North Dakota could bar anyone over 80 from serving in Congress, but will the Supreme Court let it?

North Dakota officials on Friday gave the green light to advocates for term limits to start collecting signatures for a proposed amendment to the state constitution to bar anyone older than 80 from representing the state in Congress. The measure could, however, have a tough time surviving a court challenge, though it joins a long history of conservatives testing the limits of a 1995 U.S. Supreme Court decision that held that states cannot add further qualifications to candidates for Congress beyond those outlined in the U.S. Constitution.

That 1995 ruling, known as U.S. Term Limits v. Thornton, struck down an Arkansas initiative that tried to impose term limits on members of the state's congressional delegation. The court's 5-4 decision, which saw swing Justice Anthony Kennedy join the four liberal justices, explained that the only restrictions states could impose on congressional candidates were the ones spelled out in the nation's governing document: namely, a minimum (but not maximum) age, a minimum period of U.S. citizenship, and residency in the state they're seeking to represent at the time of election. Clarence Thomas, however, wrote a dissent that three fellow conservatives joined, saying he would have allowed Arkansas' law to stand.

Last year, Republicans in Tennessee decided to test whether Thomas' views might now hold sway on the Supreme Court, whose membership is now considerably further to the right than it was three decades ago. The GOP-dominated state legislature imposed a requirement that U.S. House candidates must have voted in the previous three statewide general elections to be eligible to run, a move that seemed to be aimed at blocking Morgan Ortagus, a former State Department spokesperson, from seeking the open 5th Congressional District. (Ortagus had only relocated from D.C. in 2021.)