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By Marilyn Odendahl
The Indiana Citizen
September 20, 2024

The 26^th Amendment, which lowered the voting age from 21 to 18, needed less than 100 days in 1971 to sail through both houses of Congress and be ratified by the states, but a noted constitutional rights attorney said the promise of the amendment has since been forgotten.

Yael Bromberg, lecturer and supervisor of Election Law and the Political Process at Rutgers Law School, has studied the origins and impact of the amendment, which was authored by U.S. Sen. Birch Bayh of Indiana. She said that despite the extension of the right to vote to young adults, discriminatory state laws and regulations are blocking their access to the ballot box.

“What I’ve learned through this process of discovering this amendment is that there are promises that it offers that are, as yet, unfulfilled,” Bromberg said. “And, in many ways, it’s a forgotten amendment, although it’s the most recent voting rights amendment to be ratified in the U.S. Constitution.”

Bromberg discussed her research on the 26^th Amendment, which has been described as “groundbreaking,” as the keynote speaker for the 2024 Birch Bayh Lecture sponsored by Indiana University Robert H. McKinney School of Law in Indianapolis on Tuesday. The annual lecture honors Bayh and his career in government. Several members of Bayh’s former congressional staff were present.

Bayh is the only American since James Madison to have authored two amendments that were subsequently added to the Constitution. The 26^th Amendment was the second constitutional amendment Bayh wrote during his three terms in the U.S. Senate. He also crafted the 25^th Amendment, which established a process for succession if a president dies, becomes incapacitated or resigns while in office. In addition, he advocated for the Equal Rights Amendment and worked on an amendment to abolish the Electoral College in order to have the president elected by popular vote.

According to Robert Blaemire’s biography, “Birch Bayh: Making a Difference,” the Hoosier lawmaker had championed lowering the voting age even while he was serving in the Indiana General Assembly in the 1950s and early 1960s. The amendment “had wide support in the country,” Blaemire wrote, and Bayh worked for its passage, serving as the floor manager when the legislation arrived in the Senate and then visiting the states where ratification was under consideration.

Bromberg linked the popularity of the 26^th Amendment to the history of young people driving change in the United States, particularly in the Second Reconstruction period, which stretched into the 1960s.

Often the 26^th Amendment is placed in the context of the Vietnam War especially since Bayh said the constitutional update righted an injustice where young people were old enough to die in a war but not old enough to vote for their elected officials. However, Bromberg said broadening the view to look at the 26^th Amendment against the backdrop of the civil rights movement in the 1950s and 1960s when young adults were sitting at lunch counters, participating in Freedom Summer, and marching for women’s rights. At the end of the era, the young turned to their own enfranchisement.

“What motivated its passage was a recognition of the value of moral purpose that young people offer in re-energizing the practice of democracy,” Bromberg said.

She added other motivating factors included the increased competence of young adults because of standardization in public education and the availability of technology, such as television, which was broadcasting news from around the nation and the world. “The increased adult responsibilities of the group to go to war, to assume debt, to live independently, and a general recognition of the expansion toward a more inclusive suffrage and finally stemming unrest, … (by) recognizing that there needs to be a form of institutionalization to engage with social changes that did not involve protests and being in the streets” fueled the passage of the 26^th Amendment as well, she said.

Bromberg said the potential of the amendment is “largely unwritten.” Pointing to the 19^th Amendment, which prohibits blocking anyone from the ballot box on account of sex, she said the 26^th Amendment does more than lower the voting age. It protects all voters, regardless of how old they are, from being denied the right to vote because of their age and those protections could be extended to prevent age-based discrimination against senior citizens.

Despite the Constitution being amended to prevent age discrimination at the polls, Bromberg said some states are placing “special burdens” on young voters. Those discriminatory practices include tossing the registrations of young adults and forcing them to vote by provisional ballots, which are then rejected, and using voter ID laws to block access, such as in Tennessee, where the state accepts a university-issued ID as voter identification for faculty members but not for students.

Also, Bromberg noted gerrymandering is being used in some states to split college campuses, of which the full impact still needs to be analyzed. Moreover, voting by mail is restricted by age in seven states, including Indiana where Hoosiers must be 65 or older to obtain a mail-in ballot.

Bromberg described these discriminatory practices as “a systemic violation of the right to vote,” which requires “systemic solutions.”

She highlighted data to show that age discriminatory laws do negatively affect voter behavior. In particular, 25.5% of voters aged 18 to 24 years old nationally use vote by mail, but in states like Indiana that impose restrictions, only 6.64% of that age group voted by mail.

“There are voter suppression laws, purposeful or otherwise, seen or unseen, that prevent a protected class of voters from engaging in the franchise,” Bromberg said. “If this occurred for any other class on account of race, on account of sex, we would say blatantly that is unconstitutional, but because the 26th Amendment (has) been forgotten in the relative history, we need to engage in more public education, analysis, discussion, advocacy and litigation and, of course, organizing to popularize the amendment to fulfill its full promise.”

Dwight Adams, an editor and writer based in Indianapolis, edited this article. He has been a content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and a planner for other papers, including the Louisville Courier Journal.

The Indiana Citizen is a nonpartisan, nonprofit platform dedicated to increasing the number of informed and engaged Hoosier citizens. We are operated by the Indiana Citizen Education Foundation, Inc., a 501(c)(3) public charity. For questions about the story, contact Marilyn Odendahl at marilyn.odendahl@indianacitizen.org.