This post originally appeared in the leadership blog of the Majority Coalition Caucus, Exit 105.
When talk turns to the Voting Rights Act, that old black-and-white news footage starts running through our minds — sit-ins, boycotts and the March on Washington. The federal law of 1965 was one of the most significant bills of the last century, fulfillment of the promise that all shall have the right to vote. And I think those powerful images make it difficult to see the truth about this year’s House Bill 1745.
Yes, the proposed Washington-state Voting Rights Act will help a downtrodden minority. The problem is we’re talking about lawyers.
Though the bill adopts a time-honored name, it responds to no clear-cut case of discrimination, and it opens the door to costly litigation that will put every local government in this state at risk. The American Civil Liberties Union and other supporters say it will combat political-districting practices that reduce the ability of minority groups to elect their candidates to local boards and commissions. Every city and county, fire district and port commission ought to be nervous — and not because any of them are doing anything untoward.
The poster-child for the argument is the city of Yakima, where a large Latino population can’t seem to elect candidates to the city council. The ACLU used federal law to sue on behalf of Hispanic residents, and a federal judge last year ordered a new districting plan. The city of Yakima plans to appeal.
This raises a logical question. If there really was discrimination in Yakima, federal law proved able to deal with it. So why do we need a new state law? Supporters offer an appealing argument — they would create a kinder, gentler process. Under their proposal, when a complaint is filed, a jurisdiction would be given the ability to fix its election processes before the matter goes to court. Lawsuits would be barred for four years. Not a bad idea. Current law makes redistricting cumbersome. We might be able to find a way to embody this principle in state law.
Trouble is, the bill’s supporters want to go far beyond that. They would create an entirely new law to determine whether violations are taking place. So instead of the bright lines and sharp edges of federal law, honed by 50 years of judicial interpretation, we get new tests and new language, all of it intentionally left vague. Instead of protecting all voters, this law is aimed only at “protected minorities” – including minorities defined by the languages they speak. Imagine the effect on cities where many languages are spoken, like Seattle and Federal Way. The law appears to ditch a federal prerequisite for lawsuits – that plaintiffs demonstrate redistricting will solve anything, by changing the outcome of elections. This law allows them to throw out a complaint and see what sticks.
Supporters say that if we leave everything up to the courts, we get a “living, breathing” law. What we really get is a club that can be held over any local government – the threat of legal action that will cost taxpayers a fortune. In Yakima, the city spent nearly $1 million defending itself and the ACLU seeks a whopping $2.8 million for legal fees. Curiously, this bill allows plaintiffs to recover legal costs from public agencies if they win, but taxpayers can’t get their money back when they prevail.
Proponents also seem to make the absurd assumption that every time a complaint is made, we must have a case of illegal discrimination. In California, one of two states with a similar law, it is open season on local governments. Some 27 complaints have been filed, and voting-rights litigation looms as a new specialty for personal-injury lawyers. Yet mathematical analysis of what election results “ought to be” is far from a science. Just ask any legislator – there are many of us at the statehouse who weren’t supposed to win, and did. We have to remember there are many reasons candidates don’t win elections, and there is usually a better explanation than discrimination.
This business of allowing the courts to determine the “fairness” of elections, when even we don’t know what we mean by that, ought to chill us all. By calling this the “Voting Rights Act,” supporters attempt to make skepticism seem illegitimate. But this isn’t the Voting Rights Act we know and admire. It is a recipe for chaos.
Sen. Mike Padden, R-Spokane Valley, is chair of the Senate Law and Justice Committee.