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State Voting Rights Act: Cash Cow For Attorneys or Meaningful Reform?

For a small city like Yakima, one million dollars is a lot of money. That was what it cost the city to undergo a legal battle under the Federal Voting Rights Act in 2011.

At the time of the lawsuit Latinos made up more than 41 percent of Yakima’s population, yet none had ever been elected to the city council. The city’s at-large voting system made it impossible, despite political consensus within the Latino community. Following the suit and the adoption of the ACLU’s remedy, Yakima elected three Latina city council members.

In a public hearing in the House State Government Committee on Tuesday, Yakima City Council Members Avina Gutierrez and Sonia Rodriguez testified in favor of House Bill 1745 (also known as the Washington Voting Rights Act). According to them, if the legislation had previously been in place, they could have avoided losing the large sum that the city spent in federal court.

The Issue at Hand

The underrepresentation of Latinos in Washington’s locally elected offices is a narrative that resurfaces again and again in discussions of the Voting Rights Act. Yet, the debate in the Washington State legislature isn’t about whether the issue of representation for Latinos and other protected classes needs to be addressed.

“We would like to do something on this issue” said Senator Pam Roach (R-Auburn) regarding the Voting Rights Act. Her apparent willingness to address the issue of fair elections in Washington was echoed by almost every member of the House State Government Committee on Tuesday. Last year Senator Roach voted HB 1745’s companion bill, Senate Bill 5668 out of her committee, but it failed to pass the legislature. This year, like HB 1745, it’s been reintroduced.

Each bill and each alternative proposal is met with skepticism that it serves special interests, either preserving the status quo or disrupting it in a way that’s favorable to them politically.

Skepticism

HB 1745 creates a legal cause of action where local and district elections exhibit polarized voting between voters in a protected class and other voters. Often referred to as vote dilution, the result is that members of the protected class do not have an equal opportunity to elect their preferred candidate or influence the election. The legislation mandates the citizens notify the political subdivision before filing a legal action, providing analysis of the data that demonstrates vote dilution and polarized voting, as well as proposed remedies. At that point the subdivision has 90 days to implement the person’s remedy and avoid legal action.

Despite the 90 day resolution period, critics of the bill say that it not only opens the door to certain subdivisions being sued more than once, but that it’s a money-making scheme put forth by attorneys who get paid by defendants (in this case a local government entity) to pursue these cases.

Representative Matt Manweller (R-Ellensburg) voiced concerns about this bill in 2015. This year is no different. According to him, “The state law is different in that it allows for much much more litigation, lower standards of evidence, more areas and opportunities to sue, and it applies to municipalities and government entities that I just don’t think are appropriate.” His argument that the bill would increase lawsuits is a concern for Representative Brad Hawkins (R-East Wenatchee) as well. After Tuesday’s public hearing on HB 1745, he said that the bill “appears to have a negative view of at-large districts. In Central Washington smaller local government entities rely on at-large elections to cast a wider net.” Representative Hawkins explained that small jurisdictions find it difficult to fill locally elected positions like school boards and can be devastated by the type of lawsuit that Yakima went through.

When it comes to the subject of litigation, that’s exactly what the ACLU says it aims to avoid with HB 1745. After the hearing, Shankar Narayan, Legislative Director at the American Civil Liberties Union of Washington, said, “I don’t think that they read the bill.” To him, the biggest misconception about the Voting Rights Act is that “it’s a litigation focused bill.” HIs position is that “The entire point of the bill is to avoid litigation.”

A Money Maker?

The issue of litigation and allegedly opportunistic lawyers has become the main sticking point in the debate over the Voting Rights Act. In an editorial in the Seattle Times, Yakima Mayor Micah Cawley remarked that the city was “clobbered” with “$2.8 million legal bill from the ACLU.”

Despite the ACLU’s insistence that Washington’s Voting Rights Act provides an alternative to litigation, some believe that it not only opens the door for litigation but intentionally incentivizes it.

“I was concerned about some of the provisions about lawyers getting paid whether they won or lost… talk about an unnecessary incentive to file lawsuits,” said Matt Manweller after HB 1745 passed out of Executive Session .“This is all about providing opportunities for law firms in Seattle to have a body of work that will take them out ten years. They are going to sue every city, every municipality… it is going to be a huge cash cow for ACLU-related law firms.”

Those Lawyers

A piece by the Associated Press in 2009 called “Jackpot: Lawyers earn fees from law they wrote,” said that California’s Voting Rights Act (CVRA) had made it “easier for lawyers to sue and win financial judgments in cases arising from claims that minorities effectively were shut out of local elections, while shielding attorneys from liability if the claims are tossed out.” They also revealed that California’s legislation, which serves as the inspiration for Washington’s, was written by two attorneys.

The law was drafted by Seattle law professor Joaquin Avila, with advice from Robert Rubin, of the Lawyers’ Committee for Civil Rights in San Francisco. Following the passage of the CVRA, “Avila, Rubin’s committee and lawyers working with them have collected or billed local governments about $4.3 million in three cases that settled, and could reap more from two pending lawsuits.” In California, the first Voting Rights Act case in the City of Modesto, cost the city $4.7 million. It’s anecdotes like these that add fuel to Representative Manweller’s fire.

In response to the allegation that the Voting Rights Act intentionally creates a lucrative opportunity for lawyers, Narayan said, “If it was such a money-maker, I assume all these people would already be suing, which they’re not. Everything that’s illegal under the federal Voting Rights Act remains illegal. These jurisdictions can be sued now, so if the intent is to create a flood of litigation, then why is it not happening? This is a way to avoid litigation. It doesn’t create new liability. But what it does do is create ways to avoid litigation that we don’t have right now. That’s been the experience in California, which isn’t even as comprehensive a statute as ours.”

Newly elected Representative Noel Frame (D-Seattle) supports HB 1745. She doesn’t believe that the involvement of law firms will be necessary to remedy situations like Yakima’s under HB 1745. She’s confident that the initiative of private citizens without law firms plus the provisions in the bill are enough to avoid litigation. Regarding the situation in Yakima, she said, “There were private citizens recognizing this problem before it ever went to court.”

Looking to California for Answers

The idea that the Voting Rights Act is some type of scheme has been uttered aloud before. After settling a lawsuit in Palmdale, California, Mayor Jim Ledford said, “This lawsuit has never been about race or voting rights… it has always has been about money and politics.” According to the L.A. Times Ledford produced a list of 25 voting rights cases across California that he said have cost taxpayers more than $13.8 million.

Another point of contention is whether California’s law has led to more lawsuits, settlements or proactive solutions. Although the ACLU hasn’t done a formal analysis of what has happened in California, Narayan believes that most jurisdictions either voluntarily solved their voting systems or settled before an expensive trial. One America, another prominent proponent of the WVRA thinks so too. On their website they state that in California “Far more jurisdictions have changed their systems voluntarily than have gone to litigation. The WVRA is modeled on that successful legislation.”

In the absence of any comprehensive analysis on California’s Voting Rights Act and whether it prompted more preemptive solutions than expensive court battles, the debate rages on. It’s uncertain if this will be the year that the VRA passes, or if the effort will falter once again.

 


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