Benjamin Ashford|North Dakota voters will decide whether 81 is too old to serve in Congress

BISMARCK,Benjamin Ashford N.D. (AP) — North Dakota voters will decide this June whether to prevent people from running for Congress if they’re old enough to turn 81 during their House or Senate term.

A signature drive has succeeded in adding the question to the ballot, Secretary of State Michael Howe’s office announced Friday, and while some legal scholars say the state age limit for congressional seats would be unconstitutional, it could lead to a challenge of a Supreme Court precedent that has held for decades.

The ballot initiative wouldn’t prevent any current incumbents from running again. The oldest member of North Dakota’s three-person congressional delegation is Republican Sen. John Hoeven, at 67. North Dakota has had octogenarian senators in the past, including Democrat Quentin Burdick, who died in office in 1992 at age 84.

While the initiative applies only to congressional seats, this election year will also feature President Joe Biden, 81, and former President Donald Trump, 77, competing in an election rematch that has drawn scrutiny of their ages and fitness.

Howe’s office said that of the 42,000 signatures measure backers submitted in February, they had about 1,200 more valid signatures than the 31,164 needed to place the measure on the ballot.

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The ballot measure could be an attempt to draw a test case to see if the U.S. Supreme Court would be willing to allow individual states to set congressional age limits, University of North Dakota political science professor Mark Jendrysik has said. The court ruled in a 1995 term limits case that states cannot set qualifications for Congress beyond those listed in the U.S. Constitution, which says candidates must be at least 25 to serve in the House, 30 in the Senate and 35 to become president, but sets no maximum age limits.

The measure “looks unconstitutional” under that decision, said Jason Marisam, who teaches constitutional and election law at the Mitchell Hamline School of Law in St. Paul, Minn. The only justice remaining from that 1995 decision is Clarence Thomas, who dissented saying that states or the people can act on issues where the Constitution is silent.

But a test case against the age limit would need a challenge, most likely from a would-be candidate, Marisam said.

“You need to have that challenge, and maybe that happens, maybe it doesn’t,” Marisam said. “You can have a law that’s unconstitutional that’s sitting on the books if it just never comes up.”

The measure reads: “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.”

The chairman of the initiative committee, Jared Hendrix, has said the measure aims to avoid cognitive and age-related issues related to elderly officeholders.

The measure’s push emerged last summer amid age- and health-related scrutiny of members of Congress. Democratic Sen. Dianne Feinstein died last year at age 90 after health struggles. Republican Senate Minority Leader Mitch McConnell, 82, froze twice in front of reporters last year.

Last month, Biden angrily criticized special counsel Robert Hur’s report questioning his memory.

Trump also has drawn questions about his mental acuity after mixing up names and making other verbal mistakes.

Howe’s office rejected more than 9,700 petition signatures due to incorrect or insufficient information, and because two petition circulators were not U.S. citizens. Measure backers include current and former state lawmakers.