THOMAS P. FOX, Director Legislative Services.

Attorney General of Wisconsin — Opinion.
September 24, 1971.

Elections — 18-Year-Old Vote — (Formal) — Adoption of the Twenty-sixth Amendment to the United States Constitution makes question of constitutionality of Bill 212A moot.

ROBERT W. WARREN, Attorney General

THOMAS P. FOX, Director Legislative Services

By 1971 Assembly Resolution 12, you have requested my opinion as to the constitutionality of the statute proposed by 1971 Assembly Bill 212. Bill 212A would create sec. 5.02 (1m), Stats., to read as follows:

“5.02 (1m) `Federal election’ means all primaries and elections held to nominate or elect United States senators, representatives in congress and electors of president and vice president including the election to express preferences for the person to be the presidential candidate for each party.”

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Assembly Resolution 12 was introduced in the Assembly February 4, 1971, and adopted April 28, 1971. At that time, it appeared that the legislature would be required to define the limits of a “federal election” or a “national election,” since the United States Supreme Court had held in Oregon v. Mitchell (1970), 400 U.S. 112, 91 S.Ct. 260, 261, 27 L.ed. 2d 262:

“. . . that the 18-year-old vote provisions of the Voting Rights Act Amendments of 1970 are constitutional and enforceable insofar as they pertain to federal elections and unconstitutional and unenforceable insofar as they pertain to state and local elections.”

As a practical result of this decision, most states, including Wisconsin, acquired a new special classification of voters, i.e., those entitled to exercise a franchise limited to “federal” or “national” elections. Bill 212A would differentiate between federal, state or local elections in order to implement the exercise of such an 18-year-old federal franchise.

Subsequent to Oregon v. Mitchell, supra, however, Congress proposed the following article as an amendment to the Constitution of the United States:

“Article —

“SECTION 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

“SEC. 2. The Congress shall have power to enforce this article by appropriate legislation.”

On June 30, 1971, Ohio became the 38th state to ratify the amendment and on July 5, 1971, by virtue and in pursuance of § 106b, Title 1 of the United States Code, it was certified by the United States Administrator of General Services as the Twenty-sixth Amendment to the United States Constitution. See Federal Register, Vol. 36, No. 130, July 7, 1971. By virtue of this amendment, 18-, 19- and 20-year-old citizens, who are otherwise qualified to vote, are entitled to exercise their right to vote in all future elections, whether they be federal, state or local.

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The adoption of the Twenty-sixth Amendment clearly appears to have eliminated the previously existing distinction between federal elections and state or local elections. Therefore, since both Bill 212A and Assembly Resolution 12 appear to have been based on a distinction which no longer exists, it is apparent that the questions raised in your inquiry have become moot.

RWW:JCM