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.
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 compelling at points, 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