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Virginia is set to become the first southern state with its own voting rights act

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voters on election day

Voters in suburban Henrico's Short Pump precinct cast their ballots. The area saw a surge in Democratic voters after Trump's 2016 election. 

When the federal Voting Rights Act passed in 1965, Virginia was one of nine states that drew special attention due to its history of racist election laws. That burden was lifted in 2013, when the U.S. Supreme Court decided enough time had passed that Virginia and other states could stop following an old rule requiring federal permission for changes that might affect minority voters.

With the future of federal voting protections now in the hands of the U.S. Supreme Court’s conservative majority, Democrats in the General Assembly have passed their own version of a voting rights act, making Virginia the first state in the South to do so.

The proposed law, now awaiting Gov. Ralph Northam’s signature, creates broad new protections against voter discrimination based on race, color or language. With Republicans in dozens of states looking to restrict voting access after former President Donald Trump’s loss, supporters of the Virginia legislation see it as a decisive move in the other direction.

“For Virginia … to put this in our state law will be one more moment in our history that we can be proud of that helps us atone for those parts of our history that still bring us shame,” Sen. Jennifer McClellan, D-9th, of Richmond, said as she presented the bill earlier this year.

With federal preclearance a thing of the past, the new state law will require local election officials to go through a review process before making election-related decisions like consolidating or closing polling places, changing district boundaries, creating at-large seats on local governing bodies or school boards or affecting the ability of non-English speakers to vote.

The legislation — championed by two Black women lawmakers working with groups like the Lawyers Committee for Civil Rights Under Law, the NAACP Legal Defense and Educational Fund and New Virginia Majority — had been in the works for about a year.

“Because there is a national strategic attack against voting rights across the country, we didn’t want to act like we were immune to it,” Del. Marcia Price, D-95th, of Newport News, who sponsored the House version of the bill, said in an interview. “It’s proactive in a sense of what could have been coming our way.”

A similar bill, sponsored by Del. Schuyler VanValkenburg, D-72nd, of Henrico, came close to passing in 2020 but failed late. That version would have mainly enacted a state-level preclearance requirement routed through the attorney general’s office.

The bill that passed this year gives localities a choice of either asking the attorney general’s office to sign off within 60 days or publicizing the proposed change in their own community and allowing a public comment period of at least 30 days followed by another 30-day waiting period.

During the waiting period, any person potentially affected by the proposal would have the right to challenge it in court.

Supporters say the law will help prevent voter discrimination before it occurs.

“What Virginia is doing is really creating a model for the entire country about what states can do in this environment where the federal Voting Rights Act is partially eviscerated,” said Kadeem Cooper, policy counsel for the Lawyers’ Committee for Civil Rights Under Law.

The legislation passed along party lines. Some Republicans warned it could burden local governments and cause election administrators, who faced intense scrutiny throughout the 2020 presidential contest, to be inundated with lawsuits.

“Consider if every locality, for every decision they made, was subject to some kind of litigation and somebody trying to impugn the integrity of their decision-making,” said Sen. Jill Vogel, R-27th, of Fauquier, an election lawyer who voted against the bill. “It is a full employment act for lawyers.”

The Virginia Municipal League and the Virginia Association of Counties, which represent local governments, opposed the bill, arguing strict oversight could create onerous new complications for minor election changes.

The bill empowers the attorney general’s office to sue anyone suspected of violating election laws in a discriminatory manner, with civil penalties of up to $50,000 for a first violation and up to $100,000 for repeat offenses.

It also creates new penalties for election officials, such as registrars or members of local electoral boards, who break policy or procedure to prevent a qualified voter from casting a ballot. Violations would be punishable by a civil fine of up to $1,000 for each thwarted vote.

Some registrars took exception to that provision, saying it could bring steep punishment for innocent errors made in a fast-paced and demanding job. With Virginia’s all-paper voting system and district lines that don’t always neatly overlap the state’s geography, it’s not entirely uncommon for voters to accidentally receive the wrong ballot.

“It’s just really kind of mind-blowing to see that kind of misunderstanding of how hardworking people can make mistakes,” York County Registrar Walt Latham, a former president of the Voter Registrars Association of Virginia, said during a hearing on the bill. “Frankly I don’t feel a lot different than when I was reading comments after the last election about how we should be sent to Guantanamo for cheating.”

Noting he agrees with the general concept of the bill, Latham said he’ll wait and see if the law is enforced broadly or used mainly in egregious cases that go beyond simple mistakes.

During debate on the bill, McClellan pointed to a voter access controversy last year in Richmond as an example of what the new might prevent.

The Richmond registrar’s office, which was effectively operating as a voting center due to the COVID-19 pandemic, moved from the City Hall building downtown to a bigger office space with more parking and more room to accommodate early voters. Describing the location as “tucked away” near a highway intersection, McClellan said the new location created accessibility problems because it wasn’t easily reachable by residents taking the bus. Had there been a more thorough review, she said, that issue could’ve been spotted and addressed earlier.

Though the registrar’s office move drew criticism as voting began last fall, the Richmond City Council had voted at a public meeting in April to authorize Mayor Levar Stoney’s administration to lease the space.

Under the proposed law, localities would still be able to make changes in emergency situations and the attorney general’s office could presumably give quick approval to minor, uncontroversial moves.

While the upfront reviews might require more work from localities, Price said, they could also help avoid lawsuits by bringing concerns into the open before a polling place is moved or district lines are redrawn.

“We have to weigh that up against protecting the very right to vote for communities where suppression has been happening ever since we got here,” Price said.

Northam’s deadline to act on the bill is March 31, but he’s not expected to block it or push for major changes.

“Governor Northam is committed to protecting and expanding Virginians’ right to vote,” said Northam spokeswoman Alena Yarmosky. “He looks forward to reviewing this bill when it reaches his desk.”

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