Could Washington remove its 1970 voting-age amendment from the ballot after Congress passed an eighteen-year-old voting rule?

Plain-English summary

The 1970 AG said Washington's secretary of state had no legal basis to remove House Joint Resolution No. 6 from that November's ballot after Congress enacted a federal voting-age provision. The proposed state amendment would have lowered the state voting age from 21 to 19 and removed other obsolete voting-qualification language. The AG also noted uncertainty, at that time, about whether Congress could set the age for state and local elections through an ordinary statute. (Official opinion)

Currency note

This opinion was issued in 1970. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Secretary of state and election officials

The AG found no statutory or constitutional authority for the secretary of state to strike a properly proposed amendment from the ballot. It said the Legislature had approved H.J.R. No. 6 by the required two-thirds votes, completing the procedural prerequisites for voter consideration.

Voters and legislators

The federal provision was set to apply to elections beginning January 1, 1971. In July 1970, its reach into state and local elections had not been resolved by the courts. The proposed state measure also would have removed language on the voting qualifications of Indian citizens, a purpose separate from the federal age rule.

Common questions

Q: Could the secretary of state cancel the state voting-age vote?
A: The AG said no, because no law gave that officer power to remove a properly proposed constitutional amendment for the stated reason.

Q: Did the new federal voting law make the state measure pointless?
A: The AG said no. It identified a live constitutional question over the federal rule's reach and a separate purpose in removing obsolete state constitutional language.

Q: What voting age would H.J.R. No. 6 have proposed?
A: It proposed reducing Washington's constitutional threshold from 21 to 19, according to the opinion.

Background and statutory framework

The opinion addressed H.J.R. No. 6 under Washington's constitutional amendment process and the secretary of state's role under RCW 29.04.070. It compared the state proposal with the 1970 federal Voting Rights Act amendment then scheduled to take effect in 1971. Its opening headnote says “after January 1, 1970,” but the question, analysis and quoted federal effective-date provision say January 1, 1971.

Citations and references

The opinion discussed RCW 29.04.070 and the proposed amendment to Article VI, § 1 of the Washington Constitution.

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/constitutional-amendments-elections-voting-qualifications

Original opinion text

Attorney General Slade Gorton

CONSTITUTIONAL AMENDMENTS - ELECTIONS - VOTING QUALIFICATIONS

The recent enactment by Congress of an amendment to the Federal Voting Rights Act of 1965 which is designed to establish a nation-wide minimum voting age of 18 years for all primary or general elections held after January 1, 1970, affords no basis in law for removing the proposed state constitutional amendment which is contained in H.J.R. No. 6 from the forthcoming November, 1970 state general election ballot.

July 20, 1970

Honorable A. Ludlow Kramer
Secretary of State
Legislative Building
Olympia, Washington 98501

Cite as: AGO 1970 No. 18

Dear Sir:

This is written in response to your recent request for our opinion with respect to the present status of House Joint Resolution No. 6, a proposed amendment to the section of our state constitution which establishes voting qualifications in this state. We paraphrase your question as follows:

In view of the recent enactment by Congress of an amendment to the Federal Voting Rights Act of 1965 which is designed to establish a nation-wide minimum voting age of 18 years for all primary or general elections held after January 1, 1971, should the proposed state constitutional amendment which is contained in H.J.R. No. 6 be stricken from the forthcoming November, 1970 state general election ballot?

We answer this question in the negative for the reasons set forth in the following analysis.

ANALYSIS

House Joint Resolution No. 6 contains a proposed amendment [[Orig. Op. Page 2]] to Article VI, § 1 of the Washington State Constitution which sets the qualifications for voting in this state. Specifically, it proposes to reduce from 21 years to 19 years the age at which an otherwise qualified person is entitled to vote in this state. In addition, the proposed amendment is designed to remove certain currently inoperative language involving the voting qualifications of Indians who are citizens of this state.

In accordance with the procedures which govern amendments to our state constitution,1/ this proposal originated in the state legislature during its recent 1970 session, where it was agreed to by the necessary two-thirds majority of both houses. Thus, it is now scheduled to appear on the November, 1970 general election ballot for the approval or disapproval of the voters.

However, following the passage of this proposed state constitutional amendment by our legislature, the Federal Congress approved a number of amendments to its comprehensive Voting Rights Act of 19652/ Among these was an amendment which is designed to reduce the minimum voting age to 18 in all federal, state and local primaries and elections. This Congressional enactment provides, in material part, as follows:

"'SEC. 302. Except as required by the Constitution, no citizen of the United States who is otherwise qualified to vote in any State or political subdivision in any primary or in any election shall be denied the right to vote in any such primary or election on account of age if such citizen is eighteen years of age or older.'"

Under the terms of § 305 of this Federal act, the foregoing provision is to take effect ". . . with respect to any primary or election held on or after January 1, 1971." Your question is whether, in view of this enactment, the pending proposal to amend our state constitution (as set [[Orig. Op. Page 3]] forth in H.J.R. No. 6) should be stricken from the ballot. It is our opinion, for several distinct reasons, that it should not.

In the first place, it is fundamental that you, as the secretary of state, have only such powers as have been granted to you by the constitution and laws of this state. Accord,State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956). You are, of course, under RCW 29.04.070, the chief elections officer of the state. However, nowhere in any of the statutes or constitutional provisions pertaining to the functions of your office in this area of elections do we find any grant of authority to you to remove a proposed state constitutional amendment from the ballot for any reasons whatsoever so long as the procedural requirements of the amendatory article of our constitution have been met. And, as indicated above, these requirements have been met with respect to H.J.R. No. 6.

Secondly, and perhaps even more importantly, the mere fact that the Federal Congress has enacted the foregoing voting rights legislation does not constitute any assurance that the minimum voting age provisions thereof are now, and will remain, the law throughout the Nation. There is, undeniably, a significant question of Federal constitutional law as to whether the several states may, in effect, be compelled to reduce their minimum voting ages to 18 by the mere force of an act of Congress as distinguished from a Federal constitutional amendment.

This issue turns, largely, upon the significance to be attached to the decision of the United States Supreme Court in the recent case of Katzenbach v. Morgan, 384 U.S. 641, 16 L.Ed. 2d 828, 86 S.Ct. 1717 (1966), in which the Court upheld the constitutionality of earlier Federal legislation prohibiting the states from denying the vote to Americans of Puerto Rican origin who were literate in Spanish but not in English. As is evidenced, for example, by numerous expressions of opinion appearing in the Congressional Record for June 17, 1970, at pages H-5647-53, there are a considerable number of learned and highly reputed constitutional scholars in this country who believe that the Katzenbach decision, correct though it may have been on the precise question then before the Supreme Court, will not support the kind of legislation which the Congress [[Orig. Op. Page 4]] has now enacted with respect to the minimum voting age for state and local elections as well as for Federal elections.

It is our understanding that an early test case of this question is being planned by the attorney general of the United States for the purpose of placing the matter before the Court for its decision. While we do not believe it appropriate for us, at this time, to venture an opinion as to the likely outcome of this test, the mere fact that a significant constitutional issue regarding the matter exists, and is going to be litigated, obviously means that a proposed state constitutional amendment such as that contained in H.J.R. No. 6, with respect to the minimum voting age, should not be taken off the ballot merely because of the enactment of the Federal legislation in question.

And finally, we perceive and should note a third reason for allowing H.J.R. No. 6 to remain on the November, 1970 state general election ballot. In addition to establishing a new minimum voting age in this state, we have heretofore indicated that this proposed constitutional amendment would also remove certain currently inoperative language in the present constitution involving the voting qualifications of Indians who are citizens of this state. Clearly, this objective is totally unrelated to any of the provisions of the recently enacted Federal Voting Rights Act amendments. Thus, even if, in all other respects, the Federal act were to be regarded as superseding (and thereby negating) the proposed state constitutional amendment, there would still be a valid purpose to be served by the proposed amendment.

We trust the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

*** FOOTNOTES ***

1/See, Washington Constitution Article XXXIII, § 1.

2/79 Stat. 437; 42 U.S.C. 1973 et seq.