Voting Rights Act and H.R. 4 (117th Congress): An Overview

Voting Rights Act and H.R. 4 (117th Congress): An Overview

August 20, 2021
Voting Rights Act and H.R. 4 (117th Congress): An Overview
The Voting Rights Act (VRA) was enacted to protect equal
Recent Congressional Developments
access to elections for all eligible Americans. In particular,
Throughout the spring and summer of 2021, the House
and in response to widespread disenfranchisement between
Judiciary Committee and the Committee on House
the post-Civil War period and the 1960s, the VRA protects
Administration held hearings on voting and election
voters in racial and language minority groups. The VRA
administration issues, including the VRA and effects on
rests principally on congressional authority to enforce the
members of various groups of voters. Representative Sewel
Fifteenth Amendment to the U.S. Constitution, which
introduced H.R. 4 on August 17, 2021. The bill was
prohibits voting denial or abridgment based on color, race,
referred to the House Judiciary Committee. In the 116th
or previous condition of servitude.
Congress, the House passed (228-187) a precursor bill, also
numbered H.R. 4, on December 6, 2019. The Senate
H.R. 4, the John R. Lewis Voting Rights Advancement Act
considered a companion measure, S. 4263.
of 2021 (VRAA), proposes several VRA amendments. This
In Focus provides an overview of H.R. 4’s proposed
Brnovich v. DNC and Section 2 Claims
changes to key sections of the VRA, primarily Sections 2
Historically, Section 2 of the VRA has been invoked
and 4. Applying nationwide, Section 2 prohibits voting
primarily to challenge redistricting maps, known as “vote
discrimination based on race, color, or membership in a
dilution” cases. For the first time, in July 2021, in Brnovich
language minority. Before the Supreme Court ruled it
v. Democratic National Committee (DNC) (141 S. Ct.
unconstitutional, Section 4 established criteria, known as a
2321), the Supreme Court interpreted Section 2 in the
coverage formula, for determining those jurisdictions
context of state voting rules, known as “vote denial” cases.
required to obtain prior approval or preclearance for
The Court held that two Arizona voting rules do not violate
proposed voting changes. H.R. 4 proposes new standards
Section 2. Interpreting the language of Section 2, the Court
for Section 2 claims and a new Section 4 coverage formula.
held that voting must be “‘equally open’ to minority and
As discussed below, two recent Supreme Court rulings have
non-minority groups alike” and that courts should apply a
substantial implications for the VRA and appear to form the
broad totality of circumstances test to determine whether
basis for many of H.R. 4’s provisions.
state voting rules violate Section 2. The Court did not
establish a standard to govern all Section 2 challenges to
Those favoring H.R. 4 generally argue that the bill is
voting rules, but identified “certain guideposts,” including
consistent with previous statutory changes to protect
five specific circumstances for courts to consider.
minority voting rights and responds to Supreme Court
rulings. Opponents generally argue that H.R. 4 infringes on
Shelby County v. Holder and Section 4 Coverage
state election authority and is unnecessary because
In a 2013 ruling, Shelby County v. Holder (133 S. Ct.
nationwide VRA protections still apply.
2612), the Supreme Court invalidated the coverage formula
in Section 4(b) of the VRA, thereby rendering the
Background
preclearance requirements in Section 5 inoperable. Under
Congress passed the Voting Rights Act (P.L. 89-110) in
Section 5, nine states and jurisdictions within six other
1965. Congress amended the act several times between
states were covered under Section 4(b). Those jurisdictions
1970 and 2006. Among other provisions, the VRA (52
were required to obtain preclearance from either DOJ or the
U.S.C. §§10101-10702) currently
U.S. District Court for the District of Columbia for any
proposed change to a voting law, including changes to
 prohibits states and political subdivisions (e.g., cities or
congressional redistricting maps. The coverage formula was
counties) from using race- or color-based qualifications,
based on voter turnout and registration data from the 1960s
standards, or practices in registration, voting, or
and early 1970s. The Court held that the application of the
redistricting;
coverage formula to the covered states and jurisdictions
departed from the “fundamental principle of equal
 prohibits tools previously used to disenfranchise voters,
sovereignty” among the states without justification “in light
such as poll taxes or literacy tests;
of current conditions.”
 permits voting assistance and promotes polling place
Overview of H.R. 4 (117th Congress), as
access for elderly and disabled voters; and
Introduced
 authorizes the Department of Justice (DOJ) to monitor
Section 2. Vote Dilution, Denial, and Abridgement
elections to protect voting rights.
Section 2 of H.R. 4 would amend Section 2 of the VRA (52
U.S.C. §10301), which authorizes the federal government
and individuals to challenge discriminatory voting practices
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Voting Rights Act and H.R. 4 (117th Congress): An Overview
or procedures; it applies nationwide. Generally, Section 2 of
Section 5. Rol ing Coverage for Preclearance
the VRA prohibits voting practices, standards, or
Section 5 of H.R. 4 would amend Section 4(b) of the VRA
procedures that result in the denial or abridgement of voting
(52 U.S.C. §10303). It would establish a new, rolling
rights based on race, color, or membership in a language
coverage formula for Section 5 preclearance to replace the
minority.
formula held unconstitutional in Shelby County v. Holder.
The formula would apply for 10 years if, during the
Section 2 of H.R. 4 proposes a two-part test for courts to
previous 25 years
apply in evaluating a vote denial claim, clarifying the
statutory language that the Supreme Court interpreted in
 15 or more voting rights violations occurred in the state;
Brnovich v. DNC. Generally, a violation would be
or
established if the challenged voting rule imposes “a
discriminatory burden” on citizens protected under VRA
 10 or more voting rights violations occurred in the state,
Section 2, meaning that “members of the protected class
at least 1 of which the state itself (instead of a political
face greater difficulty in complying with” the voting rule.
subdivision) committed; or
The court must consider “the totality of the circumstances,”

and find that the greater difficulty is “caused by or linked to
3 or more voting rights violations occurred within the
state and the state administers the elections within the
social and historical conditions that have produced,” on the
date that the challenge is brought, “discrimination against
state or political subdivision where the violation
members of the protected class.” Factors relevant to
occurred.
evaluating the totality of circumstances would expressly not
Separately, a political subdivision (e.g., a city or county)
include, among others, the degree to which the voting rule
“has a long pedigree” or was in effect on an earlier date;
would be covered if three or more voting rights violations
access to alternative voting methods; and the “[m]ere
occurred during the previous 25 years.
invocation of interests” in preventing voter fraud.
Section 5 defines a voting rights violation to include any
final judgment or preliminary relief granted in a challenge
Section 2 also would generally codify a 1986 Supreme
under the Fourteenth or Fifteenth Amendments; a challenge
Court ruling, Thornburg v. Gingles (478 U.S. 30),
under any provision of the VRA; a final judgment denying
establishing threshold conditions for challenges to
a declaratory judgment under Sections 3(c) or 5 of the
redistricting maps based on vote dilution claims. Section 2
VRA; an objection by the Attorney General under Sections
would require challengers to show that members of the
3(c) or 5 of the VRA; or a consent decree adopted by a
protected class compose a majority in a single-member
court or containing an admission of liability by the
district and are politically aligned; and that the other
defendant, resulting in a change to a discriminatory voting
residents in the district vote as a bloc to defeat the protected
class’s preferred candidates. Further, Section 2 would
practice. Each voting rule invalidated would constitute a
separate violation (e.g., within a redistricting map, each
generally codify a list of factors, which originated in the
violation would constitute a separate violation).
VRA Section 2 legislative history, relevant in assessing the
totality of circumstances. Those factors include the history
Section 6. Practice-Based Coverage
of voting discrimination within the state; the extent of
Section 6 of H.R. 4 would add a new Section 4A to the
racially polarized voting; and whether election campaigns
have included “overt or subtle racial appeals.”
VRA. This language proposes a new preclearance process

and specifies voting practices that would subject states or
Section 3. Retrogression
political subdivisions to that process. Seven categories of
election practices would trigger preclearance. These include
Section 3 of H.R. 4 would amend Section 2 of the VRA (52
changes to election methods; jurisdiction boundaries;
U.S.C. §10301), to provide that a voting rule violates
Section 2 if it is challenged before it is “imposed or applied
redistricting; voting documentation or qualification
in an election” and “has
requirements, such as voter ID; multilingual voting
the purpose or will have the effect
of ... abridging” voting
materials, such as ballots; voting locations or opportunities,
rights based on race, color, or
such as a reduction of Sunday voting hours or prohibiting
membership in a language minority, “within the meaning
of” Section 5 of the VRA.
providing food or nonalcoholic beverages; or registration

list maintenance, such as new criteria for removing voter
Section 4. Court-Ordered Preclearance
names.
Known as the “bail-in” provision, Section 3(c) of the VRA
For additional discussion, see CRS Legal Sidebar
(52 U.S.C. §10302(c)) allows a court to retain jurisdiction
LSB10624, Voting Rights Act: Supreme Court Provides
over a state or political subdivision and require preclearance
“Guideposts” for Determining Violations of Section 2 in
based on violations of the Fourteenth or Fifteenth
Brnovich v. DNC, by L. Paige Whitaker; and CRS
Amendments. Section 4 of H.R. 4 would amend Section
Testimony TE10033, History and Enforcement of the
3(c) to also allow courts to exercise similar authority based
Voting Rights Act of 1965, by L. Paige Whitaker.
on violations of the VRA or of any federal law prohibiting
voting discrimination based on race, color, or membership
in a language minority group.
L. Paige Whitaker, Legislative Attorney
R. Sam Garrett, Specialist in American National
Government
IF11908
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Voting Rights Act and H.R. 4 (117th Congress): An Overview

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