Federal Voting Rights Act of 1965. The Federal Voting Rights Act (VRA) prohibits discriminatory practices in state and local elections, based on the protections provided under the Fifteenth Amendment to the Constitution. Special protections extend to members of a racial, color, or certain language minority group.
Section 2 of the VRA (Section 2) prohibits any voting practice or procedure that effectively impairs the equal opportunity for members of a minority group to participate in the nomination and election of candidates. A violation may be shown based on the totality of circumstances of the election process that resulted in a discriminatory impact on a minority group. Proof of intentional discrimination is not required to show a violation. Section 2 does not create a right for minority groups to be proportionally represented in elected offices.
Vote dilution claims under Section 2 allege that the method of drawing voting districts has the discriminatory effect of dispersing minority votes throughout the districts, weakening the minority group's ability to influence the election. Vote dilution claims have also been raised in jurisdictions holding at-large general elections for bodies with multiple positions.
Section 203 of the VRA requires jurisdictions to provide language assistance with voter registration, ballots, and election information when there are more than 10,000 or over 5 percent of the total voting age citizens in that jurisdiction who are members of a single language minority group, have depressed literacy rates, and do not speak English very well. A separate process determines coverage requirements on Indian reservations.
Preclearance. Section 5 of the VRA (Section 5) prohibits enforcement of any change to voting laws, practices, or procedures in a covered jurisdiction—or any political unit within it—until the jurisdiction first obtains a determination by a federal court or the Attorney General that the proposed voting change does not deny or abridge the right to vote on account of race, color, or membership in a language minority group.
In 2013, the Supreme Court found the formula used to establish which jurisdictions are covered by Section 5's preclearance provisions was no longer responsive to current needs and situations, holding it unconstitutional in Shelby County v. Holder, 570 U.S. 529 (2013). Congress has not since updated the formula, and no jurisdictions are currently subject to preclearance under the VRA.
Washington Voting Rights Act. In 2018, ESSB 6002 was signed into law, creating the Washington Voting Rights Act (WVRA). A violation of the WVRA is established where a jurisdiction's elections exhibit polarized voting and where there is a significant risk members of a protected class do not have an equal opportunity to elect candidates of choice as a result of dilution or abridgement of their rights. The WVRA applies to elections held within counties, cities, towns, school districts, fire protection districts, port districts, and public utility districts (political subdivisions). Any voter in an affected political subdivision may challenge the electoral system. The political subdivision has 90 days to adopt a remedy to the alleged violation; if it fails to do so, it is subject to a lawsuit.
Political subdivisions may take corrective action to change election systems in order to remedy a potential violation of the WVRA, including through implementation of a district-based election system. The political subdivision must obtain a court order certifying that the remedy complies with the WVRA and was prompted by a plausible violation. Courts apply a rebuttable presumption against adopting a political subdivision's proposed remedy, and all facts and reasonable inferences must be viewed in favor of those opposing the proposed remedy.
If a violation is found, the court may order appropriate remedies, including requiring the political subdivision to redistrict or create a district-based election system. The court may award attorneys' fees and costs to a prevailing plaintiff. Prevailing defendants may be awarded certain costs, but not attorney's fees.
Standing to File a Washington Voting Rights Act Claim. An organization whose membership includes or is likely to include a voter in the political subdivision may challenge the subdivision's electoral system.
Remedies. Courts may not approve a remedy that has a dilutive effect on the protected class.
Cost Recovery. A claimant who alleged a violation of the WVRA may make a demand to the political subdivision for reimbursement of the costs incurred in conducting the research necessary to send the notice when the subdivision adopts a remedy that takes the notice into account and a court has issued an order certifying the remedy complies with the WVRA and was prompted by a plausible violation. The demand must be received within 30 days of the adoption of the new electoral system, and it must include financial documentation. The demand must be paid within 60 days, up to $50,000.
Preclearance. Certain jurisdictions must obtain either a certification from the Attorney General or a judgment in superior court that some changes to election practices will not deny or abridge the right to vote on account of protected class status or result in retrogression of the electoral position of protected classes. The following political subdivisions are subject to preclearance:
Practices for which covered jurisdictions must seek preclearance include:
The Attorney General must make a determination as to whether to object to a proposed practice within 60 days, or within 30 days for changes to voting centers or ballot drop boxes. The Attorney General may seek two extensions of up to 90 days each to make a determination regarding the establishment of a district-based election system, an apportionment plan, or changes to the form of a jurisdiction's governing body.
If the Attorney General objects to a proposed practice, the jurisdiction may challenge the determination in Thurston County Superior Court. Any person whose right to vote is affected by the proposed practice may challenge the practice in superior court if the Attorney General issues a certification of no objection to the practice. The superior court must enjoin the practice unless it determines it will not deny or abridge the right to vote on account of protected class status or result in retrogression of the electoral position of protected classes.
As early as practicable each fifth year, the Secretary of State, in conjunction with the Attorney General, the Office of Financial Management, and other relevant agencies, must notify qualifying jurisdictions that they are subject to the preclearance requirements.
Data Collection. A statewide repository is established at the University of Washington to assist with compliance with election laws, including WVRA. The repository must maintain the following information for at least the previous 12-year period:
The information in the repository must be posted online and available at no cost to the public. Beginning January 1, 2023, the repository must publish a list of subdivisions required to provide language-minority assistance under section 203 of the VRA every five years.
County Commissions. Counties may explicitly expand commissions from three to five members to remedy a potential WVRA violation.
Restores current law in which a political subdivision has 90 days to act after receiving notice of a potential voting rights violation before a claim can be filed.
Restates provision allowing prevailing claimants to recover attorneys' fees incurred if the political subdivision made certain electoral changes in response to a claim even if no lawsuit was filed.
Removes requirement that covered jurisdictions obtain preclearance before reducing, consolidating, or relocating voting centers or ballot drop boxes.
Requires updating the list of jurisdictions subject to preclearance every fifth year, rather than annually.
Violations of WVRA. Language describing what constitutes a presumptive violation of WVRA is removed. Additional factors which may show a WVRA violation, but are not necessary to do so, are removed. A list of evidence which is not probative in defending a claim of a WVRA violation is removed.
Preclearance. Criteria for jurisdictions subject to preclearance are modified. All school districts with at least 2000 students are subject to preclearance, regardless of the composition of the district's voting age population. Cities and counties must meet minimum population thresholds, in addition to having members of a single protected class constitute at least 10 percent of the voting age population, to be subject to preclearance. Annexations are no longer subject to preclearance. Jurisdictions must challenge an Attorney General's objection to a covered practice in Thurston County Superior Court.
Data Collection. The director of the repository may be an employee, rather than a faculty member, of the University of Washington. Population data at the precinct level must be available. Language assistance requirements must be published with reference to section 203 of the VRA, and updated every five years.
County Commissions. Counties may explicitly expand commissions from three to five members to remedy a potential WVRA violation.
Other Provisions. A severability clause is added. The effective date of most sections of the bill is modified.
The committee recommended a different version of the bill than what was heard. PRO: It doesn't look like Congress will update the federal Voting Rights Act, so it's up to Washington to strengthen our Voting Rights Act. Vote dilution creates the conditions for generational poverty and violence, as elected representatives don't consider the concerns of marginalized communities. Cities are still divided based on historical housing discrimination. Language around presumptive violations will help keep progress that is made. People don't think their votes matter, and we can't persuade them they do when there is vote dilution. The east side of Yakima finally saw equitable investment after a federal VRA lawsuit—WVRA creates positive impacts to the quality of life of future generations. This will save jurisdictions time and resources that can be spent on infrastructure and maintenance.
Local jurisdictions are already making changes based on the 2020 census, and preclearance will give them certainty that changes comply with existing laws. This legislation promotes core democratic values and accountability by ensuring we can design systems that promote equality of opportunity for voters and candidates. Preclearance blocks changes that would weaken minority voting power and serves as a deterrent against discriminatory changes. Without federal preclearance, there has been an escalation in these types of practices.
Data collection provisions will make important information available to counties so elections are held in a manner consistent with good public policy and best practices. Currently, this data doesn't exist in one location, so efforts to produce the information are often duplicated. This will provide an important resource for decision makers and the public.
CON: We should be repealing the WVRA, not adding to it. WVRA is divisive and adds to voter distrust. Lawsuits under WVRA cause division based on race. WVRA allows incumbents to reach settlements writing challengers out of their district, making our representative government less diverse.
OTHER: Cities and counties would like definitions of terms in the bill such as plan of government, retrogression, and when elected officials are unresponsive. The bill should provide a preclearance timeline for courts to follow, and that anyone can appeal a determination of no objection or superior court order does not allow for finality of decisions. Triggers for preclearance are broad and should be tightened.
The committee recommended a different version of the bill than what was heard. PRO: We urge you to pass this bill. Not only does it strengthen voting rights for Washingtonians, it helps localities avoid potentially costly litigation. The process will help prevent new changes that have starkly, often unintentionally, been discriminatory. We have worked hard in response to local government concerns. We are providing more time to act on a notice in the violation. Washington has an opportunity lead the nation in protecting this fundamental right to vote. The bill is before you because the 2020 census has been provided to local governments and jurisdictions will be using that data to make changes to their electoral systems. The bill will provide assurance to local governments that their actions are lawful and in compliance with the Washington and federal voting rights acts. It has common sense updates to avoid lawsuits. It only applies if a jurisdiction proposes changes to its practices. We believe the preclearance process is a critical tool to ensure changes to electoral systems are transparent and fair. The right to vote is under attack in all 50 states. We are in strong support of this legislation and Washington State can be a leader and a model for everyone. Disadvantaged populations are spread out throughout Washington State. We understand the concerns of cities and counties, but echo there is a fundamental right to vote. Laws are being passed to encourage voter disenfranchisement and most of the time the people being impacted look like me. This is a great bill.
OTHER: Preclearance did not exist in prior law and we expect new costs at the county level to implement this bill. Counties are uncertain about the frequency of preclearance and think it should be tied to actual violations. Even if you obtain preclearance, a counties can still be sued and remediation can be used against you. These concerns should be addressed. Cities share many of the counties' concerns. Cities are supportive of preventing any type of dilution and very supportive of protecting everyone's right to vote. Once in preclearance, there is no timelines or metrics to get out. The notice period to a city is insufficient to prevent a lawsuit. Litigants only need to show that they altered behavior to receive attorney fees, not a judgment or bad action.