AGO 2018 No. 6 - Sep 5 2018
ELECTIONS—VOTER REGISTRATION—CITIES AND TOWNS—COUNTIES—DISTRICT, SCHOOL—Extending The Right To Vote In Local Elections To Minors Over The Age Of 17
- A city, county, or school district lacks the authority to allow individuals who have reached the age of 17, but not yet reached the age of 18, to vote in elections for that jurisdiction.
- The legislature may not allow by statute individuals who have reached the age of 17, but not yet reached the age of 18, to vote in local elections nor allow a city, county, or school district to do so by local option.
September 5, 2018
The Honorable Steve Bergquist
Dear Representative Bergquist:
By letter previously acknowledged, you have requested our opinion on the following questions:
- May a city, county, or school district pass a measure allowing individuals who have reached the age of 17, but not yet reached the age of 18, to vote in elections of that jurisdiction?
- If the answer to question 1 is “no,” would a state statute that either allows individuals who have reached the age of 17, but not yet reached the age of 18, to vote in local elections, or that allows a city, county, or school district to allow them to vote at local option, be consistent with article VI, section 1 of the Washington Constitution?
The answer to both of your questions is no. Article VI, section 1 of the Washington Constitution, titled “Qualifications of Electors,” sets forth the necessary criteria to vote in “all elections,” including that potential voters be at least 18 years old. A statute, ordinance, or measure may not waive this mandatory constitutional qualification.
Your questions cause us to consider the meaning and application of article VI, section 1, which provides:
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.
The threshold inquiry is whether section 1 merely identifies a subset of the population who have the constitutional right to vote in elections, or whether section 1 establishes the exclusive, mandatory criteria that all voters must meet in order to vote in elections. If section 1 is only a positive grant of the right to vote to persons meeting the listed qualifications, but not an exclusive, conjunctive set of qualifications to vote, then a statute, ordinance, or measure altering one of the listed criteria (such as minimum age) would not be inconsistent. We would then analyze whether any statutes govern the issue. If, on the other hand, section 1 sets forth mandatory constitutional prerequisites to voting, it would preclude the legislature or local government from waiving or altering those eligibility requirements. State ex rel. Distilled Spirits Inst., Inc. v. Kinnear, 80 Wn.2d 175, 180, 492 P.2d 1012 (1972) (recognizing principle that state constitution limits legislative power); see also Anderson v. Chapman, 86 Wn.2d 189, 196, 543 P.2d 229 (1975) (“The courts cannot engraft exceptions on the constitution[.]”).
The objective in analyzing a constitutional provision is to discern the “understanding of the ratifying public.” Malyon v. Pierce County, 131 Wn.2d 779, 799, 935 P.2d 1272 (1997). To that end, “[a]ppropriate constitutional analysis begins with the text” of the provision in question, which “necessarily includes the words themselves, their grammatical relationship to one another, [and] their context.” Id. Where the title of a constitutional provision is part of the text that was ratified, it is part of that provision’s context and relevant to the provision’s meaning. Maylon, 131 Wn.2d at 800 (finding article I, section 11 “must, on fair reading, be said to serve [the] purpose” of its title, “Religious Freedom”); see also State v. Lundell, 7 Wn. App. 779, 782 n.1, 503 P.2d 774 (1972) (finding section headings “placed in the original act by the legislature without any limiting provisions” are “an integral part of the law and are useful in statutory interpretation”). If there is ambiguity of the text of a provision, we then “look to the constitutional history for context.” League of Educ. Voters v. State, 176 Wn.2d 808, 821, 295 P.3d 743 (2013); see also Zachman v. Whirlpool Fin. Corp., 123 Wn.2d 667, 671, 869 P.2d 1078 (1994) (looking to legislative history and material in the official voters’ pamphlet to interpret constitutional amendment).
We begin with the text of section 1, which is titled “Qualifications of Electors.” Const. art. VI, § 1 (amend. 63). We consider the title of section 1 significant to its meaning, because it was part of the text that was proposed by the legislature and ratified by the people in 1974. S. J. Res. 143, 43d Leg., 3d Ex. Sess. (Wash. 1974); Voters’ Pamphlet 9 (1974); Maylon, 131
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Wn.2d at 800. The word “qualifications” traditionally signifies mandatory conditions which must be met before a person may vote. See Gerberding v. Munro, 134 Wn.2d 188, 198-99, 949 P.2d 1366 (1998). Courts look to “standard English language dictionaries” to determine the “‘plain, ordinary and popular’ meaning” of undefined constitutional terms. Id. at 199 (quoting Boeing Co. v. Aetna Cas. & Sur. Co., 113 Wn.2d 869, 877, 784 P.2d 507 (1999)). In analyzing whether an initiative would conflict with the constitutional provisions setting forth qualifications for state constitutional officers, the Supreme Court defined “qualifications” as “attributes which must be met before a person can be a candidate for office or officeholder such as age, residence, or citizenship.” Gerberding, 134 Wn.2d at 199 (citing Webster’s II New Riverside University Dictionary 961 (1984)). Thus, the presence of the word “qualifications” in the title of section 1 suggests that the conditions listed are attributes that must be met before a person can vote.
As noted in your request, one might argue that the remaining text of section 1, providing that “[a]ll persons” meeting the listed criteria “shall be entitled to vote,” grants an inclusive right, but does not preclude the legislature or a local government from authorizing others (such as 17 year-olds) to vote. The Washington Supreme Court has acknowledged the legislature’s plenary authority to “control and regulate the ballot, so long as the right [to vote] is not destroyed or made so inconvenient that it is impossible to exercise it.” State ex rel. Shepard v. Superior Court for King County, 60 Wash. 370, 372, 111 P. 233 (1910); see also State ex rel. Carroll v. Superior Court for King County, 113 Wash. 54, 57, 193 P. 236 (1920). But in those cases, the Court was addressing statutes that imposed restrictions on voting or ballot access, not expansion of the right to vote beyond article VI. And, the same Court also recognized that the “right to vote is a constitutional right, given by the people to certain citizens and withheld from others.” State ex rel. Shepard, 60 Wash. at 372 (emphasis added). In other words, while the legislature may be able to regulate the manner in which the right to vote may be exercised, the constitution governs who has the right to begin with. Id.; see also Tennent v. Stacy, 48 Wn.2d 104, 106, 291 P.2d 647 (1955) (“Registration statutes neither add to nor detract from the qualifications that the constitution requires of an elector.”). As relevant here, section 1 gives the right to vote to those citizens 18 years of age and older, and withholds it from those who are younger or who do not otherwise meet the qualifications. Additionally, the body of section 1 “must, on fair reading, be said to serve” the purpose of its title. Maylon, 131 Wn.2d at 800. Here, the title, “Qualifications of Electors,” informs the meaning of the body of that section, and leads us to conclude that it sets forth mandatory prerequisites to voting.
Even if section 1 were susceptible to more than one meaning, its history confirms the framers’ and ratifying public’s intent to set forth exclusive qualifications to voting. The original text of section 1 used the word “qualifications” to describe the characteristics identified in that provision: “All male persons of the age of twenty-one years or over, possessing the following qualifications, shall be entitled to vote at all elections[.]” Const. art. VI, § 1 (1889). In 1974, the text was changed, but the word “qualifications” became part of section 1’s title. Const. art. VI, § 1 (1974) (amend. 63); S. J. Res. 143.
When first ratified as part of the original constitution in 1889, section 1 limited voting to “male persons of the age of twenty-one years or over,” among other qualifications. Const. art. VI,
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§ 1 (1889). There was intense debate at the Constitutional Convention about women’s suffrage, but the delegates feared that the ratifying public would reject a constitution that included it. The Journal of the Washington State Constitutional Convention 1889 With Analytical Index by Quentin Shipley Smith 663 (Beverly Paulik Rosenow ed. 1962). The delegates instead submitted the question of women’s suffrage to male voters as an article separate from the constitution, which the voters defeated. Robert F. Utter & Hugh D. Spitzer, The Washington State Constitution: A Reference Guide 120 (2002). Critically here, the delegates also debated a constitutional provision that would have allowed the legislature to pass a law granting those not meeting the qualifications in Section 1 the right to vote. Journal at 636-37 (discussing a proposed provision that the “[l]egislature may provide for the extension of suffrage to persons other than as specified in the Constitution”). That effort failed among concerns that the ratifying public, rather than the legislature, should decide who is entitled to vote. Id. Thus, the constitutional delegates specifically considered and rejected the possibility of allowing for future legislative expansion of voter eligibility.
Section 1 was amended several times, but there is no indication it was ever amended to delegate authority to the legislature or local governments to decide voter qualifications. Most recently, in 1974, Amendment 63 was proposed in order to remove certain qualifications that had been effectively altered or invalidated by federal law. Voters’ Pamphlet 9 (1974). These included the extension of the right to vote to citizens 18 years of age or older pursuant to the Twenty-sixth Amendment to the United States Constitution, and the United States Supreme Court’s invalidation of residency requirements longer than 30 days. Voters’ Pamphlet 9 (1974). The text of Amendment 63 as proposed by the legislature and passed by the voters included the phrase “qualification of electors” as the caption to the section. S. J. Res. 143, 43d Leg., 3d Ex. Sess. (Wash. 1974), reprinted in Voters’ Pamphlet 13 (1974). Accordingly, the explanatory statement in the voters’ pamphlet declares that the amendment would “simply require that in order to vote in an election in this state, a person must be a United States citizen who is eighteen years of age or older, and who has been a resident of the state, county and precinct in which he resides for at least thirty days prior to the election at which he seeks to vote.” Voters’ Pamphlet 13 (1974). This language suggests the ratifying public would have understood that Section 1 was continuing to set forth mandatory voter eligibility requirements. Voters’ Pamphlet 13 (1974); see Washington Econ. Dev. Fin. Auth. v. Grimm, 119 Wn.2d 738, 743, 837 P.2d 606 (1992) (examination of legislative history and official voters’ pamphlet appropriate when interpreting constitutional amendment).
We are aware that an intermediate Colorado state appellate court has interpreted a “qualifications of electors” provision in Colorado’s constitution to be a grant of the right to vote, and not a restriction on local jurisdictions’ ability to authorize others to vote. See May v. Town of Mountain Vill., 969 P.2d 790, 794-95 (Colo. App. 1998) (interpreting article VII, section 1 of the Colorado Constitution). However, the Colorado decision relied heavily on an amendment to the Colorado Constitution that explicitly gave home rule cities the constitutional power to control “all matters pertaining to municipal elections.” Id. at 793-95 (citing Colo. Const. art. XX, § 6). Based
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largely on that amendment, the Colorado court concluded that voter eligibility in local elections was a local matter subject to local legislation See also People ex rel. Tate v. Prevost, 134 P. 129, 214-15 (Colo. 1913) (“It is plain from this amendment that all matters pertaining to municipal elections . . . are declared local and municipal matters . . . .”).
In contrast, the Washington Constitution authorizes narrower home rule authority “subject to the constitution and laws of this state” and contains no explicit authority for charter governments to control all matters pertaining to local elections. Const. art. XI, §§ 4, 16; see also Chemical Bank v. Washington Pub. Power Supply Sys., 99 Wn.2d 772, 793, 666 P.2d 329 (1983) (noting home rule powers in Washington have been construed “more narrowly” as compared to states like Colorado, where home rule powers “result in considerable autonomy from state control”) (citing Board of County Comm’rs v. City of Thornton, 629 P.2d 605, 609-10 (Colo. 1981)). The Washington Supreme Court has concluded that local governments can vary from statewide practice as to matters of “purely local concern,” such as holding elections for local offices at a different time than otherwise specified in statute. State ex rel. Carroll v. King County, 78 Wn.2d 452, 456-58, 474 P.2d 877 (1970); see also Henry v. Thorne, 92 Wn.2d 878, 880-81, 602 P.2d 354 (1979) (both cases upholding local charter provisions varying from state statute with regard to the timing of elections). But a local law that varies from the voter qualifications stated explicitly in the Washington Constitution would be quite different. The Washington Constitution makes voter eligibility in “all elections” a matter of statewide concern. Const. art. VI, § 1.
In sum, we conclude that the qualifications of electors listed in article VI, section 1 are mandatory prerequisites to voting in Washington State. Since section 1 requires voters to be at least 18 years of age, a statute or local ordinance or measure purporting to allow 17 year-olds to vote would be inconsistent with that provision.
We trust that the foregoing will be useful to you.
ROBERT W. FERGUSON
ALICIA O. YOUNG
Assistant Attorney General
 The “home rule” referenced in that case applies to cities or towns with at least two thousand inhabitants. Colo. Const. art. XX, § 6.