Fourth Circuit Concludes South Carolina Cannot Limit "No-Excuse" Absentee Ballots to Those Over 65

An election law question that seems destined for the Supreme Court.

Yesterday, a unanimous panel of the U.S. Court of Appeals for the Fourth Circuit concluded that states cannot limit "no excuse" absentee voting to the elderly. Judge Gregory wrote for the panel in Grant v. Belangia, joined by Judges Harris and Richardson. His opinion begins:

The Constitution grants states broad authority to regulate "[t]he Times, Places and Manner of holding Elections," U.S. Const. art. 1, § 4, including whether to permit absentee voting. But when a state offers a method for casting a ballot, the Constitution forbids restricting access to that voting method based on any prohibited ground, including age. U.S. Const. amend. XXVI. Because the South Carolina statute at issue restricts access to "no excuse" absentee-by-mail ballots to voters sixty-five years of age or older, we agree with Plaintiffs that it violates the Twenty-Sixth Amendment.

While concluding South Carolina's law violated the Twenty-Sixth Amendment, the panel rejected the challengers' Equal Protection claim.

As a refresher, the Twenty-Sixth Amendment provides:

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.

In rejecting South Carolina's law, the court concluded that the differential treatment of voters based upon their age constitutes an "abridgement" of the right to vote. From the body of the opinion:

Construing the Twenty-Sixth Amendment in harmony with the Constitution's other voting rights amendments, we find that the unequal allocation of voting access based on age constitutes an abridgement of Plaintiffs' right to vote. . . .

the Twenty-Sixth Amendment's text, structure, and history demonstrate its purpose to place age-based restrictions on adult citizens' electoral participation within the same family of constitutional prohibitions as other forbidden bases for denying or abridging the right to vote. . . .

State governments retain the primary authority to determine the contours of the right to vote, and the voting rights amendments do not change that basic structure or create a freestanding universal "right to vote." See U.S. Const. art. I, § 4. However, the amendments do forbid states from administering their voting rules in a discriminatory manner based on a protected characteristic. . . .

the right to vote "ought to be" what a state has defined it to be, but administered without discrimination based on a protected characteristic. So, Plaintiffs must have the same access to the ballot provided to the favored group of voters—here, those age sixty-five and over. . . . Voting laws must adhere to the Amendment's "mandate of neutrality" when it comes to age. . . . In other words, a voting law cannot make it harder for one group to vote than another because of their age. . . .

We do not doubt that South Carolina retains "broad powers to determine the conditions under which the right of suffrage may be exercised," but . . . once the state makes  absentee-by-mail voting available, it may not allocate access to it in a manner forbidden by the Constitution.

So what's the remedy for this constitutional violation? The panel punted on that question:

We leave questions about the timing of a remedy to the district court in the first instance, recognizing that "considerations specific to election cases" counsel against court ordered remedies that might cause voter confusion when elections are imminent. See Purcell. . . .

As the opinion notes, the Fourth Circuit's conclusion here is in conflict with recent decisions from the Fifth and Seventh Circuits. Thus I expect South Carolina to seek certiorari and, given the circuit split, I would think a grant is reasonably likely.