By Tim Schermetzler of CSD Attorneys at Law P.S.
Washington Voting Rights Act and Knowing the Waters Live: Commissioner Conference Edition Question #1
At the end of July, I attended the Commissioner’s Conference at Semiahmoo Resort in Blaine.
It was a nice change of pace to attend a conference near my home, not only because I could
sleep in my own bed and avoid several hours of travel, but also because it was an excellent
opportunity to show off Whatcom County to commissioners from all over the state.
While at the conference, and building off last month’s column, Frank Chmelik and I presented
on recent changes to Washington election law and the Washington Voting Rights Act (“WVRA”)
Chapter 29A.92 RCW. This topic garnered a healthy discussion and lots of questions from the
attendees. Given the attendees’ interest, I am taking a few column inches this month to discuss
the WVRA.
The WVRA aims to prevent polarized voting, which is voting when there is a difference in the
choice of candidates or other electoral choices that are preferred by voters in a protected class
or a coalition of protected classes, and in the choice of candidates and electoral choices that are
preferred by voters in the rest of the electorate. 1 Protected class, in this context, means a class
of voters who are members of a race, color, or language minority group in the state of
Washington, as this class is referenced and defined in the federal Voting Rights Act. 2 The
protections in the WVRA really come down to ensuring equal opportunity in elections for voters
in a minority group or a combination of minority groups.
The headline for ports and the WVRA is that the current electoral system at your port district
may be subject to change to remedy a potential violation of the WVRA.
Absent a potential violation of the WVRA, the port commissioner elections statute, Chapter
53.12 RCW, provides ports options for organizing their electorate, often dependent on the
district’s population and geographic boundaries. For example, a less than countywide port
district may cease using commission districts, 3 ports may increase the number of
commissioners from three to five, 4 and ports may increase or decrease the commissioner
terms. 5 In addition to these options, RCW 53.12.135 allows a port commission to authorize a
change to its electoral system voluntarily to remedy a potential violation of the equal opportunity
protections in the WVRA.
A voluntary change to a port’s election system is one of two ways to change a port’s electoral
system; the other method is a court order following a challenge by a local voter. 6
The key to both the voluntary change and change by challenge methods is that the change is made in
response to a potential (or actual) violation of the protections in the WVRA. This does not mean
a port cannot take action absent a threat from a voter of a potential violation of the WVRA.
However, absent a voter challenge, a port making changes to its electoral system under the
authority of RCW 53.12.135 and the WVRA should consider retaining a consultant to compile
data showing there is at least the potential for a violation based on current electoral practices.
Without data to substantiate the change, a port cannot, on its own volition, utilize the WVRA as
a vehicle to make changes to its electoral system.
If there is a potential violation, the WVRA provides the port, either acting voluntarily or acting
through the court in response to a voter challenge, with a wide array of possible remedies.
Such remedies include, without limitation: redrawing district boundaries; requiring district-based
elections 7 for the primary and general elections; and adopting ranked choice voting, 8 cumulative
voting, 9 or limited voting 10 models. The potential remedies under the WVRA are more extensive
than the options under the WVRA’s federal counterpart, allowing remedies tailored specifically
to the subject port district’s electoral system.
If a port voluntarily adopts changes to its electoral system in response to a potential violation,
the port must provide public notice to residents of the district of the proposed remedy and hold
at least one public hearing on the proposed plan at least one week before adoption. 11 A voter
challenge, on the other hand, requires the port to work in good faith with the challenger before
adopting a proposed remedy which then must be approved by the court. 12 A challenger,
whether or not a lawsuit is ultimately prosecuted or the court merely approves a remedy agreed
to by the parties, may still receive reimbursement from the port for up to $50,000 in costs for
preliminary research and raising the notice. As long as a port adopting a court approved
remedy under the WVRA does not change or deviate from that remedy, no action may be
brought against that port for four years under RCW 29A.92.070’s safe harbor protections.
To date, there have only been a handful of WVRA imposed changes, either voluntary or by
voter challenge, to local electoral systems in the state. In Franklin County, successful
challenges were levied by the League of United Latin American Citizens, backed by the UCLA
Voting Rights Project, against the Franklin County Board of Commissioners and Franklin PUD
elections. In the case of the Franklin PUD and the Franklin County Board of Commissioners,
one of the court-approved remedies was aligning the elections with the United States
Presidential elections, changing from odd number years to even number years for elections.
Earlier this year, the UCLA Voting Rights Project issued a notice to the Port of Pasco seeking
similar remedies to those adopted by Franklin PUD, including moving to district elections for primary and general elections and aligning port elections with the United States Presidential
election cycle on even years. This matter is still pending, but is certainly one to watch, as it
could be a preview of similar challenges being made elsewhere in the state.
Following the presentation on the WVRA, WPPA staff and I rolled out a new session called
“Knowing the Waters Live,” where I answered random questions submitted by attendees at the
conference, and WPPA provided some top-notch prizes for participants. Because I ran out of
time at the conference to answer all of the questions submitted, I now have the opportunity to
answer these commissioner-generated questions in my normal monthly column. A question
relevant to our discussion on elections was:
After an election, can an incoming commissioner meet with the other commissioners
one-on-one before officially taking office on January 1 st ? (3-person commission).
This inquiry primarily raises an Open Public Meeting Act (“OPMA”) question. If your port has a
five-person commission, two commissioners meeting one-on-one does not create a quorum and
is not a violation of the OPMA. But also, it is not a violation of the OPMA for a sitting
commissioner to meet with a commissioner-elect before that person takes office. There may be
great value in a current port commissioner meeting with a candidate or commissioner-elect
before they take office, whether it be simple relationship building or answering more nuts-and-
bolts questions about operations of the port.
Finally, no discussion regarding new commissioners would be complete without me plugging the
WPPA New Commissioners training, which will be offered at the WPPA Annual Meeting this
November. The New Commissioner training covers topics including the Open Public Meetings
Act, Public Records Act, port governance, municipal ethics code, and much more. If you are an
incoming new commissioner, or even if you are a current commissioner wanting to brush up,
please plan to attend a new commissioner training.
1 RCW 29A.92.010.
2 RCW 29A.92.010 and 52 U.S.C. 10301 et seq.
3 RCW 53.12.021.
4 RCW 53.12.115-.130.
5 RCW 53.12.175 and SB 5370 (2025).
6 A voter challenge is commenced by the challenger providing notice to the political subdivision of the
violation. This notice must include (i) the identity and contact information for the challenger; (ii) identify of
the protected class or classes whose members do not have equal opportunity to elect candidates of their choice or influence the outcome of an election because of dilution and polarized voting; and (iii) propose a
remedy to address the alleged violation and allow 90 days from the notice for the political subdivision to
implement a remedy. RCW 29A.92.060.
7 “District-based elections” means a method of electing members to the governing body of a political
subdivision in which the candidate must reside within an election district that is a divisible part of the
political subdivision and is elected only by voters residing within that election district. RCW 29A.92.010.
8 Ranked choice voting is an electoral system where voters rank candidates in order of preference rather
than choosing just one candidate.
9 Cumulative voting provides a voter with as many votes as there are positions to elect, but that voter may
cast multiple votes for a single candidate.
10 Limited voting is where a voter receives fewer votes than there are candidates to elect.
11 RCW 29A.92.050.
12 RCW 29A.92.070.
If you have a question for Knowing the Waters, please e-mail me at tschermetzler@csdlaw.com.
