Major changes may be underway for the Washington Voting Rights Act (VRA) that would be burdensome for cities. A new bill would create a new system of “preclearance” that many cities would need to go through before taking many routine actions.

HB 1710, sponsored by Rep. Sharlett Mena (D–Tacoma), is a complex bill that creates a system of preclearance for local governments where “covered jurisdictions” are required to seek permission from the state Attorney General (AG) or a superior court in order to implement a change from a long list actions that may have an effect on voting, elections, or protected classes of voters. Several of the “covered practices” that would require preclearance are routine exercises of city powers, such as annexations, that typically are not taken at the time with an eye toward influencing elections.

Cities strongly support voting rights and ensuring appropriate representation in all levels of government. However, AWC is concerned about how this bill limits a city’s ability to carry out many normal city government functions, and that the bill will apply to some cities because of conditions largely outside of their control. As the bill moves through the legislative process, AWC will continue working to minimize these impacts while supporting voting rights.

Preclearance process

Before adopting or implementing a “covered practice,” a “covered jurisdiction” is required to submit a proposal to the AG to review and issue a certification of no objection, or seek a declaratory judgment from superior court. The practice remains on hold until the court makes a final order or the AG issues certification that the practice does not diminish a protected class’s ability to participate in the political process or elect preferred candidates, or otherwise not violate the state or federal Voting Rights Acts or other laws.

When a jurisdiction submits for preclearance, the AG has 60 days to make a decision, otherwise the jurisdiction can assume there is no objection. The AG can extend this review period up to 180 days. If the AG does object to a practice, the jurisdiction can appeal in superior court.

An aggrieved third party has a private right of action to object to: the AG’s issuance of a certification of no objection, the Secretary of State’s list of “covered jurisdictions” (including a failure to designate a particular jurisdiction as covered), or to compel a covered jurisdiction to seek a declaratory judgment or certificate of no objection prior to implementing a practice.

Covered jurisdictions

Under the bill, “covered jurisdictions” are designated by the Secretary of State by July 1 every even numbered year, in consultation with the AG, Office of Financial Management, and other relevant agencies. Designations are based on data from US Census Bureau, American Community Survey, or other quality data from federal or state agencies.

A “covered jurisdiction” must be a political subdivision of the state, which includes cities. There are several different ways that a jurisdiction could be designated a “covered jurisdiction,” any one of which could result in a designation:

1. If in the previous 25 years, the jurisdiction has been subject to a court order, government enforcement action, consent decree, or settlement where the jurisdiction conceded liability for: a violation of the state or federal VRA; violation of the 14^th or 15^th amendments of the US Constitution; violation of the Washington Constitution; or a finding that the jurisdiction engaged in pattern, practice, or policy of discrimination against a protected class.
2. If the jurisdiction has at least 6,000 citizens of voting age who are members of a protected class, or whose members make up at least 15% of voting population, and:
   • If at any point in the previous 10 years, protected class members registered to vote is 10% lower than the percentage of all citizens of voting age at any point in that time, or the percentage of protected class voting age citizens is 10% lower than the percentage of all citizens participating in an election; or
   • If at any point in last 10 years, the combined misdemeanor and felony arrest rate of protected class members is more than twice that of the whole population; or
   • The poverty rate of protected class members exceeds the poverty rate of the whole population by 10% or more.
3. If in previous 25 years, the jurisdiction was found to have enacted or implemented covered practice without obtaining preclearance while designated a covered jurisdiction.

Covered practices

The bill has a long list of practices subject to preclearance, including:

• Changes to method of election of governing body members like removing seats, adding at-large seats, or converting seats from district to at-large or multimember district.
• Any change (or series of changes within 12 months) to jurisdiction boundaries that reduces proportion of protected class in the voting population by 5%.
• Changes to election district boundaries.
• Restrictions on language interpretation or restrictions on voting materials from being provided in languages besides English.
• Changes to plan of government
• Following a US Census, changes to the method of election or district plans if jurisdiction maintains at-large elections, or district-based elections get no revisions.
• Annexation, de-annexation, or consolidation of neighboring jurisdictions.
• Changes in the number, location, or hours of voting sites or drop boxes
• Any change that has effect of denying, abridging, or diluting the right to vote on account of race, color, or language minority.

City concerns

AWC is opposing HB 1710 because of the onerous effects it could have on cities. Several of the conditions that could cause a city to be designated a covered jurisdiction are largely out of a city’s control, such as poverty rates or voter participation rates. There is no way for a city to appeal being designated as a covered jurisdiction.

In addition, many of the covered practices subject to preclearance are typically not motivated by a desire to influence elections, such as annexations or adjusting jurisdictional boundaries. Many of the other covered practices are standard city practices or activities mandated by law that should not require additional legal action. In some cases, taking no action – such as not making changes after a census – would be subject to preclearance, just as taking any action would be subject to preclearance.

Cities should reach out to their legislators and members of the State Government & Tribal Relations Committee to let them know your city’s concerns about the bill.

Dates to remember

HB 1710 is scheduled for a hearing in the House State Government & Tribal Relations Committee on February 5 at 1:30 pm.