On May 11, the Washington Supreme Court will hear oral arguments in a case claiming the Washington Voting Rights Act violates the federal Equal Protection Clause and the state Privileges and Immunities Clause. Portugal v. Franklin County is a case of first impression for Washington’s high court, and its outcome could determine whether minority voters can look to state law and state courts to challenge discriminatory election systems in local government. The outcome could have consequences for voters in other states with similar voting rights acts if the decision is replicated in any of those places.
Since its passage in 2018, the Washington Voting Rights Act has ensured that communities of color have an equal opportunity to elect candidates to county commissions, city councils, school boards, and local governments. While the law applies to local governments no matter what type of election system is utilized, the act’s drafters were particularly concerned with at-large systems, where candidates for a representative body such as a city council run jurisdiction-wide and face the entire electorate. This kind of election is widely used across Washington.
In at-large systems, when white voters form a numerical majority and consistently oppose candidates favored by minority voters — a tendency known as racially polarized voting — communities of color can be entirely shut out of power, even when their population is sizeable. Such patterns go hand in glove with, and perpetuate, various social and economic inequities. Communities that have faced discrimination in housing and employment, for example, may lack resources sufficient to fund jurisdiction-wide campaigns.
Without adequate minority representation, local governments can underinvest in schools, parks, transit, and other services in minority communities, which can, in turn, stifle upward economic mobility and depress political participation. This relationship between political exclusion and other negative outcomes forms the conceptual underpinning of the Washington Voting Rights Act and similar laws. That is, seats at the policymaking table are necessary to resolve other disparities and opportunity gaps.
Principally, the act has three operative parts. First, it empowers all localities to voluntarily abandon election systems that operate in a discriminatory manner. This authority did not exist for many jurisdictions before the act’s enactment. Second, it sets up a mandatory notice-and-cure period, which enables local governments to address claims that their systems are discriminatory prior to litigation. Finally, it gives impacted voters a cause of action in state court.
The Portugal case is a paradigmatic deployment of the Washington Voting Rights Act. In 2020, Latino voters and the League of United Latin American Citizens challenged Franklin County’s at-large election system under the state law. Despite forming 54 percent of the total population and about one-third of all eligible voters, Latino residents have not elected a single candidate to the three-member county commission for the past 20 years due to the county-wide elections and polarized voting by white voters. Moreover, significant disparities in areas like education, health, income, and housing and a long history of discrimination demonstrated a lack of political responsiveness by Franklin County to its Latino residents.
Franklin County opted to settle the case, agreeing to adopt a district-based system that provided Latino voters a pathway to political success. But a Franklin County resident intervened and challenged the Washington Voting Rights Act as a whole, not just its application in Franklin County, under the Equal Protection Clause of the U.S. Constitution and the Privileges and Immunities Clause of the state constitution. After a loss in trial court, he appealed to the Washington Supreme Court.
This challenge centers on the state Voting Rights Act’s liability standard, which does not require plaintiffs to demonstrate that impacted minority voters are sufficiently numerous and geographically concentrated to form an electoral majority in a district. This inquiry is a component of the legal test for federal Voting Rights Act claims, and the intervenor argues that absent such a requirement, Washington’s law improperly makes race a primary consideration in redistricting without sufficient justification and thereby violates the Equal Protection Clause.
Such arguments stand on shaky ground. As the Brennan Center wrote in our amicus brief to the Washington Supreme Court, the intervenor misapprehends the federal Voting Rights Act’s geographic compactness requirement. That element does not serve to avoid conflict with the Equal Protection Clause but rather reflects federal courts’ commitment to district-based solutions as the default in vote-dilution cases under the federal law.
Because federal courts assume a district-based remedy, they have adopted a framework that assesses up front whether a hypothetical district can be drawn that would provide redress to plaintiffs. The Washington Voting Rights Act, in contrast, does not assume a district-based remedy. Instead, it offers courts a broad array of options, such as ordering the use of an alternative ranked-choice voting system, which would not involve drawing districts at all. Accordingly, plaintiffs need not demonstrate geographic compactness to establish liability.
But if the Washington Supreme Court adopts the intervenor’s argument, it would effectively establish the federal Voting Rights Act as the ceiling for voting rights protections. Washington is one of several states that has attempted to fill the gaps left by weakened federal voting rights protections through state law. California, Oregon, New York, and Virginia have adopted their own state voting rights acts to guard against discrimination in elections. The legislatures in at least three states —Connecticut, Maryland, and New Jersey — are considering enacting their own. Under the intervenor’s logic, states seeking to offer state-law remedies without mirroring the federal requirements engage in constitutionally suspect racial classification.
This is a worrying development, particularly because the U.S. Supreme Court has repeatedly eroded the federal Voting Rights Act’s protections against vote dilution and has limited the availability of race-conscious remedies. The pending Merrill v. Milligan case, a challenge to Alabama’s congressional map under the federal Voting Rights Act, will provide further opportunity to limit such protections under federal law. And the Students for Fair Admissions, Inc. v. University of North Carolina affirmative action case can further narrow when and how race can be considered.
Portugal demonstrates that state voting rights acts are not immune from efforts to expand principles of race-blindness under the federal Constitution and to eliminate critical voting rights safeguards.
Oral argument will take place on May 11 and can be watched live here.
The Brennan Center filed a friend-of-the-court brief in this case.