Preclearance bill fails to emerge from conference committee

March 16, 2020

HB 761 (VanValkenburg) will not move forward in 2020 after a conference committee failed to reconcile differences between the House and Senate versions of the bill.  The bill would have established a state-level preclearance process to replace the federal preclearance that was previously required under the Voting Rights Act.  For affected localities (any County or City containing two or more racial or ethnic groups that each constitute at least 20 percent of its voting-age population), the bill would have required certain election-related practices to be submitted for state approval.  This approval would be granted via a declaratory judgment issued by the Circuit Court of the City of Richmond that the practice would not limit the exercise of voting rights by members of racial, ethnic, or language minority groups, or a certification by the Attorney General that he does not object to the practice.  Practices that would need to be precleared included changes to the method of election of members of a governing body, changes to election districts, and changes to polling places, including relocation of polling places.  The Attorney General would make an annual determination of which localities would be covered by the preclearance requirements.

VACo objected to the bill as it moved through the process, as it would require even minor changes to polling place locations to be precleared and does not apply to the state, which plays a major role in the conduct of elections by prescribing voter qualifications and many voting-related practices either by statute or regulation.

The bill was amended in the Senate Privileges and Elections Committee to provide for a delayed effective date for the entire bill of January 1, 2022, and a delay in its applicability to changes in election district boundaries until July 1, 2022.  The bill was further amended in the Senate Finance and Appropriations Committee to include language making the bill’s provisions contingent on an appropriation of funding in the state budget to cover the state’s costs to implement the bill (staffing in the Attorney General’s office); the House budget contained that funding, but the Senate did not.  The bill was further amended on the Senate floor to exempt localities that had “bailed out” from federal preclearance by demonstrating compliance with voting rights laws.  The House accepted the Senate amendments, with the exception of the revenue contingency language, which sent the bill to conference.  No funding was included in the final budget conference report, so the bill did not emerge from the conference committee before the deadline for consideration of conference reports on Sunday, March 8. While the bill will not move forward in 2020, VACo expects this concept to return in future legislation.

VACo Contact:  Katie Boyle

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