The U.S. Supreme Court effectively halted administrative preclearance for redistricting maps (as well as other voting changes) for states required to do so under section 5 of the Voting Rights Act (see Shelby County v. Holder). This ended the need for the Justice Dept. to preapprove redistricting maps in TX, Georgia, Alabama, several more states, and some local jurisdictions. While the court did not actually invalidate section 5, it did declare the formula that determines which states are covered under section 5 unconstitutional because it had not been updated for some time.
With Democrats in control of Congress and the White House, there is anticipation that the coverage formula for preclearance will be updated. These are the very early days of the 117th congress, so there is no clear sign if or when this might happen as of yet, but in the 116th congress, Democrats in the House did pass H.R. 4; the Voting Rights Advancement Act – later renamed the John Lewis Voting Rights Advancement Act. For now, H.R.4 gives us a glimpse into what a new coverage formula will look like. Prepare to be amazed.
All States are Potentially Subject to Preclearance
H.R. 4 would have created a new coverage formula that potentially applies to all states and hinges on a finding of repeated voting rights violations in the preceding 25 years. “Repeated findings” is defined as 15 or more voting rights violations occurring in the state during the previous 25 years, or 10 or more violations if the state itself (as opposed to a local jurisdiction within the state) committed a violation. Local jurisdictions have a lower trigger for preclearance at just 3 or more violations in the 25 year period.
The preclearance period when triggered, lasts 10 years unless a jurisdiction successfully obtains a declaratory judgement from a court.
What Constitutes a Violation?
- Final judgments by a court of Voting Rights Act (VRA) violations, or violations of the 14th or 15th amendment;
- A denial of a declaratory judgment request under section 3 or 5 of the VRA;
- Previous preclearance objections by the Attorney General; and
- A consent decree, settlement, or other agreement pursuant to a challenge alleging violations of various sections of the VRA, or the 14th or 15th Amendment.
“Practiced-Based” Preclearance is Added to the Voting Rights Act
All states and local jurisdictions would be required to “identify any newly enacted or adopted law, regulation, or policy that includes a voting qualification or prerequisite to voting, or a standard, practice, or procedure with respect to voting, that is a covered practice.” Preclearance automatically applies to these covered practices regardless of whether there is a violation history. A practice is a covered practice if a jurisdiction:
- Changes to the method of elections to add at-large seats or convert a single-member seat to at-large or multi-member. In these instances preclearance is required if (1) two or more racial groups or language minority groups each represent 20 percent or more of the state or political subdivision’s voting-age population; or (2) a single language minority group represents 20 percent or more of the voting-age population on Indian lands located in whole or in part in the state or political subdivision;
- Changes election district boundaries through redistricting. In these instances preclearance is required if; any racial group or language minority group experiences a population increase, over the preceding decade (as calculated by the Bureau of the Census under the most recent decennial census), of at least 10,000; or of 20 percent of voting-age population of the State or political subdivision;
The bill lists various other possible preclearance triggers, including changes to jurisdiction boundaries, multilingual voting materials, voting qualifications, voting locations, and voter registration lists.
