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How old is an 18-year-old on the day he turns 18? Older than you might think, says a Grafton lawyer fighting to get his son the right to vote in the Nov. 4 election.

Tim Ziolkowski said his son Zachary actually will be 18 years and 1 day old on his Nov. 5 birthday, making him a legal voter the day before, also known as Election Day. Wisconsin voters will go to the polls to decide many high-profile offices including governor, attorney general and U.S. House.

“He’s been looking forward to voting for quite awhile,” Ziolkowski said . “It’s pretty important to him.”

Standing in his way are the village clerk and lawyers for the state’s Government Accountability Board, who told Ziolkowski last week that a 1970 state Supreme Court ruling on a different matter clearly nods toward a more conventional understanding of birthdays.

“The day of an 18th birthday begins the person’s 19th year, but the person does not reach age 18 until midnight on the birthdate,” wrote Michael Haas, elections division administrator for GAB.

Ziolkowski, a patent and trademark lawyer, is not persuaded by the arguments made by GAB and will have a hearing on the matter before the board at its meeting on Tuesday. He said the 1970 Supreme Court ruling is “interesting but tangential” to the issue.

Since the matter is not directly addressed in Wisconsin case law, Ziolkowski said federal rulings take precedence. He pointed to a 1969 U.S. court of appeals ruling in Alaska related to the statute of limitations in a personal injury claim.

“Since one is in existence on the day of his birth, he is, in fact, on the first anniversary of his birth, of the age of one year plus a day or some part of a day,” the court wrote. “The appellant did, then, reach the age of 19 years on the day before the 19th anniversary of his birth.”

Ziolkowski said his son first got the idea to vote in this election from a high school textbook used in a business class. “Understanding Business and Personal Law” includes a section about contracts of minors.

It also states that 18-year-olds achieve that age the day before their birthdays.

“His teacher was absolutely adamant that he should be able to vote in this election,” Tim Ziolkowski said.

If Ziolkowski wins support from the GAB, it’s not clear how many voters would become eligible statewide.

There were 11 births on Nov. 5, 1996, in the Madison area, according to State Journal archives. It’s also not clear how it would affect other age-based legal rights. Most if not all taverns consider a person to be 21 years old — and eligible to drink legally — on his or her 21st birthday.

Zachary Ziolkowski was not available for comment Monday; he was at school.

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