Home » Analysis » Revisiting Sub Rosa Election Laws – Example One: Voting Age

Revisiting Sub Rosa Election Laws – Example One: Voting Age

Earlier I had written in a very general sense about the “secret” Texas Election Code; or more to the point, I had highlighted the importance of not taking Texas election statutes at face value without knowing how the law is interpreted by those who administer it. And I had said that I would provide some examples. Well, here’s the first belated example.

When is a person old enough to vote?

At first glance, this seems like an easy question to answer. A person has to be 18 in order to vote, per Section 11.002 of the Texas Election Code.

But when is a person 18? Common sense would suggest that one turns 18 on the anniversary of one’s birth. What with the cake and the candles and the presents, that date seems pretty unassailable as being the important date.

And yet …, owing to a peculiarity of the common law, one generally achieves the age of majority on the day before one’s birthday; and it was this common-law calculation of the age of majority that was made explicit in the Election Code for many years. Section 1.016 of the Election Code (and don’t bother looking for it – it’s been repealed) stated that one “turned” a certain age on the day before the anniversary of one’s birth. In other words, a person could vote when the person was 17 years and 364 days old.

This doctrine (often referred to as the “coming of age rule” and originating, as far as anyone can tell, in a 1677 inheritance case in the Court of Common Pleas (Nichols v. Ramsel, 86 Eng. Rep. 1072 (C.P. 1677)) is an object of scorn and frustration among legal scholars (see, e.g., this entertaining and thorough discussion of the doctrine in a recent Maryland case).

The common-law rule may be stupid; many people are of the opinion that it is stupid. Nevertheless, it is presumptively how age is calculated in Texas law, except in those circumstances where the Legislature has acted to set it aside. (As for example when the Penal Code explicitly defines a person attaining a particular age on the anniversary of the person’s birth, per Section 1.06).

So … all of this would naturally leave one with the impression that in Texas, a person whose 18th birthday falls the day after an election could still legally vote.

True, Section 1.016 was repealed, which might be seen as a legislative repudiation of the “coming of age rule.” But it takes more than a repeal of a statute to clear away a common law presumption.

Nevertheless, a person whose eighteenth birthday falls on the day after the election cannot vote. Why? There’s no legal citation to give in support. The reason is entirely bound up in a software design … feature.

When the State of Texas contracted to create an authoritative electronic statewide voter registration database, various computer programmers were engaged to build the logic for the database. Unfortunately, computer programmers do not have an innate awareness of or appreciation for the poetic fever dream that is the common law. Therefore, when the database was created, voters’ ages were calculated by using their dates of birth.

So poor database design has the effect of disenfranchising roughly one 365th of the 18 year-olds in the State of Texas. And you wouldn’t know it just by reading the Election Code.

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