Fighting a New Wave of Voter Suppression: Securing College Students’ Right to Vote Through the Twenty-Sixth Amendment’s Enforcement Clause

Authors

Ryan D'Ercole, Washington and Lee University School of LawFollow

Abstract

Throughout the 1960s, young people protested for racial and LGBTQ+ equality, women’s rights, and an end to the Vietnam war. In the process, they earned the most fundamental right— the right to vote.

Fifty years ago, in the summer of 1971, the Twenty-Sixth Amendment was ratified. In addition to lowering the voting age to eighteen, the Twenty-Sixth Amendment prescribed that the right to vote “shall not be denied or abridged by the United States or by any State on account of age.” But in the fifty years since ratification, states have continued to enact laws that abridge the right to vote of young people, particularly those who attend college. This Note begins by inventorying current restrictions on college student voting. Despite the persistent nature of these restrictions, the Twenty-Sixth Amendment has remained a little-used enforcement tool even as more states have moved to restrict student voting. As a result, this Note argues that Congress should use its authority under the Twenty-Sixth Amendment’s enforcement clause to protect student voters.

This Note proposes three legislative solutions: (1) automatic voter registration at colleges and universities; (2) polling place requirements at colleges and universities; and (3) a statutory cause of action implementing a burden-shifting, disparate-impact framework to make it easier to bring and adjudicate Twenty-Sixth Amendment claims. All three of these solutions are analyzed in accordance with the Court’s congruence and proportionality framework, first articulated in City of Boerne v. Flores. Such analysis reveals that the proposed solutions are well within Congress’s authority, especially given the history of voting discrimination against college students. As a result, Congress should take these actions to protect voters who have all too often served as our nation’s conscience.

Recommended Citation

Ryan D'Ercole, Fighting a New Wave of Voter Suppression: Securing College Students’ Right to Vote Through the Twenty-Sixth Amendment’s Enforcement Clause, 78 Wash. & Lee L. Rev. 1659 (2021).
Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol78/iss4/9