Congressional age limit proposed in North Dakota in potential test case for nation

North Dakota State Elections Specialist Lee Ann Oliver, center, talks with Retire Congress North Dakota Chairman Jared Hendrix, at left, and U.S. Term Limits National Field Director Scott Tillman, at right, on Friday, Feb. 9, 2024, in the North Dakota Secretary of State's Office at the state Capitol in Bismarck, N.D. Hendrix and Tillman submitted petitions for a ballot initiative for a congressional age limit on North Dakota candidates. The office has until March 15 to review the signatures. The measure would be placed on the June ballot for North Dakota voters. (AP Photo/Jack Dura)

By JACK DURA Associated Press

BISMARCK, N.D. (AP) — North Dakota would be the first state to set an age limit for U.S. Senate and House candidates under a measure that could go before voters in June, though it’s unclear whether a state limit on federal officeholders would violate the U.S. Constitution.

The move comes at a time of heightened interest in the topic given the advanced age of some congressional leaders and the leading presidential candidates in both parties. At least one political observer said the move could be an effort to create a test case for the nation.

“It’s been an issue in North Dakota, it’s been an issue nationally,” said measure chairman Jared Hendrix, who led a successful 2022 initiative that set term limits for North Dakota’s governor and Legislature. “We don’t want to have those problems here, so it’s not some theoretical legal position. I mean, these are actual situations with real consequences.” The sponsoring committee for the measure includes current and former lawmakers.

Supporters of the initiative on Friday submitted nearly 42,000 signatures, far more than the roughly 31,000 signatures required to qualify for the June 11 ballot. The secretary of state’s office has until March 15 to review the signatures.

The proposal states, “No person may be elected or appointed to serve a term or a portion of a term in the U.S. Senate or the U.S. House of Representatives if that person could attain 81 years of age by December 31st of the year immediately preceding the end of the term.”

North Dakota has had octogenarian senators in the past, including Democratic Sen. Quentin Burdick, who died in office in 1992 at age 84.

University of North Dakota political science professor Mark Jendrysik has said the North Dakota initiative could be an effort to create a test case for the U.S. Supreme Court to see if the court would be willing to allow states to set congressional age limits on an individual basis. In a 1995 congressional term limits case, the court ruled that states cannot set qualifications for Congress beyond those listed in the U.S. Constitution.

The initiative “looks unconstitutional” under that decision, said Mitchell Hamline School of Law Associate Professor Jason Marisam, who teaches constitutional law and election law.

“The reasoning and the logic of that case go beyond term limits and would seem to apply to age,” said Marisam, who noted the 5-4 split on the ruling, with only Justice Clarence Thomas, who dissented, remaining on the court from that time. The initiative’s supporters “might want to roll the dice and see if the current court views things differently and is going to take a different position on that,” Marisam said.

If voters pass the measure, the age limit would still have to be challenged, he noted. The most concrete scenario would be a candidate who is affected by the age limit, he said.

The oldest member of North Dakota’s three-seat congressional delegation is Republican Sen. John Hoeven, who is 66.

The measure also has a “ballot advisory” to include candidates’ ages by the end of their term on the ballot if “superior law requires age-limited candidates to appear on the ballot.” The measure also appears to lay out a court process for denied candidates to challenge the age limit.

The initiative’s push emerged last summer amid age-related concerns for federal officeholders, including U.S. Sen. Dianne Feinstein, who died last year at age 90 after health issues, and Republican Senate Minority Leader Mitch McConnell, 81, who froze twice in front of reporters last year.

Last year, Texas voters rejected a measure to raise the mandatory retirement age for the judiciary from 75 to 79.

On Thursday, President Joe Biden, 81, blasted special counsel Robert Hur for saying the president had memory problems in his report into classified documents found in Biden’s possession. Republican presidential candidate Nikki Haley has raised age-related concerns about both Biden and former President Donald Trump, 77, the front-runner for the Republican presidential nomination.

Backers of the North Dakota measure filed a federal lawsuit last year, challenging the state’s constitutional provisions and laws against out-of-state petition circulators. A judge denied their request to temporarily allow such circulators, and set a bench trial for March 2025.

The initiative campaign reported over $591,000 in contributions in its 2023 year-end statement, most of that being in-kind from U.S. Term Limits.

U.S. Term Limits National Field Director Scott Tillman helped Hendrix carry boxes of petitions into the secretary’s office on Friday.

“Congress isn’t willing to take the steps, so it’s important that states lead on the issue,” Tillman said.