Travis Crum: “Originalism, Lived Experience, and the Twenty-Sixth Amendment”

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.

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