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Commonwealth's Counties

Legislation establishing state-level “preclearance” for local election practices advances

HB 761 (VanValkenburg) would establish a process by which the state would review certain election-related actions at the local level before those actions could take effect, similar to the federal preclearance previously required for jurisdictions covered by Section 4 of the Voting Rights Act.

Prior to the United States Supreme Court’s ruling in the 2013 Shelby County v. Holder case, jurisdictions covered by Section 4 of the Voting Rights Act were required to “pre-clear” proposed changes to voting procedures with the federal government as prescribed in Section 5 of the Voting Rights Act, in order to be sure that the proposed changes were not discriminatory.  Virginia was included in the preclearance requirement, although some localities followed the procedure to “bail out” after demonstrating to a federal three-judge panel that they met certain criteria for voting rights compliance over the past 10 years.  After the coverage formula was struck down in the Shelby County case, the preclearance procedures no longer applied in Virginia.

HB 761 would apply to any locality that has a voting-age population containing two or more racial or ethnic groups, each constituting at least 20 percent of the voting-age population.  The list of covered jurisdictions would be determined each year by the Attorney General, in consultation with the State Board of Elections and relevant executive branch agencies.

For covered localities, before enacting certain voting practices or procedures, the governing body would be required to seek preclearance through one of two options:  (1) seeking a declaratory judgment in the circuit court that the practice would not limit access to voting on account of race or color or membership in a language minority group, or result in “retrogression in the position of members of a racial or ethnic group with respect to their effective exercise of the electoral franchise,” or (2) submitting the practice to the Office of the Attorney General, who would have 60 days to object (the bill would allow for an expedited approval upon good cause shown).  The governing body would be able to appeal the Attorney General’s objection in the circuit court, and an aggrieved voter would be able to appeal the Attorney General’s lack of objection, if his or her right to vote was affected by the covered practice.

Practices that would require preclearance include changes to the method of election of members of a governing body or school board; changes to the boundaries of a jurisdiction or to election districts or wards within the jurisdiction; or changes that would reduce the number of, consolidate, or relocate polling places (except under certain emergency circumstances).

VACo raised concerns during the Privileges and Elections subcommittee hearing on the bill, as well as in its subsequent hearing in a subcommittee of House Appropriations, about how the proposed preclearance process would be implemented, in particular the need to avoid unnecessary delays in implementing routine changes in practice, such as minor changes to polling locations.  The bill has been reported from House Appropriations and heads to the House floor.

VACo Contact:  Katie Boyle

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