Introduction

A youth rights coalition in which I am involved, called the Children’s Voting Colloquium, recently published a petition urging adults to transfer their votes to children in support of youth suffrage. (The reasons behind the pledge are explained in this article in the Guardian). The petition argues that there should be no minimum voting age because ‘political competency,’ which youths are presumed to lack, should not be a condition of voting. As the petition says, 

Consider this analogy: when we visit a doctor, they know more about our illness and treatment than us, but ultimately the decision about whether to proceed is ours, not theirs. Similarly, the authority to vote is based not on political expertise but on the fundamental right to have a say in the decisions that impact one’s life.

People have the right to vote based not on cognitive capacity but on political interests, which everyone has. The right to vote is therefore universal and inviolable. No one should be banned from voting based on presumed incapacity – yet youths and certain disabled people are. In fact, youths and disabled people are politically disenfranchised on the same basis: a perceived lack of mental capacity.  

Thus, youth suffrage is integral to disability justice, since the main reason for denying minors the right to vote is the (tenuous) argument that minors, unlike neurotypical adults, lack the cognitive capacity to vote competently. If neurotypical adult cognition is a condition of voting, then cognitively disabled people ought not have the right to vote, either. The argument for disenfranchising youths can be, and is, used to disenfranchise disabled people, too.  

However, there are laws that ban voting restrictions based on capacity. These include the Voting Rights Act, the Americans with Disabilities Act, and Title 52 of the United States Code. 

Anti-discrimination Laws

Denying any social group the right to vote on the basis of (real or imagined) cognitive incapacity violates Title II of the Americans with Disabilities Act (ADA), which “requires state and local governments (‘public entities’) to ensure that people with disabilities have a full and equal opportunity to vote.” Legally, a “disability” is defined as “a physical or mental impairment that substantially limits one or more major life activity.” This means that no group can be denied the right to vote due to ‘impairments’ that ‘limit’ their ability to participate in ‘major life activities,’ including reading, writing, understanding politics, or accessing polling booths. Although one could argue that children are cognitively ‘undeveloped’ rather than disabled, developmental limitations are covered by the ADA. Therefore, banning youths from voting based on developmental limitations violates the ADA. 

(Many readers of this blog will not agree with the legal definition of disability as impairment, but I invoke it here merely to show that banning children from voting based on presumed developmental limitations is already illegal. If we were to substitute a biopolitical definition of disability – e.g., as a disadvantage caused by ableism, or an apparatus of power – we would still find that disenfranchising youths based on disability status is discriminatory!).

Age restrictions also violate the Voting Rights Act (VRA), which prohibits racial discrimination in voting. The VRA, introduced in 1965, bans the use of “tests or devices,” such as literacy and IQ tests, that were used to suppress votes in racialized and immigrant communities. These communities had lower English literacy due to restricted access to education. Thus, ‘competency tests’ were an efficient way to deprive minoritized groups of the right to vote. The VRA effectively prohibits ‘competency criteria’ due to their relationship to racial discrimination and voter suppression. Furthermore, Title 52 guarantees “voting assistance” for illiterate, blind, and otherwise disabled persons. Together, these laws establish that no one should be denied the right to vote due to physical, cognitive, or developmental ‘limitations.’ Age restrictions are an ad hoc exception to the guarantee of universal voting access.  

Exceptions

There is, however, a de facto exception to the protections afforded by these laws, which was underscored by the Free Britney movement. Despite the ADA and the VRA, some states still (illegally, I believe) ban people from voting based on the presumption of cognitive incapacity. These bans also violate the 14^th Amendment when applied to people under conservatorship. 

a. Group-based Exclusions

Under the 14^th Amendment, states must inform individuals of why their rights are being revoked and provide them with an opportunity to contest the decision, as guaranteed by the provision of “due process of law.” As a result, most states agree that “only a judge may decide that a specific person shouldn’t be able to vote.” However, thirteen states have laws “disallowing voting for people who are under guardianship” (ibid), meaning that conservatee status alone deprives a person of voting rights without due process. In these cases, it is up to the conservatee to schedule a court appearance to prove their ‘mental capacity.’ During the Free Brittany movement, California changed its mental capacity laws so that “the conservatee is assumed to be competent unless it’s proved to a court that she cannot communicate her desire to vote.” That is, conservatees must now be assessed for mental incapacity on an individual basis, in line with the 14^th Amendment. Voting restrictions that target conservatees en masse violate the due process clause, which prohibits states from depriving people of rights without giving them an opportunity to defend their civil liberties.

Nonetheless, thirteen states still “have laws disallowing voting for people who are under guardianship.” These laws violate the 14^th Amendment’s due process guarantee, as well as the ADA and VRA prohibitions against group-based voting restrictions. Conservatees should not be banned from voting en masse, just as people with dementia, learning disabilities, or schizophrenia cannot be categorically banned from voting based on diagnostic status alone.   

If banning conservatees from voting en masse should be illegal, and already is illegal in most states, then banning youths from voting en masse should be, and already is, illegal on the same basis. Banning anyone from voting based on group affiliation violates the 14^th Amendment.   

b. Court-ordered Exclusions

Many states that have repealed conservatorship-based voting restrictions still allow voting restrictions “for those with court-adjudicated incapacity.” While these restrictions may respect due process, they are ableist, sexist, and racist, which means that they violate the ADA and the VRA. Although there is an abysmal lack of data on incapacity judgments (as well as guardianships and conservatorships), we know that women, gender minorities, racialized minorities, and disabled people are particularly susceptible to presumptions of incapacity and denials of basic freedoms. In medical contexts, for example, these groups all face high rates of paternalism (e.g., forced treatment), epistemic injustice (e.g., being gaslit, distrusted, seen as ‘crazy’), and medical disenfranchisement (e.g., being denied reproductive healthcare) (Delston 2019; Washington 2006; Reynolds & Wieseler 2022). Using reproductive autonomy as a specific example, evidence shows that women and gender minorities are denied reproductive autonomy by abortion bans, forced sterilizations, and inadequate parental support; Women of Color, in particular, face pressure to have fewer children, take birth control, and agree to unwanted C-sections; disabled people are criticized for having children, and experience high rates of child removal and loss of parental rights. These violations of patient rights suggest that judicial capacity judgements, like medical capacity judgments, may be biased by sexist, racist, and ableist stereotypes. If this is the case, then capacity-based voting restrictions violate anti-discrimination laws like the VRA. 

It is also worth noting that some states still use “terms such as ‘idiots,’ ‘insane persons,’ and ‘non compos mentis,’ translating to not master of one’s mind,” to impose voting restrictions on people deemed mentally incapable. These terms are not only ableist, but also extremely vague, making it easy for judges to find individuals incapable on various grounds, including judicial bias. Indeed, these terms are likely to trigger biases, since the ideal of the ‘sane’ person who is ‘master’ of his own mind has historically been associated with property-owning, straight, cisgender, white males. As such, the language used to describe ‘incapacity’ is rooted in stereotypes that may influence judges’ decisions in ways that violate the VRA and the ADA. Even if these terms were eliminated, moreover, “controlling images” or entrenched stereotypes of ‘capacity’ as a trait of wealthy, white, nondisabled, adult men would continue to influence judges’ decisions, giving rise to discriminatory voting repeals. 

Since capacity-based voting bans track ableist, racist, and sexist prejudices that allow courts to disenfranchise people based on discriminatory criteria, they violate that ADA and the VRA. Capacity judgments should not be used to disenfranchised anyone, no matter what their age.

c. Neurotypical Adult Exceptionalism 

Another consideration is that voting competence is not a condition of voting for putatively ‘sane’ people. Neurotypical adults are allowed to vote for white supremacists, Nazis, and fascists, even though these voting choices are patently irresponsible. The fact that only non-neurotypical people are banned from voting incompetently, whereas neurotypicals can cast wildly irresponsible votes every election cycle, confirms that capacity laws are inherently ableist. If youths want to vote as irresponsibly as adult Nazis, that right should be protected by law.  

The Minimum Voting Age Is Illegal

These arguments are meant to establish that banning minors from voting based on a presumption of incapacity ought to be, and already is, illegal. Anti-discrimination and due process laws make it illegal to ban an entire group from voting based on real or imagined group characteristics. Disenfranchising minors is not substantively different than revoking voting rights from disabled people, illiterate people, immigrants, or any other oppressed group. 

Furthermore, the categorical disenfranchisement of youths lends credence to eugenic arguments in favor of banning cognitively disabled people from voting – a group that many people (fairly or unfairly) presume to be as ‘incapable’ as children. As such, youth disenfranchisement is a threat to disabled people’s voting rights and disability justice in general. 

In order for age-based voting restrictions to comply with due process laws, they would need to target individual youths who are presumed mentally incapable for specific, “tailored” reasons that can be communicated to the individual and challenged in court. However, I have argued that court-ordered voting bans ought to be illegal because they are sexist, racist, ableist, and ageist, meaning that they violate anti-discrimination laws. Hence, youths should not be subject to court-ordered voting bans because these bans should not exist.

But Felons Can’t Vote?

A potential counterargument to my thesis is that felons are banned from voting, and if felons can be legally banned from voting, then surely youths can be as well. My response is that felon disenfranchisement is also an illegal form of discrimination that violates the VRA and the ADA, as well as the 8^th Amendments’ requirement of proportional sentencing. Depriving felons of the right to vote is a form of cruel and unusual punishment that contravenes proportionality standards. As the Sentencing Project states, “given that incarcerated offenders are suffering all the losses and hardships that necessarily attend life behind bars, a state’s interest in inflicting even more punishment can scarcely be weighty enough to justify deprivation of another fundamental right [i.e., voting].” Additionally, felon disenfranchisement disproportionally affects racialized minorities in violation of the VRA’s prohibition of voter suppression. Banning felons from voting is an efficient means of disenfranchising overincarcerated populations, including racialized and disabled people. 

Coalitional Action 

In summary, capacity should not be a condition of voting. States that allow voting restrictions based on judgments of incapacity violate the ADA and the VRA, and, in some cases, also the 14^th Amendment. Everyone who wants to vote should be allowed to vote and should be provided with the means to vote (whether their legal guardian consents or not), consistent with Title 52’s guarantee of voting assistance. Youths who cannot read or write should be allowed to vote, since literacy is not a condition of voting. Youths who cannot operate polling equipment should be allowed to vote, since able-bodiedness is not a condition of voting. Youths who do not understand politics should be allowed to vote, since clueless adults can and do cast votes. Youths who want to vote for any reason are entitled to do so. 

Put differently, the minimum voting age is ableist and ageist and should be abolished. Youth disenfranchisement is a form of ableism insofar as it bans young people from voting based on presumed ‘mental incapacity’ or ‘developmental limitations’ – criteria that also threaten disabled people’s voting rights. Youth liberation and disability justice activists should work together to abolish capacity requirements for voting and promote ageless universal suffrage. 

If you agree, please consider signing the petition and transferring your vote to a minor in protest of ageist/ableist voting restrictions. You may also be interested in joining the Children’s Voting Colloquium listservand participating in an online pledge workshop on October 3^rd from 2-:3:30pm. 

Solidarity!