On August 24, the House passed H.R. 4,  also known as the John R. Lewis Voting Rights Advancement Act. This federal legislation would require states and jurisdictions to obtain certification, or “preclearance” before making changes to election procedures in certain circumstances to ensure that the proposed changes are not discriminatory.

Under H.R. 4, preclearance requires either (1) approval from the Attorney General; or (2) a declaratory judgment from the United States District Court for the District of Columbia.  The AG or court will approve a proposed change if it finds that the policy change will not deny or limit the right to vote on account of race, color, or membership in a language minority group.

Under H.R. 4, preclearance is required when a state or jurisdiction

  1. Is enacting a certain type of change, such as changes to proof of identity requirements, reductions of multilingual voting materials, or, in certain jurisdictions, changes to early voting availability or redistricting; or
  2.  Has a proven history of discriminatory election practices.

Here is a look at some of the changes states made in 2021 that would have been subject to H.R. 4’s preclearance requirements. If H.R. 4 had been in place in 2021, states would be required to submit these changes for preclearance – and would be prohibited from implementing them until they were approved.

Proof of Identity Requirements

Under H.R. 4, any legislation that would make a state’s requirements for documentation or proof of identity to vote or register to vote more strict is subject to preclearance.  Some examples of legislation passed in 2021 that fit this description include:

  • In Florida, S.B. 90, enacted May 6, 2021, requires all applicants for a mail ballot to include their Florida driver license number, identification card number, or the last four digits of their Social Security number on their application. 
  • In Georgia, S.B. 202, enacted March 25, 2021, requires voters to provide an identification number from a Georgia-issued ID with their absentee ballot application or, if they do not have one, a photocopy of another type of ID. This bill also requires voters to provide a state-issued ID number, if they have one, or the last four digits of their social security number, on the outer envelope containing their absentee ballots. Voters who do not have either required ID number are required to enclose a copy of alternative ID with their ballot. Under previous law, voters are required to provide only a signed oath affirming their identity.
  • In Montana, S.B. 169, enacted April 19, 2021, eliminates a voter’s option to show an identifying document containing the voter’s name and address, but no photograph of the voter, to prove identity in order to vote. This bill also requires a person who does not have a driver’s license number, state ID number, or last four digits of their Social Security number to show photo ID to register to vote. 
  • In Arkansas, H.B. 1112, enacted on March 3, 2021, amended the state constitution to eliminate the ability of an in-person or absentee voter to file a sworn statement attesting to their identity in lieu of providing voter ID to verify a provisional ballot. The bill requires a voter to provide an acceptable form of ID by noon on the Monday following the election as the only means to verify a provisional ballot.

And the following pending proof of identity bills would be subject to preclearance under H.R. 4 prior to their enactment if H.R. 4 passes before they do:

  • In Ohio, H.B. 387, introduced August 12, 2021, would restrict the types of ID a voter may provide to be able to vote in person and would require a voter to provide a copy of such ID with a voter registration application or an application to vote by mail. 
  • In Texas, H.B. 3, introduced August 9, 2021, would require a mail ballot voter to provide a Texas driver’s license or state ID number, if they have one, when applying for and when returning a mail ballot. S.B. 1, introduced August 11, 2021, contains a similar provision. 
  • In Michigan, S.B. 285, introduced March 24, 2021, would require applicants for absent voter ballots to provide either a driver’s license number, a state ID number, the last four digits of their social security number, or a copy of their voter ID with their application, or else present a copy of identification to the clerk in person. 

Reduction or Relocation of  Voting Locations

Under H.R.4, changes that impact districts with at least 20% racial or language minority voting-age population that reduce, consolidate, or relocate voting locations, or that reduce days or hours of in-person voting on any Sunday, are subject to preclearance. The following legislation, enacted during the 2021 session, could meet this definition:

  • In Nevada, S.B. 84, enacted on May 27, 2021, raises the maximum number of active registered voters that can be assigned to an Election Day precinct from 3,000 to 5,000.
  • In Iowa, S.B. 413, enacted on March 8, 2021, reduces the early voting period from 29 days before Election Day to 20 days before. While Sunday voting is not required in Iowa, it may be offered at the discretion of local elections authorities, so this bill could eliminate some Sunday voting options. 

These bills would also be subject to preclearance if they passed:

  • In Ohio, H.B. 387, introduced August 12, 2021, would decrease the number of days in the early voting (in-person absentee) period in phases over time, from 28 days (current law), to 14 days through 2022, to 7 days starting January 1, 2023. 
  • In Michigan, H.B. 3134, introduced February 4, 2021, would allow local election commissions to create precincts that serve up to 4,000 active registered voters. Existing law limits precincts to 2,999 active registered voters. 

States Stepping Up

Virginia passed its own version of the John Lewis Voting Rights Advancement Act this year, with a bill requiring any localities attempting to change any “covered practice” (e.g., eliminating or consolidating polling places, redistricting, implementing at-large districts for governing bodies, changes to language accessibility) to seek preclearance through a public notice, comment, and hearing process or through the Attorney General’s office.  New York has introduced a similar bill