Travis and Nick had helpful summaries and thoughts of the major components of H.R. 4, the John L. Lewis Voting Rights Advancement Act. I wanted to highlight one interesting change from the 2019 edition of the VRAA, the scope of nationwide preclearance of voter identification laws.
Like the 2019 edition of H.R. 4, the proposed Act would include seven “covered practices” that apply nationwide (although Travis helpfully reminds readers that some only come into play if certain demographic factors are present). One of those practices includes “changes in documentation or qualifications to vote.”
The last version of H.R. 4 had this threshold
Any change to requirements for documentation or proof of identity to vote such that the requirements will exceed or be more stringent than the requirements for voting that are described in section 303(b) of the Help America Vote Act of 2002 (52 U.S.C. 21083(b)) or any change to the requirements for documentation or proof of identity to register to vote that will exceed or be more stringent than such requirements under State law on the day before the date of enactment of the Voting Rights Advancement Act of 2019.
“[T]he requirements for voting that are described in section 303(b) of the Help America Vote Act of 2002” was an awkward reference, as that subsection of HAVA dealt with proof for those who registered to vote by mail, not voter identification generally. But those requirements are “a current and valid photo identification; or . . . a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter.” Essentially, the previous VRAA allowed any form of voter identification law that met HAVA (which included an either/or proviso), but preclearance would be needed for requirements that “exceed” or are “more stringent than” those forms.
That’s changed two ways in the new draft, which is a bit more complicated:
Any change to requirements for documentation or proof of identity to vote or register to vote that will exceed or be more stringent than such requirements under State law on the day before the date of enactment of the John R. Lewis Voting Rights Advancement Act of 2021; and further, if a State has in effect a requirement that an individual present identification as a condition of receiving and casting a ballot in an election for Federal office, if the State does not permit the individual to meet the requirement and cast a ballot in the election in the same manner as an individual who presents identification—
(A) in the case of an individual who desires to vote in person, by presenting the appropriate State or local election official with a sworn written statement, signed by the individual under penalty of perjury, attesting to the individual’s identity and attesting that the individual is eligible to vote in the election; and
(B) in the case of an individual who desires to vote by mail, by submitting with the ballot the statement described in subparagraph (A).
The proposed Act eliminates the HAVA threshold–now all voter identification laws would need to go through preclearance.
It then tacks on a clause (in my judgment, a bit awkwardly in this place): “further, if a state has in effect a requirement” of a voter identification law of a certain type. That is, this is not a paragraph relating to a “change” in a voter identification law. Instead, it is about preexisting laws on the books.
It targets all voter identification laws that are what are called “strict” laws–that is, a voter is unable to vote if she lacks the appropriate identification and must take some other step to demonstrate identity for a provisional vote to count.
It appears to attack some “non-strict” laws, too, where election officials after Election Day review the eligibility of a voter who lacks identification. It’s not clear, for instance, whether West Virginia’s voter identification, which requires a voter who lacks identification to vote provisionally, and that ballot is “entitled to be counted once the election authority verifies the identity of the individual by comparing that individual’s signature to the current signature on file with the election authority and determines that the individual was otherwise eligible to cast a ballot at the polling place where the ballot was cast.” Casting a provisional ballot is not “in the same manner” as voters who have identification.
Instead, the proposed Act allows only existing voter identification laws to remain in place if a voter can present a “sworn written statement . . under penalty of perjury” of eligibility.
This new bill, then, puts other existing voter identifications laws on the books subject to retroactive preclearance, except those that meet the “penalty of perjury” alternative to identification. It is likely that many identification laws, like West Virginia’s, would survive preclearance. But it would also freeze a lot of identification laws from any application pending future review.