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

Sun Aug 29 17:10:04 PDT 2021

Indiana has this age related discrimination about who can get a no-excuse
absentee ballot. Those over 65 can just ask for one, while those under 65
need to be out of county or fall in o narrow categories. I am 61 and
somewhat burdened by this rule. I would be willing to be the plaintiff of
record if someone wanted to litigate this. A person between 18 and 21 would
have an even stronger claim.

On Wed, Aug 25, 2021 at 1:59 PM Brown, Mark <MBrown at law.capital.edu> wrote:

> 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> 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> on
> behalf of Smith, Bradley <BSmith at law.capital.edu>
> *Sent:* Wednesday, August 25, 2021 1:20 PM
> *To:* Robin Chen <rschanche at gmail.com>;
> law-election at department-lists.uci.edu <
> 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> *On
> Behalf Of *Robin Chen
> *Sent:* Wednesday, August 25, 2021 11:59 AM
> *To:* 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
>
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