This week, the Fourth Circuit issued a major ruling striking down South Carolina’s limits on absentee ballots. The relatively novel basis of this opinion (by Judges Roger Gregory, Judge Pamela Harris, and Judge Julius Richardson) was that it violated the 26th Amendment as discrimination on the basis of age for voters. The opinion conflicts with rulings in other circuits and, in my view, is challengeable.
The case of Grant v. Belangia came to the Fourth Circuit after District Judge Bruce H. Hendricks issued a ruling in favor of the state, dismissing the challenge to the South Carolina law.
Writing for the panel, Judge Gregory (right) reverses on the 26th Amendment (while upholding the earlier rejection under the Equal Protection Clause).
Under Section 7-15-320 of the South Carolina Code, four categories of “[q]ualified electors” are allowed to vote in an election: electors who are physically disabled; members of the Armed Forces and Merchant Marines of the United States, their spouses, and dependents; persons admitted to hospitals as emergency patients on the day of an election or within a four-day period before the election; and “persons sixty-five years of age or older.” S.C. Code § 7-15-320(B).
If you are a younger voter (below the age of 65), you can also vote through an absentee ballot if you meet one of the standard exceptions: conflicting employment obligations; the need to attend to sick or physically disabled persons; confinement to a jail or pretrial facility pending disposition of arrest or trial; or an absence from your county of residence. S.C. Code § 7-15-320(A).
The challenge is based on the argument that the state law allows older persons to vote easily by absentee while imposing an added burden on those who are younger.
This, the Court reasoned, runs afoul of the 26th Amendment, which provides that “[t]he 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.” U.S. Const. amend. XXVI, § 1.
The “no excuse” option for older voters is viewed as abridging the right to vote based on age for younger voters.
I respectfully disagree. While this is a well-written, well-reasoned opinion, I still believe it is wrong. South Carolina does not abridge or reduce the ability to vote for younger voters, who may vote in person and have ample exceptions for voting by absentee ballot.
Accommodations for older voters acknowledge the added physical difficulties in voting due to age. Many older voters remain unencumbered and active, but the state may adopt general categories for greater efficiency and management.
Any younger voter who is disabled has the protections of federal law requiring accommodation for such disabilities in gaining access to voting even if one of the exceptions does not apply. (Frankly, I would have preferred greater express accommodation for such disabled younger voters, but I do not believe that it is constitutionally required so long as the state guarantees access).
The challengers cite many unpredictable occurrences that also impact younger voters. The state insists that such occurrences impact all voters and that it is not required to negate a state preference for in-person voting in light of such occurrences. The panel makes an interesting point in rejecting that claim:
“Defendants further argue that unpredictability affects all voters because voters of any age may face late-breaking conflicts they did not foresee. That is true but beside the point. The Constitution does not require South Carolina to eliminate life’s contingencies, but it does forbid South Carolina from allocating the consequences of those contingencies on unequal terms based on age as they relate to voting access. Under this scheme, when life circumstances change after the statutory deadline, absentee-by-mail voting functions as a form of insurance for voters age sixty-five and older against unforeseen contingencies that might otherwise prevent their participation, while younger voters remain exposed to the risk that such contingencies will preclude them from voting. S.C. Code §§ 7-15- 320(B)(2); 7-15-330(C), (D). This contravenes the Twenty-Sixth Amendment.”
The panel also rejects the administrability and election integrity arguments of the state:
“Those are legitimate interests. But the Twenty-Sixth Amendment unconditionally removes age-based allocation of voting opportunity from the set of permissible means without consideration of the state’s interests. A state may pursue those interests lawfully— through age-neutral rules, or by limiting absentee-by-mail voting altogether. What it may not do is grant one class of adult citizens unconditional access to a voting method while denying it to another solely because of age.”
Courts such as the Fifth Circuit have rejected such challenges, noting that when the 26th Amendment was ratified, most voting was done in person, with few exceptions for absentee voting. In Tex. Democratic Party v. Abbott, 978 F.3d 168 (5th Cir. 2020), found that allowing older persons to vote absentee as a group did not negate or interfere with younger people’s right to vote. Furthermore, the Fifth Circuit concluded that the right to vote under the 26th Amendment is only abridged when a statute removes a voting privilege previously enjoyed by a voter. That is not the case with absentee voting.
Notably, the Fifth Circuit relied on Second Amendment cases in reaching this conclusion, viewing the meaning of the terms of the amendment in light of how they were understood at the time of ratification: “That meaning is the context for the use of the phrase, and with ‘textual interpretation, context is everything.’”
It found that the bar on abridgment of the right cannot prevent different accommodations for different groups:
“Conceptually, plaintiffs are converting the Twenty-Sixth Amendment into the positive assertion that voting rights must be identical for all age groups at all times. Any indulgence solely for one age group of voters would fail; voters of all ages must get the same indulgence.15 The Amendment, though, is a prohibition against adopting rules based on age that deny or abridge the rights voters already have. Indeed, neither the Twenty-Sixth Amendment nor the related amendments we have been discussing are written in terms of granting a positive right to vote. Instead, they each are phrased in the negative, namely, that the right to vote shall not be denied or abridged based on the relevant reason. See David Schultz, Election Law and Democratic Theory 87 (2016). More consistent with the text of the Twenty-Sixth Amendment is for us to evaluate whether younger voters’ rights were reduced by the addition of a privilege for older voters.”
The Seventh Circuit reached the same conclusion in Tully v. Okeson, 78 F.4th 377, 383 (7th Cir. 2023).
Once again, I found the Fourth Circuit opinion quite compelling but ultimately unconvincing. While people of good faith can disagree on what constitutes an abridgment of the right to vote, I believe the Fourth Circuit’s approach sweeps too broadly and would make it difficult for states to make accommodations and differentiations in the mechanics or administration of voting.
Here is the decision: https://ca4.uscourts.gov/opinions/251413.P.pdf
Turley’s use of the 5th circuit interpretation using “history and tradition” which shows why they like using it. It allows the courts and more conservative judges to be very selective in cases that would require them to rule against their own conservative views.
The 19th Amendment, ratified in 1920, uses the exact same grammatical architecture as the 26th Amendment: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”
In the early 20th century, some states passed laws exempting women from paying poll taxes or from certain registration burdens, claiming it “accommodated” women’s unique financial dependencies or domestic duties. Conversely, some states restricted certain voting hours or locations in ways that practically favored men.
Under the 19th Amendment, courts and legislatures recognized that you cannot ration voting mechanisms by sex, even if labeled an “accommodation”. If a state offered a streamlined path to the ballot box, it had to be offered to men and women equally. A state could not argue: “Men still have the right to vote in person, so giving women a special exemption doesn’t abridge men’s rights.”
The 4th circuit’s ruling aligns with this by using age from the 26th amendment which is almost identical to the 19th amendment’s phrasing. This is why Turley finds the argument “compelling” while at the same time has to make an argument to support the flawed view from the right to give it some legal weight to argue the flawed interpretation method used by the right.
The Fifth Circuit’s decision in Tex. Democratic Party v. Abbott (which Turley champions) relied on a “history and tradition” test heavily borrowed from modern Second Amendment law. They argued that because absentee voting was extremely limited when the 26th Amendment was ratified in 1971, the authors of the amendment could not have intended for mail-in ballots to be a protected right.
The 19th Amendment exposes this methodology as an inconvenient and contradictory manipulation of history for three reasons:
When evaluating the Second Amendment, a “history and tradition” test looks at the object of the regulation (e.g., what types of weapons existed in 1791).
But the 19th and 26th Amendments are equality principles, not technology principles. If we applied the Fifth Circuit’s logic to the 19th Amendment, a state could legally pass a law saying: “Only women can use electronic voting machines; men must use paper ballots, because electronic voting didn’t exist in 1920 so men aren’t losing a right they historically had.” Everyone instinctively recognizes that would be unconstitutional sex discrimination.
The greatest irony of using a “history and tradition” test against younger voters is that the 26th Amendment was explicitly ratified to stop states from treating young adults as second-class citizens.In 1971, young Americans were being drafted into the Vietnam War but were denied the ballot box. The “history and tradition” of the states at that time was one of deliberate exclusion of young people. Using the historical fact that states heavily restricted absentee voting in 1971 to justify keeping those restrictions in place today uses the exact prejudice the Amendment was passed to destroy.
Turley and the Fifth Circuit argue that an “abridgment” only happens if a state takes away a right, but not if it grants a benefit to one group and leaves others behind.The 19th Amendment completely refutes this. If a state in 1921 extended “no-excuse” voting to women but required men to show up in person with a restrictive excuse, it would have been immediately struck down as an abridgment of men’s voting rights on account of sex. The Fifth Circuit arbitrarily decided that this rule of absolute neutrality applies to sex (19th) and race (15th), but magically does not apply to age (26th), despite the text being identical.
The 19th Amendment proves that anti-discrimination amendments are not time-capsules meant to freeze the mechanical restrictions of a bygone era. They are absolute commands. When South Carolina altered the rules of the game to give older citizens “voting insurance” against unforeseen events, leaving younger citizens exposed to those same risks, it violated that command. Turley wants to agree with the 4th circuit, but he has to put out an argument tries hard to support the conservative need to be very selective when interpreting the constitution to fit the conservative view rather than what the constitution plainly states.
This case is one of many similar cases in a chapter titled “Impossible Problems – The Law” in my new book on problem solving. The law has plenty of impossible problems without those co-mingled with politics. While the law presents itself as a cold, hard logical system, it is, or has become, a polluted pool of opinions, such as the SC case with your wise comment citing the decision as “compelling but unconvincing.” This is a strong assessment, but it betrays the legal system as increasingly vague.
Please note Professor Turley does not read or respond to comments, or do book reviews.
“but it betrays the legal system as increasingly vague.” If the legal system was vague then, how can it be “increasingly vague” now?
Professor Turley disagrees with the 4th circuit. Fine. But his attempt to use the Texas 2nd amendment use to interpret what “infringement” means is stretching it by a lot.
“Abridgment” at the time of the founding and the 1971 ratification meant to shorten, diminish, or deprive someone of equal status.
When a state extends a new voting benefit (like “no-excuse” mail-in ballots) to one age bracket while intentionally withholding it from another, it relative-down-grades the voting power and access of the excluded group. Abridgment can happen through relative disadvantage, not just the physical stripping away of an old rule.
The 26th Amendment is an anti-discrimination command. Like the 15th (race) and 19th (sex) Amendments, it forbids the state from using a specific characteristic (age) as a proxy to distribute voting privileges unequally. Using a “history and tradition” test to justify blatant age-based classification defeats the entire purpose of an anti-discrimination amendment designed to outlaw age barriers.
Turley notes that “when the 26th Amendment was ratified, most voting was done in person”, implying that modern extensions of absentee voting are mere “luxuries” outside the scope of the Amendment.
This freezes constitutional protections to the exact technology available in 1971.
While the mechanics of voting evolve, the prohibition against discrimination does not. If a state modernizes its elections to allow a preferred class of voters to bypass lines, weather, and work conflicts solely based on age, it leaves younger voters facing those structural burdens unequally.
The Fourth Circuit’s ruling in Grant v. Belangia correctly recognizes that while South Carolina is not forced to offer absentee voting to anyone, if it does choose to offer it, it cannot use an arbitrary age cutoff to decide who gets it.
Turley is only disagreeing with the ruling because he has to adhere to the double standard views of the right. He admits the 4th circuit’s reasoning is solid, but he has to “disagree” for the sake of maintaining the more flawed rationales of the 5th circuit and other courts flawed use of ‘history and tradition’ interpretations to fit the preferred narrative of those on the right.
“means is stretching it by a lot.”? Are you a constitutional lawyer? Didn’t think so.
Well done 4th Circuit. Now do voting for illegals and tourists.