South Carolina lets anyone 65 or older mail in a ballot for any reason at all. Everyone younger needed an excuse: a disability, a job that keeps you out of the county, a stint in the county jail. On Aug. 18, the Fourth Circuit said that scheme violates the 26th Amendment. Not because mail voting is some newfound constitutional right. Because a state that hands out a voting convenience can’t ration it by birth year.
Most ballot-access litigation turns on the same tired fights over race and residency. This one is different. Grant v. Belangia is a 26th Amendment case, and courts have barely touched that amendment since it lowered the voting age to 18 in 1971. When a unanimous panel actually applies it, conservatives ought to pay attention, even when the immediate winner looks like the other team’s client list.
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Here’s the setup. South Carolina requires no-excuse absentee voting for anyone 65 and up. Voters under 65 have to fit a narrow category: military service, disability, confinement, or being out of the county on Election Day. A group of younger voters sued, arguing that made voting meaningfully harder for them solely because of their age. The state argued the age cutoff was just a benefit for seniors, not a burden on anyone else, and that it served legitimate interests in administrability and election integrity.
Judge Roger Gregory, writing for the panel, wasn’t buying the “it’s just a benefit” framing. The court read the 26th Amendment’s ban on abridging the vote “on account of age” the same way courts read the parallel language in the 15th and 19th Amendments banning abridgment on account of race and sex. Nobody would call it a “benefit for men” if a state let male voters skip the excuse requirement and made women jump through hoops. The court’s holding: a state cannot hand one class of adult citizens “unconditional access” to a voting method while making another class earn it, based on nothing but age.
That reasoning puts the Fourth Circuit at odds with the Fifth. In Texas Democratic Party v. Abbott, decided during the 2020 pandemic scramble, the Fifth Circuit upheld an identical age-65 carve-out, reasoning that conferring a privilege on one group doesn’t abridge anyone else’s rights. Two circuits, the same constitutional text, opposite outcomes. That’s the kind of split the Supreme Court exists to resolve, and I’d bet real money it gets the chance before this decade is out.
I think the Fourth Circuit got the text right. Fiduciary duty runs on a similar rule: you can treat two classes of beneficiaries differently only when the difference tracks an actual, articulable risk, not a proxy that happens to be convenient. “Sixty-five and older” isn’t a fraud-risk category. It’s a demographic bracket, and the state never showed it was anything more.
To be sure, the ruling creates a real headache. Maryland, North Carolina, Virginia, and West Virginia now share the Fourth Circuit with South Carolina, and each has to decide whether to open no-excuse mail voting to every adult or drop the senior carve-out entirely. Neither option is free, and election offices built around the old rule will need time to adjust.
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But the fix here is not complicated, and it doesn’t require Congress or the Supreme Court to do anything at all. State legislatures wrote these age brackets into law, and state legislatures can rewrite them. Either open no-excuse absentee voting to every adult, which is the simplest and most defensible option, or replace the age test with a genuine, age-neutral excuse requirement applied the same way to a 30-year-old and an 80-year-old alike. What a state cannot do, per a unanimous federal appeals panel, is keep doing what South Carolina did: hand seniors a convenience and call everyone else’s extra paperwork an accident.
Growing old carries plenty of real privileges. Social Security, the senior discount at the movie theater, unsolicited advice nobody asked for. As of last week, an easier path to the ballot box in five states is no longer one of them, and the Constitution’s text is the reason why.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a Bachelor of Science in criminal justice from Northeastern University and has completed postgraduate studies at UCLA, the University of Pennsylvania, and Harvard. He writes about issues in finance, constitutional law, national security, human nature, and public policy.
