Eight States Are Discriminating Against Young People

This podcast is part of the Democracy group.

Welcome to Another Way, the podcast produced by Equal Citizens, a nonpartisan pro democracy organization founded by Lawrence Lessig. This is Adam Icahn, the organization's campaigns manager. Before we begin the episode, as always, please consider supporting us on Patreon. With your support, we can keep this podcast going, especially in these difficult times. To sign up, go to patreon.com/citizens that's P-A-T-R-E-O-N.com/citizens okay, now to the episode. In April, Equal Citizens convened a coalition of democracy advocacy organizations and constitutional scholars to examine laws in seven states. These seven states, Indiana, Kentucky, Louisiana, Mississippi, South Carolina, Tennessee and Texas, provide no excuse vote at home options only to older voters. These laws, we believed, were violate the 26th Amendment, which bans age discrimination in voting. Missouri soon passed a similar law to expand voted home options in 2020 and made it explicitly easier for those over 65 to utilize it. After hours of research and data analysis, our coalition released a comprehensive report titled Age Discrimination in Voting at Home. The report concludes definitively that providing no excuse voting at home only to older voters indeed violate the Constitution. And we argue that litigation should be pursued in each of these eight states. The full report is available at VoteAtHomeYouS. That's VoteAtHomeNumber26US. In the conversation that follows, Equal Citizen's executive director and co author of the report, Jason Harrow and I will discuss our findings and suggest some next steps.

I want to give a brief shout

out to our partners in this project, the co authors, Yael Brumberg, Joshua Douglas, Michael d' Onofrio, and Ty Rush, and the organizations that co sponsored it, the Andrew Goodman foundation, the UCLA Voting Rights Project, Strisan Maher, and the National Vote at Home Institute. With that, let the conversation begin.

Hey, Jason, how's it going?

It's going great. How are you, Adam?

I'm hanging in there. So, Jason, we just released a new report with a great coalition of constitutional scholars and advocacy groups that makes a pretty bold and novel claim that eight states are currently in violation of the 26th Amendment. So let's start at the beginning. What is the 26th amendment and when did it get ratified?

I'm glad you asked, Adam. It's a great question because I doubt that many listeners, even those who have taken constitutional law in law school, are familiar with the 26th Amendment. So let's just say what it does. It's a very simple amendment. I think it's the shortest of all the amendments, and it says that the right to vote of any citizen over 18 shall not be denied or abridged on account of age. So the immediate effect of this amendment, which was ratified very quickly in 1971, was to lower the voting age for all elections in America to 18. It had been 21 in some states as recently as the late 60s, early 70s, believe it or not, even though folks who were 18, 19, 20, were going to war in Vietnam, being drafted, even though they were drinking, the drinking age hadn't been raised to 21 by, you know, at that time, and yet they couldn't vote in many states. So the Supreme Court sort of issued a decision in 1970 called Oregon vs. Mitchell that split the baby a little bit and said that Congress actually was allowed to lower the voting age to 18 for federal elections, but not for state elections. And the state said, absolutely not. It should be 18 for everyone. They quickly ratified an amendment, but even though the effect immediately was to lower the voting age to 18, that language that I quoted earlier, Adam, is broader, right? It's simpler. It says that the right to vote can't be denied or abridged. That is cut back on on account of age, period. Doesn't matter if that age is 18, 25, 65. It means when it comes to the right to vote, states can't start divvying up people by age. So that's the amendment, Adam. But as we can talk about, turns out, some states are doing that, and we're worried that more are going to.

Right. So why do you think it is that the 26th Amendment is so rarely brought up in political discussions? We all know at some point that the voting age was lowered. But, you know, as you mentioned at the top, not many people think much about the amendment beyond just the fact that it lowered the voting age. Do you think that one of the reasons is because there's been so little litigation around this issue?

It's possible. I think that initially the thought was. And when people kind of hear about the purposes of it, they initially think that it's one of those amendments that just kind of did what it did, and then we move on with our lives. Right? So they might think of it as something like the Prohibition amendments, right, which first banned the sale of alcohol and then permitted it once again. No one really gives much thought to those in 2020 from where we stand. It was like a weird moment, and it, you know, the amendment was adopted, alcohol was illegal, and then the reverse amendment was adopted, the 21st Amendment, and alcohol was Legal again. Or you know, same thing with, with other kinds of amendments. Right. You know, the 13th Amendment abolished slavery and like there's lots going on in the world of racial justice right now. But thankfully I don't really think that amendment is being re litigated. Right. Slavery in fact was abolished. And I, and I. So I think that people think of it in the same way, Right. That it was supposed to lower the voting age to 18. It did its job. Goodbye. It's a relic of the 1970s, no less than, you know, roller derby.

Right. And so, and so our report is in many respects trying to change that reality or that perception of the 26th Amendment because we charge that eight states are currently in violation of the 26th Amendment and should be sued. So can you talk about the states, who are the states which are these states that are in violation and what are they doing?

Yeah, that's right. So what they are doing is they are discriminating on the basis of age in voting. They're obviously permitting 18 year olds to vote, but they're making it harder for younger people than older people to use absentee ballots or vote at home options. And that's really troubling. These laws candidly have been on the books for quite a while, but unfortunately their, you know, impact has kind of been muted because they're in states where the use of mail ballots is quite low. So some of the states where we see this restriction, which basically permits people over a certain age to vote by absentee ballot if they want, no matter what, no matter how their health is, no matter if they can get to a polling place. But it creates an excuse requirement for people under a certain age. That age is 65 in many places. It's 60 in Tennessee. So there's like a stark cutoff. Right. If you're 60 in Tennessee, you could just say to the state, hey, I'd like to vote by mail, right? I could be very fit. I could be right next door to a polling place, but I just want to vote by mail. Whereas if you're 52 in Tennessee, you need an excuse. You need to be away from the jurisdiction for work, or you need to be physically disabled or something like that. That and that. In Tennessee, Mississippi, Texas, Indiana, Kentucky, South Carolina and now Missouri, which just passed a law that has the same provision that makes a distinction between how easy it is to vote absentee between those over 65 and those under. That is just the kind of age discrimination that we rarely see in voting laws anymore. But it's there, Adam and I Think many in the voting rights community realize that if this was sort of laying a little under the radar for the last couple of years, it's now rearing its head in a huge, huge way. I'll give you one example, Adam, but before we, we sort of get into some of the claims in the report and what we're doing about it, but Tennessee has been fighting a lawsuit not brought on 26th amendment grounds yet, but another lawsuit saying that everyone should have a right to vote at home, vote by mail without an excuse if they wish, due to the fears of COVID and the fears of not being able to social distance while voting. And Tennessee has been strongly pushing against it. It says, look, the default mode is you vote in person. That's the tradition in Tennessee. In previous elections, less than 6% of people use absentee balloting. That's what should happen. And we just happen to let people who are over 60 vote by mail if they want to. Well, if that was a little known provision in normal times, in pandemic times, Adam, it's a huge provision and it's one with enormous impact. The state of Tennessee, in trying to get a decision permitting broader access to vote by mail on hold, made a filing to its state supreme court and it said that it is prepared, and this is not a joke, the struck quote, it is prepared for 100% of voters who are 60 or over to vote at home. That is, it has printed enough absentee balloting materials for literally everyone over 60 to take advantage of this loophole. But for those 59 and below, it is unwilling to prepare those same kind of materials and expects the same standards to apply. And therefore roughly 6% of those people will be able to vote at home or even less. Right. That that kind of distinction is the kind of distinction we're talking about here in 2020.

So, Jason, I mean, as you kind of outlined a little bit, we have two main arguments here, two main legal arguments about why these laws are unconstitutional on the 26th Amendment. The first is that these laws are, on their face, discriminatory, and second, that in practice they're discriminatory. Can you explain these two concepts? Because I think it's incredibly important, because ultimately our argument is that these laws violate the 26th Amendment on both of those grounds.

Yeah, that's right. So let's start with the simplest one first. Right. The simple proposition is that the Constitution says that you can't abridge a state, cannot abridge the right to vote on account of age, period. So that means that if you look at what the law says, the divisions that the law makes. Because laws, this is something you realize in law school, and it's sort of an obvious point, but I think that it's not always easily grasped by everyone. But though in some ways the point of laws is. Is to discriminate, right? In the very broad sense, the point of laws is to say some group of people can do X and some group of people can't, right? In. In. When it comes to voting, we know that voters who are over 18 can vote. Voters who are under 18 can't. People who are citizens can vote. People who are not citizens cannot vote. People who are residents of Tennessee can vote for senator and president in Tennessee. People who are residents of California can't do that in Tennessee, but they can in California. So the laws are sort of divvying us up in various ways. So the question is, in what ways can laws just on their face, on the text, divvy them up? Divvy us up? Right. I should say we, because we're talking about all of us here. And one thing we know from the 26th amendment is when it comes to the right to vote, when it comes to voting, one axis of division that a state can't use is age right. It can use for certain purposes, geography. People in certain counties can vote for one county commissioner, and then they discriminate because people in another county vote for another county commissioner. So totally valid distinction as long as there's a reasonable purpose. When it comes to voting, is geography an invalid purpose, Is age for everyone over 18. So the simple argument is that these laws take an axis of discrimination that is simply off the table for voting. Everyone over 18 has the same right to vote. If people who are 65 can vote, absentee people who are 64 can vote. Absentee people who are 65 can, let's say, you know, register online. People who are 64 can register online. It's just that simple, it seems to me, from the 26th Amendment. And these laws violate that very, very clearly. Now, there's another sense, as you mentioned, in which laws can also violate principles of equality, principles of equal protection, or ones that are specifically in the Constitution, like age when it comes to voting. I should also add that gender also there when it comes to voting in the 19th Amendment, which enfranchise women, that's another invalid access of discrimination in voting. And there is another sense in which the laws here have an actual effect. Right. So I think, Adam, you were trying to get at this idea of do these distinctions have an impact do they impact different age groups differently? And if they do, we may also think these laws are suspect. And we ran some numbers and we saw, yes, they do. The Tennessee admission to the court in that is remarkable. We actually didn't have that when we wrote the report, which came out a couple of weeks ago. But it's totally consistent with what we've been seeing based on the data from the 2018 election, where we saw that in states that do have these laws, the percent of younger voters who are using voted home is quite low relative to the percent of older voters who use it at a rate of 20% or more. And the distinction between these younger voters who are very, very infrequently using it, only perhaps 3, 4, 5, 6% for certain age groups, because they need really tough excuses. They need to meet tough excuse requirements. That gap between young people not being able to vote at home at all and older people being able to vote at home more easily, that gap is much narrower in other states that don't have these age discrimination impacts, where younger people do vote at home frequently because they like it. And we're seeing, Adam, this election cycle that's proved to be more than ever. Right. I haven't seen a primary yet this cycle since the pandemic where fewer than 50% of the population has been voting in person. So everyone who can possibly get their hands on a mail ballot wants one. And making it easier for certain class of people to get one just because their age is just as you said, Adam, it's unconstitutional purely based on the text, and it's having an unconstitutional impact.

Can you quickly explain a couple of the excuse requirements? So, I mean, just to kind of sum this up again, so for in these states, voters over the age of 65, or I think in Tennessee, it's 60, they essentially have no excuse absentee voting, meaning that they are able to do that. They are able to vote by mail with no excuse requirement. But for everyone else, they have to meet an excuse. They have to have a valid reason. So can you give the types of valid reasons that the state would accept to then grant somebody under the age of 60 or 65, depending on the state, the right to cast a vote by mail?

Sure. And let's stay in the great state of Tennessee. I know I've been beating up on Tennessee, but actually, Adam, I love Tennessee. You and I attended a great conference in Nashville a couple of years ago, the conference that Represent us puts on. And so we love Tennessee. We want it to be the great state that we know it can be, and make sure that all Tennesseans can exercise their right to vote there. So here are the rules of the road in Tennessee. So there's a couple of classes of voters that must be given the right to vote absentee under federal law. Those classes of voters are military voters and overseas voters who would be eligible to vote in Tennessee, but for the fact that they're stationed either domestically or internationally, or the fact that they are living or studying overseas right now. So that's sort of the bucket. In every single state, that's always an excuse to vote absentee, because those are people who physically, you know, they're out of the country, or the military has taken them out of state, and they have no way of voting in person. Okay, so that's bucket one. Bucket two is you'll be outside of your county all day. On election day, you sort of have to certify that. And, you know, you basically, under the law, have to make a good faith showing that there will be no window during election day when you will be in your county to vote in person. So, you know, people who have business travel or perhaps certain types of students who are studying outside their home county and want to vote in their home county. Now, this class of voters may be actually much smaller than usual because Covid, as you know, Adam, has limited travel. I mean, I haven't gotten on a plane since. COVID Adam, I don't know about you. I don't plan on getting on a plane for quite a while, and I don't think many voters will either. I think many, many folks who are sort of lucky enough to work in industries where their jobs haven't been disrupted or taken away as much by the COVID crisis are still using zoom and not traveling as much. They're often in their county. So this. This excuse for voting by mail. I think, Adam, correct me if I'm wrong, I think this will be used much less than it has in the past. Then there's a couple of other narrow exceptions, like you're serving as a juror. Again, I actually don't expect that to happen. You're hospitalized, you're ill, you're physically disabled and can't vote in person. You're the caretaker of someone who's hospitalized. So, you know, those are narrow exceptions where you really, really can't get to the polls. And there's religious observances. Right. You know, if you can't go to the post for religious reasons, and you certify that. And then there's one other sort of class of excuses, or I should say there's a couple of additional ones. So there's also people who are like truckers and have commercial driver's license. Again, Tennessee is actually quite detailed. And then there's this glaring one, right? These are all detailed. These are all related to where you will be and your actual ability to vote in person on election day. And then there's this glaring one. It just says you are 60 years of age or older. No more questions, no certification, just you're older. So maybe you don't want to go to vote in person, regardless of your physical health. So that's the kind of scheme we're talking about.

Right. And to be clear, I mean, these are pretty restrictive excuses. I mean, you know, some states are moving to change excuse requirements where, you know, the disability provision or the illness provision can be interpreted to mean fear of contracting Covid. But even in those states, that's still a little iffy in terms of whether or not voters are gonna. Are gonna know that they can do that. But it's very clear, as you're saying, Jason, is that it is very clear in Tennessee, if you are over the age of 60, you can check that box. But for everyone else, it's kind of unclear what you do, whether or not you'd actually be able to meet the excuse requirement, which is, again, the real problem here is now we have a situation where it's November, we or during a primary, but especially like in the general election in November, and maybe you apply for the absentee ballot or you have the form and you look at it and you're not sure if you meet the qualifications because they're relatively restrictive, and you may not, depending upon what happens with these lawsuits. So, Jason, one of the things we've talked about, and this gets kind of right into what I was just talking about, is we've talked a lot internally about how the 26th Amendment claim is actually the best way to get a very clean ruling to expand absentee balloting. So can you tell me a little bit about what you mean by this in terms of a clean ruling on absentee balloting?

Sure. As you said, there are a number of legal challenges here, and fear of COVID has been accepted by some courts and secretaries of state to be a valid reason, a valid excuse, a valid disability, depending on the wording of the statute, to get an absentee ballot. And indeed, that's what's going on in Tennessee right now. There's some excellent litigation going on in state court, and a state court judge has ordered the Secretary of State's office to permit anyone to vote by absentee ballot in light of the risks of physical in person voting due to Covid. So what does that mean? Well, it means that currently on the Tennessee Secretary of State's website, it still has all of those am I eligible to vote absentee by mail questions for you. And then there's a big red notice up at the top. And the notice says, if you do not wish to vote in person Due to the COVID 19 situation, you are eligible to request an absentee ballot by mail. And then if you go to the absentee ballot request form, some of the boxes in small print say things like, I am hospitalized, ill or physically disabled and unable to appear at my polling place to vote. And. Or I have determined it is impossible or unreasonable to vote in person due to, quote the COVID 19 situation. So this is a little tricky. It's a little tricky because it's just, like, not so obvious that for every voter, does that mean that you just want to practice social distancing and don't want to go vote in person and therefore you're entitled, or do you have to certify something? And if you're wrong, Adam, of course that's voter fraud. Right? That's a penalty. So what does it mean that you've determined it is impossible or unreasonable to vote in person due to the COVID 19 situation? Right. I mean, impossible. Well, I guess anything's possible. So I doubt that will apply to many people. And unreasonable, you know, kind of in the eye of the beholder. Right. What's an unreasonable risk? Does it depend on what's going on on election day? Does it depend on how vulnerable I feel I am to Covid? So it's a great solution. I'm not saying that people shouldn't be pushing this. They absolutely should. It's so much better than the alternative of not of basically forcing people to go to the polls and many times against their will.

So then, in terms of an ideal solution, and maybe you were just about to get to this, Jason, how would that form be changed if we won a case under the 26th Amendment?

Right. So the very first checkbox on this application is the simplest. It just says, I am 60 years of age or older, period. And it's that simplicity that is really important. So if plaintiffs win on this claim that that is unconstitutional age discrimination, then you would simply need to say, I wish to vote absentee, period. I want to do it. Right. Tennessee and other states would be in the same position as the majority of states which are now so called no excuse states. You don't need to give an excuse. You don't need to figure out whether what you're doing is legal or not, whether you're going to be punished for voter fraud. You can just say, I have options. I'd prefer to vote by absentee ballot. And everyone over 18 has that option because the state can't pick and choose which preferred group of voters it wants to give this benefit to. So it's clean, it's very simple for the voters, and it's straightforward for those distributing absentee ballots as well.

So would that be the ideal court remedy? Would it be to change these forms so there's a new box that says, you know, the excuse is I am 18 or over. And that's it. Just make it very clear or just I prefer to do it.

Yeah, I mean, I think when you say excuse. Right. If everyone can do it, that's why it's called no excuse 8. So the form would just get rid of all the whole idea of a section where you have to check the reason for requesting to vote by mail. Right. All you have to do is, is say, I'd prefer to vote by mail. Right. You know, just like when you, when you register in, in certain states in California, for instance, where I am, there's actually a new law that will make sure that everyone is automatically mailed about. But even before then, Adam, a majority of California voters, over 50% were voting by mail. And that was just because you go in and you tell them you'd like to vote by mail. Right. You don't have to give a reason. The reason is I got two options. You know, I want, you know, large fries or, or sal a side salad. And you don't have to, you know, give the folks when you order food a reason why you prefer fries or salad. You just say, I, I want fries or I want salad. And, and, and that's, that's what the ideal remedy would look like.

Right. So just again, to summarize for our listeners really what the 26th, the power of filing on 26amendment grounds would be to turn the these states that have no excuse absentee balloting, but only for those of a certain age into full no excuse absentee ballot states. No excuse voting by male states. And that's very powerful, as we said. We don't need to explain it again in the midst of a pandemic, why that is so important.

That's right. But I should add, Adam, that it's also that durability it's not only the simplicity, but it's also the durability that's very appealing. The impact of these laws is magnified during COVID no doubt, but the unconstitutionality is forever. And the. The remedy should outlast Covid. Right. As states are starting to recognize that more and more people have a preference for voting by mail and a right to vote by mail, states can't sort of selectively offer it to whoever it wishes. So the courts here should say, all right, you've started down this road of letting some people vote absentee, they're older voters, but you must open the door to everyone. And that's true in 2020, that's true in 2021, and that's true beyond.

I want to be very clear about this, that the argument that we're putting forth here and the potential litigation that could follow is not contingent upon Covid. The effects may be more pronounced right now. But again, this gets back to what we were talking about earlier that we already established in the report that these laws are both, on their face, discriminatory in terms of the kind of theoretical distinction between older voters, younger voters, but also, once the law is in effect, it clearly does skew absentee ballot voting by age in a discriminatory fashion. And so that's the key point here, right, Jason, is that, yes, the quirks of these states, these very what were previously obscure provisions that make it harder for younger voters to vote by mail, have maybe become more. We're more aware of them now because of COVID But ultimately, whether or not they're unconstitutional remains the same. And the answer is they're unconstitutional.

Yeah, that's right. And we are. At least the evidence is that we're sort of in a one way ratchet with this. I pulled some historical numbers before this podcast, and in the early 20th century, we were talking about a few percent of ballots being cast as postal ballots or absentee ballots. Go to the 2000 election, the famous Bush v. Gore election. And we're at around 14% vote by mail nationally in the last midterm, which was pre Covid 2018, we're at over 25% vote by mail. With some states, nine of them actually over 50% vote by mail, including a few states that are essentially 100% vote by mail. People want this, Adam. The trend is upward. The trend is for options and convenience and obviously now safety as well. So I think that while you're right that the current pandemic is magnifying these impacts, I don't think this will Go away. Right. If the virus ebbs, the desire of people around the country who are now voting more easily by mail to continue voting that way, that's not going to ebb. Right. So the percent of people who are over 60 who are going to continue to take advantage of it in these discriminatory states, if the laws stay on the books, are going to maintain and be quite high. Right. We're going to have a new normal for them, and then these younger voters are going to be shut out. So really, Covid is starting something. It is really opening a door. It's opening a Pandora's box that it just can't be put back in. At least if history is any guide. Right. Maybe we're completely wrong. And maybe this historical trend of upward use of voting at home, of upward use of voting by mail, maybe somehow that will be reversed. I doubt it, Adam, but I think that's here to stay. And that means that these laws are going to look pretty silly and pretty unconstitutional today, and as long as they stay on the books, regardless of what the conditions are on the ground.

No, I think that's absolutely right, Jason. I think that's a very good point. And I know that a friend of this podcast, someone who I've interviewed before, Phil Keesling, the former Secretary of state of Oregon, who was the one who ushered in the vote at home system there, where every voter is sent a ballot for every election. You know, that was always his point to me is that, you know, there were a lot of skeptics of a vote at home system. And then when Phil would talk to these voters after they have done it once, oftentimes their views on voting at home were radically changed by the experience. Because a lot of people still hold very dear to this idea of election day. You go in, it's a tradition, you vote in person. You know, all of these ritualistic aspects of, you know, holding election in person. And, and obviously you always need to maintain in person voting, make it accessible, make it safe. But what Phil kind of has often said to me and said I believe in our interview together, what seems like years ago, but was only a couple months ago, was that people's opinions do change. And I agree with you, Jason. I think that when all this is said and done, we're going to consistently see more voters who want the option to vote by mail. Because we do know that for, for many voters, it is easier to do. It gives you more time to review the ballot. It's more kind of accommodating in terms of allowing you to cast a ballot within the confines of your work schedule. And it's frankly just more convenient, I mean, at its core. And so I agree with you, Jason. And you know, the trend is going up. And so these laws really do need to be addressed now, both because we need to have free and fair elections in November, but also getting rid of them as soon as possible is just a net good for our democracy. So, Jason, the thing that I do want to get into is, okay, we've issued this report that outlines the case to challenge these laws. Is there litigation happening right now on 26th amendment grounds to challenge laws in any of these eight states?

There is, and unfortunately, there's a bit of bad news to report on that front, sort of unexpectedly, because I thought this was was very clear, and most folks I talked to get that this is very clear. But there was a really surprising and disturbing legal development coming out of a quite conservative court of appeals. So some folks have made the claims. We've also been looking at making the claims in certain places. But so far, cases on this issue have been filed in Texas and Indiana and South Carolina. The first case to get a decision was a federal court in Texas, which Texas has a law similar to Tennessee's saying that anyone over a certain age can vote by mail without an excuse. That age in Texas is 65. And the judge who heard the case completely and 100% agreed that that violates the 26th Amendment and said that Texas is to permit everyone who wishes to vote by absentee ballot. The state took an appeal to the very conservative U.S. court of Appeals for the 5th Circuit and drew a particularly conservative panel on a conservative court panel of three judges. And that resulted in really one of the worst voting rights decisions I've, I've seen. And I say that there's. Adam, as you know, there's a lot of bad voting rights decisions, but I at least kind of understand where the courts are coming from when I read their decisions. I might disagree, for instance, with Rucho, which was the recent Supreme Court case that said that federal courts have no business policing gerrymandering by the states. I mean, I couldn't disagree with that outcome more, but I at least follow Chief Justice Roberts logic there. I confess, I don't even really follow the logic of the courts here, of the court that put this action on hold, that put this injunction on hold, because the logic is that voting by mail, I.e. absentee voting, is not even part of the right to vote. So it looks closely at the text of the 26th Amendment and what the 26th Amendment again says is that voting, the right to vote shall not be denied or abridged on account of age. And it says, wait a second. In order for this age discrimination prohibition to be triggered, we have to be talking about the right to vote. Right? We can't be talking about, say, the right to healthcare or the right to schooling or the right to a tax assessment, other things the government does. We have to be talking about the right to vote. So let's think, says the court, if this is in the right to vote. And then it looks at a 1969 Supreme Court case, one single Supreme Court case that actually predated the 26th Amendment. Remarkably, it doesn't really comment on that proposition. But there it is. And it says, wait a sec. In that prior era, it seemed to us like the Supreme Court was saying, even though it didn't come out in so many words, it seemed like the Supreme Court was saying that absentee balloting is just there for the state to provide convenience to. Whoever it decides to should have this aspect of convenience. As long as people can go to the polls and cast a ballot in some way, that's enough to meet the right to vote. And everything else says the court is just gravy. So that's a pretty stunning decision. The plaintiffs in that case have asked the Supreme Court for the unusual step of sort of immediately halting that decision or for expedited consideration of that outcome because it's so extraordinary and would have a big effect on the upcoming election. While we record, Adam, the Supreme Court hasn't decided on that. So while we record, that decision is sort of the highest court to recently opine on this issue. And it's just a banco's opinion. I think if we get the chance to litigate this issue in a place where that particular decision is not binding, I think it's likely it would go the other way that the first judge to take a look at this got it right. But who knows? States are making this stunning argument that voting by mail is not even part of the right to vote at all and got at least one court of judges to buy it.

And one fun fact or not so fun fact I should say about this 5th Circuit opinion is that it actually cites one of the co authors of our report in a bad way. So can you quickly kind of give a quick story about that?

Yeah, sure. So yeah, this was troubling. One of the co authors is fantastic lawyer named Yael Bromberg in New York. And Yael is the author of probably the leading article about the history and effect of the 26th Amendment in recent years. It's a fantastic article of constitutional law, lots of good history there. She's also litigated this issue with respect to like student voting rights. She's affiliated with the Andrew Goodman foundation whose whole job is to vindicate youth voting rights. So she believes this in her bonds and has some great research and is super smart. And so of course, because she has a leading article on this, the court, the judge cites to her. Except the issue is that what the court says in Talking about the 26th Amendment is sort of what we started by saying some people thought of the 26th Amendment when they first hear about it, which is it was this narrow amendment. It has really a very simple purpose. And that purpose was at the height of the Vietnam War to lower the voting age to 18. And so cite Yael Bromberg for that proposition. Of course, her article actually says the complete opposite. I'm not even sure where the judge who read it or the clerk who read it could possibly think of quoting her for that because her article is all about the multi decade history of this amendment and placing it in a context of a true civil rights amendment right. Just like we justly celebrate the fact that in the wake of the Civil War, African Americans were granted the right to vote and in the wake of the suffrage movement, women were granted the right to vote, so too we should celebrate the fact that in the wake of the sort of 60s civil rights era and even dating further back, people of 18, 19 and 20 years of age were granted the right to vote. And think of it in those same civil rights terms, right. It's that right to vote needs to be enforced. It needs to be thought of as an amendment as part of that civil rights tradition that should have that broad impact to ensure there is no age discrimination. So that was her whole point. And for the court to then turn around and take some sort of sentence she said out of, completely out of context, not even out of context, reverse context is really troubling. And I think it's made our coalition even more keenly aware to both spread the word, like we're doing here on this podcast, about how wrong this decision is and also think of ways how we can file briefs and new lawsuits to get it undone.

And I should say that this decision came out and I'm not even kidding here, to our listeners within hours of the official release of our report on the 26th Amendment and why these laws are unconstitutional. It was almost ironic that this decision came out just A few hours. Had we been able to release this two weeks earlier, would the judge have seen it? I mean, you can't speculate on that one way or the other. And he probably wouldn't have changed his mind. But it was kind of both. We, we were at the high of releasing this great report and then only a few hours later, everyone was reading this decision and kind of, you know, scratching our heads saying, how did this judge get it so wrong? Because look, we just spent, you know, months going through this and that's just not what the amendment's about. So, Jason, I want to expand a little bit here in terms of, for our listeners, why is this so important? Okay. You know, there are eight states that are violating the Constitution, but is this bigger than just eight states? Because this is kind of the key point that may or may not come through fully in the report. But I think it's something that is a really important preface to the report. And we've talked about it a lot in terms of the ways in which we may see more of these laws going forward, especially during this pandemic.

Yeah. So the fact that Covid and coronavirus seem to discriminate based on age, unfortunately, you know, an impact. Well, not only on age. Right. But, but older folks are more likely to be adversely affected. Folks with underlying conditions are more likely to be adversely affected. People in certain communities based on what we know, you know, income, color. It is in some ways a discriminatory virus has started to give pretext, let's call it, or a license to some folks to say maybe we should equally discriminate or even more discriminate in our voting laws. So that's kind of the excuse for it. Right. So Missouri is the latest entrant in this group of, of states that discriminate based on age. It just passed a law that ironically expanded access to vote at home and vote by mail for many folks just this year. It's sort of a one off temporary law, but it did so in a discriminatory way. Right. So it's, it's, it's expanding vote by mail. It expanded it to everyone over 65. They have very simple use of vote by mail. And it imposed an additional requirement on folks under 65 to basically have to notarize their absentee ballots and absentee ballot applications. Right. Other because they, I guess, want them to vote in person in greater numbers. Now why it's more likely that a 65 year old versus a 63 year old would be trusted without a notary. I have no idea why this could possibly make any rational sense when the whole point of social distancing is not just to protect the voter. Right. And make sure that the voter doesn't get Covid, but it's also to protect the entire community. Right. We know this since the pandemic started. Social distancing and mask wearing and the like are about protecting not only every individual, but the people that we all come in contact with. Right. Even if a young voter might go get Covid from voting and standing in line for a while and using the voting machines, they take that back to their grandparents. If they take that back to the people that they have dinner with, the people they work with, well, that's defeating the whole point of the social distancing operation. So there's no rational basis even for discriminating based on age. But Missouri has done it, and it's using Covid as an excuse. In addition, we're seeing some sort of rumblings that states are going to start looking beyond their laws and just start enacting policies to informally make it easier for older voters to vote by absentee ballot than younger voters. The first example we've seen of this is from Alaska State that Adam, you and I love, and we're involved in other litigation there where the lieutenant governor of Alaska who administers elections has said that they're going to send absentee ballot applications to all 95,000 Alaska registered voters who are 65 or older, but they're not going to do it for younger voters. Why? You know, again, more likely to get Covid, more likely to be scared of COVID It doesn't solve the social distancing problem. It is, I'm sure, not a coincidence. Folks 65 and older in many states are whiter, more Republican leaning, et cetera. All of that is a possible pretext. But the bottom line is it doesn't even matter why they're doing it. It just matters that they are doing it and that you can't play games with the electorate like that. You can't play games with the electorate. A free and fair election means that every 118 and over plays by the same rules. And so this is a trend, Adam, that we really have to.

And there have also been grumblings from the president that he would like to see this kind of policy enacted in more places. Right. I mean, ultimately, this does seem to be something that certain circles are kind of floating test balloons to see what would happen if they suggested such an idea. And that is very. It is very scary from a voting rights perspective. And so, you know, ending this idea as soon as possible, you know, getting a favorable ruling in court to kind of be very upfront and say, no, you cannot discriminate on age on the basis of age, you know, that is unconstitutional, would really go a long way to kind of stopping the, you know, this idea now as opposed to once it gets enacted in more places across the country.

Yeah, that's right. So here's a tweet from the president on this. Quote, absentee ballots are a great way to vote for the many senior citizens, military and others who can't get to the polls on election day. These ballots are very different from 100% mail in voting, which is, quote, ripe for fraud, unquote, and shouldn't be allowed.

So just absolute nonsense.

Yeah. I mean, and it's just transparent how he's saying, oh, people who tend to vote for me, older voters and military voters, their ballots, that we absolutely need to make it as easy as possible for them to vote. Everyone else, though, ripe for fraud. Right. I mean, that just doesn't. It's so flimsy that you wonder, does anybody believe it? But I'm actually not concerned with whether anybody believes it, Adam. I'm concerned with people are willing to take action on it and for whatever motivations I think malign. But even benign, frankly, even benign motivations, because I understand we at equal citizens, we're in the position, we never want to say it's a bad thing to make it easier for folks to vote. So it's great that Missouri and Alaska want to make it easier for folks 65 and older to vote. You should. But you should also make it easier for 64 year olds to vote and 63 year olds to vote and 62 year olds to vote. And that's our issue.

Right. And especially since we know that young people vote at lower rates and there are other barriers to the polls for, you know, people in between the age of 18 and 29. Right. I mean, so there, you know, there are many ways that we can increase voting rates, but we have to do it in a way that is equal, that treats Americans as equal citizens. But also just that is fair. And I think that's really what we're most concerned with here. So, Jason, any final thoughts about the report, next steps, how we can fight back against these discriminatory measures. Anything else, in other words, you want to say before we end?

Well, it was a great group to work with. We're pleased at the fact that this issue is on people's radar. Every time we plug it. Every time we see it in the media, people get angry because there's just a visceral unfairness to this. Again, nothing against the older voters who I'm really glad these states are expanding the right to vote by absentee. What we're against is the discriminatory application of it. So we are working really hard to try and undo this really bad decision and try and fight back against the discriminatory application of this everywhere we see it. More to come on that, right?

We will have more to come on that. So Jason, thanks so much for this awesome conversation. It was so much fun working on this report and we will have so much more to come and we will record another episode in the near future to let you guys know about all the things that we have in store. So Jason, we'll talk to you soon.

Thanks, Adam.

All right. This has been another episode of another Way. See you next time.