Washington passed a ‘Voting Rights Act 2.0’ bill. Here’s what’s in it

For the first time last fall, Yakima County’s three county commissioners were elected in a district-based election.

The settlement of a voting rights lawsuit against Yakima County prompted the change; previously, all commissioners were elected countywide in the general election, a system that voters contended diluted the Latino vote. No Latino or Latina has ever served as a Yakima County Commissioner. Under the 2021 settlement, districts were redrawn to include one Latino-majority district.

The change in Yakima County required a lawsuit invoking Washington’s 2018 Voting Rights Act. But now voters across Washington have a new tool that strengthens their voting rights and makes it easier for citizens and community groups to challenge discrimination in local elections.

The change also enabled the Wenatchee School Board to implement district-based voting before this fall’s election, a change being made preemptively because of concerns about voting rights violations.

House Bill 1048, sponsored by one of the new Latina members of the Washington Legislature, Rep. Sharlett Mena, D-Tacoma, is another boost for voting rights in Washington, both local and national advocates say.

“When a state passes a [voting rights act], they have an opportunity to improve on the federal voting rights act and enhance protections of their voters,” said Lata Nott, senior legal counsel specializing in voting rights with the Campaign Legal Center in Washington, D.C., which represented voters in the Yakima County case.

Now Nott and other voting rights advocates say the passage of HB 1048, which goes into effect in 2024, strengthens state laws.

“I hope that lowering the barrier of access will lead to more people using it,” said Rep. Mena, co-creator of Voter Turnup, a movement led by people of color to promote voter registration, cultural expression, and civic engagement.

Mena grew up in Pasco, an Eastern Washington city with a majority Latino population. Despite the disparity in health outcomes, educational achievement levels and income levels between predominantly Latino neighborhoods and other areas in the Tri-Cities — Pasco, Kennewick and Richland — politicians did not pay much attention, she recalls.

“My family were voters, [but] we were never visited by candidates,” Mena said. “We were not asked our opinion.”

In 2018, Mena worked as communications director for state Sen. Rebecca Saldaña, D-Seattle, the sponsor of the original Washington State Voting Rights Act. The update of the Act this year was the first bill Mena sponsored that was passed and signed into law. Gov. Jay Inslee signed the bill on April 13.

“If there’s one thing I want to make sure I do in my time in the Legislature, is make it easier for folks of color and folks from diverse communities to run for office and not have those [election] systems be an impediment,” she said.

What the legislation does

The most significant change brought by what some are calling the Washington Voting Rights Act 2.0 is clear standing for organizations and tribes that pursue challenges to local and state election systems on behalf of their members.

Voting rights advocates say this is important because it lifts the burden off a single community member or a small group of residents.

Civil rights organizations, for example, are more likely to have the resources and knowledge to identify voting rights violations than an individual resident or group of residents, said Nott of the Campaign Legal Center.

“Discrimination affects members of marginalized communities who are least likely to report [violations],” she said.

While organizations have worked alongside voters — OneAmerica, the immigrant advocacy organization, worked alongside Yakima County voters on the voting rights lawsuit — it’s good to make that legal standing clear, Nott said.

Yakima County officials and some citizens argued that since OneAmerica is based in Seattle, the lawsuit was driven by an outside organization trying to influence local elections, said Melissa Rubio, political director for OneAmerica.

But though OneAmerica is based in Seattle, it has had a presence in Yakima for a decade, Rubio said.

“It’s going to make it easier and clearer for organizations to be part of the picture,” Rubio said. “You can’t expect poor and working-class people to go against — on their own, without institutional support — a giant institutional government.”

This year’s update to state law also makes jurisdictions that violate the voting rights law responsible for up to $50,000 in legal costs to be awarded to those who brought the complaint. Such costs may include attorney fees for filing an intent to sue — a requirement to be eligible for reimbursement — or experts who can compile data that illuminate voting rights violations or draw maps that provide a solution to discrimination, vote dilution or other violations.

While that’s a small amount of money compared to the millions of dollars some cases cost, the provision still lifts an initial cost barrier for community members and organizations that want to challenge local jurisdictions’ election policies and systems, Rubio said.

David Morales of the Southcentral Coalition of People of Color for Redistricting said he feels the law changes enable organizations like his to be proactive. His organization is currently a plaintiff in a federal lawsuit challenging how Washington’s 15th Legislative District in Central Washington, was drawn during the 2021 redistricting process.

Morales believes the potential legal-fee reimbursement may encourage more voters and organizations to pursue efforts to identify voting rights violations and potentially present a remedy, such as maps of redrawn districts.

“Organizations up to this point haven’t pursued using the WVRA [Washington Voting Rights Act] system in part because it costs a lot, and it doesn’t come with a lot of benefits,” he said.

Up to this point, local jurisdictions, such as Yakima County, have not been cooperative when approached about voting rights violations, and changes have come primarily through the courts.

“I’ve just not seen evidence yet of cities or other kinds of governments willing to negotiate pre-litigation,” he said.

He hopes the update to the law opens opportunities to address voting rights violations across the state and prompts communities to work with voters and organizations to make changes – preempting the need for costly litigation.

“There might be some kind of change in order to reduce the potential liability,” he said.

Republican opposition

However, while advocates and Democrats in the Legislature hailed HB 1048 as essential to protecting voting rights in Washington, Republican legislators in both chambers voted against the measure.

Rep. Peter Abbarno, R-Centralia, a ranking member on the committee that held a public hearing for the bill, felt the legislation wouldn’t solve any issues or significantly increase representation.

“Nobody could point that there was a problem with the current system or individuals that were having restrictions or barriers to the election system,” he said.

Abbarno felt the standing language could lead organizations with only tangential connections, such as a member who lives in a voting jurisdiction where the alleged violation happened, to pursue voting rights cases rather than empower those adversely affected by an inequitable voting system.

“You [may] have statewide organizations making decisions for a community they may not have a stake in,” he said.

Rep. Chris Corry, R-Yakima, said the voting rights act has already prompted a change in how county commissioners are elected in Yakima County, and questioned what problems the update would solve.

“I’ve seen firsthand the Washington Voting Rights Act make positive changes in my community,” he said. “There’s nothing in the current law that would prevent [changes] from happening in other communities.”

Both Abbarno and Corry argued the updates would simply make the law more open to interpretation, making it easier to pursue costly litigation.

Rubio of OneAmerica said the fear of additional litigation is a mischaracterization of motive, imagining that people who seek to remedy voting violations want to punish communities.

The systems as they currently exist have led to a lack of representation of communities of color in local and state government positions, including school boards, city councils and the Washington Legislature, she said.

“Our goal is not about punishment,” she said. “Our goal is about ensuring that we are protecting our communities’ right to vote and we actually have the ability to move Black, brown[, Asian American and Pacific Islander] and Indigenous [people] into positions of leadership and decision-making positions in local government.”

The big picture

Washington is just one of five states with a Voting Rights Act, while several others are considering them.

For voting rights advocates and those who represent communities in voting rights cases, having a state act is essential because of the dilution of the Federal Voting Rights Act, Nott said.

A decade ago, the U.S. Supreme Court invalidated pre-clearance, which required states and local jurisdictions with a history of voter discrimination to get approval from the Department of Justice or federal court before making any changes to their election system.

Removing that part of the federal law means voters primarily have to go the litigation route to prove discrimination in local and state election systems. And even if voters who pursue legal challenges under the federal act win, federal courts often defer to solutions proposed by the local government, she said.

“It’s extremely challenging for voters to prevail under the federal [voting rights act],” Nott said.

Different states’ laws offer additional voter protections, she said. Virginia’s voting rights act criminalizes voter intimidation, while New York’s provides expanded services to limited English speakers.

Washington’s voting rights act update includes a “democracy canon,” said Nott, that instructs courts, whenever possible, to interpret any legal ambiguity in favor of protecting the right to vote.

Finally, a state voting rights act provides a framework for citizens to enforce their right to vote that can better withstand something like a change in party power or individual laws that would restrict voter access, she said.

“Who knows what future forms of voter suppression looks like?” Nott said. “To have this here as a tool to fight against them — that’s important if things change.”

As with the original version of the Washington Voting Rights Act, Mena expects it will take a few years to see how the updates look when implemented.

“I would like to see this version implemented and see how folks use it [and] let us know what works well,” she said.

In the meantime, Mena would like to pursue other voting rights legislation, such as bills that address disproportionate ballot curing among voters of color in Central and Eastern Washington. She also sees opportunities for updates and provisions to the Washington Voting Rights Act, such as a state version of the preclearance provision (which was once included in the federal voting rights act) that would require approval from a state agency or the attorney general.

“It’s something we should have at the state level to make sure when we make progress, we keep it,” she said.