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The Time is Ripe for Class Action Constitutional Litigation to Lower Voting Age Eligibility to 16

Sonja Grover, Ph.D., Professor, Faculty of Education, Lakehead University is an Associate Editor for The International Journal of Human Rights and has published extensively in the area of international law.

In this time of the confluence of extreme global adverse effects due to the pandemic, climate change and innumerable other humanitarian catastrophes, the fact that adults often act quite contrary to the best interests of children, and of humanity generally, has come into stark relief- perhaps more so than ever. Now is thus a prime time to renew vigorous efforts to allow children political power through the vote by lowering the voting age eligibility to sixteen in electoral statutes. As has been noted many times, though children do not have the vote they must live often for decades with the negative consequences of legislation they had no input on and which often times disproportionately adversely affects children.

While sixteen is in some sense an arbitrary voting age cut-off, it is a practicable age for the vote as by then children have been shown often to have an interest in their basic human rights and social justice. This is not to imply that such cannot occur earlier for multitudes of children. Some countries such as Austria and Brazil have already established a minimum voting age of sixteen. Since sixteen is in most places to date a designation of a child group insofar as age ineligibility for the vote is concerned, lowering the age eligibility for the vote to sixteen in the US and Canada would be understood to be an enfranchisement of the child/youth vote. Those children aged sixteen and older but under eighteen then through their vote would have the opportunity to place the interests of younger children as well as those of youth on the political agenda.

After the North American civil rights movements that accorded the vote to age eligible persons (adults) who also held the status of female, indigenous person and/or person of African heritage, the racist/sexist/colonialist presumptions regarding purported lack of ‘competency of these groups for the vote’ were formally abandoned. The trope of purported lack of competency for the vote has been applied in North America as a barrier in contemporary times only to the child vote regardless of the child’s age under eighteen. This is the case notwithstanding the social science evidence of the competence for the vote amongst large segments of sixteen and seventeen-year-olds. The fact that all North American sixteen and seventeen-year-olds are disenfranchised until they are eighteen does not mean that their disenfranchisement itself is not discriminatory nor an unjustified aspect of the implementation of the so-called ‘universal’ franchise. In this regard, consider that old age, even when accompanied by dementia, has not disenfranchised that class of persons involved and was never even contemplated as a barrier to enfranchisement in the first instance. Thus the arguments that young age – specifically with respect to sixteen and seventeen-year-olds – is either a non-discriminatory, objectively justified barrier to the vote or a discriminatory barrier to the vote that is proportional and consistent with democratic values does not pass constitutional muster.

In the United States the vote was lowered from twenty-one to eighteen in 1971 on the rationale that young people of eighteen were being drafted into the armed forces to serve the US interest in the Vietnam war at risk of life and limb and had thus earned the right to vote. Canada soon thereafter followed suit. Today children in North America, including children who belong to the age class of sixteen to under age eighteen, are in many instances suffering concrete particularized injuries – emotional, physical, and even loss of life – as a result of, for instance, inept government COVID polices and the failure to mitigate climate change effectively. Thus vast numbers of children in North America are increasingly alienated from society, depressed and often experiencing a realistic sense of having little if any substantive agency on these key challenges of our time.

We should rightfully applaud the work of children such as Greta Thunberg et al. in raising their voices through the Convention on the Rights of the Child Complaints Protocol on the issue of climate change and the lack of sufficient remedial action which will rob the world’s children of a healthy future or perhaps, for some, any future at all. The reality is, however, at the same time, that Canada and the United States are not parties to the Convention on the Rights of the Child (CRC) Complaints Protocol (the US, furthermore, has not even ratified the CRC). This blocking of the voices of the young by these Western democracies is an appalling affront to children’s inherent dignity and fundamental human rights. Thus Canadian and American children are barred from even pleading through the United Nations’ bureaucratic CRC complaint mechanism for remedies for the systemic injustices they suffer relating, for example, to any ineffectual government policies on COVID and climate change. There is, furthermore, no possibility at present for Canadian or American children who belong to the class sixteen to under eighteen to file a complaint to the UN Committee on the Rights of the Child using the complaint mechanism on the matter of the violation of their CRC right to freedom of expression arising due to the age bar on the vote in electoral statutes that sets the minimum eligibility age at eighteen.

It is part of the shared common wisdom that the right to vote is foundational to all other rights in a democracy. There are in fact no age restrictions to the vote articulated in the US Constitution (the 26th Amendment guarantees the vote to persons eighteen years and older thus affording them explicit constitutional protection of this right. The intent behind the 26th Amendment was to ensure that no US State would, in practice, continue to extend the vote only to those 21 years and older). The 26th Amendment does not block the vote for those younger than eighteen. Thus electoral statutes in the US States can constitutionally set the age eligibility for the vote at sixteen for instance or any age below eighteen. Nor likewise does s. 3 of the Canadian Charter of Rights and Freedoms preclude children sixteen and over but under eighteen from the vote at any level of electoral process; municipal, provincial or federal. Constitutional law in North America does not set a minimum eligibility age or ‘age of majority’ for the vote but rather, consistent with international human rights law, sets out that the right to the vote is inherent and non-derogable.

The central challenge for a class action constitutional litigation suit advancing sixteen as a more reasonable minimum voting age (in order to give children and youth access to realization of this inherent fundamental human right) is not that of succeeding on complex constitutional questions (the constitutional right to the vote is largely incontestable). Rather the greatest difficulty would be in overcoming an aspect of the justiciability doctrine. That doctrine stipulates, among other things, that the Courts should not address issues that are primarily or solely political questions but rather leave these to the Executive and/or the legislature as applicable. For example, the Supreme Court of Canada (SCC), without explanation, unsurprisingly took what could be considered the easy way out and declined to hear the Fitzgerald v Alberta child voting rights appeal. The Court of Appeal had denied the right of the child plaintiffs to the vote based on their being 17-year-olds at the time of their advancing their case at the Queen’s Bench level. Arguably adding insult to injury, the SCC in Fitzgerald v Alberta dismissed the children’s application to the SCC for leave to appeal the Court of Appeal decision with costs.[1] The SCC in Fitzgerald v Alberta erroneously likely treated the issue of lowering the minimum age for the vote to sixteen in electoral statutes as a political question rather than as a fundamental human rights issue and as a consequence dodged the case despite the public interest implicated.

It is time that members of this children’s voting colloquium, including human rights allies with relevant legal expertise, accept the challenge and advance class action constitutional cases that can defeat the justiciability block to ultimately achieve a minimum voting age eligibility of sixteen for children in the US and Canada. The first step would be to certify a class through the courts. A small representative group of children aged sixteen and older but under eighteen would be the plaintiffs representing the larger class of sixteen and seventeen-year-olds in the country. The plaintiffs’ counsel (perhaps associated with a child advocacy NGO with legal resources) and amicus curiae from the child voting colloquium in support would brief the court on the central arguments and the remedy sought for violation of the constitutional right to the vote of sixteen- and seventeen-year-olds. That remedy might be a declaration that a bar on enfranchisement of sixteen- and seventeen-year-olds in electoral law does not meet the test of being a reasonable limit on the constitutional right to the vote that can be considered to be demonstrably justified on legal or factual grounds in a free and democratic society. The Court would thus not be making an incursion into the domain of the Executive or the legislature but rather articulating what is the viability of the constitutional claim of the plaintiff class in respect of their inherent fundamental human right to the vote.

[1] Fitzgerald v Alberta, 2002 ABQB 1086 (Queens Bench), 2004 ABCA 184 (Court of Appeal), Eryn Fitzgerald, et al. v. Her Majesty the Queen in Right of Alberta (Alberta) (Civil) (By Leave) (Docket 30453) (Supreme Court of Canada).

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