North Dakota’s voters approved a ballot measure that sets an age limit for who can represent the state in Congress. The constitutional amendment says a candidate cannot run if they would turn 81 during their term.

The measure is likely to be challenged in court and may not be constitutional. In its 1995 decision U.S. Term Limits, Inc. v. Thornton, the U.S. Supreme Court ruled that states cannot impose additional requirements on qualifying for Congress.

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“It’s probably not constitutional,” Sen. Josh Hawley, R-Mo., said. “The Constitution doesn’t, it sets out an age minimum, but not an age maximum. So my guess, I’m sure somebody will take this to court, but my guess is it’ll probably get struck down.”

But if this were upheld in court and states nationwide adopted it, about two dozen elected representatives would be impacted. In the House, 18 members either already are or would be too old to run for another term. Four senators are already too old and many more would be during another six-year term, including 79-year-old Sen. Dick Durbin, D-Ill.

“I don’t understand what North Dakota thinks they have the authority to establish any maximum age for service,” Durbin told Straight Arrow News.

Sen. John Cornyn, R-Texas, would barely be allowed to run for reelection; he would turn 80 at the end of another six-year term. 

“I love federalism, which means the states can pass their own rules, and we can have an experiment and see if it works,” Cornyn said. “So more power to them.”

Aside from the constitutionality, congresspeople wonder if this measure will send a message. If it were applied to presidential candidates, neither Donald Trump nor Joe Biden would be allowed to appear on North Dakota’s ballot in November. 

“We already have term limits for the president, obviously, we should have term limits for members of Congress,” Hawley told SAN. “I mean, just look around. I think there’s a lot of great examples of why we should have them.”