On Tuesday, a federal appeals court struck down a South Carolina law that permits all voters over age 65 to vote by mail but allows younger voters to do so only if they meet a set of specific criteria. The United States Court of Appeals for the Fourth Circuit’s decision in Grant v. Belangia held that the state’s law violates the 26th Amendment.
If you’re having trouble remembering what the 26th Amendment does, you’re probably not alone. Ratified in 1971, the 26th Amendment states that “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.” As the Fifth Circuit noted in a case challenging a similar Texas law, the amendment “has yet to be interpreted in any significant depth.”
But three different federal appeals courts have now split three ways on how to read it, which makes it likely that the Supreme Court will have to step in soon and determine, for the first time, what a relatively new constitutional amendment actually means. And if that happens, it will have significant implications for the increasingly partisan war over how difficult it should be to vote by mail.
The Fourth Circuit’s opinion in Grant holds that the 26th Amendment prohibits “unequal allocation of voting access based on age,” and thus, if elderly voters can vote by mail, younger voters must be allowed to do so as well. Both the Fifth and the Seventh Circuits, which previously ruled on similar challenges to Texas and Indiana absentee voting laws, disagree with this view.
The question of whether states may have different absentee voting rules for older voters first flared up in 2020, during the Covid-19 pandemic. Many voters were afraid to go to the polls, for fear that they might become infected if they voted alongside others in an indoor polling place. And this led to a pair of lawsuits claiming that Texas must allow younger voters to vote absentee, lest they be effectively denied the ability to safely cast a ballot altogether.
Ultimately, however, the Fifth Circuit, which oversees federal litigation out of Texas, rejected the claim that only allowing older people to vote by mail violates the 26th Amendment.
The stakes of this fight have diminished, since few voters are still afraid to physically go to the polls in 2026, but they are still significant. During Covid, many Democrats got in the habit of voting by mail, while President Donald Trump campaigned against mail voting. So Democrats are now more likely to cast mailed ballots than Republicans, and any law that makes it easier to vote by mail is thus likely to benefit the Democratic Party, at least around the margins.
Indeed, the Republican Party understands this imbalance as well as anyone. While Trump spreads false claims that “mail-in voting means mail-in cheating,” his party was busy urging the Supreme Court to toss out thousands of mailed ballots in future elections.
The question in Watson v. Republican National Committee (2026) was whether federal law requires ballots that are mailed prior to Election Day, but that arrive shortly thereafter, to be trashed. The GOP’s legal arguments in Watson were risible — Republicans claimed that it’s actually been illegal to count these ballots since 1845, and they just happened to discover this 181-year-old legal requirement at the exact same time that Trump decided that voting by mail is bad — but it’s notable that Watson was a 5–4 decision despite the implausibility of the GOP’s arguments.
Four justices, all Republicans, would have given their party what it asked for in Watson.
Given these partisan stakes, it’s likely that lawyers from both parties will push the Supreme Court to interpret the 26th Amendment in a way that favors their clients’ interests — with Democrats pushing for an expansive interpretation of the right to vote and Republicans pushing for as many restrictions on voting by mail as possible. And it is equally likely that the Court will have to take up this issue soon, because the justices are especially likely to take up legal disputes that divide federal courts of appeals.
The three-way split on how to read the 26th Amendment
The 26th Amendment emerged from the crucible of the Vietnam War and a draft that conscripted many young people into combat who could not vote. Many of the amendment’s proponents chanted the slogan “old enough to fight, old enough to vote,” and this message swayed lawmakers across the country. According to the Fifth Circuit, the amendment was “approved by Congress in March of 1971 and ratified by June,” making it the “most quickly ratified constitutional amendment in our history.”
The broad initial support for this amendment may explain why there’s been so little litigation over what it means. Pretty much everyone agrees that it permits Americans as young as 18 to vote, so young voters typically haven’t had to file lawsuits to gain access to the ballot.
But the Amendment is also broadly worded, providing that the right to vote “shall not be denied or abridged” based on age — at least for voters who are at least 18. That raises a difficult legal question: What happens if a state does not outright prohibit young people from voting, but it makes it more difficult for them to do so than it does for older voters?
The Fourth Circuit’s answer to this question is straightforward. Grant reads the 26th Amendment as a broad prohibition on age discrimination. If a 70-year-old voter is allowed to cast a ballot in a particular way, then a 19-year-old voter must be allowed to do the same.
As Grant notes, the 26th Amendment’s “denied or abridged” language mirrors several other amendments, including the 15th Amendment, which provides that the right to vote shall not be “denied or abridged” because of race, and the 19th Amendment, which says it shall not be “denied or abridged” based on sex.
Both of these amendments have historically been understood to broadly ban discrimination. A state could not permit white people to vote by mail, but not Black people, nor could it apply a similar regime to men but not women. So that suggests that the 26th Amendment applies a similarly broad ban on age discrimination in elections.
The Fourth Circuit also points to the Supreme Court’s decision in South Carolina v. Katzenbach (1966), which said that the 15th Amendment invalidates “state voting qualifications or procedures which are discriminatory on their face or in practice.” So that also suggests that the words “denied or abridged” should be read to broadly ban discrimination.
Meanwhile, the Seventh Circuit’s decision in Tully v. Okeson (2023) reached a different conclusion. Tully notes that, two years before the 26th Amendment was ratified, the Supreme Court held that laws limiting who can vote absentee “do not themselves deny” voters “the exercise of the franchise,” as voters who cannot vote by mail may still be able to vote by other means.
The Seventh Circuit also pointed to the Supreme Court’s decision in Harman v. Forssenius (1965), which construed the 24th Amendment’s statement that the right to vote “shall not be denied or abridged … by reason of failure to pay any poll tax or other tax.” Harman states that the right to vote is “abridged” when a state imposes “onerous procedural requirements which effectively handicap exercise of the franchise,” and that state election laws are unconstitutional when they impose a “material requirement” solely on people who refuse to pay a poll tax.
Thus, according to the Seventh Circuit, mere discrimination against younger voters isn’t enough to violate the 26th Amendment. A state must impose a sufficiently “onerous” or “material” requirement on them, and Tully concluded that a restriction on absentee voting wasn’t enough if the state also provides sufficient avenues where a voter can cast their ballot in person.
The Fifth Circuit’s decision in Texas Democratic Party v. Abbott (2020) resembles Tully, but with some subtle differences. That Court held that the right to vote is “denied” only if the law “absolutely prohibits them from voting,” and it held that a law “abridges” a person’s right to vote only when it “makes voting more difficult for that person than it was before the law was enacted or enforced.”
To justify this interpretation, the Fifth Circuit points to the Supreme Court’s decision in Reno v. Bossier Parish School Board (2000), which said that “it makes no sense to suggest that a voting practice ‘abridges’ the right to vote without some baseline with which to compare the practice.” Bossier Parish established that, at least in some circumstances, that baseline should be “the status quo” that existed before a state amended its law to insert a provision that is being challenged in court.
So it’s safe to say that the Supreme Court’s past decisions construing the words “deny or abridge” point in several directions. Proponents of the Fourth, Fifth, or Seventh Circuit’s divergent approaches to the 26th Amendment can all find support for their proposed rule in the Court’s precedents. And the Court has never definitively ruled on how to read the words “deny or abridge” as they are specifically used in the 26th Amendment.
That means that, when the justices do take up this question, they have more or less maximal discretion. A justice who wants to read the 26th Amendment expansively will have no trouble finding authoritative sources that they can cite in their opinion, and a justice who wants to limit access to voting by mail will also be able to find plenty of sources that they can cite to justify a narrow reading of the 26th Amendment.
So how is the Supreme Court likely to read the 26th Amendment?
Realistically, this Court is likely to construe the 26th Amendment narrowly. This is, after all, a 6-3 Republican Court.
Indeed, the question of whether states may discriminate in favor of older voters did reach the Supreme Court during the pandemic. After the Fifth Circuit construed the 26th Amendment narrowly in a preliminary ruling in the Texas Democratic Party case, Democrats asked the justices to issue a temporary decision that would have expanded absentee ballot access during the pandemic, but the Court denied the request.
The fact that the Court denied this temporary relief does not necessarily mean that it will embrace a narrow reading of the 26th Amendment once it gives the issue a full hearing. But it does suggest that most of the justices weren’t troubled by age discrimination in absentee voting, even at the height of the pandemic when there were serious concerns that people denied absentee ballots may not be able to safely vote.
The 5-4 vote in the Watson case is also an ominous sign for anyone hoping that the Court may make it easier to vote by mail, as it is difficult to exaggerate just how weak the Republican Party’s arguments were in Watson, but four justices voted to invalidate lawfully cast absentee ballots regardless.
In Watson, the Republican Party claimed that three federal laws setting the date for federal elections, the oldest of which was enacted in 1845, prohibited states from counting ballots that are mailed before Election Day, but that arrive afterwards. States have counted late-arriving ballots since the Civil War, and, as Justice Amy Coney Barrett pointed out in her majority opinion, there are several federal laws that simply assume that states are allowed to decide whether to count late-arriving ballots.
The fact that four justices voted in Watson to limit absentee balloting, despite the fact that the GOP was barely able to articulate an argument for its position, suggests that these four justices would also vote to limit absentee balloting in a 26th Amendment case. So that means that proponents of a narrow reading of this amendment only need to pick up one more vote. And, unlike in the Watson case, there actually are legal arguments in favor of the more conservative position on the 26th Amendment. The Fifth and Seventh Circuits both made plausible, if not exactly airtight, arguments for reading this amendment narrowly.
Still, the Fourth Circuit’s more expansive reading of the amendment is also quite plausible. So it is at least possible that the five justices who formed the majority in Watson could agree with the Fourth Circuit’s reading. Given that the Court has previously said so little about the 26th Amendment, we’re essentially in uncharted territory — on an issue that could potentially shape the outcomes of future elections.
