BISMARCK — North Dakota voters will decide in June whether to ban 81-year-olds from standing for Congress. Friday, Secretary of State Michael Howe's office announced that a signature drive had added the question to the ballot. While some legal scholars say the state age limit for congressional seats is unconstitutional, it could challenge a decades-old Supreme Court precedent.
The ballot proposition wouldn't bar incumbents from running again. The oldest of North Dakota's three congressional delegation is Republican Sen. John Hoeven, 67. Octogenarian senators in North Dakota include Democrat Quentin Burdick, who died in office at 84 in 1992.
The effort only applies to legislative seats, although President Joe Biden, 81, and former President Donald Trump, 77, will compete in a rematch that has prompted age and fitness concerns. The 42,000 signatures that backers filed in February were 1,200 more legitimate than the 31,164 needed to get the item on the ballot, according to Howe's office.
University of North Dakota political science professor Mark Jendrysik believes the ballot initiative may be a test case to see if the Supreme Court will allow states to impose congressional age limitations. In a 1995 term limits decision, the court concluded that states cannot impose congressional criteria beyond those in the U.S. Constitution, which requires candidates to be 25 to serve in the House, 30 in the Senate, and 35 to become president but specifies no maximum age limits.
Constitutional and electoral law professor Jason Marisam of the Mitchell Hamline School of Law in St. Paul, Minn., said the legislation “looks unconstitutional” under that decision. Clarence Thomas, the lone justice left from that 1995 decision, dissented, arguing states or the people might act where the Constitution is silent.
Marisam said a test case against the age limit would require a challenge, likely from a candidate. “You need that challenge, and maybe that happens, maybe not,” Marisam remarked. “You can have an unconstitutional law on the books if it never comes up.”
The bill states: “No person may be elected or appointed to serve a term or portion of a term in the U.S. Senate or House of Representatives if they could reach 81 years of age by December 31st of the year immediately preceding the term.” The initiative committee chairman, Jared Hendrix, said the bill aims to prevent cognitive and age-related difficulties in elderly officeholders.
The measure was proposed last summer amid congressional age- and health-related scrutiny. After health issues, 90-year-old Democratic Sen. Dianne Feinstein died last year. Last year, 82-year-old Senate Minority Leader Mitch McConnell froze twice before reporters.
Biden raged about special counsel Robert Hur's memory report last month. Trump's name-mixing and other verbal errors have raised worries about his mental acuity. Due to erroneous or inadequate information and two non-U.S. petition circulators, Howe's office rejected over 9,700 petition signatures. Former and current state lawmakers support the measure.
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