The Future of Voting in Washington
The right to vote is a fundamental part of democracy. Our state has taken a big step to further this right for all voters, especially those in certain protected classes. The Washington Voting Rights Act (WVRA) was signed into law on March 19, 2018 (ESSB 6002, Laws of 2018, Chapter 13).
This is an important law patterned after the federal Voting Rights Act (52 U.S.C. 10301 et seq.) and intended by the legislature “to be consistent with federal protections that may provide a similar remedy for minority groups.”
Most municipalities — large and small — will now have the authority to change their voting systems for the election of their legislative bodies from “at-large” elections to district-based elections, to remedy potential voting rights violations. Voters will also have the right to compel change in voting systems that adversely affect the voting rights of members of protected classes, or “a class of voters who are members of a race, color, or language minority group, as this class is referenced and defined in the federal voting rights act, 52 U.S.C. 10301 et seq.” (See Sec. 103(5) of the WVRA)
The law sets forth many factors to be considered in adopting remedies. Remedies for plausible violations of the WVRA, whether agreed or disputed, are required to be submitted for review to the state superior courts.
This law applies to “political subdivisions,” which are defined as counties, cities, towns, school districts, fire protection districts, port districts, and public utility districts. Most of the WVRA (Parts I, III, and IV) does not apply to cities and towns with populations less than 1,000 residents or to school districts with student populations less than 250 students, but even these smaller cities, towns, and school districts may still make voluntary changes in their electoral processes under Part II of the Act.
Advance Notice Requirement
Beginning July 19, 2018, voters residing in a covered political subdivision may provide notice of a WVRA violation and a proposed remedy. This notice is a requirement before a voter may bring a lawsuit. This notice will trigger a duty to “work in good faith with the person providing notice to implement a remedy that provides the protected class or classes identified in the notice an equal opportunity to elect candidates of their choice.” (See Sec. 303(1) of the WVRA)
Work in Good Faith
The political subdivision will have up to 180 days (90 days after July 1, 2021) to work in good faith with the voter(s) who submits a notice (or notices) and with the community. The goal will be to adopt a remedy, either the one proposed in the notice or an alternative remedy, and then obtain approval of the remedy in superior court.
Analysis of the data could also lead to a conclusion that there is no WVRA violation. In that case, a political subdivision may need to defend a court case brought by a voter who has given notice of an alleged violation. Typically, both election and demographic data will need to be analyzed and used to reach a decision about adoption of a remedy under the WVRA.
The new law has provisions to ensure the public is notified of a WVRA issue at several steps along the way. When a political subdivision is making voluntary changes to adopt a remedy, public notice must be provided to the residents of the subdivision and a public hearing is required before adoption of a remedy. In addition, written and verbal notice, and radio or television public service announcements need to be provided in other languages when 5% or more of the population, or 500 residents, whichever is fewer, have limited English proficiency and speak another language.
The notice received from a voter must promptly be made public by the agency receiving it. Upon submission to the court for approval, all political, census, and demographic data and any analysis of that data used to develop the remedy must be provided to the court. This information must also be provided along with any documents made public. After a WVRA court case is concluded, within 30 days, notice of the outcome must be made public on the agency’s website, including a summary of the action and the legal costs incurred by the subdivision.
Federal VRA Cases
In recent years, the cities of Yakima and Pasco have each changed their election systems based on the federal Voting Rights Act. Yakima did so as part of a federal court lawsuit and court order. Pasco did so with a consent order in federal court.
John Safarli, Partner at Floyd, Pflueger and Ringer, represented both Yakima and Pasco in their now-concluded federal cases. I asked Mr. Safarli how this new law will impact Washington municipalities and he said:
“Municipalities should be aware of this law because now nearly every municipality in this state is potentially subject to a voting rights lawsuit. It used to be that only municipalities with large, concentrated populations of protected-class voters needed to be worried about this area, but the Washington Voting Rights Act allows a plaintiff to file—and potentially to win—a lawsuit even if a covered municipality’s voters belonging to a protected class make up 5% of the population and are spread across the entire city.”
We do not know yet how many cases will be brought or how they will proceed to conclusion. The cooperative process upon receipt of a voter’s notice and the litigation process will likely be interconnected.
MRSC plans to work with the Association of Washington Cities (AWC), Washington State Association of Municipal Attorneys (WSAMA), Washington Association of Prosecuting Attorneys (WAPA), and others to help political subdivisions implement this new law in the most positive and practical way. Additionally, we strongly recommend you consult with your agency’s legal counsel and your risk pool representatives or insurers with questions about this law.
If you have questions about this or other local government issues, please use our Ask MRSC form or call us at (206) 625-1300 or (800) 933-6772. If you have comments about this blog post or other similar topics you would like me to write about, please email me at firstname.lastname@example.org.
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