51st Anniversary of 26th Amendment

51st Anniversary of 26th Amendment

Coming just four days after Illinois' primary election day, it is appropriate to recognize the 51st Anniversary of the 26th Amendment, which established a voting age of 18 in the United States. The history of this Constitutional amendment is interesting, in my opinion, especially considering how recent an addition it is to the Constitution (1971).

Prior to the 26th Amendment, each state set its own qualifications for voters. Most states, including Illinois, had established 21 years of age as the requirement. During World War II, President Franklin Roosevelt needed more men to serve overseas and lowered the age to be eligible for the draft to 18 years old. Both draftees and the public quickly recognized the unfairness of this policy and the the slogan, "Old Enough to Fight, Old Enough to Vote!" became a common refrain. It was not until the 1960s and the re-institution of the draft for Vietnam that efforts to codify the national voting age at 18 would bear fruit.

In 1970, Massachusetts Senator Ted Kennedy proposed legislation amending the Voting Rights Act of 1965 to set the federal, state, and local election age qualification at 18 years old. It quickly passed both the Senate and House and President Richard Nixon signed the legislation on June 22, 1970. However, President Nixon in his signing statement, acknowledged that this amendment likely conflicted with the Constitution, but was willing to have it tested in Court.

Two states, Oregon and Texas, took up the challenge and sued the United States via the Attorney General, John Mitchell, in a case which became known as Oregon v. Mitchell. By modern standards, this case rocketed through the Supreme Court: it was argued on October 20, 1970 and the opinion of the court was issued on December 21, 1970, 62 days later! (On December 15, 1970, Illinois held a special election to adopt a new Constitution --keeping the voting age at 21-- and a referendum to lower the voting age to 18. The voters adopted the new constitution but rejected the referendum.) The Court held that Congress can only set the voting age for national elections, it has no authority to change state election qualifications. This was a 5-4 split decision and the justices could not agree on a reasoning for the stated outcome! While states could continue to keep their voting age at 21 for state and local elections, as a practical matter, they would be required to create a separate voter roll for 18-20 year olds eligible to vote in federal elections.

A senatorial investigation into the costs of establishing such a separate roll in each state would cost approximately $20 million ($150 million in 2022!). As a financial cost savings for the states, a Constitutional amendment was proposed on March 2, 1971 to lower the voting age to 18 for all elections:

Section 1.

The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

Section 2.

The Congress shall have the power to enforce this article by appropriate legislation.

The Amendment was passed by the Senate eight days later (March 10) and the House passed it thirteen days after that (March 23). Five states ratified the Amendment on the same day it passed the House. Illinois ratified it as the 35th state on June 29, 1971 and on July 1, North Carolina became the 38th state to ratify it, officially making it part of the Constitution. (It was not until 1988 that Illinois adopted an amendment to its own constitution to reflect this change!)

The history and events surrounding the adoption of the 26th Amendment should give us context when we hear arguments to grant or remove other "privileges and immunities" from 18 year olds. The right to vote is a relatively newly granted right to this demographic and the arguments made in opposition to granting that privilege are the same made today by those who oppose their "rights" to use tobacco and alcohol and own firearms. Likewise, because they can vote, we allow school and medical record privacy, to be tried as an adult for crimes they commit and more. Lots of modern complexity derived from the need to send our young men to fight and die on foreign shores nearly two generations ago.