Voting Rights and Democracy

Tully v. Okeson

In Tully v. Okeson the Supreme Court was asked to consider whether an Indiana law that provides lesser opportunities to younger voters to cast a mail-in ballot violates the Twenty-Sixth Amendment.

Case Summary

Indiana absentee voting laws allow voters 65 years and older to vote by mail without excuse but do not allow younger voters the same opportunity.  Nine individual Indiana voters under the age of 65, along with the nonprofit organization Indiana Votes By Mail, Inc., challenged those laws on the ground that the express distinction between voters of different ages violates the Twenty-Sixth Amendment to the U.S. Constitution, which promises that the right to vote of all citizens eighteen and older “shall not be denied or abridged” by any state “on account of age.”

On appeal, the U.S. Court of Appeals for the Seventh Circuit ruled that Indiana’s vote by mail laws are constitutionally permissible because voting by mail is simply a privilege, not a right.  Further, the Seventh Circuit decision instructed the plaintiffs to look to the Fourteenth Amendment’s Equal Protection Clause, rather than the Twenty-Sixth Amendment, for protection against voting laws like the one at issue here.

CAC filed an amicus curiae brief urging the Supreme Court to grant the petition for a writ of certiorari and reverse the Seventh Circuit’s ruling.  First, we explained that the text and history of the Twenty-Sixth Amendment prohibit laws that deny equal voting opportunities to voters on account of age.  Going beyond simply extending the right to vote to those 18-21 years old, the broad language of the Twenty-Sixth amendment expressly forbids age discrimination in voting in the same manner the Fifteenth and Nineteenth Amendments outlaw discrimination in voting on the basis of race and sex.  Indeed, our brief showed that the Twenty-Sixth Amendment was intentionally modeled on the Fifteenth and Nineteenth Amendments.  As a result, the Twenty-Sixth Amendment forbids the government from curtailing or diminishing the rights of any adult voter on account of age.  In the same way that voting laws may not limit mail-in voting to just men or just white people, they may not limit mail-in voting to just voters over 65.

Second, our brief argued that the Seventh Circuit’s decision went badly astray when it held that absentee voting laws do not implicate the right to vote at all.  That theory would sanction all manner of discriminatory absentee ballot laws and limit the scope of all of the Constitution’s voting rights amendments.  The fundamental right to vote applies, whatever the means a voter uses to exercise his or her fundamental right. In sum, while the Constitution does not require states to allow absentee voting programs, once a state decides to do so, it cannot discriminate based on age.

In June 2021, the Supreme Court denied the petition for a writ of certiorari.

Case Timeline

  • April 8, 2021

    CAC files amicus curiae brief in support of petition for writ of certiorari in the Supreme Court

    Sup. Ct. Amicus Br.
  • June 21, 2021

    The Supreme Court denies certiorari

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