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A North Dakota ballot question could be a legal test case for political age limits

Sunlight illuminates the North Dakota House of Representatives in Bismarck, N.D. A ballot question will ask North Dakota voters whether the state should bar anyone from running for Congress if they'd turn 81 during their term.
Jack Dura
Sunlight illuminates the North Dakota House of Representatives in Bismarck, N.D. A ballot question will ask North Dakota voters whether the state should bar anyone from running for Congress if they'd turn 81 during their term.

A ballot question before North Dakota voters this summer will ask whether the state should bar anyone from running for the U.S. House of Representatives or Senate if they'd turn 81 before the last three days of their term.

It's the latest effort to set age limits for politicians, something that's seen growing support across the country but likely faces an uphill legal battle.

At least one Constitutional scholar says the North Dakota proposal would violate a Supreme Court ruling from the mid-1990s, and the high court would have to change its precedent to allow it.

Still, questions over the advanced age of some U.S. political leaders have grown louder recently, in part because the two presumptive nominees for the upcoming presidential election would be the oldest major-party candidates in history.

Joe Biden would enter a second term at 82 if reelected, and Donald Trump would be 78 for his second inauguration.

Other national political heavyweights have also faced questions about their age in recent years, including Republican Sen. Mitch McConnell of Kentucky and the late Democratic Sen. Diane Feinstein of California, who died last year while still in office at age 90.

There's broad public support for political age limits

According to a Pew survey last year, 79% of Americans support age limits for federal legislators, while 74% believe Supreme Court justices should be subject to age caps.

Some experts counter that judging federal lawmakers and other officials based solely on how old they are smacks of age discrimination and isn't an accurate predictor of competence. Critics of term limits — which regulate how many terms a politician can serve, regardless of age — have argued that restricting how much time legislators spend in office can limit institutional knowledge and increase political polarization.

Still, in a CBS News/YouGov survey conducted last year, more people said lawmakers over age 75 risked being out of touch or unable to do their jobs than those who said their advanced age could lend experience and seniority.

Jared Hendrix, chair of Retire Congress North Dakota, the group behind the ballot measure, saidthe 42,000 signatures collected for its petition demonstrated the support for the cause.

"With no term limits for Congress and the age and cognitive skills of elected officials taking center stage as of late, many are calling for age limits for Congress," he said in a statement in February.

According to a press release from North Dakota Secretary of State Michael Howe last week, 32,370 signatures were accepted, above the necessary threshold to put the question on the ballot.

Hendrix also took part in a similar effort, which voters approved in 2022, to place term limits on North Dakota's governor and state legislators.

But is it constitutional?

The language of the North Dakota petition says no one could be elected or appointed a U.S. senator or representative from the state if they "could be 81 years old by December 31 of the year immediately preceding the end of the term."

North Dakota has two senators and one representative. The oldest member of the current delegation, Sen. John Hoeven, just turned 67.

But even if there is public support for such a move, there's one major legal hurdle to overcome.

In 1995, the Supreme Court heard a case called U. S. Term Limits, Inc. v. Thornton, in which Arkansas tried to impose term limits on its senators and representatives.

(States are permitted to place restrictions on candidates for state office, which some, like California, have done. But the North Dakota ballot question and U. S. Term Limits, Inc. v. Thornton deal with candidates for federal office.)

The court ruled at the time that Arkansas couldn't place term limits on federal lawmakers, barring the introduction of any new restrictions on political candidates that weren't already included in the Constitution, such as age minimums.

"The basic argument was that this would allow states to effectively tinker with the Constitutional machinery, and that the framers had thought very carefully about what qualifications they thought were necessary," said Jeremy Paul, a law professor at the Northeastern University School of Law.

Paul, who called the North Dakota proposal "flatly unconstitutional," said if it passes it would likely be challenged in court and would only be able to take effect if the Supreme Court overturns its precedent.

But he cautioned that, even if federal law did change to allow age limits on lawmakers, such a move might not be in the public interest, drawing an analogy to some of the best coaches in sports history.

"If they had had the kind of term limits that people are now talking about putting on Congress, they would have won no championships, because it took them a while to figure out what they were doing," Paul said.

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