Age restrictions on mail voting are unconstitutional, Fourth Circuit says in rare 26th Amendment case

A South Carolina law that lets anyone 65 years old and above vote by mail but requires younger people to provide an excuse to cast absentee ballots violates the Constitution’s prohibition on abridging voting rights based on age, the Fourth Circuit Court of Appeals ruled Tuesday. 

President Donald Trump has repeatedly demanded an end to mail voting, and the Fourth Circuit’s decision creates a split with the Fifth and Seventh Circuits, which had previously upheld similar age restrictions for mail-in ballots. That could invite the Supreme Court to weigh in. 

The three-judge panel — one Barack Obama appointee, one Donald Trump appointee and one George W. Bush appointee — unanimously held that preventing younger voters from enjoying the same range of ballot-casting options afforded to older voters ran afoul of the 26th Amendment.

“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 judges wrote. 

The appellate court sent the case down to the district court to determine the remedy, which could either benefit voters or make casting ballots harder for South Carolinians. The lower court has two options, the panel held: “either extending the benefit of ‘no excuse’ absentee-by-mail voting to voters under age sixty-five, or removing the benefit provided to voters age sixty-five and older.”

The lawsuit began in 2023, when five South Carolina voters under 65 sued the state’s election commission, arguing that the state’s absentee ballot law violated the 26th, 14th and 1st Amendments. While voters over 65 can vote by mail without an excuse, younger South Carolinians must first show that they are somehow indisposed — that they’re physically disabled or caring for someone who is, plan on being out of state on Election Day, or are simply too busy with work (with an employer’s note confirming) to vote in person. After the district court denied those claims and granted summary judgment to the election commissioners, the plaintiffs appealed to the Fourth Circuit. 

Like the other voting rights amendments to the Constitution, the 26th says the right to vote “shall not be denied or abridged” on the basis of age (except for minors under 18 years old).

The Fifth Circuit considered a challenge to similar Texas voting law in 2020 and came out the other way, holding that allowing no-excuse mail voting for people over 65 did not infringe on the voting rights of younger Texans. And the Seventh Circuit likewise upheld an Indiana absentee voting law in 2023. The circuit split increases the potential that the U.S. Supreme Court might take on the matter, should the election commissioners appeal. 

In Tuesday’s decision, the Fourth Circuit explicitly rejected the other appellate courts’ interpretation of the 26th Amendment as merely preventing active discrimination against younger voters. “[T]he better reading, we conclude, understands ‘what the right to vote ought to be’ to required equal treatment in voting.” 

Critically, the 4th Circuit framed the question as an age-based restriction on voting generally, and not just a limit on no-excuse absentee voting. Thus, South Carolina’s law wasn’t just conveying a benefit on a specific group — which is how the other circuit courts viewed the question — but abridging the right of younger voters to partake in alternative means of voting available to voters over 65. 

“Under this framework, even if a regulation does not make voting more burdensome for plaintiffs than it was before — that is, relative to the status quo ante — it may still ‘abridge’ their voting rights… if it imposes burdens on them because of a protected characteristic,” the judges wrote.

Younger voters have many more bureaucratic hoops to jump through if they want to vote absentee — and aren’t assured to meet them in the event that an emergency crops up after the ballot request deadlines.

“These additional conditions, barriers, and unequal prerequisites make it meaningfully harder for Plaintiffs to vote as compared to voters aged sixty-five and older, and they are more than sufficient to constitute an abridgment that violates the Twenty-Sixth Amendment,” the judges concluded.