BISMARCK, N.D. (AP) — People in their late 70s or older will no longer be able to run for Congress in North Dakota under a ballot measure overwhelmingly approved by voters Tuesday, and legal experts said the law would could remain on the books indefinitely because no older candidate could do that. challenge the restriction, which they consider likely unconstitutional.
These experts see the constitutional amendment as an attempt to revise a nearly thirty-year-old Supreme Court ruling against congressional term limits and could provide a potential test case for the nation. The initiative prohibits people from running or serving in the U.S. House or Senate if they turn 81 during their term.
The high-profile measure comes at a time when the ages of older office holders have been at the center of the presidential race between Joe Biden and Donald Trump. Lawmakers including Sen. Dianne Feinstein, who died last year, and Senate Minority Leader Mitch McConnell have also drawn attention to the issue because of their age and health concerns.
For now, the age limit will remain on the books until someone challenges it, said David Schultz, a political science professor at Hamline University and a law professor at the University of Minnesota who specializes in election and constitutional law. He said the key to any challenge would be who has the authority to make a claim.
“This is basically a law professor’s picky, ‘who gets to come through the courthouse door?’” Schultz said.
He said he considers the measure unconstitutional under the 1995 term limits decision, which bars states from making qualifications for Congress that go beyond what’s already in the U.S. Constitution.
He said a potential challenge could come from someone excluded from elections by the age limit – or possibly from a political party looking to nominate an older candidate. But he added that any class action lawsuit, such as an organization representing older people, would have to show how the age limit hurts them.
The measure takes effect immediately, although election results have yet to be certified. Independent candidates have until September to submit signatures to appear for the 2024 general election, meaning an age-restricted candidate could theoretically stand and be denied. The North Dakota Supreme Court would have jurisdiction over an appeal under the measure.
Schultz sees federal court as the likely avenue for any lawsuit. A judge and the Court of Appeal would both likely be bound by the 1995 deadline ruling, he said. Then the question would be whether the U.S. Supreme Court would accept this, he said.
“I wouldn’t be surprised if a lot of money appears on both sides as it moves up the professional chain, because I suspect there are interests here on both sides who would like to see the law enforced and would like to see the law deleted. down,” Schultz said.
A state legislative panel, anticipating a lawsuit, estimated it would cost the state $1 million to defend the age limit.
The measure is annoying in two ways, said Michael Thorning, director of the Structural Democracy Project at the Bipartisan Policy Center. It seems clear that even the initiative’s proponents know it likely violates the 1995 ruling. But Thorning said it is also baffling why supporters of the measure have not applied the age limit to state or local officials or presidential candidates.” if they have concerns or confidence in their argument.”
It’s unclear which groups outside North Dakota or the “existing constituency” would want to challenge the age limit, Thorning said. Several points could be raised, including older members of Congress who are among the most effective, and whether the state constitution would now violate the Equal Protection Clause of the 14th Amendment, Thorning said.
Notably, conservative Justice Clarence Thomas is the only member of the Supreme Court remaining after the 1995 five-to-four-term ruling, in which he dissented, he said.
Jared Hendrix, chairman of the sponsor committees of the age limit measure and of a successful 2022 gubernatorial and legislative term initiative, said he thinks there will likely be a challenge, but it will depend on someone with prestige. Hendrix said the group chose 80 as the maximum age because support at that point is overwhelming.
A federal lawsuit could theoretically take years, but the courts have sometimes shown unusual speed when it comes to access to ballots or the qualifications of candidates, such as former President Trump’s eligibility in some states under the U.S. Constitution’s insurrection clause, said Thorning.
U.S. Sen. Kevin Cramer, R-N.D., who is seeking re-election, opposed the measure. He said the age limit would arbitrarily limit voters’ choices.
“To me, things like term limits are promoted by a lazy democracy. The biggest part of our system is our self-government, which is reflected in voting and electing people and making your own decisions,” says Cramer (63).
