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Fact Sheet

The John Lewis Voting Rights Advancement Act

The bill would modernize and revitalize the Voting Rights Act of 1965, strengthening legal protections against discriminatory voting policies and practices.

Published: December 22, 2021

The John Lewis Voting Rights Advance­ment Act, or VRAA (S. 4), would modern­ize and revital­ize the Voting Rights Act of 1965. The Supreme Court has hampered the civil rights law by gutting its preclear­ance provi­sions in Shelby County v. Holder (2013) and by making it harder to sue to stop discrim­in­at­ory prac­tices in Brnovich v. DNC (2021). The VRAA would strengthen the law, moving us closer to ending discrim­in­a­tion in voting and guar­an­tee­ing equal access to the ballot.

Key Provi­sions

Preclear­ance

Geographic Cover­age

The VRAA creates a new formula to determ­ine which states and local­it­ies will be subject to preclear­ance. Under the require­ment, juris­dic­tions with a history of voting discrim­in­a­tion must get approval from the Depart­ment of Justice (DOJ) or a federal court in Wash­ing­ton, DC, before chan­ging their voting laws or prac­tices to ensure the changes are not discrim­in­at­ory. In Shelby County, the Supreme Court struck down the Voting Rights Act’s preclear­ance formula, saying it was outdated. The VRAA updates the formula.

  • States will be covered by preclear­ance if, within the past 25 years, they or their local­it­ies commit­ted at least 10 voting rights viol­a­tions and at least one viol­a­tion was by the state, or local­it­ies within the state commit­ted at least 15 voting rights viol­a­tions
  • Subdi­vi­sions in noncovered states will be covered if they commit­ted at least three voting rights viol­a­tions in the previ­ous 25 years
  • Voting rights viol­a­tions are determ­ined on the basis of (1) court judg­ments under the Consti­tu­tion or the Voting Rights Act; (2) preclear­ance deni­als; and (3) consent decrees, settle­ments, or agree­ments undo­ing voting changes, in which the juris­dic­tion admit­ted liab­il­ity
  • DOJ decides whether a matter counts as a viol­a­tion and whether a juris­dic­tion is covered
  • A covered juris­dic­tion will be subject to preclear­ance for 10 years, after which it will exit cover­age as long as it no longer has qual­i­fy­ing viol­a­tions during the preced­ing 25 years (the review period is rolling)
  • A juris­dic­tion may also exit cover­age if it has no viol­a­tions within the prior 10 years

Prac­tice-Based Cover­age

The VRAA makes some types of voting changes subject to preclear­ance nation­wide, if certain condi­tions are met, because those changes are so often discrim­in­at­ory. The follow­ing prac­tices are covered:

  • Creat­ing at-large districts in places with suffi­ciently large minor­ity popu­la­tions
  • Chan­ging juris­dic­tional bound­ar­ies to remove minor­it­ies from the juris­dic­tion in places with suffi­ciently large minor­ity popu­la­tions
  • Chan­ging bound­ar­ies of a district where a minor­ity group is suffi­ciently large and has had a large popu­la­tion increase
  • Impos­ing stricter require­ments for docu­ment­a­tion or proof of iden­tity to vote
  • Redu­cing the avail­ab­il­ity of or alter­ing multi­lin­gual voting mater­i­als
  • Redu­cing, consol­id­at­ing, or relo­cat­ing polling places, early and Elec­tion Day voting oppor­tun­it­ies, or absentee voting oppor­tun­it­ies in places with suffi­ciently large minor­ity popu­la­tions
  • Making it easier to remove voters from regis­tra­tion lists in places with suffi­ciently large minor­ity popu­la­tions

Bail­out

The Voting Rights Act currently allows juris­dic­tions to easily bail out, or be released from preclear­ance cover­age, if they file an action in federal court show­ing they meet certain condi­tions. The VRAA adds an even faster process by author­iz­ing DOJ to consent to the juris­dic­tion’s request.

Vote Dilu­tion and Vote Denial

Section 2 of the Voting Rights Act allows voters to sue to block voting laws and prac­tices that are inten­tion­ally discrim­in­at­ory or will yield discrim­in­at­ory results. The recent Brnovich decision makes it harder to win those lawsuits. The VRAA would strengthen protec­tions against discrim­in­a­tion and codify prior stand­ards for Section 2 cases.

Vote Dilu­tion

A voter may bring a federal action for vote dilu­tion when prac­tices, such as gerry­mandered districts, make it harder for candid­ates preferred by minor­ity voters to win. The VRAA would codify the stand­ard artic­u­lated by the Supreme Court in Thorn­burg v. Gingles, which has long been used by federal courts to eval­u­ate vote dilu­tion cases.

Vote Denial

A voter may bring a federal action for vote denial when voting restric­tions result in minor­ity voters having more diffi­culty cast­ing a ballot than non-minor­ity voters.

  • The VRAA would codify the Senate Factors, nine factors enumer­ated in the 1982 Senate report accom­pa­ny­ing that year’s Voting Rights Act Amend­ments. From the Gingles case until Brnovich, these factors were used by federal courts to eval­u­ate vote denial claims
  • Under these factors, courts look at, for example, the history of discrim­in­a­tion in a juris­dic­tion, the last­ing effects it has on minor­ity voters, and whether the restric­tion actu­ally serves a legit­im­ate state purpose
  • The VRAA makes clear that it is not relev­ant that 1) a voting rule has been used for a long time; 2) similar rules are used in other places; and 3) there are other ways impacted voters can vote
  • Claims of “voter fraud” are not enough to justify a discrim­in­at­ory rule. Instead, a state will have to provide evid­ence that fraud is occur­ring
  • A voting rule that intends to bene­fit a polit­ical party still viol­ates Section 2 if it also intends to cause vote dilu­tion or vote denial for minor­ity voters

Retro­gres­sion

The VRAA creates a wholly new basis on which voters can sue states or local­it­ies for repress­ive changes to voting laws. Any voting change that results in a voting rule that is more discrim­in­at­ory against minor­it­ies than the rule it replaces viol­ates the VRAA.

Native Amer­ican Voting Rights Act

The VRAA also includes the Native Amer­ican Voting Rights Act (NAVRA), which protects the right of Native Amer­ic­ans to vote in the face of distinct barri­ers exper­i­enced by voters living on tribal lands. Key provi­sions in NAVRA include:

  • In each precinct where there are voters living on tribal lands, states must put at least one polling place and at least one regis­tra­tion site on tribal lands
  • When consid­er­ing whether to add polling places on tribal lands, states must look to specified factors such as the distance tribal voters must travel to vote
  • States with early voting must place an early polling place on tribal lands
  • The bill provides for prepay­ment of post­age for absentee ballots cast from tribal lands
  • States with a voter ID require­ment must accept tribal or feder­ally issued ID
  • States must trans­late voting mater­i­als into native languages or allow for language access to be given orally where writ­ten trans­la­tion is unavail­able
  • Tribes may desig­nate a communal build­ing as a place that members without a resid­en­tial address may use to register
  • The bill expands who may deliver voting mater­i­als and ballots on tribal lands
  • The bill creates a Native Amer­ican voting task force to address the unique voting chal­lenges faced by Native Amer­ic­ans