A major restructure of the types of claims available under the Voting Rights Act is making its way through the legislature. AWC has concerns about how the new standards will be applied and whether they will make it easier for voters to actions against cities.

HB 1750 splits up and defines the two primary claims that can be brought against local governments under the Washington Voting Rights Act – claims for abridgment of voting rights and claims for dilution of a protected class’s opportunity to elect candidates of their choice.

A substitute version of the bill passed out of the House State Government & Tribal Relations Committee on February 11, and the amendments were sponsored by Rep. Sharlett Mena (D–Tacoma), the committee’s chair. Below, we discuss the current version of the bill.

Abridgment claims

While the VRA has always prohibited local governments from “abridgment” of voting rights for protected classes of voters, the statute was fairly vague as to what actually constitutes an abridgment claim. HB 1750 adds a new section to the VRA prohibiting local governments from abridging voting rights, defined as “implementing, imposing any election policy or practice” that results, is likely to result, or is intended to result, in a “material disparate burden” on the ability of protected class members to vote or participate in any stage of the political process.

A narrow exception is allowed if a local government can demonstrate that an election policy is both necessary to significantly further a compelling, particularized interest, and that there is no alternative policy that would result in less of a disparate burden on protected class members.

The new section includes a list of circumstances that a local government can explicitly not use to defend its challenged election policy or practice:

• The amount of protected class members that are not materially burdened.
• The degree to which a policy or practice has a long pedigree or was in widespread use at an earlier date.
• The use of similar polices or practices in another jurisdiction.
• The availability of other forms of voting not impacted by the policy or practice.
• Unless supported by substantial evidence, defenses that the policy or practice is necessary to address criminal activity like voter fraud or bolster confidence in election integrity.

Dilution claims

Under the bill, some of the existing framework of the Voting Right Act is restructured to apply primarily to newly separate vote dilution claims. Some provisions that are made to apply only to dilution claims and not abridgment claims are:

• Implementation dates of court-ordered or court-approved VRA remedies
• Provisions specifying the type of data needed to support such remedies
• Rules around addressing multiple proposed remedies to an election policy and coalitions of protected class voters

The VRA already prohibits dilution of protected class voters. Dilution claims are a type of abridgement where are actions are taken to cancel out the voting power of a protected class. This is done in several ways, including through at-large elections, or manipulating district lines to either concentrate protected class voters into relatively few districts (“packing”) or splitting up protected class voters so they cannot gain a majority in several districts (“cracking”).

Other changes

Both dilution claims and abridgment claims are subject to four-year safe harbors from suit for adoption of court-approved remedies. Likewise, the provisions of the VRA specifying reimbursement of attorneys fees, costs, and pre-litigation costs also apply to both types of claims. Courts are empowered to order remedies tailored to address either type of violation.

The bill includes list of new exceptions to when pre-litigation notice to a local government is not required, including when the party is seeking relief for an upcoming election, the party is seeking to intervene or join an existing action, or the local government has instituted a remedy in response to the party’s previous notice of challenge, but the selected remedy does not fix the violation. The bill also lays out the elements required for a party to receive a temporary restraining order or preliminary injunction – specifically that the party is more likely than not to succeed on the merits, and it is possible to implement a remedy that would resolve the violation in time for an upcoming election. Parties were already permitted to seek temporary or preliminary relief under the VRA.

City impacts

While some aspects of the bill do provide additional clarity for cities in regards to the VRA, AWC is concerned that other aspects will simply make it easier to bring actions against cities. For example, having some more specificity around what constitutes abridgment of voting rights may help cities craft policies that better avoid violations. However, “abridgment” is still defined broadly, and introduces the new term “material disparate burden” which is not defined. It also explicitly prohibits the use of several mitigating circumstances that a city could reasonably use to defend against an abridgement claim.

The bill also makes it easier for some claims to be brought against local governments without notice, add additional parties to an existing claim, or prolonging an existing claim. All of these things add up to more costs for local governments facing VRA challenges. AWC will continue to work with bill sponsors to make it easier for cities to comply with the VRA and protect voting rights, and reduce costs and litigation risk for local governments.