By: Sarah Fisher
In March 2021, Virginia—a state historically marked by racially discriminatory practices in voting—became the first state formerly covered by the landmark federal 1965 Voting Rights Act to adopt state-level voting rights legislation modeled off of the Civil Rights Era measure.
Under the 1965 Act, certain cities, counties, and states with a history of race-based discrimination in voting were required to seek approval (called “preclearance”) from the United States Attorney General before making any changes to their election laws, regulations, or practices. The group of states and municipalities required to seek preclearance was determined by a formula that considered the jurisdiction’s use of certain discriminatory voting practices (such as poll taxes) and the jurisdiction’s voter registration and participation rates as of 1968.
For nearly five decades, the Voting Rights Act’s preclearance process served as a bulwark against regressive voting policies nationwide. In 2013’s Shelby County v. Holder, however, the Supreme Court invalidated the coverage formula, clearing the way for previously-covered jurisdictions to make changes small and large to their election laws without federal approval.
In the wake of Shelby County, formerly covered jurisdictions have proposed and enacted highly restrictive voting measures tightening voter identification requirements, limiting absentee voting, decreasing the number of ballot drop-boxes available, and criminalizing the provision of food or water to voters waiting in line to cast their ballots. Perhaps unsurprisingly, many of these new state-level statutes and regulations—in intent or in impact—particularly harm Black voters and other minority voting groups. Without a federal remedy available in the 1965 Act, states have simultaneously become the last defenders of and the worst offenders toward voting rights.
In recognition of this reality and in the wake of the 2020 election triggering an onslaught of restrictive voting proposals nationwide, two Black legislators in the Virginia General Assembly introduced the Voting Rights Act of Virginia (the “Virginia Act”) early in the Assembly’s 2021 legislative session. The measure, sponsored by Sen. Jennifer McClellan and Delegate Marcia “Cia” Price and signed into law by Governor Ralph Northam on March 31, 2021, aims to replicate the old federal preclearance process on the state level by requiring localities to either seek public feedback on, or state attorney general approval of, changes to voting practices.
Specifically, the Virginia Act expressly prohibits racial discrimination or intimidation in voting and requires local election officials to either receive a minimum of thirty days of public feedback on a proposed election change or submit the proposal to the Office of the Attorney General for review and approval. The Act also creates a cause of action for Virginians to sue over voter suppression, with penalties awarded in litigation going toward a new Voter Education and Outreach Fund.
Beyond these 1965 Act parallels, the Virginia statute also requires local election officials to print and distribute multi-language materials in districts with a substantial number of non-English-speaking voters, provides for pre-paid postage on mail ballots, and limits the use of at-large elections when such a method limits the ability of minority voters to fully participate in the political process.
The Virginia Act took effect on July 1, 2021, the same day that the Supreme Court dealt another blow to the Voting Rights Act of 1965 by substantially raising the bar for challenging a state or local election practice on the ground that the practice discriminates on the basis of race. This decision, coupled with Congress’s struggle to pass the John Lewis Voting Rights Advancement Act, makes the truth of Delegate Price’s words on the then-pending Virginia Act even more prescient: “As we’ve seen on other issues, we can’t rely on the Supreme Court or the federal level … so states have to protect themselves.”
If Virginia’s 2021 legislative session is any indication, the Commonwealth is ready to continue to fight for equality in voting rights and protect access to the vote, regardless of federal (in)action to the contrary.