1

DUE PROCESS, EQUAL PROTECTION, AND SUFFRAGE

ANDREW MACKIE-MASON

“Well I called my congressman and he said, quote:

‘I'd like to help you son but you're too young to vote.’”
—Eddie Cochran, “Summertime Blues”

I. Introduction

One of the founding principles of American government is the ideal of legal and

political equality. No person can have more or less protection under the law than any

other, nor can any person have more or less influence over the government than any

other. While that ideal has never been fully realized, American history has seen great

progress. Many groups, formerly powerless, have achieved equality. However, youth in

America still hold that position common to many minorities throughout history:

powerless and unequal before the law. The most disturbing aspect of this situation is the

prevalence throughout the various states of trying youth in criminal courts as if they were

adults, even though no state in the union grants the right to vote to anyone under the age

of eighteen. This practice is not only abhorrent to the ideals of this nation; it is in

violation of the federal Constitution.

In this paper, I will not attempt to assert that all discrimination based on age is

unconstitutional, or even that a minimum voting age is, in and of itself, unconstitutional.

What violates the Constitution is the fact that adult responsibility is placed upon a group

that does not have full adult rights. Youth are expected to follow a set of laws that they

are unable to affect. This kind of double standard is unconscionable in a society based on

equal justice under the law, and harkens back to days of tyrannical government. Under

this rule, responsibilities without rights, the only way for a young person to be considered
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mature is to do something wrong.

II. Statutes

Juveniles can be tried as adults in many circumstances: a juvenile court judge may

waive jurisdiction, the decision can be made by prosecutorial discretion, and certain

offenses may be excluded from juvenile courts by statute. There are three main types of

statutes that allow juvenile court jurisdiction to be waived by the juvenile court judge:

discretionary waiver, mandatory waiver, and presumptive waiver.1 Discretionary waiver

allows a juvenile court to waive jurisdiction on a case, thereby binding it over to adult

criminal court. Mandatory waiver requires a juvenile court to transfer the case to adult

criminal court once certain statutory prerequisites are met. States with presumptive

waiver statutes or court rules place the burden on the juvenile to argue against transfer,

once certain requirements have been met. While the applicability of these statutes varies

by offense and prior history, I will consider only age. No matter how restrictive the

statute is in terms of when it can be applied, I argue that any application of the statute to a

citizen who does not have the vote violates the Constitution.

This system of waiver is widespread throughout the United States. Forty-six

states, and the District of Columbia, have statutes that fall within at least one of the above

categories. Forty-five states and the District of Columbia have discretionary waiver

statutes. Three allow waiver for defendants over the age of ten, and a total of thirty-four

have a minimum transfer age of fourteen or lower. All forty-six jurisdictions that allow

discretionary waiver do so by the age of sixteen, at the oldest. Seven states do not specify

1
U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and
Delinquency Prevention, http://ojjdp.ncjrs.org/pubs/tryingjuvasadult/transfer.html
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a specific age.2 Fourteen states have statutes that require mandatory waiver, with

minimum ages ranging from thirteen to seventeen years old. Indiana does not specify an

age for their mandatory waiver statute.3 Thirteen jurisdictions have statutes that create

presumptive waiver, with the minimum age ranging from fourteen to sixteen. Three states

do not specify an age.4

In addition to judicial waiver, fifteen states allow prosecutors the discretion to

decide whether to proceed with certain charges in juvenile or adult court 5 and twenty-

eight states exclude certain cases from juvenile jurisdiction altogether.6 These statutes

again vary based upon the age of the defendant, the charge, and prior history, but the

exact details are irrelevant to my argument.

III. Standard of Review

Before we consider the unconstitutionality of the above statutes, we must

determine the correct standard of constitutional review. The review should, properly, fall

within strict scrutiny, where the government must show that the discrimination is

narrowly tailored to a specific governmental interest. The review should be under a strict

scrutiny standard for two reasons: firstly, youth should constitute a suspect class under

equal protection doctrine; secondly, the right to vote and access to the courts both

2
U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and
Delinquency Prevention, http://ojjdp.ncjrs.org/pubs/tryingjuvasadult/table2.html
3
U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and
Delinquency Prevention, http://ojjdp.ncjrs.org/pubs/tryingjuvasadult/table3.html
4
U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and
Delinquency Prevention, http://ojjdp.ncjrs.org/pubs/tryingjuvasadult/table4.html
5
U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and
Delinquency Prevention, http://ojjdp.ncjrs.org/pubs/tryingjuvasadult/transfer2.html
6
U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and
Delinquency Prevention, http://ojjdp.ncjrs.org/pubs/tryingjuvasadult/transfer3.html
 4

implicate fundamental rights, necessitating a strict scrutiny review of the policy.

A. Suspect Class

Under equal protection doctrine, laws that relate to so-called “suspect classes”

(traditionally racial and religious groups) are automatically subjected to a strict scrutiny

review.7 It may seem to some that the Supreme Court has already ruled that youth do not

constitute a suspect class for this purpose. In fact, Justice O’Conner wrote,

Older persons, again, unlike those who suffer discrimination on the basis
of race or gender, have not been subjected to a " `history of purposeful
unequal treatment.' "…Old age also does not define a discrete and insular
minority because all persons, if they live out their normal life spans, will
experience it…

States may discriminate on the basis of age without offending the

Fourteenth Amendment if the age classification in question is rationally
related to a legitimate state interest.8

However, all of the opinions that this author can find with regards to age discrimination

are based upon old age, and define the elderly as not qualifying as a “discrete and insular

minority.” In fact, youth should be viewed as a “discrete and insular minority,” one

endowed with a higher standard of equal protection review. The case which create the

concept of a “discrete and insular minority,” United States v. Carolene Products Co., said,

There may be narrower scope for operation of the presumption of

constitutionality when legislation appears on its face to be within a
specific prohibition of the Constitution…

Nor need we enquire whether similar considerations enter into the review
of statutes directed at particular religious…or national…or racial
minorities… whether prejudice against discrete and insular minorities
may be a special condition, which tends seriously to curtail the operation
of those political processes ordinarily to be relied upon to protect
7
Linder, Doug, University of Missouri-Kansas Law School, “Exploring Constitutional
Law,” http://www.law.umkc.edu/faculty/projects/FTrials/conlaw/fundrights.html
8
Kimel v. Florida Board of Regents, 528 U.S. 62, 83 (2000)
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minorities, and which may call for a correspondingly more searching

judicial inquiry (emphasis added).9

Youth fit this definition in a way that the elderly do not. While the elderly can vote and

thus take advantage of the “political process ordinarily to be relied upon to protect the

minorities,” youth cannot, and thus legislation infringing upon the rights of youth should

be subjected to a more stringent standard of constitutional review.

B. Fundamental Rights

The case at hand implicates fundamental rights that justify strict scrutiny of the

laws authorizing the juveniles to be charged as adults. The right to vote, the denial of

which causes many of the constitutional issues, is considered a fundamental right under

equal protection doctrine. Justice Matthews wrote,

There are many illustrations that might be given of this truth...The case of
the political franchise of voting is one. Though not regarded strictly as a
natural right, but as a privilege merely conceded by society according to
its will under certain conditions, nevertheless it is regarded as a
fundamental political right.10

Eighty years later, Chief Justice Warren reaffirmed this language, writing,

Undoubtedly, the right of suffrage is a fundamental matter in a free and

democratic society. Especially since the right to exercise the franchise in a
free and unimpaired manner is preservative of other basic civil and
political rights, any alleged infringement of the right of citizens to vote
must be carefully and meticulously scrutinized (emphasis added).11

In fact, the majority in that case went so far as to consider the denial of the right to vote

comparable to the forced sterilization of criminals, in that both touched upon extremely

“sensitive and important area[s] of human rights.”12Any matter involving a denial of the
9
United States v. Carolene Products Co., 304 U.S. 144, fn 4 (1938)
10
Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)
11
Reynolds v. Sims, 377 U.S. 533, 561-62 (1964)
12
Reynolds v. Sims, supra, 562
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right of suffrage involves these “fundamental” rights “preservative of other basic civil

and political rights,” strict scrutiny of the relevant statutes is justified.

IV. Due Process and Equal Protection

The statutes referenced above are constitutionally questionable for two reasons,

though both challenges arise from the same portions of the Constitution. The Fourteenth

Amendment guarantees, “No State shall…deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.”13 Due process and equal protection are violated by the practice of

trying juveniles as adults both because voting rights fall under the scope of the Fourteenth

Amendment, and because trying a youth as an adult, in front of a jury drawn from voter

rolls and lacking any people of the defendant’s own age group, violates equal protection.

A. Political Rights

It is commonly accepted that “due process of law” extends to the traditional

trappings of our criminal justice system: a judge, a jury, and a chance to provide a

defense. However, that protection should be recognized as encompassing also the right to

vote. Indeed, the Fourteenth Amendment was passed as part of an effort to secure all the

rights of citizens under the law to newly freed slaves in Reconstruction-era America, not

just the most basic rights of the courtroom. The law does not exist separate from politics,

and part of “due process of law” is the right to affect the law and those who enforce it.

Due process includes the right to vote for the legislators who pass the law, to vote for the

prosecutor who enforces the law, and to vote for the judges who interpret the law. By
13
United States Constitution, Amendment Fourteen, Section 1
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giving one class of citizens more ability to affect the law that they are tried under, the

states are denying, to the other citizens, “equal protection of the laws.”

Disenfranchisement, combined with full responsibility for violations of the law, violates

due process and equal protection.

How youth are charged, and ultimately the punishments they receive, are very

much dependent upon elected officials, who non-voters cannot affect. Firstly, legislators

define what specific actions constitute a crime, and what factors determine the sentence a

convicted criminal receives. Legislation is the true beginning of “due process.” People

can only be convicted for crimes when those crimes are defined by a legislature that they

can affect. It would violate due process for a person to be prosecuted for something not

designated as a crime by the legislature, but that is exactly what happens to youth; the

laws they are charged under may as well have been laid down by a dictator or monarch.

The next category of elected officials, prosecutors, have wide discretion in

choosing exactly how to charge offenders, when to make deals, and what sentences to ask

for. Indeed, under many of the objectionable transfer statutes, prosecutors make the

decision about how a youthful offender should be tried. An article in the Seattle Times

states,

King County Prosecutor Dan Satterberg is searching for ways to stiffen

penalties faced by violent teenagers.

…In the meantime, Satterberg said he has been regularly using his legal
discretion to decide which teens should have their cases handled in adult
court, where penalties can be more severe.

…Satterberg can automatically transfer cases between the two courts

without a judge's permission if the youth involved are at least 16, are
accused of a serious or violent offense — including murder, rape, robbery
or arson — and have a significant criminal history.
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"By the time a juvenile has picked up a gun and is firing shots at other
people, they are no longer juveniles in either my view or in the eyes of the
law," Satterberg said.14

Fortunately for Mr. Satterberg, but unfortunately for justice, the population he is targeting

does not have a say in his re-election. Communities choose to elect their prosecutors

because they want them to be responsible to the community they live in; citizens want to

exercise their due process and equal protection by having a say in how crimes in their

community are prosecuted. Youth, however, are systematically denied that same due

process and equal protection. This denies youth the ability to impact prosecutorial

discretion, an important aspect of criminal justice.

The head of the courtroom, the judge, also impacts the outcome of trials. In

twenty-two states, the people vote directly for their judges; in twelve states, the governor

appoints the judges; in the remaining sixteen states, independent merit commissions

select a list of candidates from which the governor makes an appointment. 15 Even in

states in which the people do not directly vote for the judge, an elected official plays a

role in the process. The identity of the judge and their background do, in fact, affect how

a case turns out; it is sheer idealism to suppose that every case would end the same way

in front of every judge. The personality of the judge plays the most significant role in the

sentencing of convicted offenders. Appellate practice in the United States has left many

decisions up to the discretion of the trial judge, and the appellate judges tend to defer to

the decisions of lower courts when they are reasonable. While not every case will be that
14
Jennifer Sullivan, The Seattle Times, “Prosecutor targeting gun crime,”
http://seattletimes.nwsource.com/html/localnews/2009288895_juviecrime02m.html
[emphasis added]
15
Choi, Stephen J., Gulati, G. Mitu and Posner, Eric A.,Professionals or Politicians: The
Uncertain Empirical Case for an Elected Rather Than Appointed Judiciary(August 2007).
U of Chicago Law & Economics, Olin Working Paper No. 357; 2nd Annual Conference
on Empirical Legal Studies Paper. Available at SSRN: http://ssrn.com/abstract=1008989
 9

extreme, denying youth the opportunity to affect the composition of the judiciary denies

them some of the due process and equal protection of other defendants charged in the

same way.

The power of suffrage as it relates to the preservation of other rights has been

recognized throughout the Supreme Court’s history. Reexamining Yick Wo v. Hopkins, we

see that Justice Matthews wrote,

The case of the political franchise of voting is one. Though not regarded
strictly as a natural right, but as a privilege merely conceded by society
according to its will under certain conditions, nevertheless it is regarded as
a fundamental political right, because preservative of all rights (emphasis
added).16

In a democratic society, suffrage is indeed the right which is “preservative of all rights,”

because elections are the manner in which government of the people, by the people, and

for the people is maintained. This idea was not unique to that time period. It was

reaffirmed about eighty years later in Reynolds v. Sims, where Chief Justice Warren

wrote, “the right to exercise the franchise in a free and unimpaired manner is preservative

of other basic civil and political rights” (emphasis added).17 Since suffrage is the means

by which citizens are afforded the guarantee of their rights under the law, a citizen

deprived of the vote is not guaranteed due process or law, or equal protection under it.

One possible counter-argument does exist. Some may argue that minors are, in

fact, represented: they are granted a say in government through their parents, and the

parent-child unit is a single political entity. Even setting aside the impracticalities of such

a theory—through which parent the child is represented, who represents an emancipated

minor—and ignoring its glaring similarities to the theory of virtual representation in

16
Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)
17
Reynolds v. Sims, 377 U.S. 533, 561-62 (1964)
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British Parliament refuted by the American Revolution, such an argument must fail on

Constitutional grounds.

The parent-child political “unit” still consists of two distinct, individual “persons”

as defined under the Fourteenth Amendment. To grant those two individuals a single

voice in elections would abrogate the principle of “one man, one vote” held inviolate by

many opinions of the Supreme Court. Chief Justice Warren, in Reynolds v. Sims, wrote,

[I]t is inconceivable that a state law to the effect that, in counting votes for
legislators, the votes of citizens in one part of the State would be
multiplied by two, five, or 10, while the votes of persons in another area
would be counted only at face value, could be constitutionally
sustainable.18

Almost forty years later, Chief Justice Rehnquist wrote,

The right to vote is protected in more than the initial allocation of the
franchise. Equal protection applies as well to the manner of its exercise.
Having once granted the right to vote on equal terms, the State may not,
my later arbitrary and disparate treatment, value one person's vote over
that of another.19

If youth are counted as merely a part of their parents’ votes, the entire family unit is being

denied fair representation—a family of four only has two votes, the same as a childless

couple.

Beyond the issue of equal representation, it flies in the face of equal protection to

suppose that parents have the unbridled right to make decisions for their children. A

parent cannot force their child to plead any certain way in criminal court. A parent cannot

force their child to give up their Miranda rights, or to give up their right to counsel.

Those rights are retained by the minor, and there is nothing that makes their right to vote

for government officials any different.

18
Reynolds v. Sims, 377 U.S. 533, 562 (1964)
19
Bush v. Gore, 531 U.S. 98, 104-105 (2000)
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B. Jury Composition

Due process and equal protection are also violated by the exclusion of youth from

the juries that pass judgment on youthful offenders. During the post-Civil War era in

America, black citizens in America were routinely excluded from voter rolls, as part of a

nation-wide enforcement of white supremacy. The United States Supreme Court, in a

variety of cases, banned that practice, finding that it violated the “equal protection”

guarantee of the Fourteenth Amendment. Justice Strong, writing for the Court in 1897,

said,

That the West Virginia statute respecting juries…is such a discrimination

ought not to be doubted. Nor would it be if the persons excluded by it
were white men. If…a law should be enacted excluding all white men
from jury service, thus denying to them the privilege of participating fully
with the blacks in the administration of justice, we apprehend no one
would be heard to claim that it would not be a denial to white men of the
equal protection of the laws. Nor, if a law should be passed excluding all
naturalized Celtic Irishmen, would there be any doubt of its inconsistency
with the spirit of the amendment. The very fact that colored people are
singled out and expressly denied by a statute all right to participate in the
administration of the law as jurors because of their color, though they are
citizens and may be in other respects fully qualified, is practically a brand
upon them affixed by the law, an assertion of their inferiority, and a
stimulant to that race prejudice which is an impediment to securing to
individuals of the race that equal justice which the law aims to secure to
all others…

The Fourteenth Amendment makes no attempt to enumerate the rights it

designed to protect. It speaks in general terms, and those are as
comprehensive as possible. Its language is prohibitory, but every
prohibition implies the existence of rights and immunities, prominent
among which is an immunity from inequality of legal protection either for
life, liberty, or property. Any State action that denies this immunity to a
colored man is in conflict with the Constitution.

… [T]herefore…the statute of West Virginia, discriminating in the

selection of jurors, as it does, against negroes because of their color,
amounts to a denial of the equal protection of the laws to a colored man
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when he is put upon trial for an alleged offence against the State.20

Justice Strong’s opinion clearly places the right to a jury of one’s peers within the

protection of the Fourteenth Amendment. The systematic exclusion of blacks from the

jury roles violated black defendant’s right to equal protection. A similar exclusion

remains today. In my research, I could not find a single jurisdiction in any of the United

States where a citizen under the age of eighteen may serve on a jury. The same prejudice

created by excluding blacks from a jury charged with judging a black defendant is created

by excluding youth from a jury charged with judging a minor defendant. Trying youth in

adult court, in front of an adult jury, denies that defendant equal protection under the law.

In the interests of fairness, I will note that in the opinion above, Strauder v. West

Virginia, Justice Strong wrote,

We do not say that, within the limits from which it is not excluded by the
amendment, a State may not prescribe the qualifications of its jurors, and,
in so doing, make discriminations. It may confine the selection to males,
to freeholders, to citizens, to persons within certain ages, or to persons
having educational qualifications. We do not believe the Fourteenth
Amendment was ever intended to prohibit this. Looking at its history, it is
clear it had no such purpose. Its aim was against discrimination because of
race or color. As we have said more than once, its design was to protect an
emancipated race, and to strike down all possible legal discriminations
against those who belong to it.21

However, this dicta is not fatal to the argument at hand. This is an extremely outdated

view of the Fourteenth Amendment, and one unsupported by the text of the amendment.

This opinion should be to youth rights what Plessy v. Ferguson22 is to other minority

20
Strauder v. West Virginia, 100 U.S. 303, 308-10 (1897)
21
Strauder v. West Virginia, 100 U.S. 303, 310 (1897)
22
Plessy v. Ferguson (163 U.S. 537) is a case in which the Supreme Court upheld racial
segregation in public places under a doctrine of “separate but equal.” This doctrine was
refuted by the Court in Brown v. Board of Education (347 U.S. 483), and Plessy v.
Ferguson is regarded as one of the more grevious mistakes in this history of the Supreme
Court.
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rights. The amendment did not ban discrimination based upon race; instead, it gave equal

protection to “any person.” In the more than a century since Strauder v. West Virginia, the

Fourteenth Amendment has been extended to such diverse groups as homosexuals23,

women24, and men25, among others. The Fourteenth Amendment is widely recognized to

apply to issues beyond race.

V. Conclusion

State governments have an undeniable interest in preventing crime among young

offenders, but statutes that make youth criminally responsible as adults for their actions

violate those citizens’ rights to due process and equal protection. If a person, convicted of

a crime committed before the age of eighteen, is treated as an adult in the criminal justice

system, they are being denied due process and equal protection by virtue of the fact that

they are among a subset of prisoners who had less rights at the time of their conviction,

and that they were tried by a jury from which their peers were systematically excluded.

There can be no legitimate governmental interest in placing the full responsibilities of the

criminal justice system on a certain subset of its citizens while at the same time denying

those citizens the full political rights and jury rights as any other citizen; subjecting a

group of citizens to a set of laws they are not party to is not a legitimate governmental

interest; rather, it bears the signs of governmental tyranny. This action is not narrowly

tailored to a specific state interest; rather, it is designed to punish a minority that lacks a

political voice, the exact kind of group that due process and equal protection are designed

to protect.
23
Romer v. Evans, 517 U.S. 620 (1996)
24
United States v. Virginia, 518 U.S. 515 (1996)
25
Mississippi University for Women v. Hogan, 458 U.S. 718 (1982)
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I do not pretend to have a magic solution to the problem of finding the correct

voting age, and indeed, there is no single, correct age. State governments must decide

how old they want their citizens to be before they take on their full roles in the criminal

and political systems, but they cannot, constitutionally, maintain a double standard. If a

state wishes to treat those below and those above a certain age differently in political

matters and jury selection, the state must also treat them differently in criminal matters. If

one defendant is charged with the same crime and in the same court as another defendant,

but is denied political and jury rights granted to the other, that defendant has been denied

a part of his or her due process, and the very essence of “equal protection under the law.”

Voting age and the jurisdictional age within the criminal justice system are decisions that

should be left to the states, but the voting age cannot be the higher of the two.

There is also no easy definition for what it means to treat a juvenile offender as an

adult. At the current time, the distinction is relatively easy to make: there are two separate

systems, one “adult,” one “juvenile.” However, a state could, conceivably, create a

juvenile justice system practically identical to the adult justice system in all but name.

This is, perhaps, a question best left to the common sense of our judiciary. Each system

could be examined on a case-by-case basis, under the general rule that a juvenile justice

system cannot continue to hold criminals responsible for their actions once they become

adults. The specifics of the system are best considered by legislatures and local

jurisdictions, so long as the courts provide judicial oversight. This rule should provide

ample guidance to aid the courts in judging the constitutionality of the justice systems of

the various states.