If Challenged, the North Dakota Constitutional Amendment Will Not Survive

Just recently, North Dakota enacted into their Constitution an age limit, here, for those serving in the U.S. House and the U.S. Senate. In particular, that constitutional amendment says: “no person may be elected or appointed to serve a term or a portion of the term in the U.S. Senate or the U.S. House of Representatives if that person could attain 81 years of age by December 31 of the year immediately preceding the end of the term.” I got to wondering whether this amendment will withstand scrutiny if it is ever challenged. Currently, nobody from North Dakota is in danger of activating this constitutional amendment but they certainly could be down the road. For reasons to be explained in this blog entry, if this constitutional amendment is ever challenged, that challenge will likely be successful. As usual, the blog entry is divided into categories, and they are: the constitutional challenge: U.S. Term Limits majority opinion; the constitutional challenge: U.S. Term Limits dissenting opinion; thoughts/takeaways U.S. Term Limits; and the ADA challenge. Of course, the reader is free to focus on any or all of the categories.

 

I

The Constitutional Challenge: U.S. Term Limits Majority Opinion

 

In 1995, United States Supreme Court decided the case of U.S. Term Limits, Inc. v. Thornton, here. In that decision, the U.S. Supreme Court in a 5-4 decision, threw out term limits that the voters of Arkansas had passed for U.S. House members and U.S. Senate members. The only person on the Court at the time that is still on the court is Justice Thomas, and he wrote a dissenting opinion in that case.

In throwing out the term limits, the following from the majority opinion is particularly significant.

 

1. The Framers made clear that the opportunity to be elected was open to all.
2. Madison said in the Federalist that the door of the legislature of the federal government was open to merit of every description, whether native or adoptive, whether young or old (emphasis added), and without regard to poverty or wealth, or to any particular profession of religious faith.
3. The power to add qualifications is not within the original powers of the States, and is not reserved to the States by the Tenth Amendment.
4. The Framers intended the Constitution to be the exclusive source of qualifications for members of Congress, and the Framers divested States of any power to add qualifications. In other words, neither Congress nor the States have the power to supplement the exlusive qualifications set forth in the text of the Constitution.
5. Madison also said in the Federalist that every citizen whose merit may recommend him to the esteem and confidence of the country can be the object of popular choice. No qualification of wealth, of birth, of religious faith, or of simple profession is permitted to fetter the judgment or disappoint the inclination of the people.
6. The Framers intended the Elections Clause to grant States authority to create procedural regulations, not to provide them with license to exclude classes of candidate from federal office.
7. A state amendment is unconstitutional when it has the likely effect of “handicapping,” (word used in the opinion itself), a class of candidates and has the sole purpose of creating additional qualifications indirectly.
8. The framers decided that the qualification for service in the Congress be fixed in the Constitution and be uniform throughout the country.

 

II

The Constitutional Challenge, U.S. Term Limits Dissenting Opinion

 

1. Nothing in the Constitution deprived the people of each State of the power to prescribe eligibility requirements for the candidate seeking to represent them and Congress. The Constitution is simply silent on that. Where the Constitution is silent, it raises no bar to action by the States or the people.
2. If the people of a State decide they would like their representative to possess additional qualifications, they have done nothing to frustrate the policy behind the qualification clauses. Anyone possessing all of the constitutional qualifications, plus some qualifications required by state law, still has all of the federal qualifications.
3. The fact that the Constitution specifies certain qualifications that the Framers deemed necessary to protect the competence of the national legislature did not imply that it strips the people of individual States of the power to protect their own interests by adding other requirements for their own representative.
4. The Framers did not want the federal Constitution itself to impose a broad set of disqualifications for congressional office. The Framers also did not want the federal Congress to be able to supplement the few disqualifications that the Constitution does set forth. The logical conclusion is that the Framers did not want the people of the States and their state legislatures to be constrained by too many qualifications imposed at the national level. That is not at all the same thing as an intent to bar the people of the States and their state legislatures from adopting additional eligibility requirements to help narrow their own choices.
5. The framers actually were very aware of the policy discussion behind whether term limits should be imposed and they never explicitly ruled them out.

 

III

Thoughts/Takeaways U.S. Term Limits

 

1. Both the majority and dissenting opinion makes clear that the framers were aware of the public policy discussion behind whether term limits could be imposed. That cuts either way with respect to term limits.
2. It is clear from the majority opinion that the constitutional amendment in North Dakota will fail to a constitutional challenge if the amendment is challenged.
3. Even under the dissenting opinion, a constitutional challenge might still fail. It can be argued that there is a distinction between an eligibility requirement and a qualification. Term limits would be an eligibility requirement as it doesn’t affect the qualifications for holding office. On the other hand, the age limit is most certainly a qualification for holding office.

 

IV

The ADA Challenge

 

Of course, since this is the understanding the ADA blog, you had to expect a discussion of an ADA challenge. The challenge would go something like the below.

 

1. A constitutional amendment is part of the State’s governing structure. Therefore, Title II of the ADA applies.
2. The ADA prohibits discrimination against a person who is regarded as having a physical or mental impairment. 42 U.S.C. §12102(1)(c). Clearly, the amendment regards persons 81 years or older as having cognitive impairments that do not allow them to perform the job of a legislator in Congress.
3. The ADA prohibits discrimination against a person with an actual disability or who has a record of a disability. 42 U.S.C. §12102(1)(a),(b).
4. Under title II of the ADA, a person is considered to be otherwise qualified if he or she can, with the without reasonable modification to rules, policies, or practices; the removal of architectural, communication, or transportation barriers; or the provision of auxiliary aids and services, meets the essential eligibility requirements for receiving services or participating in programs or activities provided by a public entity. 28 C.F.R. §35.104
5. A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration: (i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; (ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities. 28 C.F.R. §35.130(b)(3)(i),(ii). Both would seem to be satisfied by the North Dakota constitutional amendment.
6. A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered. 28 C.F.R. §35.130(b)(8). Hard to believe that the screening out would be necessary in all circumstances. The EEOC, for example, has certainly gone after healthcare entities that take that approach with respect to screening of physicians that are older.
7. As we know, the ADA requires an individualized analysis, which the amendment to the North Dakota Constitution simply does not allow.
8. So, there is little doubt that the North Dakota constitutional amendment regards persons as having a disability and fosters discrimination upon them. It also prevents people older than 81 years old (regardless of whether they have a disability of some kind), without cognitive impairments from being officeholders at the federal level regardless of whether reasonable modifications can be made to enable them to perform the job of the legislator.
9. Federal law always prevails over conflicting state enactments per the supremacy clause. Meeting today
10. In short, the 81-year-old limitation is, in my opinion, extremely likely to fail if challenged. Successful challenges could either be constitutional or based upon the ADA.