I have read that voters in North Dakota have approved a ballot initiative that limits the age of people who can be elected in North Dakota to serve in the United States Senate or in the United States House of representatives. The voter-approved initiative prevents a person from being elected or appointed to serve in the United States Senate or the United States House of Representatives if the person would become 81 years older by December 31 of the year preceding the end of their term.

“A “yes” vote supported preventing an individual from being elected or appointed to serve in the United States Senate or United States House of Representatives if the individual would become 81 years old by December 31 of the year preceding the end of their term.”

The initiative is ageist (actual in fact or based on disparate or unequal treatment) – i.e., ageist in actuality or in practice or application or result based on a person’s age or characterized by or showing prejudice or discrimination or discrimination on the grounds of a person’s age. Afterall, age alone, or an arbitrary age of 80, or 81, or whatever, does not prove that the particular person lacks mental or other capacity to perform the elected position – indeed, a person of younger age or of older age may have capacity, or may lack certain capacity that is relevant or that is not at all relevant or determinative, depending on their particular facts and circumstances, and generally as a matter of law a person is presumed to have capacity and to understand and to intend their actions.

While an individual voter as a personal choice may take into consideration a person’s age when deciding whether or not to vote for that person (as opposed to a business or other entity which generally cannot take more senior age into consideration in the course and scope and operation of business), by law preventing a person from running for election to the U.S. Senate or to the U.S. House of Representatives raises issues and red flags of law. A person who has legal standing to contest the age limitation would likely have several legal arguments that might be considered to attack and try to invalidate the applicability of the ballot initiative. I have not performed a formal evaluation of legal arguments that might be used to invalidate the age limitation; however, at least the following arguments rather quickly come to mind:

• First Amendment (Freedom of Speech (fully protected speech, limited protected speech) Bill of Rights, First Amendment to the U.S. Constitution).

• Preemption by higher federal law or the U.S. Constitution (Supremacy Clause (and preemption doctrine) Article VI, Paragraph 2 of the U.S. Constitution.

• Equal Protection (equal protection of the laws – standard of review: strict scrutiny test, intermediate scrutiny test, rational basis test) Fourteenth Amendment to the U.S. Constitution.

• Due Process (due process of law (substantive due process, procedural due process) Fifth and Fourteenth Amendments to the U.S. Constitution).

• Discrimination including age, gender and perhaps others.

• Arbitrary or Capricious, or lacking a rational basis.

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David Tate, Esq. (and inactive CPA)

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David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.