Every line in the act, which is submitted as H8334 in the Rhode Island House and S3143 in the Rhode Island Senate, is more objectionable than the one before it, so it’s very tempting to go through line by line and explain what each word does.  Instead, I’ll resist that temptation and give a step-by-step explanation of how the bill would work in the real world.  In brief, anybody who believes this legislation simply codifies the federal Voting Rights Act is being severely misled.

Where practical, I’ll provide the section of the bill that substantiates my claim. If anybody has questions or disagreements about my interpretation on any point, I’ll be happy to elaborate in the comments.

• Any activist group on the planet [17-31-9(a)(1)]
  • can send a threatening letter [17-31-9(b)]
  • to any state agency or local government other than fire districts and regional school districts [17-31-2(7)]
  • claiming that some local, state, or federal rule or policy [17-31-3(c)(1)(iv)]
  • makes it more difficult for a minority or Census-designated group [17-31-2(9)]
  • or even a small portion of that group, especially if it is aligned with a small portion of another minority group, [17-31-3(c)(2)(iii)]
  • to achieve its preference for any candidate, political outcome, or electoral result. [17-31-2(11)]
• The group can assert that it has members in the area [17-31-9(a)(1)(i)]
  • or that it will find it harder to achieve its own goals, [17-31-9(a)(1)(ii)]
  • but it doesn’t have to provide evidence of local membership [17-31-9(a)(1)(iii)]
  • or even claim to have local members, [17-31-9(a)(1)]
  • and if the agency or government doesn’t begin negotiating to change its policies within 60 days, the group can file a lawsuit (or “action”), [17-31-9(b)]
  • or sooner if there is an upcoming election. [17-31-9(b)(5)(i)]
• Every time some individual or group makes such an assertion, the agency or government will have to pay at least one lawyer to review the complaint, evaluate the risk and the legal complications of the proposed solution, and decide whether to negotiate, deny, or delay.
  • If it decides to negotiate, it buys itself another 60 days before the lawsuit can be filed, [17-31-9(b)(1)]
  • but if it decides to deny there is any violation, the group can go straight to court. [17-31-9(b)(2)]
• Going to court is a risky matter for the agency or government because
  • the law deliberately gives allows the court to find a violation based on any mix of factors that tells the story the judge wants to see, whether that involves
    • material circumstances that have nothing to do with elections, [17-31-9(a)(2)(i)]
    • circumstantial evidence of intentional discrimination, whether or not it has any measurable effect, [17-31-9(a)(4)]
    • a claim of discrimination in “history,” [17-31-9(c)(1)(i)(A)]
    • any claimed disparity in “education, employment, health, criminal justice, housing, transportation, land use, or environmental protection,” [17-31-9(c)(1)(i)(B)]
    • differences in voter registration rates, [17-31-9(c)(1)(i)(D)]
    • racial counts of elected officials, [17-31-9(c)(1)(i)(F)]
    • statistics showing that groups of people might vote differently from other groups of people, [17-31-9(c)(1)(i)(B)]
    • or any other factors that tell the desired story, [17-31-9(c)(1)(i)(I)]
  • and even if there’s no evidence of discrimination by that agency or government, the lawsuit can go forward if some the complainant can point to evidence of a problem in the state or region, [17-31-3(c)(1)(iv)]
  • opening the way for changing laws in one agency or community in order to tilt things so they balance out circumstances elsewhere.
• In response to a complaint, a judge can
  • order the agency or government to change any policy that could remotely affect the ability to vote (whether electoral in nature or not), [17-31-2(3)]
    • using any power available to any federal or state court in the country, regardless of local law, [17-31-9(f)(1)]
  • require the agency or government to acquire the judge’s approval for any change to “election policy or practice” for a full 10 years, [17-31-4(a)]
  • or give the agency or government power it doesn’t have under state law, even against state law, to implement “remedies,” [17-31-9(b)(3)]
  • all while denying affected parties a right to invoke federal law or appeal to the federal government. [17-31-9(g)]

There’s much more, but the list above is already dizzying.  Having read legislation for years, I realize it can be difficult to imagine what the provisions mean, but that’s what opens the way to disaster.

In short, this law is designed to make it as certain as possible that activist groups will file complaints against every state agency and local government in order to give judges the power to rewrite not only election laws, but any laws that can be claimed to affect people’s political activity.  That could be election policy, but it could also be related to income, business, education, environment, or any other policy at all.  While inventing the solutions, the court can pick and choose from any law or policy in the country it likes, but without allowing anybody involved to insist on consistency or federal rights.

The claim of “racial polarization” is entirely a ruse.  Under this law, it could be the case that every known member of a minority group in a town is perfectly happy with the government and is, indeed, actively participating in elections to get what it wants, but activists could still swoop in and claim the results are not what the minority group should want and the local government must do things it isn’t supposed to have the power to do as a counter-balance to problems in other towns.

What will happen (as we’ve seen with environmental groups for years) is that, for political and ideological purposes, activists will sue, and judges will allow government agencies to agree to do things they have no power at all to do based on unprovable assertions about how it will affect political outcomes.  This is almost literally the end of representative democracy in the Ocean State.

ADDENDUM:

As an extra bit of analysis, it would be helpful for me to give some detail to what may be the most contentious of my claims above.  I interpret the legislation as likely to apply to any policy that can be alleged to affect the ability to vote — not just that limited set of policies that people think of as “election laws.”  I come to this conclusion for several reasons.

First, the structure of the definition of an “election policy or practice” leaves the door open [17-31-2(3)].  It explicitly includes any sort of government activity “with respect to voting,” but the way the different types of activities are listed makes it at best ambiguous whether they all have to be related to elections or just the last item (“any other action”).

Second, the phrase “with respect to voting” isn’t clear.  Does “with respect” mean the action is specifically about voting, or merely that it could have an effect on voting?  That’s an important distinction because the rest of the bill goes to great pains to emphasize that anything from income to education could have an effect on voting.

Third, the bill describes “violations” that do not rely on the definition of “election policy or practice.”  For example, 17-31-3(a) says it is a violation to suppress votes, and subsection (2) says that violation is proven if there is a “material disparity” affecting protected groups’ “opportunity or ability to participate in any stage of the political process.”  This could be anything at all.

The activist groups I mentioned above can sue if they claim that “violation” makes it harder for them to succeed in their activism.  They can then propose a “remedy” — whether or not the agency or government is supposed to have the power to do what they ask — that a judge then orders to be law.  Again, this could be anything from tax policy to education policy to welfare policy to environmental policy and on.

Featured image by Justin Katz using Perplexity.