Today the U.S. Supreme Court is hearing arguments on the constitutionality of the federal Voting Rights Act, and many observers believe they may strike down parts of the law that no longer make sense. Doing so would be essentially an acknowledgment that the law worked—that race has been taken out of the equation for voting, and a broad law that imposes severe restrictions on election administrators in huge swaths of America is no longer needed.
Even as that debate is happening, however, a bill coined the “Washington Voting Rights Act” is progressing through the state legislature. If enacted, it would put race back into the equation for Washington elections, and would greatly expand the possibility of our elections being decided in the courts—the very last place we should want them to end up.
HB 1413 made it out of the House Committee on Government Operations and Elections on a 6 to 5 vote. A similar bill on the Senate side (SB 5473) died in committee.
The Act sounds good on its face, at least good enough to get the Seattle Times to endorse it.
But a little digging reveals a host of problems with the idea.
First, what would the Washington Voting Rights Act do?
If enacted, the Act would allow a member of a protected class (minority race, color or language) to challenge an election result on the basis of “racially-biased” voting patterns. The primary target of the law is at-large elections, where every voter from an entire district votes on each race, such as a city or school district race.
The law’s clear intent is to use lawsuits to force school districts and cities to switch to district-based elections, in which they are carved up into multiple voting jurisdictions in order to diversify representation.
For example, if forty percent of the voters in a school district were part of minority groups, and a minority candidate for school board lost an election by a wider-than-expected margin, one person from a minority group could sue to have the election overturned.
Why is it a bad idea?
- School districts and cities would pay huge legal bills, regardless of whether they win or lose
As soon as the ink was dry on California’s “Voting Rights Act”, the San Francisco Lawyers Committee for Civil Rights (who wrote the bill) started filing lawsuits. By 2009 they had received more than $4 million out of a total of $8 million spent by school districts to defend their election process.
- The Act stacks the deck against local governments. They would have essentially no ability to defend themselves
The Act would not require a plaintiff to show discriminatory intent on the part of voters or officials, and according to testimony in 2012 by Jeff Even of the Attorney General’s office, the school district would bear all costs, including expert witnesses and court fees, and could not recover any costs even if they won. He called this fee-shifting “the most one sided and onerous I have ever seen.”
Without any requirement to show discriminatory intent, the bill’s language would make it nearly impossible for a court not to find racially-polarized voting and rule against the local government
- The Act assumes minority voters pick candidates based solely on their race, gender or language
Casting a vote is a complex decision in which a person weighs a candidate’s background, principles, appearance, voting record, and a myriad of other variables. To assume that minority candidates are losing simply because they are a minority is extremely simplistic and could disenfranchise people within the minority community.
Consider Modesto, California, where in 2010 a majority Latino district elected a white Republican—who was a long-time resident of the community—instead of a Latino Democrat. Proponents say this law simply strengthens enforcement of the federal Voting Rights Act. That Act, however, was intended to remove race as an issue from elections. This law turns that notion on its head by requiring that race be an issue. America is a melting pot, not a nation of fragmented and suspicious groups.
If the goal of this law is to move local governments to district-based elections, that is a reasonable policy goal that could increase voter participation and representation. But the worst way to do it is through the courts. If the answer to problems in Yakima or other jurisdictions with large minority populations is to have district-based elections, the legislature should simply enact that requirement.