Why New Jersey Municipalities Can Likely Lower the Voting Age
Local activists asked for an opinion on the legality of Vote 16 policy in NJ. A new Vote 16 Research Network analysis shows that the state constitution's "positive" right to vote is key.
Earlier this year, local leaders with the Vote 16 New Jersey campaign reached out to the Vote 16 Research Network to request an analysis of the legality of Vote 16 in New Jersey. I serve as the Ashland, Inc-Spears Distinguished Research Professor of Law at the University of Kentucky’s Rosenberg College of Law and have published several academic articles about Vote 16 policy and agreed to do this analysis.
Based on my review of the relevant New Jersey laws that cover Vote 16 policy in New Jersey, my opinion is that the combination of a positive right to vote and broad home rule authority in the New Jersey Constitution offers strong legal arguments in favor of allowing municipalities to lower the voting age to 16.
Here’s why I believe Vote 16 policy is legal for cities and towns in New Jersey:
1. The New Jersey State Constitution establishes the right to vote as a positive right.
First, the state constitution discusses the right to vote as a positive right:
“Every citizen of the United States, of the age of 18 years, who shall have been a resident of this State and of the county in which he claims his vote 30 days, next before the election, shall be entitled to vote for all officers that now are or hereafter may be elective by the people . . . .” N.J. Const. art. II, § 1, para. 3.
That is, the state constitution says that “every citizen” who meets the age and residency requirements “shall be entitled to vote.” This language confers broader voting rights than the U.S. Constitution, which does not affirmatively grant the right to vote and points to state sources to determine voter eligibility.
Importantly, this state constitutional language grants the right to vote instead of limiting it to certain individuals. Thus, the constitution confers voting rights to those who are eighteen-years-old and meet the residency requirements, but it does not explicitly exclude anyone from voting. The voting qualifications are a floor, not a ceiling. Those who are eighteen and residents are voters in the state, but nothing in the constitutional language suggests that the state or its municipalities cannot confer voting rights to additional people. New Jersey’s voter eligibility statute simply points to this state constitutional language, granting the right to vote to “every person possessing the qualifications required by Article II, paragraph 3, of the Constitution of the State of New Jersey,” except for those who “lack the capacity to understand the act of voting” or who are incarcerated after a conviction. Given the grammatical structure, this formulation once again is best understood as a floor, not a ceiling, of voter qualifications.
2. New Jersey offers broad home rule authority
Second, New Jersey offers broad home rule authority, or the power of self-governance, to its municipalities that are “governed by an optional form of government.” N.J. Stat. Ann. § 40:69A-30. That expansive authority is best understood as allowing a locality to lower the voting age to sixteen for local elections. Although home rule is not mentioned in the state constitution, a statute provides that
“[t]he general grant of municipal power contained in this article is intended to confer the greatest power of local self-government consistent with the Constitution of this State.” N.J. Stat. Ann. § 40:69A-30.
Another provision allows localities to
“[o]rganize and regulate its internal affairs, and to establish, alter, and abolish offices, positions and employments and to define the functions, powers and duties thereof and fix their terms, tenure and compensation.” N.J. Stat. Ann. 40:69A-29.
This language offers broad powers to local governments.
The Upshot? Vote 16 is likely legal in New Jersey
Combining these provisions together reveals that New Jersey law likely allows municipalities to lower the voting age to sixteen for local elections. The state constitution broadly confers the right to vote, listing qualifications of those who “shall” be voters but placing no limits on expanding upon those qualifications. State law on voter eligibility simply points to the state constitution’s rules. And state law further gives municipalities “the greatest power of local self-government.” That power should include expanding the electorate by lowering the voting age if a locality so chooses. This analysis is why, in my scholarly articles on lowering the voting age and voting rights under local law, I list New Jersey as a state where the legal structure would likely allow this reform. See Joshua A. Douglas, The Right to Vote Under State Constitutions, 67 Vand. L. Rev. 89 (2014); Joshua A. Douglas, The Right to Vote Under Local Law, 85 Geo. Wash. L. Rev. 1039 (2017).
P.S. Do you need a Vote 16 legal analysis in your state? Let us know!
Myself and other scholars throughout the network are happy to provide detailed analysis of the legal landscape for Vote 16 policy in your state if that would be helpful. Please reach out to us if that kind of research product would be informative to community partners and policy makers in your state.
Joshua A. Douglas is the Ashland, Inc-Spears Distinguished Research Professor of Law at the University of Kentucky’s Rosenberg College of Law.