[EL] The Age Discrimination Act of 1975, federal financial assistance for elections administration, and state law restrictions on voting ineligibility based on age

Wed Aug 25 11:57:58 PDT 2021

That exception is really broad, which is probably why it is a little used law.  Here is the full language which might help understand it, though I agree it is circular:

(1) it shall not be a violation of any provision of this chapter, or of any regulation issued under this chapter, for any person to take any action otherwise prohibited by the provisions of section 6102 of this title if, in the program or activity involved--

(A) Such action reasonably takes into account age as a factor necessary to the normal operation or the achievement of any statutory objective of such program or activity; or

(B) the differentiation made by such action is based upon reasonable factors other than age.

(2) The provisions of this chapter shall not apply to any program or activity established under authority of any law which (A) provides any benefits or assistance to persons based upon the age of such persons; or (B) establishes criteria for participation in age-related terms or describes intended beneficiaries or target groups in such terms.

I thin (1)(A) would save most age restrictions for voting.  But the elderly preferences now being handed out (for ID requirements and absentee ballots) still seem troubling.  They hardly seem necessary to the normal operation of voting.  But then (2) could save them.  There, the key I think is in (2)(A), which (2)(B) seems to be focused on.  In (2)(A) it has to be "benefits or assistance," so the question then is whether age-preferences involve either money (quintessential benefits) or "assistance."  Lot of stuff could be tucked into the latter.

Federal laws like the ADA can pre-empt state constitutions, but there is a pretty big federalism problem revolving around whether Congress has the power to do it with state elections.  Oregon v. Mitchell, for example, and City of Boerne v. Flores.  But so long as the states choose to take the federal money after being given a clear choice, this is not insurmountable.
________________________________
From: Robin Chen <rschanche at gmail.com>
Sent: Wednesday, August 25, 2021 2:45 PM
To: Brown, Mark <MBrown at law.capital.edu>
Cc: Smith, Bradley <BSmith at law.capital.edu>; law-election at department-lists.uci.edu <law-election at department-lists.uci.edu>; Carlin.Meyer at nyls.edu <Carlin.Meyer at nyls.edu>
Subject: Re: [EL] The Age Discrimination Act of 1975, federal financial assistance for elections administration, and state law restrictions on voting ineligibility based on age

Thanks for these responses so far. Please continue.

Upon closer reading, probably this 'criteria for participation' within the Age Discrimination Act of 1975 is why..
"(2) The provisions of this chapter shall not apply to any program or activity established under authority of any law which...(B) establishes criteria for participation in age-related terms or describes intended beneficiaries or target groups in such terms."

However, it seems circular for 'age' to be a 'criteria for participation' allowable within an Age Discrimination law, so I'd appreciate an explanation and/or examples of cases. Has the Age Discrimination Act of 1975 led to jurisprudence that might be illuminating? I'm a layperson, so I don't have access to subscription-type references to research this directly.

In the case of voting eligibility, I'm unconvinced that age is pertinent. It remains due to the path dependency of history, but ought to be reformed going forward, once a sufficiently powerful organized demand comes along.

Yes, good point, Mark -- I'm aware of this work of Equal Citizens against elections officials giving preferential support for voting access based on age. ("election officials in Alaska started mailing absentee ballot request forms to every voter over 65 years old. But no voter under 65 received one. If younger voters want to vote absentee, they have to find a way on their own.") They used the 26th Amendment. https://equalcitizens.us/end-age-discrimination/<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fequalcitizens.us%2fend-age-discrimination%2f&c=E,1,EnhziB8PYkFTsnZUKov7oQ2tPAlilcwp9OBFZnVz3PmtFah-kYVhqZWtteIKfaaApU5fw7wCIr6jVITHR9jpHLpjfaKX-Rm3Dky-tkm0a4kqQbFSHA,,&typo=1>

'Criteria for participation' notwithstanding, could the Age Discrimination Act of 1975 be powerful enough relative to state constitutions' voter qualifications? I'm not sure how the types of laws interrelate/override. I appreciate the point about Oregon v Mitchell. I need help with synthesizing.

Robin

On Wed, Aug 25, 2021, 2:06 PM Brown, Mark <MBrown at law.capital.edu<mailto:MBrown at law.capital.edu>> wrote:
We may be confusing two different statutes, the ADEA (which builds in a critical of 40 and does not authorize reverse actions by those below that age) and the ADA, which has no critical age stated.  Along with the absence of a critical age, such as 40 in the ADEA, the ADA does not apply to the employment context, of course, but requires the federal money as a hook.  Assuming a state/local agency receives federal money, it is covered by the ADA, and some lower courts have allowed reverse discrimination claims (that is, claims by young for providing better treatment to old).

With that said, it is not clear that the ADA creates a private cause of action, with the majority of courts apparently not recognizing one.  Further, the ADA has a pretty big exception for age discrimination that is necessary to the accomplishment of the program, which I assume would mean that drivers' licenses and probably voting requirements are excepted.  Still, providing preferential treatment for the elderly in the context of voting would still seem problematic to me, although I must confess I have not done enough research into the ADA.  It is a rarely-used law in the big scheme of Civil Rights Litigation.

________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of Smith, Bradley <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>>
Sent: Wednesday, August 25, 2021 1:20 PM
To: Robin Chen <rschanche at gmail.com<mailto:rschanche at gmail.com>>; law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu> <law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>>
Subject: Re: [EL] The Age Discrimination Act of 1975, federal financial assistance for elections administration, and state law restrictions on voting ineligibility based on age

Robin,

I gather you are wondering if laws setting a minimum age for voting violate the Age Discrimination Act. The ADA has been interpreted as prohibiting discrimination against those older than age 50, but not against those who are younger. The ADA does not prohibit an employer, for example, from saying “we don’t hire people under age 30.” See e.g. General Dynamics Land Systems, Inc v. Cline, 540 U.S. 581 (2004).

Brad Smith

From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> On Behalf Of Robin Chen
Sent: Wednesday, August 25, 2021 11:59 AM
To: law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
Subject: [EL] The Age Discrimination Act of 1975, federal financial assistance for elections administration, and state law restrictions on voting ineligibility based on age

** [ This email originated outside of Capital University ] **

Dear Election Law Listserv,

"The Age Discrimination Act of 1975 prohibits discrimination on the basis of age in programs or activities receiving Federal financial assistance."

But, isn't election administration a program/activity receiving federal financial assistance?  https://www.eac.gov/payments-and-grants/election-security-funds<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.eac.gov%2fpayments-and-grants%2felection-security-funds&c=E,1,CIMq3vY6rsPT8XM8f1ElkAHck8pNv1zVJDe_wbU_WGpdKtCu1CNqbSBonsdjw0-WXkZVxggEpN9gurHqsQCMxWxdcET409WoGUQsDHtkzy-d&typo=1>

Every state is listed here, and then some. https://www.eac.gov/sites/default/files/paymentgrants/Funding_Chart_ElectionSecurity.pdf<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.eac.gov%2fsites%2fdefault%2ffiles%2fpaymentgrants%2fFunding_Chart_ElectionSecurity.pdf&c=E,1,-4UKKauBGANj4Phx1c05rePBQoBO8DcEotM0VUjtQ8r8LLgZqYafi5KvJ7M9ob6eaOlh-4hCr7HuqHIQCco6fLFQ-lAPpz8MYk96duX2oLyQXUGBA00,&typo=1>

Every state _does_ discriminate based on age in the laws about qualifications of voters.

Sorry to ask a naive question, but isn't this problematic?

I'd appreciate hearing your thoughts on this.

Kindly,

Robin
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20210825/fc9203d0/attachment.html>