompanying the Twenty-Sixth Amendment explained that it was proposed for three main reasons. First, “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. Second, 18-year-olds “bear all or most of an adult’s responsibilities.” This consideration assumed special importance since over half the American servicemen killed in Vietnam were between 18 and 20. Third, younger voters should be given the chance “to influence our society in a peaceful and constructive manner.” Excluding 18-year-olds from the political process contributed to violent protests.
The Twenty-Sixth Amendment is worded very similarly to the Fifteenth Amendment, which prohibits states from denying or abridging the right to vote on account of race. Some courts have expressed doubt, however, whether the Twenty-Sixth Amendment’s protections against age-based discrimination are as broad as the Fifteenth Amendment’s protections against racial discrimination. Others have held, in contrast, that the Twenty-Sixth Amendment should be interpreted similarly to the Fifteenth, since the provisions have nearly identical wording and purposes. Under this approach, states may not enact laws with the intent of making it more difficult for younger voters to vote.
It is well established that, in addition to lowering the voting age for all elections to 18, the Twenty-Sixth Amendment also prohibits states from imposing special restrictions or residency rules just on voters who are between 18 and 20 years old. For example, shortly after the Amendment was adopted, the California Supreme Court held that election officials may not presume that unmarried people between 18 and 20 live with their parents, but instead must apply the same residency rules that apply to everyone else.
The Twenty-Sixth Amendment is most frequently invoked, along with the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment, in disputes concerning college students’ residency for voting purposes. A person generally may vote only at her “domicile,” which is the place in which she has established her home, where she intends to remain indefinitely, and to which she intends to return when she travels. Controversies have arisen over whether a dormitory or apartment where a college student lives while attending school may qualify as that student’s “domicile,” allowing the student to register to vote at that address.
Courts have continuously reaffirmed that a student who moves to a new place solely to attend college or graduate school and does not otherwise intend to make that place her home neither acquires domicile nor may register to vote there. She must instead register at her former residence (presumably, the home of her parents or guardians). Many courts have made it difficult for election officials to enforce this restriction, however. They have held that the Twenty-Sixth 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 to consider the issue have similarly held that 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 are attending school. Courts have eliminated other obstacles to college student voting as well, for example by requiring election officials to accept dormitories as valid residences for voter registration purposes.
Courts repeatedly have confirmed that the Twenty-Sixth Amendment does not confer any protections outside the realm of voting. They have rejected arguments that the Amendment requires states to lower the age to 18 for jury service, holding public office, or drinking. The Twenty-Sixth Amendment has most recently been invoked in voter identification cases. Most Twenty-Sixth Amendment challenges to voter identification laws—including laws that do not allow students to vote using college identification cards—have failed, due to the lack of evidence that legislators adopted them to intentionally discriminate against voters between 18 and 20 years old.
