Can a Washington noncharter code city change its city-council election system from at-large general elections to district-based general elections to avoid violating the federal Voting Rights Act?

Plain-English summary

Senator Pam Roach asked the AG about Pasco, a noncharter code city with a substantial Hispanic population that wanted to switch from its current hybrid election system (council members nominated by ward in the primary, then elected at large in the general) to one where council members are both nominated and elected by ward. Pasco was concerned its existing system violated Section 2 of the federal Voting Rights Act after the Montes v. City of Yakima federal court decision struck down a similar system in nearby Yakima.

The legal pinch: RCW 35A.12.180 expressly prohibits a code city from limiting general-election voting to ward voters. The statute lets a city use wards in the primary (only that ward's voters can vote in the primary for that ward's seat), but says general-election voting must be city-wide. So Pasco wanted to do something state law prohibited because it believed federal law required it.

The AG laid out a layered analysis:

1. State law on its own. RCW 35A.12.180 controls. A code city cannot use ward-only voting at the general election by ordinance. This is a substantive limit on what would otherwise be the broad legislative power of code cities under RCW 35A.11.020.

2. Federal preemption. Federal law preempts state law to the extent of conflict. Puget Sound Gillnetters Ass'n v. Moos held that a state agency can act contrary to state law to comply with federal law as construed by a federal court. The cleanest case is when a court has already adjudicated a Section 2 violation and ordered a remedy (the Perkins / Cleveland County / Large line: the remedy must hew to state law except where state law is an "unavoidable obstacle").

3. The harder case: voluntary compliance before suit. What if Pasco wants to switch before a court rules on its current system? The AG borrowed Ricci v. DeStefano, the Supreme Court employment-law case, which holds that a public employer may take race-conscious action to avoid disparate-impact liability if it has a "strong basis in evidence" that the action is necessary to comply with another federal law. The AG predicted Washington courts would extend that framework: a code city may deviate from state election law when it has a strong basis in evidence that compliance is required by Section 2.

4. What evidence? A strong basis in evidence for a Section 2 violation requires the multi-factor Thornburg v. Gingles threshold analysis (compactness of minority population, political cohesion, white bloc voting) plus the totality-of-circumstances inquiry under Johnson v. De Grandy. The city does not have to be certain its current system violates Section 2 (Alabama Legislative Black Caucus) but must "have good reasons to believe" it does.

5. Burden in litigation. If a city makes the switch and gets sued under state law, the AG predicted state courts would adopt a Ricci-style burden-shifting analysis: the plaintiff shows the deviation, the city shows its strong basis in evidence for a Section 2 violation, then the plaintiff can rebut by showing no actual Section 2 violation existed.

The opinion noted the legislature could resolve the bind by amending RCW 35A.12.180 to authorize ward-based general elections in code cities. Without that, code cities facing potential Section 2 exposure had to weigh the litigation risks of either staying with the at-large system or switching.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is a "code city"?
A: Per RCW 35A.01.035, a city that has chosen to organize under the Optional Municipal Code (RCW 35A). Most modern Washington cities are code cities. The opinion addresses noncharter code cities; charter code cities have different governing rules under their charters.

Q: What does Section 2 of the Voting Rights Act prohibit?
A: Per 52 U.S.C. § 10301, any standard, practice, or procedure that denies or abridges the right to vote on account of race, color, or membership in a language minority group. Per Ruiz v. City of Santa Maria, a Section 2 violation is "any political process leading to an election that is not equally open to participation by a minority group." Discriminatory intent is not required; discriminatory result is enough.

Q: How does the strong-basis-in-evidence test work in election cases?
A: It originated in Ricci v. DeStefano in the employment context but has been applied in voting rights cases too (see Abrams v. Johnson and Shaw v. Reno discussed in the opinion). The city must have specific factual support for believing a Section 2 violation exists, typically a Gingles-style analysis of demographic and voting-pattern data.

Q: Why couldn't Pasco just settle with potential plaintiffs?
A: Even consent decrees cannot be used to evade state law unless the underlying federal violation actually requires the remedy (Cleveland County Ass'n; Large v. Fremont County; League of Residential Neigh. Advocates). A federal court approving a settlement does not bypass state law; the settlement has to be necessary to cure a real Section 2 violation.

Q: Could the legislature have fixed this?
A: Yes. The opinion specifically noted that the legislature could amend RCW 35A.12.180 to authorize district-based general elections in code cities. That would let cities like Pasco resolve VRA risks without bumping into state law.

Q: What was the Montes v. City of Yakima ruling?
A: A 2014 Eastern District of Washington decision (40 F. Supp. 3d 1377) that struck down Yakima's at-large election system as a Section 2 violation. The decision was a major data point for nearby cities with similar demographics.

Q: Does this analysis apply to first-class cities or charter code cities?
A: The opinion was limited to noncharter code cities under RCW 35A. First-class cities under RCW 35.22 and charter code cities under RCW 35A.08 operate under their charters and have different election-law constraints.

Background and statutory framework

Washington's election structure for code cities is layered. RCW 35A.11.020 grants code cities all powers a city could have under the state constitution unless specifically denied by law. RCW 35A.12.040 makes at-large elections the default but allows ward-based primaries. RCW 35A.12.180 fleshes out the ward option: a noncharter code city can divide into wards of roughly equal population, restrict candidacy to ward residents, and limit primary voting to ward voters, but the general election must let "[v]oters of the entire city" vote (with a grandfather clause for cities that limited general-election voting before January 1, 1994). The same provisions extend to council-manager code cities through the cross-reference in RCW 35A.13.020.

Section 2 of the VRA applies to any "state or political subdivision" of a state. The Ninth Circuit's analysis in Ruiz confirmed that Section 2 reaches local election systems including municipal council elections and that proof of discriminatory result is enough.

The strong-basis-in-evidence framework comes from Ricci v. DeStefano. In that case, a public employer faced disparate-treatment liability for discarding test results that produced racially skewed promotions. The Court held the employer could defend its action only if it had "a strong basis in evidence" that using the test results would itself have produced disparate-impact liability. That structure of "comply with one law to avoid violating another" is what the AG imported into Washington's state-law-versus-VRA tension.

Federal cases on remedying Section 2 violations consistently hold that any deviation from state election law must be the minimum deviation necessary to cure the violation. Large v. Fremont County is the cleanest articulation: state law must be displaced only to the extent necessary, and federal courts owe deference to the structure of state law.

Citations and references

Statutes:
- 52 U.S.C. §§ 10301-10314 (Voting Rights Act, especially § 10301(b))
- RCW 35A.11.020, .12.040, .12.180, .13.020 (code city election law)

Constitutional provisions:
- U.S. Const. art. VI, cl. 2 (Supremacy Clause)
- Wash. Const. art. XI, § 11

Cases:
- Montes v. City of Yakima, 40 F. Supp. 3d 1377 (E.D. Wash. 2014)
- Ricci v. DeStefano, 557 U.S. 557 (2009)
- Large v. Fremont County, 670 F.3d 1133 (10th Cir. 2012)
- Cleveland County Ass'n for Gov't by the People v. Cleveland County Bd. of Comm'rs, 142 F.3d 468 (D.C. Cir. 1998)
- Perkins v. City of Chicago Heights, 47 F.3d 212 (7th Cir. 1995)
- League of Residential Neigh. Advocates v. City of Los Angeles, 498 F.3d 1052 (9th Cir. 2007)
- Ruiz v. City of Santa Maria, 160 F.3d 543 (9th Cir. 1998)
- Puget Sound Gillnetters Ass'n v. Moos, 92 Wn.2d 939, 603 P.2d 819 (1979)

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/authority-code-cites-modify-system-electing-city-council-members-comply-federal-voting

Original opinion text

Attorney General Bob Ferguson

ELECTIONS—CITIES AND TOWNS—FEDERAL PREEMPTION—Authority Of Code Cites To Modify System For Electing City Council Members To Comply With Federal Voting Rights Act

1. State law allows a code city to divide into wards for use at the primary for nominating candidates for the city council but requires that all city council members be elected at large at the general election.

2. A code city may choose to use wards for both nominating candidates in the primary and for electing city council members at the general election if, but only if, the city has a strong basis in evidence for concluding that Section 2 of the federal Voting Rights Act compels the city to do so.

January 28, 2016

The Honorable Pam Roach

State Senator, District 31

PO Box 40431

Olympia, WA 98504-0431

Cite As:

AGO 2016 No. 1

Dear Senator Roach:

By letter previously acknowledged, you have requested our opinion on the following question:

May a non-charter code city subject to RCW 35A.12.180, having a large minority population, adopt a district-based general election procedure to avoid a potential violation of section 2 of the federal Voting Rights Act?

BRIEF ANSWER

Yes. RCW 35A.12.180 allows certain cities to use districts for conducting city council primary elections but requires a citywide vote at the general election. We conclude that a city subject to RCW 35A.12.180 may both nominate and elect positions on its city council by district, but only if the city has a strong basis in evidence to conclude that its proposed change is necessary to comply with the federal Voting Rights Act (VRA). 52 U.S.C. §§ 10301-10314.

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FACTUAL BACKGROUND

Your question arises out of a situation in the City of Pasco. Pasco has opted pursuant to state law to divide itself into five wards (or districts), which are used in electing five of the city's seven positions on its city council. Candidates for the five positions nominated by ward must be residents of that ward, and only the voters in that ward may vote for the position at the primary. The top two candidates at the primary then advance to the general election, which is conducted city-wide with participation from all voters throughout the city. RCW 35A.12.180. Candidates for those five positions are thus nominated by ward, but elected at large. The other two positions are both nominated and elected by the entire city at large. RCW 35A.12.040.

Pasco is considering changing this voting system because of concern that its current system may violate the VRA. This concern arises for a number of reasons, but in large part because Pasco is home to a substantial Hispanic population and the nearby city of Yakima recently saw its electoral system rejected as violating the VRA. Montes v. City of Yakima, 40 F. Supp. 3d 1377 (E.D. Wash. 2014). In order to avoid similar litigation, Pasco proposed to amend its municipal code to provide for both the primary and general elections to be conducted by ward.

The city submitted this proposal to the county auditor, who serves as the ex officio election officer for the county and for the cities within the county. RCW 29A.04.216, .330. The auditor responded that state law did not authorize the auditor to conduct the election in this changed manner on behalf of the city. The city council then adopted an ordinance that expresses its desire to change its electoral system, but retains its current system due to the question of its authority to make the change.

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ANALYSIS

Our analysis consists of three parts. First we consider the scope of your question, noting several topics we cannot explore in an Attorney General Opinion. Second, we consider how your question would be analyzed under state law if state law were the only relevant consideration. We conclude that considering state law in isolation, a code city is generally required to conduct general elections for city council at large throughout the city, and therefore a code city is generally prohibited from limiting general elections to voters within each ward. Third, we turn to the effect of federal law on our state law analysis. The third section is the most complex and gives rise to more than one possible interpretation of the law. Although there is no case law directly on point, we conclude that a code city would be justified in conducting its city council elections in a way that is otherwise inconsistent with state law if, but only if, the code city can establish a strong basis in evidence for concluding that federal law compels its action.

A. Scope Of Analysis

Before beginning our analysis, we pause to explain what we are and are not able to address in this opinion. First, although your question arises in the context of a specific city, our analysis will necessarily be general. Attorney General Opinions do not resolve factual issues, and as we explain below, any conclusion that a particular city might be violating the VRA would be deeply fact dependent. Thus, we offer no opinion as to whether Pasco or any other city is, or is not, currently violating the VRA. Second, our opinion expresses no view as to whether Pasco or any other city should elect its city council in any particular way. Finally, while this opinion highlights a very difficult question created by current state law as to code cities facing potential VRA claims, it is worth noting that this difficulty could easily be fixed by the legislature.

B. Authority Of A Code City Under State Law To Determine The Manner By Which Its City Council Is Elected

You ask specifically about the authority of a code city, such as Pasco, to both nominate and elect its city council by ward. The term "code city" refers to a city that has chosen to organize under the Optional Municipal Code. RCW 35A.01.035. The legislative body of a code city has the "power to organize and regulate its internal affairs within the provisions of this title and its charter[.]" RCW 35A.11.020. "The legislative body of each code city shall have all powers possible for a city or town to have under the Constitution of this state, and not specifically denied to code cities by law." RCW 35A.11.020. The question under state law therefore becomes whether adopting an electoral structure under which members of a city council are both nominated and elected by ward is specifically denied to code cities by law.

The ways in which code cities may elect city council members are set out in general law. "Elections to positions on the council shall be by majority vote from the city at large, unless provision is made by charter or ordinance for election by wards." RCW 35A.12.040. State law therefore specifies the default method for electing city council members in code cities. Such elections are held at large, unless the city has opted for a different system either by charter or through an ordinance providing for election by wards.

The option to elect city council members by ward is also described in statute. RCW 35A.12.180 specifies that wards "shall be used as follows: (1) Only a resident of the ward may be a candidate for, or hold office as, a councilmember of the ward; and (2) only voters of the ward may vote at a primary to nominate candidates for a councilmember of the ward. Voters of the entire city may vote at the general election to elect a councilmember of a ward, unless the city had prior to January 1, 1994, limited the voting in the general election for any or all council positions to only voters residing within the ward associated with the council positions."

Thus, RCW 35A.12.180 specifically denies to code cities the authority to restrict voting by ward at the general election. Therefore, a local ordinance that provided for general elections by ward would conflict with RCW 35A.12.180 and be preempted by state law. See Cannabis Action Coal. v. City of Kent, 183 Wn.2d 219, 225-26, 351 P.3d 151 (2015).

C. A Code City May Adopt An Ordinance Providing For Both Nomination And Election Of City Council Members By Ward If Compelled To Do So By Federal Law

Having concluded that state law requires that all voters of code cities be permitted to vote in each city council race at the general election, we next consider whether a city may deviate from this rule to avoid a violation of Section 2 of the VRA, 52 U.S.C. § 10301(b). We conclude that a city may conduct general elections by ward when it has a strong basis in evidence to conclude that acting otherwise would violate Section 2.

Section 2 prohibits any state or political subdivision of a state from using any standards, practices, or procedures that deny or abridge the right of citizens to vote on account of their race, color, or membership in a language minority group. 52 U.S.C. § 10301. "A Section 2 violation is any political process leading to an election that is not 'equally open to participation' by a minority group 'in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.'" Ruiz v. City of Santa Maria, 160 F.3d 543, 549 (9th Cir. 1998).

The United States Constitution establishes the supremacy of federal law within the ambit of its authority. U.S. Const. art. VI, cl. 2. State laws that directly conflict with federal law yield to federal law. Where state and federal laws conflict, the Washington Supreme Court holds that a conflicting state law cannot stand as an obstacle to compliance with federal law as determined by a federal court order. Puget Sound Gillnetters Ass'n v. Moos, 92 Wn.2d 939, 951, 603 P.2d 819 (1979).

Federal cases under the VRA emphasize that the VRA will only compel a violation of an otherwise-controlling state law if that violation is necessary to avoid violating Section 2. The remedy for a VRA violation must "adhere as closely as possible to the contours of the governing state law." Large v. Fremont County, 670 F.3d 1133, 1135 (10th Cir. 2012). State law can be abrogated when it is necessary to do so, but only if the law is an "unavoidable obstacle" to compliance with the federal law. As the District of Columbia Circuit expressed the matter, "if a violation of federal law necessitates a remedy barred by state law, the state law must give way; if no such violation exists, principles of federalism dictate that state law governs." Cleveland County Ass'n for Gov't by the People, 142 F.3d at 477.

We believe that the Ricci case provides helpful guidance. Ricci arose under federal civil rights laws governing employment. The Court concluded that the city's action in discarding its examination was justified if, but only if, the city had "a strong basis in evidence" for concluding that its action was necessary to avoid liability for disparate impact based on race. Ricci, 557 U.S. at 582. We believe that a Washington court would apply a standard similar to the "strong basis in evidence" standard applied in Ricci. As applied here, the standard would leave room for a code city to voluntarily comply with Section 2 when it has a strong basis in evidence for believing that it is necessary to act contrary to state law in order to comply with federal law.

Of course, a code city that chose to switch to a district election system for its general election could potentially be sued for violating state law. In such a lawsuit, we believe state courts might well adopt a burden shifting approach like the one adopted by courts applying Ricci in the employment context. If the plaintiffs could show that the city's voting system deviated from state law, then the burden would shift to the city to show that it adopted that deviation because of a strong basis in evidence to conclude that doing otherwise would violate Section 2. If the city could not make such a showing, its deviation from state law would be struck down. If it could make such a showing, the burden would shift to the plaintiff to prove that, in fact, although the city had a strong basis in evidence, there ultimately was no Section 2 violation.

In sum, code cities in Washington that believe they may be in violation of the VRA face difficult decisions and potential legal risk regardless of what course they choose. The legislature could rectify this situation by giving code cities greater authority to structure their general election processes. In the meantime, code cities do have some discretion. If they develop a strong basis in evidence to believe that they are violating Section 2, we believe that they would be justified in deviating from state law to comply with federal law.

We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON

Attorney General

JEFFREY T. EVEN

Deputy Solicitor General