Rutgers Law Review Symposium: “The Future Is Unwritten: Reclaiming the Twenty-Sixth Amendment”

Looks like some terrific contributions here:

The Future Is Unwritten: Reclaiming the Twenty-Sixth Amendment

Yael Bromberg

In April 2022, Rutgers University Law Review hosted the first law symposium ever to be dedicated to the Twenty-Sixth Amendment, resulting in this first-of-a-kind legal collection. It took a fifty-year anniversary for the Twenty-Sixth Amendment to garner the attention of legal academia. For those familiar with the history of Rutgers School of Law, it is no surprise that the People’s Electric Law School served as the home for the occasion, bringing together the top voting rights litigators in the nation with the original youth organizers and legislative aides who advanced ratification in 1971, contemporary youth organizers and advocates, legal scholars and law school clinicians, undergraduate educators and their students, and university administrators committed to youth civic and political participation. The Rutgers University Law Review symposium urged participants to consider where the next fifty years will lead us as we approach the centennial of the Twenty-Sixth Amendment. The multiple contributors to the symposium and this resulting issue uniformly recognized the current limitations of federal Twenty-Sixth Amendment litigation and sought to build public consensus to advance the right.

Shaping Future Impact of the Twenty-Sixth Amendment: How Lessons from the 2020 Election and Voting During the COVID-19 Pandemic Are Instructive for Engaging the Next Generation of Americans

Ben Hovland & Phillip A. Olaya 

As Americans, we are and should be proud of our Democratic traditions. Expansion of the voting franchise over the past two centuries reflects the best of America. And part of being American is recognizing the importance of giving a voice to all Americans to participate in our democracy . . . .

In these remarks, U.S. Senate Majority Leader Charles Schumer suggested that over the course of our nation’s history, the right to vote has evolved toward expansion of the franchise. Most prominently, the Fifteenth Amendment secured the vote for former slaves, the Nineteenth Amendment for women, and the Twenty-Sixth Amendment for eighteen-year-olds. Similarly, the Twenty-Fourth Amendment abolished the poll tax.

While these amendments signified the inclusion of a growing number of Americans in the country’s civic life, securing the actual right to cast a ballot and have it count remained elusive without concerted social efforts and legislation to enforce that right. Indeed, even as passage of the Civil Rights Amendments and Reconstruction promised a new beginning for emancipated slaves, the Jim Crow era commenced, prolonging the bitter struggle to vote by former slaves and their descendants.

Not until President Lyndon B. Johnson signed the Voting Rights Act of 1965 (“VRA”), however, did African Americans secure the tools to enforce their right to vote. Similarly, amendments to the VRA in 1975 and 1982 provided effective tools to other marginalized communities, including language minorities and voters with disabilities. In 1993, Congress passed the National Voter Registration Act (“NVRA”), expanding opportunities for all eligible Americans to register as part of the process of obtaining a driver’s license or other government transactions. And twenty years ago, Congress passed the Help America Vote Act (“HAVA”) to both address the vulnerabilities in the country’s election infrastructure that came to light following the contested presidential election in 2000 and ensure that all Americans were able to vote privately and independently.

State Constitutions and Youth Voting 

Joshua A. Douglas

Young voters suffer the lowest turnout rates in American elections. One study shows that younger voters face numerous barriers when attempting to cast a ballot, such as work responsibilities, not receiving an absentee ballot in time, inability to find or access their polling place, voter ID problems, or other issues. Many state election laws are a labyrinth of rules and regulations that make it more difficult to vote, especially for younger people. As one report notes, “many young voters are new voters who need to register for the first time and who may be unfamiliar with the process. Young people also tend to move more frequently, which may mean they have to reregister and potentially learn an entirely new set of deadlines and procedures.” These complex rules effectively limit the ability of young people to exercise their fundamental right to vote.

The Twenty-Sixth Amendment to the U.S. Constitution could have fixed this problem. The Amendment offered immense promise to America’s youth. A thirty-year struggle, which began during World War II, finally culminated in the 1971 amendment to lower the voting age from twenty-one to eighteen, enfranchising more than ten million new voters. These young people had been asked to fight in various wars, from World War II to the Vietnam War, and now they were finally allowed to participate in the most important aspect of American democracy. 

Reform Begins at Home: Integrating Voting Rights Litigation and Advocacy in Progressive States 

Perry Grossman & Adriel I. Cepeda Derieux

Recent U.S. Supreme Court decisions have drastically limited nationally applicable legislative and case-based voting rights protections. The trend intensified in 2013 in Shelby County, Alabama v. Holder, where the Court struck down Section 5 of the Voting Rights Act (“VRA”), a crucial safeguard against discriminatory practices that required some jurisdictions to “preclear” changes to their voting laws. More narrowing followed in Husted v. A. Philip Randolph Institute, where the Court cabined the National Voter Registration Act of 1993 (“NVRA”) to say that states could rely on someone’s failure to vote in two consecutive elections to start procedures to remove them from the voter rolls. And last year, in Brnovich v. Democratic National Committee, the Court made it harder for plaintiffs to challenge discriminatory barriers to voting by adding factors that courts must assess when considering a claim under Section 2 of the VRA. While elsewhere, the Court has closed the federal courts’ doors to many voting rights claims, including challenges to partisan gerrymanders.

These setbacks are alarming. They undercut a decades-long commitment from Congress—since, at least, the 1960s—to securing voting rights at the national level. They have met expected reaction from voting rights advocates and organizers, who have swiftly mobilized to push for measures that would rehabilitate federal protections for the right to vote—for example, by restoring a preclearance “formula” that would again compel jurisdictions with a discriminatory record to submit voting law changes to the Justice Department. While necessary and admirable, that response has, to date, unfortunately extracted little from Congress in the way of tangible national protections.

Provisional Rights and Provisional Ballots in a Swing State: Understanding How and Why North Carolina College Students Lose Their Right to Vote, 2008-Present

Gunther Peck, Ameya Rao, Kathryn Thomas, Delaney Eisen, Miles King, Hannah McKnight & Luhan Yao

For millions of voters across America, Election Day serves as a celebration of the constitutionally protected right to vote, enshrined under the U.S. Constitution and its Fifteenth, Nineteenth, and Twenty-Sixth Amendments. But for students at North Carolina Central University (“NCCU”), the 2016 election was a nightmare. At NCCU’s on-campus precinct, hundreds of students waited in line for hours to vote because poll workers were dividing their time between assisting voters and filing provisional ballots. NCCU students were key members of a youth cohort more than 300 strong in Durham County in 2016 who cast provisional ballots on election day only to have them discarded. The NCCU election day precinct was a particularly bad spot for such disfranchisement, with fully three quarters of all provisional ballots cast there rejected, much higher than the already high statewide rejection rate of 60% in 2016. Although long lines did not develop at NCCU on election day in 2020, provisional ballot rejection rates for young voters have continued to increase there as well as across Durham County and the state of North Carolina. In 2020, nearly every provisional ballot cast by young voters at NCCU’s precinct on election day was rejected. Rather than serving as a failsafe that protects the voting rights of young citizens, provisional ballots seem to be hindering young citizens’ constitutionally protected rights to vote.

Leveraging Civil Rights Statutes to Empower the Youth Vote 

Valencia Richardson

Since the Vietnam War, youth voters—especially college students—have struggled to stake their claim in the larger voting rights movement. As the Civil Rights Movement and protests against the Vietnam War raised the consciousness of young people across the country, so too did it press the issue of enfranchising voters over eighteen years old.

Meanwhile, the twentieth century brought voting rights reforms that transformed state and local election administration and enabled voters and advocates to enforce the right to vote in federal court. Most notably, the Voting Rights Act of 1965 (“VRA”) transformed how voters and advocates tackle voting practices that have a discriminatory impact on voters of color. Other statutes, including the National Voter Registration Act (“­­NVRA”), require transparent, streamlined voter roll maintenance, and provide a cause of action for jurisdictions that do not comply. Despite pushback—and far from perfect application—these statutes do provide a standard for enforcement and advocacy to secure access to the ballot box (even if today courts are increasingly hostile to these statutes).

But the fruits of these legislative achievements have not necessarily been borne to youth voters, especially youth voters of color. To be sure, the Twenty-Sixth Amendment was ratified in 1971 and granted the right to vote for all eligible voters 18 years and over. There have been cases interpreting the rights of youth voters under the Twenty-Sixth Amendment among the lower courts, though the Supreme Court has only taken up a Twenty-Sixth Amendment case once since the amendment’s ratification. Likewise, there is some litigation that predates the ratification of the Twenty-Sixth Amendment, which sought to challenge onerous residency requirements that burdened youth voters under the Fourteenth Amendment. But there is very little case law interpreting the right to vote for young people under the voting rights statutes. Meanwhile, youth voters face denials of the right to vote by state and local actors alike. In particular, youth voters face barriers to registering to vote that reflect the mobility of the youth voter to which state and local officials do not respond and have been historically hostile. The status quo of voter registration assumes a single, permanent place of residency and government-issued identification, which reflects permanent residency—two elements most likely to hinder youth voters. Ostensibly, civil rights statutes should address these barriers by providing an enforcement mechanism when youth voters are disproportionately burdened by voter registration requirements. Yet, perhaps because the youth voter is a fluid and constantly changing constituency, very little legal advocacy has been dedicated to the enforcement of the youth vote under these statutes.

Institution as Citizen: Colleges and Universities as Actors in Defense of Student Voting Rights

Jonathan Becker & Erin Cannan

Institutions of higher learning have consistently underlined their role in shaping citizens since the founding of the republic. As Charles Elliot, Harvard’s long-term president, stated more than a century ago: “At bottom, most of the American institutions of higher education are filled with the democratic spirit. Teachers and students alike are profoundly moved by the desire to serve the democratic community.” Yale University’s former President Bart Giamatti said: “I believe that the formation of a basis for how we choose to believe and speak and treat others—how, in short, we choose a civic role for ourselves—is the basic purpose of an education in a democracy.” But what of the responsibility of higher education institutions? Is their role only to shape future generations of student leaders and charge them with changing the world, or do they have a role as actors in their own right?

The Twenty-Sixth Amendment to the U.S. Constitution, which lowered the voting age nationally to eighteen and outlawed age discrimination in one’s access to the ballot, not only empowered colleges to fulfill the civic roles of which Elliot and Giamatti spoke, but it was also shaped by college student activists and influenced by politicians’ hopes and fears concerning students’ role in society. While much writing and popular recounting of the Twenty-Sixth Amendment focuses on complaints, dating back centuries, about the hypocrisy of youth being forced to fight while being denied the right to vote, there is a more historically nuanced vein of research that situates the fight to lower the voting age within the context of broader efforts to remove barriers to the franchise and democratize society. As Bromberg put it, “the ultimate expansion of youth access to the franchise is a part of the narrative and immediate aftermath of the Second Reconstruction, and it was a natural extension of the nation’s arc towards democratic inclusion.”

Using Developmental Science to Inform Voting Age Policy

Laura Wray-Lake & Benjamin Oosterhoff

This article considers the evidentiary basis for lowering the voting age to sixteen based on research and perspectives from developmental science. The Twenty-Sixth Amendment lowered the voting age from twenty-one to eighteen based on logic and sentiment but was not informed by scientific evidence. The field of developmental science is capable of offering a cohesive set of guidelines about age-appropriate rights and responsibilities, given decades of research on the social, cognitive, and civic capabilities of adolescents. This article, in reviewing the evidence, argues that sixteen-year-olds should be granted the right to vote. The argument has three main parts. Part I explains how developmental scientific evidence offers nuanced age-based policy recommendations based on the context and demands of a given right or responsibility. Voting is an autonomy-rights issue, in which behaviors draw on reasoned decision-making, and evidence demonstrates that these capacities are solidified by age sixteen. In contrast, for protection rights issues, in which behaviors are made impulsively in emotionally charged and socially pressured situations, evidence favors policies that offer protections to adolescents and young adults. Part II argues that there is insufficient evidence to deny sixteen-year-olds the right to vote based on their demonstrated capacities for political knowledge, interest, and independence. In fact, considerable evidence exists to celebrate these capacities. Part III demonstrates that enfranchising sixteen- and seventeen-year-olds increases political interest and participation over the short and long term. The period of adolescence, where youth are more connected to home, school, and community, may be a better time to introduce voting rights, compared to ages eighteen to twenty, for both youth and their parents. The article concludes with several considerations for the future of voting age policy.

Out Before the Starting Line: Youth Voting and Felony Disenfranchisement

Cara Suvall

Felony disenfranchisement is a youth voting rights issue. Felony disenfranchisement—the umbrella term for the range of state policies that take away a person’s right to vote related to criminal conviction and punishment status—impedes young people’s ability to have their voices heard in our democracy. Youth and young adults are engaged and leading around diverse issues, including racism, policing, and the criminal legal system. Teens and preteens below voting age participate at high levels in protest and activism around these topics and actively consume media around the issues of racism and policing. It is striking, and a bit ironic, that these issues motivating youth political engagement may also be preventing or dissuading many young adults from voting through felony disenfranchisement and its spillover consequences.

Felony disenfranchisement layers on top of the already-significant voting barriers that young people face. This article aims to bring two strains of research and advocacy—those around youth voter engagement on one hand, and around felony disenfranchisement on the other—into conversation. It aims to flesh out the ways that felony disenfranchisement laws particularly burden the youngest voters, sometimes even before they are old enough to cast their first votes. And it argues for advocates working on youth voting rights and felony disenfranchisement to keep in mind the specific ways that these laws, policies, and practices place a heavier burden on young adult voters.

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