|Let's have our cake.........or taking your piece?|
By Krist Novoselić
Micah Cawley is the Mayor of Yakima, Washington and he writes this great editorial in the Seattle Times today.
It is refreshing to see a forward-looking article about the Voting Rights Act (VRA) that encourages readers to go beyond the partisan stagnation that infects our politics these days.
Last week, Cawley submitted testimony in Olympia in support of the Washington Voting Rights Act. He advocated certain amendments to the bill that should make better prospects for its passage. This can be a game-changer with legislation that has been slogging its way through the process. Too bad proponents of the VRA squandered an opportunity to move an amended bill out of the Senate Government Operations and Security committee. They instead passed a version of the bill that already died in the Senate Rules committee. Unless proponents have a strategy -and I have not heard of one- it seems like EHSB 1745 [WA VRA bill] is limping its way to its death again in the Senate Rules committee. However, it's not too late and maybe Cawley’s positive attitude -and the amendments- can still give this bill some traction?
Washington State Voting Rights Act
I have been asked to explain this bill. If you don't read the link above, here is very brief explanation of the legislation.
If passed into law, the WA VRA is a way to keep places out of prolonged court battles. For example, if there is evidence of exclusion of racial minorities, a concerned party could approach a jurisdiction regarding their election system. Empirical data within a serious examination of the election system would have to be submitted. The WA VRA bill does not compensate legal fees to a party that is determined to have submitted a frivolous lawsuit — you better be serious if you execute an action under a WA VRA.
Real evidence could show how a winner-take-all, at-large election system results in majority bloc voting in a racially polarized environment. The jurisdiction then has 180 days to respond to the notice. Let’s say the board looks at the evidence and determines that it is credible. The task for the jurisdiction, if they want to avoid any further action from the party presenting evidence, is to remedy the problem by changing its election system to accommodate more people. If the jurisdiction does this, they are then immune from another state action for four years. So there you have the promise of a WA VRA — prolonged litigation on the state level is avoided!
Many assume the remedy for a VRA case is the single-member, majority-minority district. However, this arrangement is nowhere in the Voting Rights Act of 1965. And technically, exclusive districting is not the only remedy in the WA VRA – and we will get to this shortly. My point is that the bill gives a jurisdiction flexibility with its choice of remedy.
For example, a city or special district can do away with their winner-take-all, at-large system and choose an exclusive district plan. It is then a matter of deciding how to draw maps. The protected class – in Eastern Washington’s case it's Latinos — would be drawn into districts that reflect their proportion of the population.
In the Yakima court-ordered exclusive district plan, one district is majority-minority; meaning these “types” of voters are virtually guaranteed to elect a candidate of their choice. In a second district, there is not a majority, but these “types” are concentrated enough to potentially influence elections. According to Drew Spencer, FairVote’s staff attorney, “almost 80% of Yakima's Latino citizen voting-age population would live outside of the one majority-minority district, and almost 60% would live outside of either the majority-Latino or the "influence" district. That means that most Latino voters in Yakima would still have no actual representation on the Yakima city council.”
This gets us to more options under the WA VRA — and what Cawley is talking about in his editorial. Yakima all along wanted to settle its lawsuit with a hybrid district / modified at-large system. Some other technical terms for modified at-large are semi-proportional representation and Single Non-Transferable Vote. Yakima proposed five districts for their seven council seats. One district is majority-minority, and another is an influence district. With the modified at-large part, they proposed the first and second place vote getters win election for the two city-wide seats.
With this constitutionally protected and proven system, one person gets one vote towards electing two people. If considering an actual election like the one mentioned in Cawley’s Op-Ed, you can see that that indeed – most voters would be winners. Motivated, bridge-builder candidates have incentive to engage the system. This has the real potential for electing two Latino representatives on the Council.
This hybrid is a better deal than the single and exclusive, majority-minority district the plaintiffs and court keep insisting on. Hybrid district / modified at-large voting is used in other diverse cities such as Philadelphia, PA.
The final option is a full modified at-large system. Over one hundred jurisdictions in the United States use this type of voting — many in response to VRA cases. Over forty school boards use it in Texas, a state with a large Latino population. As Cawley remarked in his Op-Ed, “the idea is to be inclusive of more voters, regardless of where they live, what they look like, or what they believe.”
In addition, for many smaller boards, commissions and special districts where people tend to volunteer their time, modified at-large creates a larger pool of candidates available to serve. With districts, two good candidates could have to run against each other, while other districts remain vacant. Yakima needs a modified at-large component as it does not have a strong mayor system. They use a city manager, so they need the flexibility of some at-large seats to accommodate citywide representation.
Regardless of their needs, the plaintiffs and their attorneys in the federal VRA action insisted on exclusive districts. In the end, the US District Court's interpretation of state law disqualified Yakima's request for flexibility.
As a result, lawyers in Seattle drew Yakima’s exclusive district maps. This fall, Seattleites get to vote for three seats on their council — unlike in Yakima where they are being told they cannot have these kinds of choices in their upcoming elections.
It gets worse. Yakima was soaked with a $2.8 million legal bill from the ACLU. The City’s defense cost a fraction of this. They asked the judge to explain this discrepancy, and are still waiting to hear back. Now, after Yakima’s punitive court-imposed legal bills, entrepreneur attorneys will see a potential pot of gold in other Washington cities with growing diversity.
As you can see, the rigidity of this ruling is ugly. At the same time, the old rules in Yakima were unfair to too many voters. This is why we need a Washington State Voting Rights Act to avoid these situations.
Save EHSB 1745!
Republicans in Olympia are leery of a WA VRA because they see it as too litigious. And considering that majority State House Democrats recently rejected GOP floor amendments that clearly made the bill less litigious, I don’t blame this suspicion. In Cawley’s testimony to the Senate, and in his Op-Ed, he proposes these six amendments to the senate bill.
1 Excludes cities and towns under 2,000 people as well as school districts with fewer than 500 students, instead of 1,000 and 250 respectively in the original bill;
2 Provides for the affirmative defense to liability that members of the protected class are already elected in proportion to their population in the jurisdiction;
3 Prohibits an action to be filed within four years of a lawsuit filed against the subdivision under the federal VRA;
4 Allows incumbents to finish their terms in office, even if that means the legislative body has to temporarily expand following new elections;
5 Allows the jurisdiction to adopt a remedy different from the one provided in the notice or notices, just so long as it complies with the law;
6 Clearly includes the use of modified at-large voting as a remedy for cities to adopt voluntarily.
I testified in favor of these amendments also.
The version of the WA VRA that passed out of the committee is vague about modified at-large. We feel this option for jurisdictions should be clearer. The reality is that most cities and boards that remedy federal VRA cases choose exclusive majority-minority districts. Nevertheless, one size does not fit all. For example, in recent years Port Chester, New York opted for modified at-large with its remedy. Santa Clarita, very recently under the California Voting Rights Act, also chose modified at-large.
I was in Olympia twice to testify on behalf of an amended WA VRA. I support the amendments because I see them as the only way forward. I support this legislation as I believe there is polarized voting in Yakima. What an irony that political polarization is holding the WA VRA back from passing! It will take some doing, but there might be some will to try and get an amended bill to pass the State Senate. However, it cannot be done alone. This means the GOP embracing EHSB 1745 in Rules, along with some coordinated floor amendments.
Even if the Washington State Voting Rights Act dies again this year, let us all still work to build political and racial bridges so that all of our state’s voters can get the representation they deserve.