Virginia’s Voting Rights Act Unpacked

Last week, all eyes were on Virginia. It was a disappointing Election Day for Democrats in the Old Dominion state — Republicans won the governorship and retook control of the House of Delegates (the Virginia Senate was not up for election this year, so Democrats maintain their narrow majority in the state’s upper chamber). Thankfully, this past year, Virginia enacted a law with strong protections for voters, a move that became especially important in the wake of last week’s election results. And while we can reflect on a number of progressive policies that were championed during Virginia’s two years with a Democratic trifecta, today we’re focusing on one key piece of legislation — the Voting Rights Act of Virginia, House Bill 1890.

H.B. 1890, along with its companion Senate Bill 1395, were introduced and led by Del. Marcia Price (D) and Sen. Jennifer McClellan (D), two Black women who “grew up listening to the stories of literacy tests, poll taxes and other barriers put in the way of family members exercising the right to vote.” The Virginia Legislature passed H.B. 1890 in February 2021 and Gov. Ralph Northam (D) signed it into law the following month. “At a time when voting rights are under attack across our country, Virginia is expanding access to the ballot box, not restricting it,” said Northam in a press release.

In today’s piece, we explain how we reached the point where a state may need to enact its own voting rights act and break down how Virginia’s landmark law protects voters — an important lesson for other states in the face of Republican voter suppression efforts across the country.

Why a state-level voting rights act?

H.B. 1890 gets its namesake from the federal Voting Rights Act (VRA) of 1965, a landmark law that included a host of new provisions to enforce the 15th Amendment, ensuring that the right to vote was not abridged “on account of race, color, or previous condition of servitude.” In the decades after it was enacted, the VRA was a hugely successful piece of federal legislation that advanced democracy and racial justice, and effectively protected voters. This all changed in 2013 when, in Shelby County v. Holder, the U.S. Supreme Court struck down one of the VRA’s most powerful tools — federal government oversight to ensure that states did not pass discriminatory laws.

Section 5 of the VRA required states or counties with histories of voter suppression to get “preclearance” from the Department of Justice or the U.S. District Court for the District of Columbia before enacting changes to election laws. Section 4 outlined the formula that determined which jurisdictions were covered by Section 5’s pre-approval process. In 2013, the Supreme Court ruled that the Section 4 formula was outdated and thus unconstitutional, rendering both Section 4 and 5 powerless. The result of this decision? An almost immediate push from states to pass restrictive voting laws that the federal government previously barred them from enacting. In 2021, even more laws across the country have been introduced or passed that make it harder for Americans to vote.  

Yet, Virginia — a Southern, former Confederate state that was previously subject to federal oversight because of its legacy of voter suppression — took the opposite path. In the last few years, the Democratic trifecta created one of the longest early-voting periods in the country, repealed the state’s voter ID law and implemented automatic voter registration, among other things. In addition to these positive reforms, Virginia took it a step further by enacting a state-level VRA.

Ironically, on the same day that Virginia’s VRA went into effect, July 1, 2021, the Supreme Court further weakened the federal VRA in Brnovich v. Democratic National Committee. “For more than six decades, the Supreme Court could be counted on as a reliable partner in protecting Americans’ fundamental voting rights, but not anymore,” said Virginia Attorney General Mark Herring (D). In the face of a court that chips away important federal protections, Virginia stepped up to create its own act modeled after the VRA of 1965. 

So what does it do, exactly?

Given the absence of federal preclearance requirements, H.B. 1890 outlines a review process for local election offices when they plan to make certain changes. Covered practices include changes to methods of election, changes to local district boundaries, reduction or relocation of polling places and efforts to restrict language access. To get approval for such changes, the election office or other governing body can take one of two routes. First, the office can publish the proposed change, allow 30 days of public comment and take into account the public feedback. There is then a 30-day waiting period before enacting the proposed change, during which any impacted person who finds that proposed practice has “the purpose or effect” of making it harder to vote on the account of race or language may take action in court. The second route, in lieu of public comment and a waiting period, is to submit the proposed change to the Office of the Attorney General, who must issue a certification of “no objection” before implementation of the new practice.

H.B. 1890 also mandates that changes cannot be enacted within 60 days before a general election and outlines requirements for notice of changes to the public. 

Additionally, H.B. 1890 clearly prohibits discriminatory voting laws and provides legal avenues for recourse. The act says: “No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by the state or any locality in a manner that results in a denial or abridgement of the right of any citizen of the United States to vote based on race or color or membership in a language minority group.” In parallel, H.B. 1890 empowers the attorney general to take civil action when they believe a violation of these laws has taken place.

The law also clarifies the penalties and avenues for civil lawsuits against those who intimidate election workers or voters and interfere with or communicate false information to voters.

Finally, the Act includes a handful of other pro-voting measures, including:

• Establishing a voter education and outreach fund;
• Banning at-large local elections if they have been shown to dilute the voting power of minority populations;
• Requiring “covered localities” with significant language-minority populations to provide election and voting materials translated into that language;
• And outlining the accommodations for voters who may be over 65, physically disabled, unable to read or write or require language assistance.

Should other states follow Virginia’s lead?

While Virginia is the first state in the South to have a state-level VRA, California, Oregon and Washington — three bluer, West Coast states — have passed their own VRAs, all more narrowly focused on local elections. In Congress, the John Lewis Voting Rights Advancement Act would restore the federal VRA, but the legislation was blocked by a Republican filibuster last week.

In the absence of congressional action, the case of Virginia exemplifies the importance of state-level protections. In contrast to other GOP-controlled states, it will be much harder for Virginia, now with a Republican governor and split statehouse control, to enact future voter suppression efforts. It will be harder for local election officials to make sudden and confusing election changes without approval or properly informing voters and more difficult for both state and local governing bodies to dilute the influence of minority voters. 

But what happens now that Virginia has flipped to Republican control? Since the VRA was enacted through the legislative process, it’s not something the governor can simply undo via executive power. And while the new Republican attorney general, Jason Miyares, will have control over preclearance enforcement, legal avenues for civil lawsuits remain unless lawmakers decide to pass a whole new law. 

If other states can learn a lesson from Virginia, it’s that Democrats must not delay action. Now’s the time to protect voters and enshrine the right to vote for future generations.