The John R. Lewis Voting Rights Advancement Act of 2021, S. 4 (117th Congress): Legal Overview

The John R. Lewis Voting Rights Advancement Act of 2021, S. 4 (117th Congress): Legal Overview

January 10, 2022
The John R. Lewis Voting Rights Advancement Act of 2021,
S. 4 (117th Congress): Legal Overview
The John R. Lewis Voting Rights Advancement Act of
Shelby County v. Holder Invalidated
2021, S. 4 (117th Congress), currently pending in the
Section 4(b)
Senate, would primarily amend the Voting Rights Act of
Section 4(b) of the VRA established criteria, known as a
1965 (VRA). In part, S. 4 appears to respond to Supreme
coverage formula, prescribing which states and jurisdictions
Court decisions that evaluated provisions of the VRA. This
with a history of discrimination were required to obtain
In Focus provides background regarding relevant Court
prior approval or preclearance under Section 5 before
rulings and an overview of selected provisions of S. 4.
changing a voting law. In a 2013 ruling, Shelby County v.
Holder (570 U.S. 529), the Supreme Court invalidated the
Brnovich v. DNC Interpreted Section 2
coverage formula in Section 4(b), thereby rendering the
Section 2 of the VRA, codified at 52 U.S.C. § 10301,
preclearance requirements in Section 5 inoperable. Section
authorizes the federal government and private citizens to
4(b) covered nine states and jurisdictions within six other
challenge discriminatory voting practices, including
states in 2013. Prior to Shelby, under Section 5, those
minority vote dilution. Specifically, Section 2(a) prohibits
jurisdictions were required to obtain preclearance from
any state or political subdivision from imposing a voting
either the Department of Justice or the U.S. District Court
practice that “results in a denial or abridgement of the right
for the District of Columbia for any proposed change to a
… to vote” based on race, color, or membership in a
voting law (including changes to redistricting maps), based
language minority. Further, Section 2(b) provides that a
on the coverage formula established by voter turnout and
violation is established if, “based on the totality of
registration data from the 1960s and early 1970s. The Court
circumstances,” electoral processes “are not equally open to
held that the application of the coverage formula to the
participation” by members of a racial or language minority
covered states and jurisdictions was unconstitutional
group in that the group’s members “have less opportunity
because it departed from the “fundamental principle of
than other members of the electorate to elect representatives
equal sovereignty” among the states without justification
of their choice.”
based on current data.
Historically, Section 2 of the VRA has been invoked
Overview of S. 4 (117th Congress), as
primarily to challenge redistricting maps, known as “vote
Introduced
dilution” cases. In a 2021 ruling, Brnovich v. Democratic
National Committee (DNC) (141 S. Ct. 2321), which is
Section 101. Vote Dilution and Denial Claims
considered a “vote denial” case, the Supreme Court
Currently, Section 2(a) of the VRA expressly provides that
interpreted Section 2 of the VRA in the context of state
violations occur when a state voting law “results” in
voting rules. While not establishing a standard to govern all
denying or abridging the right to vote. Section 101 would
Section 2 challenges to state voting rules, the Court
amend Section 2(a) to expand violations to state laws
identified “certain guideposts,” including five specific
enacted “for the purpose of” denying or abridging the right
circumstances for courts to consider:
to vote.
 amount of the burden imposed by the challenged voting
Section 101 would also amend Section 2(b) of the VRA by
rule;
providing that a violation of Section 2(a) applies expressly

to vote dilution claims, instructing courts to apply the legal
degree to which the challenged voting rule differs from
standard set forth in a 1986 Supreme Court ruling,
voting practices in effect in 1982, when Congress last
Thornburg v. Gingles (478 U.S. 30), to adjudicate such
amended Section 2, including whether the voting rule
“has a long pedigree”;
claims. In Gingles, the Court held that Section 2 requires

that vote dilution challenges to redistricting maps show that
 amount of any disparities in how the challenged voting
members of the protected class compose a majority in a
rule affects “members of different racial or ethnic
single-member district and are politically aligned; and that
groups”;
the other residents in the district vote as a bloc to defeat the

protected class’s preferre

d candidates. Section 101 would
opportunities afforded by a state’s “entire system of
voting”
further specify that a protected class “may include a
; and
cohesive coalition of members of different racial or
 strength of the governmental interests served by the
language minority groups.”
challenged voting rule, writing that prevention of
election fraud is a “strong and entirely legitimate state
For vote denial claims, Section 101 would clarify the
interest.”
statutory language interpreted by the Supreme Court in
Brnovich, and would specify that a violation is established
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The John R. Lewis Voting Rights Advancement Act of 2021, S. 4 (117th Congress): Legal Overview
if the state voting rule “imposes a discriminatory burden”
Section 105. Practice-Based Preclearance
on the protected class in that its members “face greater
Section 105 would add a new Section 4A preclearance
difficulty” complying with the voting rule and, at least
process where, under certain circumstances, states and
partially, that greater difficulty is related to “social and
political subdivisions would be required to obtain
historical conditions” producing discrimination. Section
preclearance for specific election practices, including
101 would generally codify a list of factors for assessing the
changes to election methods; jurisdiction boundaries;
totality of circumstances, augmenting the list that originated
redistricting; voter identification (ID) requirements;
in the VRA Section 2 legislative history. This list includes a
multilingual voting materials; voting locations or
state’s history of voting discrimination and whether election
opportunities, such as a reduction of Sunday voting hours or
campaigns have included “overt or subtle racial appeals.”
a prohibition on providing food or nonalcoholic beverages;
Factors relevant to evaluating the totality of circumstances
or voter registration list maintenance processes.
would expressly not include, among others, the degree to
which the voting rule “has a long pedigree” or whether it
Section 202. Protection of Election Workers
was in effect on an earlier date.
Section 202 would amend 18 U.S.C. § 245, prohibiting
voter intimidation, to expand protections to include election
Section 102. Diminishment of Voting Rights
workers and increase penalties for violations.
Section 102 would amend Section 2 of the VRA to provide
that Section 2 is violated if a state “enacts or seeks to
Section 305. Voter Registration Sites for Native
administer” any voting law with the purpose or effect of
Americans
“diminishing the ability” of citizens to vote on account of
Section 305 would amend a provision of the National Voter
race, color, or membership in a language minority group,
Registration Act, 52 U.S.C. § 20506, to require voter
and would apply to state actions occurring on January 1,
registration at any federal facility that primarily provides
2021, or later.
services to an Indian Tribe.
Section 103. Court-Ordered Preclearance
Section 306. Accessible Tribal Polling Places
Known as the “bail-in” provision, Section 3(c) of the VRA
Section 306 would require states to provide a minimum of
(52 U.S.C. § 10302(c)) allows a court to retain jurisdiction
one polling place per precinct where eligible voters reside
over a state or political subdivision and require preclearance
on Indian lands; prohibit the reduction of polling places on
based on violations of the Fourteenth or Fifteenth
Indian lands on the basis of population; and establish
Amendments. Section 103 would amend Section 3(c) to
additional polling places “if, based on the totality of
also allow courts to exercise similar authority based on
circumstances,” without such additional polling places,
violations of the VRA or of any federal law prohibiting
those living on Indian lands would have “less opportunity
voting discrimination based on race, color, or membership
to vote than eligible voters” in the state who live elsewhere.
in a language minority group.
Section 307. Removing Polling Places on
Section 104. Rolling Coverage Formula
Indian Lands
Section 104 would amend Section 4(b) of the VRA (52
Section 307 would restrict states from eliminating, moving,
U.S.C. § 10303(b)) and establish a rolling coverage formula
or consolidating polling places and voter registration sites
for Section 5 preclearance to replace the formula
on Indian lands unless certain requirements are met.
invalidated by the Court in Shelby County. The formula
would apply to a state or jurisdiction for 10 years if, during
Section 308. Tribal Voter Identification
the previous 25 years:
Section 308 would require states prescribing ID for voting
or registration in federal elections to accept ID issued by
 15 or more voting rights violations occurred in the state;
federally recognized Indian Tribes and other federal
or
agencies that issue ID to eligible Indian voters.
 10 or more voting rights violations occurred in the state,
Section 309. Permitting Voters on Indian Lands to
at least one of which the state itself (instead of a
Designate Persons to Return Ballot
political subdivision) committed.
Section 309 would require states to permit any person to
return the sealed ballot of a voter residing on Indian lands
Separately, a political subdivision (e.g., a city or county)
to a post office on Indian lands, drop box, or other specified
would be covered if three or more voting rights violations
locations so long as the person is not compensated based on
occurred there during the previous 25 years.
the number of ballots returned.
Section 104 defines a voting rights violation to include any
final judgment or preliminary relief granted in a challenge
For additional discussion, see CRS Legal Sidebar
under the Fourteenth or Fifteenth Amendments or under
LSB10624, Voting Rights Act: Supreme Court Provides
certain provisions of the VRA; a final judgment denying a
“Guideposts” for Determining Violations of Section 2 in
declaratory judgment under Sections 3(c) or 5 of the VRA;
Brnovich v. DNC, by L. Paige Whitaker.
an objection by the Attorney General under Sections 3(c) or
5 of the VRA; or a consent decree adopted by a court or
L. Paige Whitaker, Legislative Attorney
containing an admission of liability by the defendant,
resulting in a change to a discriminatory voting practice.
IF12015
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The John R. Lewis Voting Rights Advancement Act of 2021, S. 4 (117th Congress): Legal Overview

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