The following is a guest post from Travis Crum:

Next week, the Supreme Court will consider whether to grant cert in Cascino v. Nelson. The question presented in Cascino is whether Texas’s law allowing any voter who is sixty-five or older to request an absentee ballot violates the Twenty-Sixth Amendment, which prohibits age discrimination in voting. The Cascino litigation has been ongoing since the 2020 election cycle—when the COVID-19 pandemic heightened the case’s immediate stakes—and the Fifth Circuit’s initial decision upholding this facially discriminatory law attracted substantial attention. As I argued back in 2020, the Fifth Circuit’s egregiously wrong decision should be reversed.

Here, I want to highlight a different point: Cascino presents a rare situation when the relevant constitutional provision was adopted during the lived experiences of some of the Justices. Indeed, some Justices were teenagers at the time and were enfranchised earlier than they otherwise would have been due to its ratification. The Twenty-Sixth Amendment allowed Justice Sotomayor to vote in the 1972 presidential election and Chief Justice Roberts to vote in the 1974 midterm election. And although they weren’t directly affected by it, Justices Thomas and Alito were in college during the Twenty-Sixth Amendment’s ratification debate. For once in our age of originalism, we have originalists present during the drafting and ratification of the relevant constitutional provision.

In the cert-stage briefing, the parties are implicitly advancing different forms of originalist argument. Texas is essentially making an original expected application argument based on the underlying rationale for the Twenty-Sixth Amendment’s adoption. During the Vietnam War, the federal government drafted men who were eighteen years old. However, in all but a handful of States, citizens needed to be twenty-one years old to vote. Congress responded to the criticism that those sent to fight in Southeast Asia should be old enough to vote by lowering the voting age to eighteen when it reauthorized the Voting Rights Act in 1970. But in Oregon v. Mitchell, a deeply fractured Court concluded that Congress could lower the voting age only in federal elections—not state elections. The Court’s decision, however, risked chaos, as States were not prepared to run elections with a bifurcated electorate. Accordingly, Congress promptly proposed and the States quickly ratified the Twenty-Sixth Amendment in 1971. Texas focuses on this history to claim that the Twenty-Sixth Amendment’s raison d’etre was to lower the voting age to eighteen. And because absentee ballots were rare in the 1970s, Texas’s argument goes, the right to vote is not implicated in this case.

By contrast, the plaintiffs pitch their argument based on original meaning. That is, the right to vote includes all steps in registering and casting a ballot. Furthermore, the plaintiffs claim that the Twenty-Sixth Amendment should be read in pari materia with the Fifteenth, Nineteenth, and Twenty-Fourth Amendments. Making the “right to vote” contingent on the timing of the relevant Amendment, as Texas would contend, risks different definitions for the same phrase based on the electoral rules in place in 1870, 1920, 1964, and 1971. To use one deeply problematic example of Texas’s argument: because secret ballots were not used during Reconstruction, it would be constitutionally permissible for a State to provide a secret ballot to only white voters.

If the Court were to grant cert in Cascino, the oral argument and opinion(s) would be a fascinating insight into how originalist arguments would function in a world with constitutional amendments. Would original expected application or original meaning prevail? Would it matter what Justice Thomas personally thought the Twenty-Sixth Amendment accomplished in 1971? What about Justice Alito’s recollection about and familiarity with absentee voting while he was in college? In a similar vein, Cascino would provide a useful exemplar of how the Court would react if Article V were revived and new constitutional amendments were ratified. If, hypothetically, our nation were to adopt a “real right to vote,” Cascino could illuminate how best to craft a legislative record and frame a public debate.

This is the third time the Court will consider whether to hear Cascino, though it is the first time the case is up on the normal—as opposed to shadow—docket. This time, the stakes are lower given the pandemic’s end, and the case has attracted—with one notable exception—less attention than in 2020. Nevertheless, Cascino raises important questions about originalism and the meaning of the Constitution’s voting rights amendments. Here’s hoping the third time’s a charm.

The following is a guest post from Joshua A. Douglas:

The Montana Supreme Court just issued a decision that represents a model for how state courts should consider the protections for the right to vote within state constitutions.

The case, Montana Democratic Party v. Jacobson, involves four laws passed in 2021 that, a lower court found after a nine-day trial, will make it harder for some people to register or cast a ballot. (The court provided a useful two-page summary of the 125-page decision here).

First, the legislature prohibited a voter who is not yet eighteen-years-old, but will be eighteen by Election Day, from receiving and returning an absentee ballot.

Second, the legislature eliminated same-day voter registration, instead closing the registration books at noon on the day before Election Day. Same-day registration is extremely popular in Montana, with 70,000 voters using it since 2006, and the state’s electorate rejected a measure to repeal it in a 2014 referendum. But the legislature eliminated it in 2021 anyway. 

Third, the legislature passed a law to restrict ballot collection, requiring the Secretary of State to enact rules that would preclude the paid collection and submission of absentee ballots by individuals or groups. The plaintiffs showed at the lower court that many voters, especially those from Native American communities and people with disabilities, rely on organizations to deliver their completed ballots.

Finally, the legislature eliminated the use of student IDs as proper voter IDs, requiring a voter who shows a student ID to provide an additional form of documentation. But the legislature could not point to any evidence that the use of student IDs would lead to any kind of voter fraud.

Four of the court’s seven justices ruled to affirm the lower court and strike down all four laws, while the three dissenting justices agreed with the majority on some but not all of the provisions (while questioning the majority’s approach to the state constitution). The majority found that each of the laws would interfere with the state constitutional right to vote.

But the holdings, while important for Montanans’ voting rights, are only part of the story. As someone who has written extensively on the power of state constitutions to robustly safeguard the right to vote, I was most interested in the constitutional test the court applied to the  Montana Constitution’s conferral of the right to vote.  

David Gans at Slate:

In Texas and a number of other states, voters age 65 and older have the right to vote by mail for any reason, while younger voters generally have to cast ballots in person. As a result, it is harder than it should be for millions of voters to cast a ballot, solely because of their age. Cascino v. Nelson, the case challenging Texas’ second-class treatment of younger voters, is one of the most important voting rights cases before the courts, yet it has flown under the radar. Next month, the Supreme Court will consider whether to add it to its docket.

In Cascino, the plaintiffs urge the Supreme Court to strike down Texas’ discriminatory law as a violation of the 26^th Amendment’s guarantee that 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.” SCOTUS has never interpreted the meaning of the amendment, which was ratified more than half a century ago….

The Framers of the 26^th Amendment consciously wrote it to parallel the Constitution’s separate prohibitions on racial and gender discrimination in voting contained in the 15^th and 19^th amendments, respectively. Transcending partisan divisions, Democrats and Republicans agreed that discrimination against younger voters had no place in our democracy. As Rep. Richard Poff, a Republican congressman from Virginia, insisted: “Just as the 15^th amendment prohibits racial discrimination in voting and just as the 19^th amendment prohibits sex discrimination in voting, the proposed amendment would prohibit age discrimination in voting.” In short, these three amendments prohibit all voting discrimination on account of the protected characteristic—race, sex, or age—without exception.

If a state sought to confer the right to vote by mail solely on white persons or men, it would be quickly struck down as a stark violation of the 15^th and 19^th amendments. Under the 26^th Amendment, age discrimination in voting is equally suspect. The amendment forbids laws that classify voters on account of age and deny equal voting opportunities to younger voters. Texas’ two-tiered voting system is precisely what the 26^th Amendment forbids.

What does Texas say in defense of its discriminatory regime? Its main justification is that the right to vote does not include the right to vote by mail. But nothing in the text of the 26^th Amendment—like that of the 15^th Amendment and other voting rights amendments—carves out voting by mail from its coverage and permits blatantly discriminatory voting laws. Having chosen to allow voting by mail, Texas cannot discriminate against voters on the basis of age and deny them the right to cast mail-in ballots. Younger voters, no less than voters 65 and older, are entitled to exercise their fundamental right to vote without having to endure countless hours of waiting at a crowded polling place.

Josh Douglas has posted this draft on SSRN (forthcoming, Florida Law Review). Here is the abstract:

Voters are special. They are the foundation of our constitutional democracy. Everything starts with the voter.

State constitutions, too, are special, as the recent surge in scholarship on state constitutions demonstrates.

This Article bridges the gap between various strands of recent scholarship on state constitutions, the right to vote, and democracy, making several novel claims about the way in which state constitutions protect voters. First, the Article canvasses all fifty state constitutions to conclude that they contain multiple levels of protection for the right to vote through numerous clauses that, in combination, elevate the status of voters in the constitutional structure. The Article explains these clauses and tallies how many state constitutions include each one, offering a descriptive fifty-state survey of the holistic state constitutional protection for voters. Second, the Article situates this multilayered right to vote within separation of powers principles, showing how the electorate is the most vital entity in state governance. An analogy to separation of powers ideals is a useful tool to check legislative or executive abuses of the election process. Third, the Article applies this theory to real-world voting rights disputes, arguing that courts should invalidate a law that infringes upon the multilayered right to vote. This approach differs from typical tiers of scrutiny and means-end analysis in right to vote cases. Instead, the test borrows from the non-retrogression principle once used in Voting Rights Act Section 5 cases: a plaintiff would have an evidentiary burden to show that a new law will make it harder for voters to participate or will reduce turnout. Importantly, if a legislature is taking away the power of the electorate to direct the government, then there is no valid state interest that can justify that encroachment. A plaintiff could invoke the theory by demonstrating empirically that a law will reduce voter participation.

A recognition of the multilayered right to vote under state constitutions, combined with an analogy to state separation of powers principles, will ensure that voters, not politicians, remain the most important actors in state governance.

Marcela Valdes in NYT Magazine.

Fort Worth Star-Telegram:

Tarrant County Judge Tim O’Hare this week cited federal law to support his opposition to reimbursing Trinity Metro for free fares on primary Election Day. But, does that law actually prohibit free rides to the polls?

The County Commissioners Court on Wednesday voted down the measure along party lines. It would have reimbursed the transit agency $10,000 for the rides. Trinity Metro announced Thursday that it still plans to offer free rides to polling sites on primary Election Day, March 5.

O’Hare, a Republican, cited U.S. Code 18, section 597, which states that anyone who “makes or offers to make an expenditure to any person, either to vote or withhold his vote, or to vote for or against any candidate” could face a fine and up to one year in prison.

That statute, however, does not prohibit free bus and train rides to polling stations, according to electoral law experts consulted by the Star-Telegram….

Michael Morley, a law professor at Florida State University, said the law is meant to prohibit vote buying.

“So long as the transportation is not provided as part of a quid pro quo exchange for votes, but instead only seeks to reduce barriers to voting, it is fine,” he wrote in an email.

Very excited to read this Harvard Law Review student note by Aidan Calvelli. Here’s the Introduction:

Voter turnout was higher in the 2020 U.S. presidential election than it had been in 120 years.¹ Nearly sixty-seven percent of citizens over eighteen voted that November, exceeding rates that hovered around sixty percent in the twenty-first century and never broke sixty percent from 1972 to 2000.² Some pundits have read this recent record as a triumph.³ But it can also be seen as a travesty: even with the best turnout since 1900, nearly eighty million eligible voters stayed home.⁴

Slim turnout has long prompted reform efforts.⁵ Yet the United States has always shied from one direct solution: requiring everyone to vote. “Compulsory voting” — where legislatures require attendance at the polls, often enforced by fines or penalties — exists in around two dozen countries, but nowhere in America,⁶ relegating the idea to “goo-goo reformers”⁷ and law review notes.⁸

Recently, however, compulsory voting has entered mainstream debate. President Obama floated the idea in 2015 to fight money in politics and diversify the electorate.⁹ A 2018 New York Times article piqued interest in Australia’s mandatory voting system.¹⁰ And in 2022, E.J. Dionne Jr. and Miles Rapoport published a popular book arguing that “universal civic duty voting” will end voter suppression, improve representation, and boost belief in government.¹¹ Their work has inspired legislators in Connecticut, Massachusetts, and Washington to introduce compulsory voting bills.¹²

This nascent debate marks an exciting effort to make the actual electorate more representative of the eligible electorate and potentially shift political power.¹³ Yet modern debates have so far largely overlooked one angle of analysis: history. Though no writer since the 1950s has devoted more than two paragraphs to the history of compulsory voting efforts in the United States,¹⁴ the idea has a rich American tradition. Policies first emerged before the Founding. And debates especially picked up beginning in the 1880s and through the Progressive Era, when twelve states considered the policy, including two — Massachusetts and North Dakota — that passed amendments letting their legislatures enact it.¹⁵

This Note begins to excavate that history. In doing so, the Note illustrates the importance of the fact that these debates happened, highlights Progressives’ competing visions of democracy, and seeks to inform how advocates consider the policy today. Taking seriously the issue some contemporaries called the “most important” the Progressives faced¹⁶ can help us better understand their democracy — and ours.

The Note proceeds as follows. Part I traces the history of attempts to institute compulsory voting in the United States, focusing primarily on the Progressive Era. Part II canvasses the main arguments at Progressive Era conventions for and against compulsory voting. And Part III considers what these debates illustrate about Progressive democracy and policy debates today.

AP:

 College-issued student ID cards won’t carry the same weight as a form of photo identification at polling places if a bill that advanced Tuesday in Kentucky’s legislature becomes law.

The Senate voted to revise the state’s voter identification law by removing those student IDs from the list of primary documents to verify a voter’s identity.

Senate Bill 80 — which would still allow those student IDs as a secondary form of identification — won Senate passage on a 27-7 vote and heads to the House. Republicans have supermajorities in both chambers.

Republican Secretary of State Michael Adams, a key supporter of the state’s 2020 voter ID law, has expressed opposition to the new legislation.

Supporters of the bill insist that the change would be no impediment to students’ ability to vote.

NYT:

Democracy is messy, but usually not this messy.

Take, for example, New Hampshire, where President Biden boycotted the primary election last Tuesday, after the state jumped the line in the Democratic Party’s new schedule to keep its first-in-the-nation primary status. Because it would have been embarrassing if Mr. Biden had lost there, a group of supporters took to telling voters that, while he might not be asking for their vote, he didn’t not want it. Could you please write in his name? (They did, and he won.)

Next on the primary calendar is South Carolina, on Feb. 3, but only if you’re a Democrat. If you’re a Republican there, you will not vote until Feb. 24, after fellow party members in Nevada have their say.

Oh, and about Nevada: If you support Nikki Haley, you can vote for her in the state’s primary on Feb. 6, but your vote will not count toward the Republican nomination. That is tied to the party’s caucuses on Feb. 8, and Ms. Haley will not be part of that process. If you support former President Donald J. Trump, you can vote for him in the caucuses, but not in the primary. The primary, which is run by the State of Nevada, will be conducted by mail, while the caucuses will be in person. That’s because the Nevada Republican Party opposed conducting the primary by mail, which is part of why it scheduled the caucuses to begin with.

Got it?

As voters enter an election year in which many feel that democracy itself is on the ballot, they face a bewildering set of dates and procedures to choose their presidential nominees. And that’s without even getting into the longtime snag of some states’ scheduling separate primaries for president and other offices, as well as special elections, all of which adds up to some voters having as many as five Election Days….

New report from the Movement Advanced Project.