Virginia Voting Rights Act bills pass in chambers of origin

February 9, 2021

HB 1890 (Price) and SB 1395 (McClellan), which impose state oversight over certain local voting practices, have each passed their respective chambers of origin – HB 1890 by a vote of 55-45 and SB 1395 by a vote of 21-17.

The bills provide broad authority to the Attorney General to file a civil action in circuit court if he or she has reasonable cause to believe that a violation of an election law has occurred; the court may award preventive relief, assess a civil penalty in amounts not to exceed $50,000 for a first violation and $100,000 for a second violation, award a prevailing plaintiff reasonable attorney fees and costs, and award other relief as appropriate, including compensatory and punitive damages.

Under the bills, a locality meeting a certain population threshold of individuals who are members of a language minority and are unable to speak or understand English enough to participate in the electoral process must provide voting or election materials in the language of the applicable language minority group (which is required under federal law), as well as providing translation services at polling places.

The bills offer two options for advance approval of certain “covered practices,” which includes any change to the method of election of members of a governing body by adding at-large seats or converting district seats to at-large or multi-member districts; any change to the boundaries of a covered jurisdiction that reduces minority voting age population by a certain percentage; any change to the boundaries of election districts or wards (including redistricting); any change that restricts the provision of interpreter services or limits the distribution of voting materials in languages other than English; and any change that reduces the number of or consolidates or relocates polling places, except in certain emergency circumstances.

Under the first option, prior to implementing any covered practice, the governing body must make information about the proposed covered practice available on the locality’s website and provide opportunity for at least 30 days of public comment (the initial notice must be made at least 45 days in advance of the last date for public comment), including at least one public hearing.  Following the initial public comment period (or periods, if changes are made and a revised practice is re-advertised), a 30-day waiting period is required, during which time any person who will be affected by the covered practice may challenge it in the circuit court.

In lieu of this process, the locality may seek a certification of no objection from the Attorney General, similar to the federal preclearance process that was in effect in Virginia prior to the 2013 U.S. Supreme Court decision in Shelby County v. Holder.  A certification of no objection will be deemed to have been issued if the Attorney General does not issue an objection within 60 days of submission.  However, the Attorney General’s lack of objection does not bar subsequent litigation to enjoin enforcement of the practice.

The bills bar at-large elections from being imposed in a manner that affects the ability of members of a protected class, defined as a group of citizens protected from discrimination based on race or color or membership in a language minority group, to elect candidates of choice or to influence the outcome of an election as a result of the dilution or abridgement of their rights.  The bills authorize members of a protected class in a locality that uses at-large voting to initiate a cause of action in circuit court if a violation is alleged.

The bills create civil causes of action in addition to existing criminal penalties for voter intimidation and communication of false information to a voter.  The bills also establish a civil penalty not to exceed $1000 per affected voter for instances in which any person acting under the color of law fails to permit or refuses to permit a qualified voter to vote, or willfully fails or refuses to tabulate, count, or report the vote of a qualified voter.

VACo has spoken in opposition to these measures due to their exposure of counties to potentially costly litigation.  HB 1890 is before Senate Privileges and Elections; SB 1395 is before House Privileges and Elections.

VACo Contact:  Katie Boyle

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