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VIRGINIA

Candidates

Elaine Luria for Representative

Abigail Spanberger for Representative

Voter Issues in Virginia

MARCH 2020

• Virginia: Statewide organizations representing local election officials have asked Virginia's Department of Elections to cancel in-person voting for the state's May 5 local elections and June 9 congressional primary and instead conduct them by mail. The Department of Elections has already allowed all voters to vote absentee in May's local elections but have yet to do so for June's primaries. Democratic Gov. Ralph Northam is expected to approve a bill by April 11 that would permanently remove the excuse requirement to vote absentee by mail, but it wouldn't take effect until July 1.

• Virginia: Democratic Gov. Ralph Northam has signaled he is likely to sign a number of election-related bills into law that Democrats recently passed in both chambers after taking control of the legislature for the first time in 25 years. Northam has already approved one measure that directs officials to count absentee ballots postmarked as late as Election Day, so long as they receive them no more than three days later.

Other bills awaiting Northam's signature include one that mandates prepaid postage on mail ballots, which are set to become more popular since Democrats also passed legislation to make it significantly easier to cast an absentee ballot. Another measure would replace the GOP's photo voter ID requirement with a provision allowing non-photo IDs such as a bank statement or utility bill.

However, Democrats failed to pass a bill before adjourning last week that would have revived a key protection of the Voting Rights Act that the Supreme Court's conservatives gutted in 2013. The state Senate and House each passed separate versions of the bill but were unable to agree on a single version, which would have required all localities in the state to obtain "preclearance" from the state attorney general (currently Democrat Mark Herring) or a state court before enacting any changes to election procedures to ensure they didn't discriminate against any racial, ethnic, or language minority.

 

• Virginia: Democrats failed to pass a bill out of state Senate committee that would add Virginia's 13 Electoral College votes to the National Popular Vote Interstate Compact, dealing a setback to the effort to elect the president by popular vote. However, the bill is still alive and could be passed by the Senate after November's elections. State House Democrats already passed the bill, so future success in the Senate would send it to Democratic Gov. Ralph Northam, who has said he supports the bill.

FEBRUARY 2020

Virginia: In a busy session that will soon wrap up, Democrats in both chambers of Virginia's legislature have advanced a broad array of bills to make voting easier and reform the state's election procedures. These measures, which we've previously described in detail, would:

Other bills have seen different versions pass in both chambers, which must be reconciled. Those measures include bills to prepay the postage on absentee ballots and replace the GOP's photo voter ID requirement by allowing non-photo IDs to count.

Democrats also passed a bill in a state Senate committee to create a state-level replacement for a key provision of the Voting Rights Act that the Supreme Court struck down in 2013. The legislation would impose a requirement that all localities in the state "preclear" any proposed changes to election rules or procedures with either the state attorney general (currently Democrat Mark Herring) or with the state Court of Appeals to ensure that they do not discriminate against any racial, ethnic, or language minority. The state House has already approved the bill.

Virginia's legislative session is scheduled to end on March 7, so time is quickly running short to pass these remaining bills.

• Virginia: Democrats and a few Republicans have passed a bill that would allow counties and cities to adopt instant-runoff voting (aka ranked-choice voting) in local elections starting in 2021 if they choose to do so. The measure would let voters rank as many candidates as there are on the ballot in order of their preference. If no candidate wins a majority outright among first preferences, the last-place candidate would be eliminated and have their votes redistributed to their voters' second preference. This process would repeat until a candidate wins a majority among remaining ballots.

Electoral College/Interstate Voting Compact Vote -- 13 more votes from VA possible

• Virginia: Democrats have passed a bill along party lines in a state House committee to add Virginia's 13 Electoral College votes to the National Popular Vote Interstate Compact, reversing a defeat for the bill in a vote the previous week. The bill now goes to the full Democratic-controlled House ahead of a key deadline next Tuesday, and it appears to have a plausible chance of eventually becoming law.

• Virginia: Virginia Democrats and a few Republicans in the state House passed a bill to create a state-level equivalent of the Voting Rights Act this week. The legislation would impose a requirement that all localities in the state "preclear" any proposed changes to election rules or procedures with either the state attorney general (currently Democrat Mark Herring) or with the state Court of Appeals to ensure that they do not discriminate against any racial, ethnic, or language group.

Before it was gutted in an infamous 2013 Supreme Court ruling, the federal Voting Rights Act imposed preclearance requirements on a swath of states and localities with a history of discriminatory voting laws, including Virginia. And Virginia Democrats aren't the only ones considering a state-level preclearance regime: New York Democrats recently introduced a bill of their own, which could mark the start of a new trend.

Meanwhile, Democratic state senators have also passed a bill to loosen Virginia's GOP-backed voter ID law by removing the requirement that only photo IDs are acceptable. Instead, Democrats' bill would allow voters to verify their identity with a non-photo ID such as a utility bill or bank statement. Lawmakers passed the bill along party lines. With Democrats holding the state House and the governor's office, it appears likely to become law.

Lastly, Democrats have passed a separate bill largely along party lines in the state House to make Election Day a state holiday, replacing a holiday honoring Confederate generals who committed treason in defense of slavery. Senate Democrats have already passed similar legislation, and after another procedural vote, the proposal will go to Democratic Gov. Ralph Northam, who has promised to sign it. While the Election Day holiday is intended to increase voting access, we have previously explained how it could have unintended negative consequences.

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Virginia: Lawmakers in Virginia's Democratic-run state legislature have advanced a constitutional amendment in the state Senate and state House that would create a bipartisan redistricting commission, a compromise that lawmakers passed last year when Republicans were still in the majority. Legislators have also approved separate "enabling" legislation to strengthen the amendment, which passed with bipartisan support. A separate reform statute intended to function in the absence of the amendment passed along party lines.

As we've previously detailed, the constitutional amendment creates a bipartisan 16-member commission for congressional and legislative redistricting, with half the commissioners made up of legislators from each major party and half composed of citizens picked by retired judges. Maps would be subject to approval by the legislature and governor, but lawmakers could not draw their own.

The amendment turned out to be weaker than what reformers had proposed by dropping a number of criteria, including a ban on maps unduly favoring one party; a requirement to try to keep cities and counties whole; and a mandate to preserve communities of interest. As a result, nothing would prevent bipartisan gerrymandering to protect incumbents, though it would take bipartisan support for the commission to recommend a map to lawmakers, potentially limiting the chance for one-party distortion.

Democratic lawmakers' enabling legislation seeks to address some of these concerns by requiring the commission members to reflect Virginia's demographic and geographic diversity; banning maps that intentionally favor a party or candidate; increasing transparency; and setting nonpartisan guidelines that the state Supreme Court must follow if commissioners fail to pass a map. That last provision is critical because Democrats are concerned that the state's highest court, which is dominated by conservatives, would draw maps that unfairly favor the Republican legislators who elevated them to the bench to begin with.

The final bill, which is intended to function even without the passage of the amendment, contains similar criteria and also would end prison gerrymandering by counting incarcerated people at their last known address instead of where they are imprisoned (and can't even vote). This change would likely shift representation from whiter rural communities to urban communities of color, particularly at the legislative and local levels.

It's unclear which of the two reform efforts will ultimately become law. Even if Democrats' strengthened criteria are enacted, they would still only be statutory and at risk of future repeal, whereas the amendment would be much tougher to roll back. Democrats are considering whether to drop the amendment entirely and instead rely on the second statutory reform bill for the coming redistricting cycle, then later pass a more optimal constitutional amendment. Because Virginia requires amendments to pass both before and after a state general election and then in a referendum, it's too late to pass any other constitutional amendment before the next round of redistricting.

JANUARY 2020

• Virginia: State Senate Democrats have passed a bill to remove the excuse requirement to vote absentee, which would significantly expand opportunities to vote before Election Day in one of the few states that lacks extensive early voting or excuse-free absentee voting provisions. Notably, half of the Republican caucus voted for the bill despite the fact that the GOP had previously blocked such proposals from consideration when they were in the majority. With Democrats now in control of both chambers of the legislature and the governor's office, this bill appears very likely to become law.

Democrats have also voted to make Election Day a state holiday by replacing an infamous holiday that honors Confederate generals Robert E. Lee and Stonewall Jackson. However, while eliminating a holiday that honors those who committed treason in defense of slavery is laudable, substituting an Election Day holiday isn't guaranteed to make it easier to vote and could have unintended negative consequences.

Colorado Democrats considered but ultimately abandoned a similar bill last year after hearing from voting rights advocates that it could impose a burden on some individuals. Notably, low-income voters often face a harder time voting, and they're more likely to rely on public transportation that may not run on a normal schedule during a state holiday. Retail workers also often can't take off work during holidays, and working parents with children may need to find childcare options if schools are closed.

In Colorado's case, the state had already made voting much easier by adopting universal voting-by-mail, automatic and same-day voter registration, and early voting. Virginia Democrats should adopt these reforms—and in fact, they're already pursuing some of these policies and are holding a hearing on automatic registration this coming Tuesday—since they would avoid creating unintentional disruptions for working people on Election Day.

Virginia: Democrats have passed a bill out of state Senate committee that would remove the excuse requirement to vote absentee. The bill would also enable a period of in-person absentee voting similar to traditional early voting in other states. Now that Democrats control state government, this bill will likely become law.

REDISTRICTING

• Virginia: Virginia legislators passed a constitutional amendment to reform redistricting last year before Republicans lost their majorities, but now that Democrats have full control over state government, it's unclear if they'll pass the same amendment a second time this year.

That step would be necessary for the measure to appear on the November ballot and therefore come into force ahead of the coming round of redistricting that will follow the 2020 census.

One reason for the hesitancy is that the amendment reflected a compromise between the parties and introduced a number of weaknesses. To remedy this problem, several Democratic legislators have introduced "enabling legislation" in an attempt to fix some of the amendment's potential flaws.

The original proposal creates a bipartisan 16-member commission for congressional and legislative redistricting, with half the commissioners made up of legislators from each major party and half comprised of citizens picked by retired judges. Maps would be subject to approval by the legislature and governor, but lawmakers could not draw their own.

The amendment turned out to be weaker than what reformers had proposed by dropping a number of criteria, including a ban on maps unduly favoring one party; a requirement to try to keep cities and counties whole; and a mandate to preserve communities of interest. As a result, nothing would prevent bipartisan gerrymandering to protect incumbents, though it would take bipartisan support for the commission to recommend a map to lawmakers, potentially limiting the chance for one-party distortion.

Democratic lawmakers' enabling bills (which you can find here and here) seek to address some of these concerns by requiring the commission members to reflect Virginia's demographic and geographic diversity; banning maps that intentionally favor a party or candidate; increasing transparency; and setting nonpartisan guidelines that the state Supreme Court must follow if commissioners fail to pass a map. That last provision is critical because Democrats are concerned that the state's highest court, which is dominated by conservatives, would draw maps that unfairly favor the Republican legislators who elevated them to the bench to begin with.

However, even if these newest provisions pass into law, they will still only be statutory, meaning there's a risk that they could later be repealed. Nevertheless, if they are enacted this year, they would be in place for the 2021 redistricting process, and Democrats could enshrine them into the state constitution in a future amendment. That prospect could make it more likely that Democrats will uphold their commitment to redistricting reform.

DECEMBER 2019

Virginia: After gaining full control of state government in last month's elections, Democrats have unveiled additional voting and election reform bills ahead of the upcoming legislative session set to begin in January.

One measure would significantly loosen the GOP's strict voter ID law by removing the requirement to present a photo ID and instead allow other forms of identification, like a bank statement or utility bill. A second bill would finally remove the excuse requirement to vote absentee by mail, and another proposal would also expand in-person absentee voting to two weeks before Election Day, up from the current one week.

A further bill would let 16- and 17-year-olds pre-register to vote so that they will be automatically added to the rolls once they reach voting age, which in Virginia is 18 for general elections and 17 in primaries for those who will turn 18 by the general.

Still one more bill would create a pilot program for same-day voter registration. Of all the policies under consideration, same-day registration may have the greatest potential to increase voter turnout. Research has shown that it can help make the electorate more demographically representative of the eligible voter population by making it easier to vote for young people in particular.

Other bills that have been filed include a constitutional amendment establishing that all citizens who are at least 18 years old shall have the right to vote. This amendment would repeal Virginia's felony disenfranchisement law, which bans voting for anyone currently incarcerated, on parole, or on probation for a felony conviction.

The status quo was even more restrictive before Democratic Govs. Terry McAuliffe and Ralph Northam issued executive orders automatically restoring voting rights to citizens who've finished their sentences. A future Republican governor could revive the lifetime voting ban if this amendment or a similar law isn't enacted.

It's unclear, though, whether Democrats have the votes to outright eliminate felony disenfranchisement. A constitutional amendment would also have to pass the legislature both before and after the 2021 elections before it could appear on the 2022 ballot as a referendum.

However, it it were to become law, Virginia would make history as only the third state behind Maine and Vermont to ensure prisoners can vote, the first state with a significant black population to do so, and the first former Jim Crow state to do so. That last distinction would be especially noteworthy because Virginia's felony voter ban was established as part of a package of racist laws designed to "eliminate the darkey as a political factor," as a leading proponent put it in 1902. Before McAuliffe issued his executive order in 2016, one in five black Virginians was banned from voting for life.

Finally, another constitutional amendment would allow governors to run for a second consecutive four-year term. Virginia is currently the only state in the country to limit governors to a single consecutive term, although they're currently eligible to run again for non-consecutive terms.