WVRA: To Change or Not to Change?
May 25, 2018
“Be the change you want to see in the world.” – Mahatma Gandhi
This year Washington passed the Washington Voting Rights Act (WVRA), which I wrote about in The Future of Voting in Washington.
This new law gives most municipalities the authority to change their election systems to remedy potential issues relating to equal voting opportunities for members of certain protected classes.
I will address some common questions MRSC has received about what comes next for municipalities considering WVRA changes.
What is the process for making voluntary changes?
Starting June 7, 2018, the WVRA allows municipalities to make their own election system changes on a voluntary basis. These changes typically involve moving from “at-large” elections to district-based elections, and the process involves public notice and participation, including at least one public hearing.
A good start might be to look at your agency’s data, including statistics and recent election results, for indications of polarized or diluted voting. Engage the public in the process of considering changes to your election systems. Create a proposed remedy with districts drawn in compliance with the factors listed in the WVRA, ESSB 6002. Next, seek superior court approval with the assistance of legal counsel.
Does the new law allow or require districting for positions on legislative bodies?
The new law gives authority for districting where such authority did not exist before this law. Creating districts or re-drawing current districts are the primary method provided in WVRA to address and remedy possible voting act violations. However, there is not a mandate or requirement because the law does not use language such as “shall” or “must” for a particular type of remedy.
What data and analysis should we use and provide to the public?
You will want to gather your past election results and census data showing demographic information about the nature and size of racial, ethnic, and language minorities in your municipality. Some of this information is available with the State of Washington, your county, and through AWC (for towns and cities).
What is polarized voting?
As defined in WVRA, “polarized voting” means voting in which there is a difference in the choice of candidates or other electoral choices preferred by voters in a protected class with the choice of candidates and/or other electoral choices preferred by voters in the rest of the electorate.
Should we be proactive and adopt a voluntary remedy or wait for an eligible voter to give notice of a potential violation?
The answer depends on the jurisdiction, itself, and its eligible voters.
Several municipalities have asked MRSC and AWC about how to begin the process of moving to district-based election systems that are in compliance with the new WVRA. Fortunately now is a great time to begin the process of gathering the demographic and election data and starting public engagement about equal voting rights.
On the other hand, if you do not think a WVRA is required or wanted for your municipality you may want to wait. Part of the voluntary change process requires an agreement that there is a potential violation of WVRA in order to seek the required court approval of a remedy voluntarily adopted.
If we receive a WVRA Notice from a voter, then what?
After July 18, 2018, an eligible voter may serve a municipality with a notice of violation. This triggers a 6-month period of working in good faith with the voter to reach a remedy before a WVRA lawsuit may be commenced.
If you receive a notice, the WVRA requires you to promptly share it with the public. In addition, share it with your leaders, election-related employees, and your legal counsel. Reach out right away to the provider(s) of the notice with an acknowledgement and commitment to comply with WVRA. You should then begin to work in good faith to negotiate regarding a remedy.
How do we “work in good faith” when we receive a WVRA Notice?
The details here are not spelled out in the new law but other examples of “good faith work” or 'good faith negotiation” should be followed. Consult with your legal counsel and risk pool or insurers.
At a minimum, I suggest you plan an early public meeting with the voter providing the notice and with others. This suggestion is based in part on an earlier version of the bill (not passed) that contained a provision directing that weekly meetings be held, so I believe at least some of the proponents of voting rights legislation wanted meetings to happen.
Treat this as you would with other government subjects important to your public: Keep an open mind, be curious, show respect, and make sincere efforts to understand and consider resolutions. Share information, listen to suggestions, and reach the best outcome, by agreement if possible. Although the notice is also required to later commence litigation, do not treat it as an entirely adversarial process. Cooperate and collaborate.
If we decide to adopt the remedy proposed in the notice what next?
A remedy by stipulation or written agreement must then be presented to the superior court. The new law does not give specifics on how this happens, but filing of a civil action is likely required with a hearing date before a judge or, perhaps court commissioner, depending on the county. The new law requires that the election and census data and any analysis used to propose the remedy also be filed in court. The WVRA Notice may also be included. Again, work closely with your legal counsel.
If we decide to adopt a different remedy than proposed or no remedy, then what next?
Each public agency is required to seek court approval of any WVRA remedy adopted. File a superior court action or wait to adopt your proposed alternative remedy until the provider of the WVRA Notice files an action.
Do we need a lawyer?
Yes, whether making voluntary changes or changes in response to a notice of alleged violation, it is important to work with your legal counsel to make sure all of the legal requirements are followed.
Do we need experts to give opinions about potential remedies and to help analyze census data and voting data?
Probably, depending on how accessible your data is and how much support your county may be able to provide. Consult with your legal counsel about retaining the right experts.
In conclusion, this is just the beginning and not the end of a process that will lead to more equal voting rights for everyone, especially members of protected classes. We will provide more support as the WVRA becomes law and more municipalities become experienced in navigating these important changes.
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.
MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.