Voting rights are sacred, we are told. Americans are in universal agreement that blocking access to the ballot is unconstitutional. Discrimination has no place in our elections — except when it does.
This story of discrimination starts in Maryland, where some children are given the right to vote for a government official and other children are not.
In Howard County, students in grades six to 11 elect one “student member” to the school board. This right to vote is given only to students in public schools, even though the county school board has various contracts and relationships with religious schools.
This student member holds actual voting power in the government body. During the COVID-19 pandemic, when schools across the nation were reopening, the student member in Howard County cast the deciding vote to keep schools in Howard County closed.
All students enjoy the sacred right to vote unless the student attends a religious school.
The Public Interest Legal Foundation, of which I am president, brought a case in federal court on behalf of Lisa Kim and her son, who attends a Catholic school. This week, the 4th U.S. Circuit Court of Appeals is hearing oral arguments in the case.
The history of discrimination against parochial school students in the United States goes back more than a century. The Supreme Court in 1925 struck down an Oregon law that prohibited education in Catholic schools.
The issue in the 4th Circuit this week is whether a government may extend the right to vote for children to elect a government official but not extend the right to vote to children in religious schools. Remember, under state law, students with disabilities in Catholic schools are entitled to transportation to and from school, among other services provided by the county board to Catholic school students.
Yet students in Catholic schools are denied the right to vote for the student school board member.
The child voting law being challenged this week violates not only the First Amendment’s religious liberty protections but also the equal protection clause of the 14th Amendment.
Adopted in the aftermath of the Civil War, the equal protection clause mandates the equal allocation of political power.
For example, the 14th Amendment would prohibit giving Whites two votes and Blacks one vote for the same office. Supreme Court precedent prohibits giving extra voting power to politically favored factions.
Before 1964, sparsely populated rural counties in Alabama enjoyed one state senator, while densely populated Birmingham also had a single senator. The challenge to Alabama’s unequal allocation of political power led to the familiar “one person, one vote” mandate of the 14th Amendment. Unequal political representation violates the 14th Amendment.
The Maryland child voting law gives students more political power than adults, just like Alabama used to give farmers more power in the state Legislature at the expense of urban, often Black residents of Birmingham.
Imagine two homes, side by side. In the first, an 18-year-old high school student enjoys a vote for the child school board member. She can also vote for two at-large school board seats and one district seat in the regular election. The widow next door can vote only for the same two at-large seats and her one school board member district seat.
Public school students get four school board representatives; everyone else gets three.
Howard County’s defense is that the children’s election for the student member isn’t an election. That’s what the segregationists in Texas 100 years ago said about the Democratic primary that ended up electing every single official in Texas. They claimed it was a private club, not an election. The Supreme Court has said an election occurs whenever a public issue is decided through voting.
If it quacks like an election, it’s an election.
These violations of the First and 14th amendments don’t even reach the shaky policy foundations that allow children to serve on an elected school board that oversees a $1 billion budget. The implications of this case are profound.
If the courts do not stop these constitutional violations, legislatures will be free to delegate legislative seats on local government boards for favored political factions. South Carolina could reserve a seat for membership in the National Rifle Association, and Maryland could extend the political subsidy to the Sierra Club by giving it a seat on local school boards.
In our divided and polarized country, allowing favored groups to enjoy set-aside seats on government bodies is incendiary.
• J. Christian Adams is a commissioner on the U.S. Commission on Civil Rights and president of the Public Interest Legal Foundation.