VICTORY! VOTE Act leaves Washington State Legislature and heads to Governor Inslee

Young peo­ple who are sev­en­teen years of age but would turn eigh­teen by Gen­er­al Elec­tion Day would be allowed to vote in pres­i­den­tial pri­maries and Top Two elec­tions under leg­is­la­tion that received final approval today in the Wash­ing­ton State Sen­ate. ESB 6313, prime spon­sored by Sen­a­tor Marko Liias, is now on its way to Gov­er­nor Jay Inslee after receiv­ing an affir­ma­tive con­cur­rence vote.

Known as the VOTE (Vot­ing Oppor­tu­ni­ties Through Edu­ca­tion) Act, ESB 6313 is a fol­low-up to the Democ­ra­cy Access Pack­age pre­vi­ous­ly approved by leg­is­la­tors in the 2018 short ses­sion. It makes three impor­tant changes to state law:

• Allows per­sons to vote in a pres­i­den­tial pri­ma­ry or Top Two elec­tion if they are sev­en­teen years old, but will be eigh­teen by the gen­er­al election.
• Requires that the Depart­ment of Licens­ing pro­vide an auto­mat­ed process for six­teen and sev­en­teen year olds to sign up to reg­is­ter to vote.
• Requires that pub­lic uni­ver­si­ties, if request­ed by the stu­dent gov­ern­ment, and cer­tain pub­lic uni­ver­si­ty branch cam­pus­es open stu­dent engage­ment hubs to pro­vide ballots.

The VOTE Act has two effec­tive dates. Most of the leg­is­la­tion takes effect Jan­u­ary 1st, 2022. Some pro­vi­sions will take effect Sep­tem­ber 1st, 2023. The entire bill will be in effect before vot­ing begins in the 2024 pres­i­den­tial elec­tion cycle.

Repub­li­cans refused to sup­port the leg­is­la­tion in both the Sen­ate and the House of Rep­re­sen­ta­tives, leav­ing Democ­rats to pass it on their own.

The Sen­ate roll call on con­cur­rence was as follows:

ESB 6313
Young vot­ers
Sen­ate vote on Final Pas­sage as Amend­ed by the House
3/7/2020

Yeas: 27; Nays: 21; Excused: 1

Vot­ing Yea: Sen­a­tors Bil­lig, Car­lyle, Cleve­land, Con­way, Darneille, Das, Dhin­gra, Frockt, Hasegawa, Hunt, Keis­er, Kud­er­er, Liias, Lovelett, McCoy, Mul­let, Nguyen, Ped­er­sen, Ran­dall, Rolfes, Sal­daña, Salomon, Stan­ford, Takko, Van De Wege, Well­man, Wil­son (Claire)

Vot­ing Nay: Sen­a­tor Beck­er, Braun, Brown, Erick­sen, For­tu­na­to, Hawkins, Holy, Hon­ey­ford, King, Muz­za­ll, O’Ban, Pad­den, Rivers, Schoesler, Shel­don, Short, Wag­oner, Walsh, War­nick, Wil­son (Lyn­da), Zeiger

Excused: Sen­a­tor Hobbs

Sen­a­tor Hans Zeiger, speak­ing for the Sen­ate Repub­li­can cau­cus, argued the bill should not be passed because the Unit­ed States Con­sti­tu­tion and Wash­ing­ton State Con­sti­tu­tion spec­i­fy that the min­i­mum age to vote is eighteen.

How­ev­er, Zeiger is incorrect.

For ref­er­ence, here’s what our fed­er­al con­sti­tu­tion says:

Unit­ed States Con­sti­tu­tion: Amend­ment XXVI

SECTION 1.
The right of cit­i­zens of the Unit­ed States, who are eigh­teen years of age or old­er, to vote shall not be denied or abridged by the Unit­ed States or by any State on account of age.

SECTION 2.
The Con­gress shall have pow­er to enforce this arti­cle by appro­pri­ate legislation.

And here’s what our state Con­sti­tu­tion says:

Wash­ing­ton State Con­sti­tu­tion: Amend­ment 63

SECTION 1. QUALIFICATIONS OF ELECTORS. All per­sons of the age of eigh­teen years or over who are cit­i­zens of the Unit­ed States and who have lived in the state, coun­ty, and precinct thir­ty days imme­di­ate­ly pre­ced­ing the elec­tion at which they offer to vote, except those dis­qual­i­fied by Arti­cle VI, sec­tion 3 of this Con­sti­tu­tion, shall be enti­tled to vote at all elections.

Sen­a­tor Zeiger’s argu­ment fails because the afore­men­tioned pro­vi­sions do not bar peo­ple under the age of eigh­teen from vot­ing. The amend­ments say clear­ly that if you are eigh­teen years of age or old­er, you can­not be dis­qual­i­fied from vot­ing on account of age. Mean­ing, some­one under the age of eigh­teen can be dis­qual­i­fied under these pro­vi­sions, but dis­qual­i­fi­ca­tion is not required.

Our inter­pre­ta­tion is that the VOTE Act is constitutional.

It’s worth not­ing that sev­en­teen oth­er states cur­rent­ly allow sev­en­teen year-olds to vote in pri­maries. They are Col­orado, Con­necti­cut, Delaware, Illi­nois, Indi­ana, Ken­tucky, Maine, Mary­land, Mis­sis­sip­pi, Nebras­ka, New Mex­i­co, North Car­oli­na, Ohio, South Car­oli­na, Vir­ginia, Ver­mont, and West Virginia.

There is no case law sup­port­ing Sen­a­tor Zeiger’s interpretation.

“No case has test­ed whether the fed­er­al gov­ern­ment pos­sess­es the pow­er to pre­vent states from low­er­ing their vot­ing age below eigh­teen, since it has nev­er tried to bar states from doing so,” jour­nal­ist and his­to­ri­an Andrew Glass observed in a 2017 arti­cle for Politi­co that sum­ma­rized Ore­gon v. Mitchell.

Our team at NPI is very much look­ing for­ward to enact­ment of ESB 6313 because adop­tion of this leg­is­la­tion will final­ly allow the pres­i­den­tial pri­ma­ry to reach “par­tic­i­pa­tion par­i­ty” with the Wash­ing­ton State Demo­c­ra­t­ic Par­ty’s pre­vi­ous sys­tem of pres­i­den­tial precinct cau­cus­es for del­e­gate allocation.

What do we mean by “par­tic­i­pa­tion parity”?

I’m refer­ring to the fact that even though pri­maries are jus­ti­fi­ably con­sid­ered more inclu­sive and eas­i­er to par­tic­i­pate in than cau­cus­es, the Demo­c­ra­t­ic Par­ty’s precinct cau­cus sys­tem nonethe­less used to have a cou­ple of very inter­est­ing and impor­tant par­tic­i­pa­tion advan­tages over the pres­i­den­tial primary.

One of those advan­tages was same-day vot­er registration.

A per­son not reg­is­tered to vote could fill out a vot­er reg­is­tra­tion form at a cau­cus and would be allowed to par­tic­i­pate under par­ty rules. Until last year, same-day vot­er reg­is­tra­tion was not allowed in Wash­ing­ton State. Now it is allowed, and a vot­er may reg­is­ter to vote right up until the dead­line to return bal­lots. We were able to achieve same-day reg­is­tra­tion par­i­ty with the Democ­ra­cy Access Package.

The sec­ond was that the Demo­c­ra­t­ic Par­ty’s rules explic­it­ly allowed per­sons who would be eigh­teen years of age by the date of the Novem­ber gen­er­al elec­tion to vote in the cau­cus even if they were not eigh­teen as of the date of the caucus.

In pre­vi­ous leg­isla­tive ses­sions, we asked the House and Sen­ate to adopt leg­is­la­tion sim­i­lar to ESB 6313 so that sev­en­teen year olds turn­ing eigh­teen by the Novem­ber 2020 gen­er­al elec­tion would be able to vote in the pres­i­den­tial primary.

Sad­ly, that did not hap­pen, but at least now the Leg­is­la­ture has act­ed, and going for­ward, sev­en­teen year olds will be able to vote in pres­i­den­tial pri­maries as well as Top Two elec­tions, which are real­ly the first round of the Novem­ber gen­er­al elec­tion. This is a big win for par­tic­i­pa­tion, inclu­sion, and democracy.

We thank the Leg­is­la­ture for get­ting this done. On to the bill signing!