Washington Supreme Court to Assess How Closely to Scrutinize Voting Restrictions 

The Washington Supreme Court will hear arguments Thursday in a challenge to how state election officials review voter signatures on mail ballots, giving the court an opportunity to establish strong protections for voters against any state action that could hinder their ability to cast a ballot.

The case, Vet Voice Foundation v. Hobbs, requires the high court to answer a fundamental question: What framework should the court use to analyze burdens on voting rights?

Washington is a “universal vote-by-mail” state, meaning every election registered voters all automatically receive a mail-in ballot. Like most states, Washington uses signature verification to confirm the identity of voters, among other election security measures.

The Vet Voice plaintiffs — civil rights organizations and voters — allege that the signature verification process disproportionately disenfranchises minority voters, young voters, military personnel, voters with disabilities, and non-native English speakers, in violation of the state constitution.

Like many other state constitutions, Washington’s grants an affirmative right to vote not present in the federal Constitution, guaranteeing that “all elections shall be free and equal.” The key issue in Vet Voice is what standard of review the court should apply when considering claims that a law or practice violates the free elections clause as well as other state constitutional provisions that protect voters, including Washington’s due process and privileges and immunity clauses. The answer to this question will determine which side will carry the burdens of proof and what they will have to show to prevail.

The plaintiffs argue that the standard should be strict scrutiny, the most rigorous form of judicial review. A law can only survive strict scrutiny if the state can prove it has a compelling interest for the law and that the law is narrowly tailored to achieve that interest. Under this standard, a law is valid 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 plaintiffs assert that the state’s signature verification process would fail strict scrutiny because the state has not provided any evidence that signature verification prevents fraudulent voting or otherwise advances election security. In other words, the plaintiffs argue, the state’s interest is theoretical at best. Additionally, they say, the signature verification processes have resulted in the rejection of hundreds of thousands of ballots in the state over the last eight years, showing that the program is overbroad and that less consequential processes can prevent fraud.

The defendants, including the secretary of state and other election officials, ask the court to impose a lower standard of review, either rational basis — meaning the law only must be “rationally related” to a “legitimate government interest” — or a “sliding scale” test under which severe burdens on the right to vote would face strict scrutiny while lesser burdens would be analyzed for a rational basis. Courts interpreting the federal Constitution employ a similar sliding scale test called Anderson-Burdick review. While initially seen as a test with the potential to fairly balance safeguarding voting rights with the practical realities of administering elections, federal courts have eroded it over the years into a relatively feeble shield against government impositions on voters.

Defendants also argue that, regardless of which test the court picks, they meet the standard. They assert that without a mail ballot verification process Washington’s elections would be “unsecured against attack.” Moreover, they say, any alternative to signature verification, such as fingerprinting or photo ID requirements, would impose heavier burdens on voters. The state thus believes it has a compelling election security rationale and it has narrowly tailored its program.

This case comes at a pivotal moment for the future of voting rights. With the U.S. Supreme Court retreating from protecting federal voting rights and many state legislatures making it harder to vote, state courts are being called upon to decide whether their constitutions provide greater protections for voters than the federal Constitution.

Several state courts confronting this question have rejected the federal Anderson-Burdick test. For example, earlier this year the Montana Supreme Court issued a significant voting rights decision striking down several restrictive voting laws. In doing so, the court opted to apply a more rigorous form of scrutiny, specific to Montana, called middle-tier analysis. Two months after Montana’s ruling, the Kansas Supreme Court similarly adopted a unique state-specific standard of review. While the standard appears to be weaker than Montana’s middle-tier analysis, it departs from the federal standard by eschewing the tiers of scrutiny that guide most reviews. Under the Kansas standard, laws that impose reasonable voter qualifications will be upheld; however, laws that create unreasonable voter qualifications are deemed unconstitutional “full stop,” rather than being subject to either a balancing test or strict scrutiny.

To be sure, not all state high courts have entirely rejected the federal standard. In April, the Idaho Supreme Court affirmed that voting was a fundamental right under the state constitution — a pronouncement that generally would trigger strict scrutiny — but applied rational basis review to the voting laws at issue in the case. To justify its choice, it relied in part on the U.S. Supreme Court’s reasoning in Burdick, even as it acknowledged prior state case law rejecting Anderson-Burdick review in other voting contexts.

Vet Voice presents a vital opportunity for the Washington Supreme Court to join the emergent conversation among state courts on whether — and the extent to which — state constitutions more robustly protect voting rights than the federal Constitution. Most state supreme courts that have weighed in recently have, at a minimum, rejected reflexive lockstepping to the federal Constitution in light of unique state constitutional provisions not found in the federal constitution. Washington should extend those decisions, apply strict scrutiny to all restrictions on the right to vote, and position itself as a leader on this vital issue.

The Brennan Center submitted an amicus brief in Vet Voice Foundation v. Hobbs arguing that strict scrutiny is the appropriate test. Watch the oral arguments here on October 31.

Andrew Garber is a counsel in the Voting Rights and Elections Program at the Brennan Center for Justice.

Michael Milov-Cordoba is a counsel in the Judiciary Program at the Brennan Center for Justice.

Suggested Citation: Andrew Garber & Michael Milov-Cordoba, Washington Supreme Court to Assess How Closely to Scrutinize Voting Restrictions, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Oct. 29, 2024), https://statecourtreport.org/our-work/analysis-opinion/washington-supreme-court-assess-how-closely-scrutinize-voting