Jenny Diamond Cheng: The Twenty-Sixth Amendment Lives! Federal District Court Strikes Down Florida Rule as Discriminatory against College Student Voters

The following is a guest post from Jenny Diamond Cheng of Vanderbilt Law:

As Rick noted, the Northern District of Florida in League of Women Voters v. Detzner recently found the State of Florida to have violated the First, Fourteenth, and Twenty-Sixth Amendments by intentionally discriminating against college voters.  The holding is potentially a shot in the arm for those seeking to challenge voter suppression targeted at young voters.

The opinion has two intriguing aspects:  First, in line with the gradually emerging consensus among federal courts, the court applied the Arlington Heights framework to the Twenty-Sixth Amendment, interpreting the Amendment as prohibiting deliberate age-based voter discrimination.  I have written elsewhere that reading the Twenty-Sixth Amendment in an Arlington Heights framework is the most sensible and theoretically sound approach.  The Twenty-Sixth Amendment shares nearly identical wording with the Fifteenth Amendment and is ideally suited for an intratextualist reading.  Furthermore, to the extent that much of the dramatic partisan generation gap is likely due to significant demographic differences between older and younger Americans, the conceptual distinction between age-based and race-based voter discrimination is arguably eroding.

Second and more significantly, the court broke new ground by actually finding evidence of unconstitutional intentional discrimination. This is the first time that a court has been willing to explicitly impute discriminatory intent in a Twenty-Sixth Amendment case. The plaintiffs in Detnzer – two organizations and six college students – were challenging Secretary of State Detzner’s 2014 opinion barring early voting sites on college or university campuses.  The district court was clearly skeptical of the state’s purported justifications for the policy, including avoiding parking problems and minimizing on-campus disruption. “[The policy] is unexplainable on grounds other than age because it bears so heavily on younger voters than all other voters.  [The State’s] stated interests . . . reek of pretext.”

The court also held that the Secretary of State’s opinion violated the plaintiffs’ First and Fourteenth Amendment rights. Applying the Anderson-Burdick balancing test, Judge Walker declared that Secretary Detzner had failed to articulate any precise governmental interest that would justify the “significant” and “lopsided” burden on the college student plaintiffs, who were flatly denied an early voting site “on a dense, centralized location where they work, study, and in many cases, live.”

The other federal courts that have recently heard Twenty-Sixth Amendment claims have been tentatively coalescing around the idea that the Amendment prohibits intentional age-based voter discrimination.  However, given courts’ notorious reluctance to attribute discriminatory intent to state officials (as well as their willingness to exclude evidence of such intent), it has been unclear whether this interpretation was really meaningful.   The Northern District of Florida’s decision in Detzner suggests that the Twenty-Sixth Amendment can indeed serve as the basis for a successful constitutional challenge to laws intended to suppress young voters.

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