Can You Vote Before Your 18th Birthday? Maybe

Wisconsin teen Zachary Ziolkowski won’t be allowed to allowed to vote Tuesday, since his 18th birthday is Wednesday. Most comments that I’ve seen online have been critical of the teen for even trying, and the Wisconsin Government Accountability Board ruled against him. But he has a credible argument.

The 27th Amendment states that “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.” And Wisconsin Statute 6.02 provides that “every U.S. citizen age 18 or older who has resided in an election district or ward for 28 consecutive days before any election where the citizen offers to vote is an eligible elector.” Section 6.05 goes on to say that this means “any person who will be 18 years old on or before election.

But, you say, Mr. Ziolkowski doesn’t “turn 18” until the day after the election. After all, he won’t get a birthday cake until Wednesday, November 5, and his birth certificate apparently says that he came into the world on November 5, 1996.

Of course, the matter is further complicated by the fact that most people are not born at the stroke of midnight. If someone was born at 12:01 AM on November 4, 1996, then there is no question that they are 18 years old on election day. If the polls open at 8:00, then they are 18 years and 7 hours old, clearly old enough to vote. But what about the prospective voter who was born at 11:59 PM? That person, even if they show up at closing time, has not been around for eighteen years. They are only 17 years, 364 days, and 20 hours old.

Most people would recognize that the kid born at 11:59 PM has the right to vote. Mathematically, that person is not 18 years old. But we need to draw the line somewhere, and most people assume that we draw the line with the birthday: When you wake up on your 18th birthday, you are 18 years old. That’s where the Wisconsin Government Accountability Board decided to draw the line.

But Mr. Ziolkowski has a pretty credible argument that the line should be drawn elsewhere. And the Social Security Administration, among others, agreed with him when it was called upon to decide whether a girl was entitled to social security benefits for the month of November 1962. The girl was born on December 1, 1944, and “turned 18,” under the common parlance, on December 1, 1962. She was collecting death benefits until 18. She was 17 years old the entire month of November, so one would think that she should collect benefits for that month. But the Social Security Administration ruled against her. It held that “a person attains a given age on the day before his corresponding birthday, i.e., the anniversary of his birth corresponding to that age.” In this case, the girl attained the age of 18 on November 30, the day before her birthday. Therefore, she was not entitled to benefits for November.  (Lest you think the government was being heartless to the poor girl, they recognized that the same rule should apply for the more common situation of calculating when benefits start, which they noted would be the day before the retiree’s 62nd birthday.)

The Social Security Administration noted that this rule “has been applied consistently by the courts.” It also noted that the rule was cited by both Blackstone and Kent. Interestingly, Blackstone’s phraseology is somewhat ambiguous:

So that full age in male or female is twenty-one years, which age is completed on the day preceding the anniversary of a person’s birth, who till that time is an infant, and so styled in law.

Blackstone’s Commentaries, page 92 (1915 edition)

Kent puts it this way: “The age of twenty-one is the period of majority … and that age is completed on the beginning of the day preceeding the anniversary of the person’s birth.”
Kent’s Commentaries, Vol. 2, page 265 (1860 edition).  Kent cites four cases for this proposition, two British cases and two American cases:

Anon. 1 Salk. 44. 1 Ld. Raym. 480, Sir Robert Howard’s case, 2 Salk. Rep.. 625, Hamlin v. Stevenson, 4 Dana’s Kentucky Rep. 597, and State v. Clarke, 3 Harr. Del. R. 557.

I didn’t find the full text of any of these cases online, but there is a nice summary of the Hamlin v. Stevenson case available here:

Stevenson owed Hamlin a sum of money which he refused to pay. Hamlin who was still an infant started this action against Stevenson to recover the debt. Stevenson had no real defense on the suit and so filed a dilatory defense to the effect that Hamlin was an infant and therefore ought to bring suit by a “next friend” according to the requirements of the court. It happened that Stevenson made this plea on the day preceding Hamlin’s twenty-first birthday and this was also the day of the trial. The question at issue was whether Hamlin had reached his majority on that day. Chief Justice Robertson gave the opinion of the Court: “It is the common law that a person is twentyone years old on the day preceding the twenty-first anniversary of his birth. Therefore, Hamlin was of age on the day when the plea was filed, and when the issue upon it was tried. Consequently he had the right to prosecute the suit in his own name without the intervention of a friend.

The Social Security Administration’s decision also cited two American cases, both of which are available online, United States v. Wright, 197 Fed. 297 (8th Cir. 1912), and Frost v. State, 45 So. 203 (Ala. 1907).  The Wright case states the rule very clearly, “an infant becomes of full age the first moment of the day before his twenty-first anniversary.”

It’s not surprising that Mr. Ziolkowski’s father happens to be an attorney. But according to the news item, he learned about the old common-law rule ” in his high school business law class.” At it certainly looks like he’s absolutely right.

The Wisconsin Legislature could have used the word “birthday” in the election statutes but did not do so. Elsewhere in the Wisconsin Statutes, the Legislature does use the word “birthday.” For example, under Wisconsin Statutes 938.18, a juvenile can be tried as an adult in certain cases when the offense took place “on or after the juvenile’s 15th birthday.” There’s a strong argument to be made that the phrase “age 18 or older” in the statute should be interpreted under the common law.

The Wisconsin Supreme Court has stated:

A statute does not change the common law unless the legislative purpose to do so is clearly expressed in the language of the statute. Id. To accomplish a change in the common law, the language of the statute must be clear, unambiguous, and peremptory.

Fuchsgruber v. Custom Accessories, Inc., 244 Wis.2d 758, 2001 WI 81, 628 N.W.2d 833 (2001).

Also, this isn’t really an issue of Wisconsin state law. As noted above, 18 year olds have the right to vote under the federal constitution. So the federal interpretation, such as that made by the Social Security Administration, seems compelling.

I’ll be an election judge in Minnesota on Tuesday. If you were born on November 5, 1996, and you walk into my precinct, this is above my pay grade. I’m going to call the county before I hand you a ballot. But I hope they say yes.

For further complications involving people who cross the International Date Line, there is a fictional case discussing the subject.  I believe it was in the book More Uncommon Law, but it might have been in the first volume, Uncommon Law: Being 66 Misleading Cases.

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