Problematic “preclearance” bill to be heard in Senate Privileges and Elections; calls needed

February 18, 2020

HB 761 (VanValkenburg) would establish a process by which the state would review certain election practices at the local level before those actions could take effect, similar to the federal preclearance previously required under the Voting Rights Act.  The bill passed the House 59-40 and has been referred to the Senate Privileges and Elections Committee.

VACo opposes this bill and has raised concerns during hearings in the House 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.

ACTION REQUIRED – Please express concerns about HB 761 to members of the Senate Privileges and Elections Committee.

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 impose barriers to voting on account of race or color or membership in a language minority group, 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).

KEY POINTS

  • Federal preclearance requirements applied to states and political subdivisions with a history of imposing barriers to voting by members of minority communities. HB 761’s definition of “covered jurisdiction” seems to take the position that a certain level of racial or ethnic diversity automatically requires state oversight of voting practices, regardless of whether a jurisdiction has any recent history of discriminatory action.
  • The bill does not apply to the state, which prescribes voter qualifications and many voting-related practices by statute or regulation.
  • The localities covered by the legislation may change from year to year with fluctuations in demographics, making it difficult for localities to plan for potential legal costs associated with preclearing election practices.
  • The bill would require even routine changes such as minor relocations of polling places to be precleared. Current law requires transparency in any polling place or precinct changes; polling places and precincts must be adopted by ordinance, and notice of any change must be mailed to affected voters and published in a general-circulation newspaper once a week for two weeks.  Notice of a change in location of the general registrar’s office is required by posting on the county or city website, posting at not less than 10 public places, or by publication in a general-circulation newsletter.
  • The bill will add a layer of state review of local redistricting plans, which could be challenging for localities who must prepare for November 2021 local elections.

KEY CONTACTS

Senate Privileges and Elections Committee – Email entire committee

Senate Privileges and Elections Committee: Deeds (Chair), Howell, Vogel, Reeves, Ebbin, Chafin, Ruff, Spruill, Peake, McDougle, Surovell, Mason, McClellan, Boysko, Bell

VACo Contact: Katie Boyle

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