Washington is one of 28 states that permits absentee voting and one of eight states that conducts “all-mail” or “universal vote by mail” elections, in which every registered voter automatically receives a mail-in ballot. Like most states, Washington uses signature verification to confirm the identity of voters, among other election security measures.
In 2022, Vet Voice Foundation, The Washington Bus, El Centro De La Raza, and individual voters filed a lawsuit in state court against Washington Secretary of State Steve Hobbs, the King County Elections director, and members of the King County Canvassing Board challenging Washington’s signature verification requirements under Washington’s Constitution. The plaintiffs allege that Washington’s signature verification procedures have wrongly disenfranchised hundreds of thousands of voters over multiple election cycles and disproportionately impacted young voters, voters of color, uniformed service members, voters living abroad, first-time voters, voters with physical limitations, and voters who speak a language other than English in violation of Washington’s Due Process Clause, Privileges and Immunities Clause, and Free and Equal Elections Clause.
Last year, a trial court declined to grant summary judgment to either party (meaning the case will proceed to trial), applying what’s known as the Anderson-Burdick standard to review the plaintiffs’ claims. The standard derives from two U.S. Supreme Court cases and applies in cases under the federal constitution where plaintiffs say there has been an impermissible burden on the right to vote. In theory, Anderson-Burdick means that states will have a difficult time justifying laws that impose severe burdens on the right to vote; in practice, Anderson-Burdick often results in burdens on the right to vote skating by in court.
The key issue on appeal is whether the trial court erred in applying Anderson-Burdick review for burdens on voting rights under Washington’s Constitution. Plaintiffs ask the Washington Supreme Court to impose strict scrutiny for all laws that impinge on voting rights. Under strict scrutiny, a law can only survive if the state can prove it has a “compelling interest” for the law and the law is “narrowly tailored” to that interest. That means the law can stand only if the state has an essential goal to achieve and it’s not possible to achieve that goal without interfering with some people’s voting rights. The state, meanwhile, wants the court to establish that voting burdens face only rationale basis review, in which case the state only has to prove that the burden is “rationally related” to a “legitimate” government interest. That is a very low bar to meet.
The Brennan Center filed a friend-of-the-court brief in support of neither party that takes no position on the merits of the case and instead urges the court to adopt strict scrutiny as the test for all state laws and practices that burden voting rights. The brief argues that the structure, text, and history of Washington’s Constitution, as well as state precedent, mean the Washington Supreme Court should not interpret Washington’s Free and Equal Elections Clause in “lockstep” with the federal constitution and uphold the use of Anderson-Burdick. Instead, the court should extend existing precedent holding that the Washington Constitution is more protective of voting rights than the federal Constitution and apply strict scrutiny. The brief also explains how the court can apply this test in a way that is simultaneously protective of voting rights and respectful of the many important goals of election administration.
Case Documents
