The Airtight Case Against Texas’ Mail-In Voting Age Requirements

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.

This is exactly the kind of case the court should hear—particularly for the justices who insist that a judge’s duty is to enforce the Constitution’s text and history. Cascino involves a key part of the Constitution that has never been given a comprehensive construction, a blatant denial of equal voting opportunities to millions of citizens, and a powerful originalist argument for vindicating the constitutional promise of an inclusive democracy. The case gives the Supreme Court the opportunity to make clear that the 26^th Amendment means what it says: Laws that make it harder for younger citizens to exercise their fundamental right to vote violate the amendment’s promise of voting equality.

As its text and history make clear, the 26^th Amendment forbids state-sponsored voting discrimination against younger citizens. As many young Americans were being sent off to fight in Vietnam, the American people insisted that the young adults who were old enough to fight in a war were old enough to vote for the government officials who would send them to that war. In other words, they were entitled to participate in our democracy as equals.

To effectuate this design, the text of the 26^th Amendment establishes a broad constitutional prohibition on all forms of voting discrimination against adult voters on account of age. Rather than merely lower the voting age to 18, the authors of the amendment demanded a broad constitutional rule of voting equality by proscribing governmental denial and abridgment of the right to vote on account of age. A first-time voter who has just turned 18 must be treated the same as the oldest members of the electorate. Together, the constitutional ban on age-based denial and abridgment of the right to vote established “a plenary right on citizens 18 years of age or older to participate in the political process, free of discrimination on account of age,” as the report of the House Judiciary Committee described the amendment.

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.

Vindicating the text and history of the 26^th Amendment in Cascino is important in its own right. It can also help redress one of the pathologies of our democracy: long waiting lines at the polls. This problem, fueled in part by polling place closures, has been particularly pronounced in communities of color. In 2020, for example, voters at Texas Southern University, a historically Black college in Houston, had to endure waiting times as lengthy as seven hours in order to exercise their fundamental right to vote. In Texas and elsewhere, long waiting in lines disrupts the electoral process, discourages voter participation, and ends up disenfranchising those wishing to cast a ballot. A constitutionally faithful reading of the 26^th Amendment can help ensure that all voters, regardless of age, take advantage of the opportunity to vote by mail and avoid the crushingly long lines many Texans have experienced in recent elections.

The justices on the conservative-dominated Supreme Court repeatedly insist that they take text and history seriously. Cascino offers them an opportunity to make good on that claim. The court should take up Cascino and enforce the promise of voting equality enshrined in the text and history of the 26^th Amendment.