H.R. 4 — what changed

changed “(1) To prevail, prevail in demonstrating that a representational, districting, or apportionment scheme results in vote dilution, a plaintiff shall, as a threshold matter, establish that—

“(A) the members of the protected class are sufficiently numerous and geographically compact to constitute a majority in a single-member district;

changed “(B) the members of the protected class are generally politically aligned; cohesive; and

changed “(C) the residents of that district who are not the members of the protected class usually vote sufficiently as a bloc to enable them to defeat the preferred candidates of the members of the protected class.

“(2) Upon a plaintiff establishing the required threshold showing under paragraph (1), a court shall conduct a totality of the circumstances analysis with respect to a claim of vote dilution to determine whether there was a violation of subsection (a), which shall include the following factors:

changed “(A) The extent the of any history of official voting discrimination in the State or political subdivision.subdivision that affected the right of members of the protected class to register, to vote, or otherwise to participate in the political process.

“(B) The extent to which voting in the elections of the State or political subdivision is racially polarized.

changed “(C) The extent to which the State or political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the members of the protected class, such as unusually large election districts, prohibitions against bullet-voting, and majority vote requirements.requirements, anti-single shot provisions, or other qualifications, prerequisites, standards, practices, or procedures that may enhance the opportunity for discrimination against the members of the protected class.

“(D) If there is a candidate slating process, whether the members of the protected class have been denied access to that process.

changed “(E) The extent to which members of the protected class in the State or political subdivision bear the effects of discrimination discrimination, both public or private, in such areas as education, employment, and health, housing, and transportation, which hinder their ability to participate effectively in the political process.

“(F) Whether political campaigns have been characterized by overt or subtle racial appeals.

“(G) The extent to which members of the protected class have been elected to public office in the jurisdiction.

“(3) In conducting a totality of the circumstances analysis under paragraph (2), a court may consider such other factors as the court may determine to be relevant, including—

changed “(A) whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the protected class; class, including a lack of concern for or responsiveness to the requests and proposals of the members of the protected class, except that compliance with a court order may not be considered evidence of responsiveness on the part of the jurisdiction; and

“(B) whether the policy underlying the State or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.

“(4) A class of citizens protected by subsection (a) may include a cohesive coalition of members of different racial or language minority groups.”

“(c)

changed “(1) A violation of subsection (a) resulting in vote denial or abridgment is established if the challenged qualification, prerequisite, standard, practice, or procedure imposes a discriminatory burden on members of a class of citizens protected by subsection (a), in that—procedure—

changed “(A) results or will result in members of the a protected class face facing greater difficulty costs or burdens in complying with the requirement, considering the totality of participating in the circumstances; political process than other voters; and

changed “(B) the greater difficulty is, costs or burdens are, at least in part, caused by or linked to social and historical conditions that have produced or produce on the date of such challenge discrimination against members of the protected class.

changed “(2) The challenged qualification, prerequisite, standard, practice, or procedure need only be a but-for cause of the discriminatory burden result described in paragraph (1) or perpetuate a pre-existing burden.burdens or costs.

“(3)

“(A) The factors that are relevant to a totality of the circumstances analysis with respect to a claim of vote denial or abridgement pursuant to this subsection include the following:

changed “(i) The extent of any history of official voting-related discrimination in the State or political subdivision.subdivision that affected the right of members of the protected class to register, to vote, or otherwise to participate in the political process.

“(ii) The extent to which voting in the elections of the State or political subdivision is racially polarized.

changed “(iii) The extent to which the State or political subdivision has used photographic voter identification requirements, documentary proof of citizenship requirements, documentary proof of residence requirements, or other voting practices or procedures, beyond those required by Federal law, that may impair the ability of members of the minority group to participate fully in the political process.

changed “(iv) The extent to which minority group members bear the effects of discrimination discrimination, both public or private, in areas such as education, employment, and health, housing, and transportation, which hinder their ability to participate effectively in the political process.

“(v) The use of overt or subtle racial appeals either in political campaigns or surrounding adoption or maintenance of the challenged practice.

“(vi) The extent to which members of the minority group have been elected to public office in the jurisdiction, provided that the fact that the minority group is too small to elect candidates of its choice shall not defeat a claim of vote denial or abridgment.

changed “(vii) Whether there is a lack of responsiveness on the part of elected officials to the particularized needs of minority group members.members, including a lack of concern for or responsiveness to the requests and proposals of the group, except that compliance with a court order may not be considered evidence of responsiveness on the part of the jurisdiction.

changed “(viii) Whether the policy underlying the State or political subdivision's use of the challenged qualification, prerequisite, standard, practice, or procedure is tenuous.tenuous. In making a determination under this clause, a court shall consider whether the qualification, prerequisite, standard, practice, or procedure in question was designed to advance and materially advances a valid and substantiated State interest.

“(ix) Subject to paragraph (4), such other factors as the court may determine to be relevant.

“(B) The factors described in subparagraph (A), individually and collectively, shall be considered as a means of establishing that a voting practice amplifies the effects of past or present discrimination in violation in subsection (a).

“(C) A plaintiff need not show any particular combination or number of factors to establish a violation of subsection (a).

“(4) The factors that are relevant to a totality of the circumstances analysis with respect to a claim of vote denial or abridgement do not include the following:

changed “(A) The total number or share of members of a protected class on whom a degree to which the challenged qualification, prerequisite, standard, practice, or procedure does not impose has a material burden.long pedigree or was in widespread use at some earlier date.

changed “(B) The degree to which the challenged use of an identical or similar qualification, prerequisite, standard, practice, or procedure has a long pedigree or was in widespread use at some earlier date.other States or jurisdictions.

changed “(C) The use availability of an identical or similar other forms of voting unimpacted by the challenged qualification, prerequisite, standard, practice, or procedure in to all members of the electorate, including members of the protected class, unless the jurisdiction is simultaneously expanding such other States practices to eliminate any disproportionate burden imposed by the challenged qualification, prerequisite, standard, practice, or jurisdictions.procedure.

changed “(D) The availability of other forms of voting unimpacted by Unsubstantiated defenses that the challenged qualification, prerequisite, standard, practice, or procedure to all members of the electorate, including members of the protected class, unless the jurisdiction is simultaneously expanding such other practices necessary to eliminate any disproportionate burden imposed by the challenged qualification, prerequisite, standard, practice, or procedure.address criminal activity.

removed “(E) A prophylactic impact on potential criminal activity by individual voters, if such crimes have not occurred in the jurisdiction in substantial numbers.

removed “(F) Mere invocation of interests in voter confidence or prevention of fraud.

“(d)

“(1) A violation of subsection (a) for the purpose of vote denial or abridgement is established if the challenged qualification, prerequisite, standard, practice, or procedure is intended, at least in part, to dilute minority voting strength or to deny or abridge the right of any citizen of the United States to vote on account of race, color, or in contravention of the guarantees set forth in section 4(f)(2).

“(2) Discrimination on account of race, color, or in contravention of the guarantees set forth in section 4(f)(2) need only be one purpose of a qualification, prerequisite, standard, practice, or procedure to demonstrate a violation of subsection (a).

“(3) A qualification, prerequisite, standard, practice, or procedure intended to dilute minority voting strength or to make it more difficult for minority voters to cast a ballot that will be counted violates this subsection even if an additional purpose of the qualification, prerequisite, standard, practice, or procedure is to benefit a particular political party or group.

“(4) The context for the adoption of the challenged qualification, prerequisite, standard, practice, or procedure, including actions by official decisionmakers before the challenged qualification, prerequisite, standard, practice, or procedure, may be relevant to a violation of this subsection.

added “(5) Claims under this subsection require proof of a discriminatory impact but do not require proof of a violation pursuant to subsection (b) or (c).

added “(e) For purposes of this section, the term “affected area” means any geographic area, in which members of a protected class are affected by a qualification, prerequisite, standard, practice, or procedure allegedly in violation of this section, within a State (including any Indian lands).”

removed “(5) Claims under this subsection require proof of a discriminatory impact but do not require proof of a violation pursuant to subsection (b) or (c).”

Section 2 of the Voting Rights Act of 1965 (52 U.S.C. 10301 et seq.), as amended by section 2 of this Act, is further amended by adding at the end the following:

changed “(e) “(f) A violation of subsection (a) is established with respect when a State or political subdivision enacts or seeks to administer any challenged qualification, prerequisite, standard, practice, qualification or procedure that has not been imposed prerequisite to voting or applied in an election as of the date of such challenge, if such qualification, prerequisite, standard, practice, or procedure with respect to voting in any election that has the purpose of or will have the effect of denying or abridging diminishing the right to vote ability of any citizens of the United States on account of race or color, or in contravention of the guarantees set forth in section 4(f)(2), within to participate in the meaning electoral process or elect their preferred candidates of section 5.”choice. This subsection applies to any action taken on or after January 1, 2021, by a State or political subdivision to enact or seek to administer any such qualification or prerequisite to voting or standard, practice or procedure.

added “(g) Notwithstanding the provisions of subsection (f), final decisions of the United States District Court of the District of Columbia on applications or petitions by States or political subdivisions for preclearance under section 5 of any changes in voting prerequisites, standards, practices, or procedures, supersede the provisions of subsection (f).”

“(b) Determination of States and Political Subdivisions Subject to Requirements

“(1) Existence of voting rights violations during previous 25 years

“(A) Statewide application—Subsection (a) applies with respect to a State and all political subdivisions within the State during a calendar year if—

“(i) fifteen or more voting rights violations occurred in the State during the previous 25 calendar years;

“(ii) ten or more voting rights violations occurred in the State during the previous 25 calendar years, at least one of which was committed by the State itself (as opposed to a political subdivision within the State); or

“(iii) three or more voting rights violations occurred in the State during the previous 25 calendar years and the State itself administers the elections in the State or political subdivisions in which the voting rights violations occurred.

“(B) Application to specific political subdivisions—Subsection (a) applies with respect to a political subdivision as a separate unit during a calendar year if three or more voting rights violations occurred in the subdivision during the previous 25 calendar years.

“(2) Period of application

“(A) In general—Except as provided in subparagraph (B), if, pursuant to paragraph (1), subsection (a) applies with respect to a State or political subdivision during a calendar year, subsection (a) shall apply with respect to such State or political subdivision for the period—

“(i) that begins on January 1 of the year in which subsection (a) applies; and

“(ii) that ends on the date which is 10 years after the date described in clause (i).

“(B) No further application after declaratory judgment

“(i) States—If a State obtains a declaratory judgment under subsection (a), and the judgment remains in effect, subsection (a) shall no longer apply to such State pursuant to paragraph (1)(A) unless, after the issuance of the declaratory judgment, paragraph (1)(A) applies to the State solely on the basis of voting rights violations occurring after the issuance of the declaratory judgment.

“(ii) Political subdivisions—If a political subdivision obtains a declaratory judgment under subsection (a), and the judgment remains in effect, subsection (a) shall no longer apply to such political subdivision pursuant to paragraph (1), including pursuant to paragraph (1)(A) (relating to the statewide application of subsection (a)), unless, after the issuance of the declaratory judgment, paragraph (1)(B) applies to the political subdivision solely on the basis of voting rights violations occurring after the issuance of the declaratory judgment.

“(3) Determination of voting rights violation—For purposes of paragraph (1), a voting rights violation occurred in a State or political subdivision if any of the following applies:

changed “(A) Judicial relief; violation of the 14th or 15th Amendment—Any final judgment, or any preliminary, temporary, or declaratory relief (that was not reversed on appeal), in which the plaintiff prevailed or a court of the United States found that the plaintiff demonstrated a likelihood of success on the merits or raised a serious question with regard to race discrimination, in which any court of the United States determined that a denial or abridgement of the right of any citizen of the United States to vote on account of race, color, or membership in a language minority group occurred, or that a voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting created an undue burden on the right to vote in connection with a claim that the law unduly burdened voters of a particular race, color, or language minority group, in violation of the 14th or 15th Amendment, anywhere within the State or subdivision.

“(B) Judicial relief; violations of this Act—Any final judgment, or any preliminary, temporary, or declaratory relief (that was not reversed on appeal) in which the plaintiff prevailed or a court of the United States found that the plaintiff demonstrated a likelihood of success on the merits or raised a serious question with regard to race discrimination, in which any court of the United States determined that a voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting was imposed or applied or would have been imposed or applied anywhere within the State or subdivision in a manner that resulted or would have resulted in a denial or abridgement of the right of any citizen of the United States to vote on account of race, color, or membership in a language minority group, in violation of subsection 4(e) or 4(f) or section 2, 201, or 203 of this Act.

“(C) Final judgment; Denial of declaratory judgment—In a final judgment (that was not been reversed on appeal), any court of the United States has denied the request of the State or subdivision for a declaratory judgment under section 3(c) or section 5, and thereby prevented a voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting from being enforced anywhere within the State or subdivision.

“(D) Objection by the Attorney General—The Attorney General has interposed an objection under section 3(c) or section 5, and thereby prevented a voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting from being enforced anywhere within the State or subdivision. A violation per this subsection has not occurred where an objection has been withdrawn by the Attorney General, unless the withdrawal was in response to a change in the law or practice that served as the basis of the objection. A violation under this subsection has not occurred where the objection is based solely on a State or political subdivision’s failure to comply with a procedural process that would not otherwise constitute an independent violation of this act.

changed “(E) Consent decree, settlement, or other agreement—A consent decree, settlement, or other agreement was adopted or entered by a court of the United States or contained an admission of liability by the defendants, which resulted in the alteration or abandonment of a voting practice anywhere in the territory of such State or subdivision that was challenged on the ground that the practice denied or abridged the right of any citizen of the United States to vote on account of race, color, or membership in a language minority group in violation of subsection 4(e) or 4(f) or section 2, 201, or 203 of this Act, or the 14th or 15th Amendment. An extension or modification of an agreement as defined by this subsection that has been in place for ten years or longer shall count as an independent violation. If a court of the United States finds that an agreement itself as defined by this subsection denied or abridged the right of any citizen of the United States to vote on account of race, color, or membership in a language minority group, violated subsection 4(e) or 4(f) or section 2, 201, or 203 of this Act, or created an undue burden on the right to vote in connection with a claim that the consent decree, settlement, or other agreement unduly burdened voters of a particular race, color, or language minority group, that finding shall count as an independent violation.

“(F) Multiple violations—Each voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting, including each redistricting plan, found to be a violation by a court of the United States pursuant to subsection (a) or (b), or prevented from enforcement pursuant to subsection (c) or (d), or altered or abandoned pursuant to subsection (e) shall count as an independent violation. Within a redistricting plan, each violation found to discriminate against any group of voters based on race, color, or language minority group shall count as an independent violation.

“(4) Timing of determinations

“(A) Determinations of voting rights violations—As early as practicable during each calendar year, the Attorney General shall make the determinations required by this subsection, including updating the list of voting rights violations occurring in each State and political subdivision for the previous calendar year.

“(B) Effective upon publication in Federal Register—A determination or certification of the Attorney General under this section or under section 8 or 13 shall be effective upon publication in the Federal Register.”

added “(g) Administrative bailout

added “(1) Determination of eligibility

added “(A) In general—After making a determination under subsection (b)(1)(A) that the provisions of subsection (a) apply with respect to a State and all political subdivisions within the State, the Attorney General shall determine if any political subdivision of the State is eligible for an exemption under this subsection, and shall publish, in the Federal Register, a list of all such political subdivisions. Any political subdivision included on such list is not subject to any requirement under section 5 until the date on which any application under this section has been finally disposed of or no such application may be made.

added “(B) Rule of construction—Nothing in this subsection may be construed to provide—

added “(i) that the determinations made pursuant to the creation of the list shall have any binding or preclusive effect; or

added “(ii) that inclusion on the list—

added “(I) constitutes a final determination by the Attorney General that the listee is eligible for an exemption pursuant to this subsection or that, in the case of the listee, the provisions of subparagraphs (A) through (F) of subsection (a)(1) are satisfied; or

added “(II) entitles the listee to any exemption pursuant to this subsection.

added “(2) Eligibility—A political subdivision that submits an application under paragraph (3) shall be eligible for an exemption under this subsection only if, during the ten years preceding the filing of the application, and during the pendency of such application—

added “(A) no test or device referred to in subsection (a)(1) has been used within such political subdivision for the purpose or with the effect of denying or abridging the right to vote on account of race or color or in contravention of the guarantees of subsection (f)(2);

added “(B) no final judgment of any court of the United States, other than the denial of declaratory judgment under this section, has determined that denials or abridgements of the right to vote on account of race or color have occurred anywhere in the territory of such political subdivision or that denials or abridgements of the right to vote in contravention of the guarantees of subsection (f)(2) have occurred anywhere in the territory of such subdivision and no consent decree, settlement, or agreement has been entered into resulting in any abandonment of a voting practice challenged on such grounds; and no declaratory judgment under this section shall be entered during the pendency of an action commenced before the filing of an action under this section and alleging such denials or abridgements of the right to vote;

added “(C) no Federal examiners or observers under this Act have been assigned to such political subdivision;

added “(D) such political subdivision and all governmental units within its territory have complied with section 5 of this Act, including compliance with the requirement that no change covered by section 5 has been enforced without preclearance under section 5, and have repealed all changes covered by section 5 to which the Attorney General has successfully objected or as to which the United States District Court for the District of Columbia has denied a declaratory judgment;

added “(E) the Attorney General has not interposed any objection (that has not been overturned by a final judgment of a court) and no declaratory judgment has been denied under section 5, with respect to any submission by or on behalf of the plaintiff or any governmental unit within its territory under section 5, and no such submissions or declaratory judgment actions are pending; and

added “(F) such political subdivision and all governmental units within its territory—

added “(i) have eliminated voting procedures and methods of election which inhibit or dilute equal access to the electoral process;

added “(ii) have engaged in constructive efforts to eliminate intimidation and harassment of persons exercising rights protected under this Act; and

added “(iii) have engaged in other constructive efforts, such as expanded opportunity for convenient registration and voting for every person of voting age and the appointment of minority persons as election officials throughout the jurisdiction and at all stages of the election and registration process.

added “(3) Application period—Not later than 90 days after the publication of the list under paragraph (1), a political subdivision included on such list may submit an application, containing such information as the Attorney General may require, for an exemption under this subsection. The Attorney General shall provide notice in the Federal Register of such application.

added “(4) Comment period—During the 90-day period beginning on the date that notice is published under paragraph (3), the Attorney General shall give interested persons an opportunity to submit objections to the issuance of an exemption under this subsection to a political subdivision on the basis that the political subdivision is not eligible under paragraph (2) to the Attorney General. During the 1 year period beginning on the effective date of this subsection, such 90-day period shall be extended by an additional 30 days. The Attorney General shall notify the political subdivision of each objection submitted and afford the political subdivision an opportunity to respond.

added “(5) Determination as to objections—In the case of a political subdivision with respect to which an objection has been submitted under paragraph (4), the following shall apply:

added “(A) Consideration of objections—The Attorney General shall consider and respond to each such objection (and any response of the political subdivision thereto) during the 60 day period beginning on the day after the comment period under paragraph (4) concludes.

added “(B) Justified objections—If the Attorney General determines that any such objection is justified, the Attorney General shall publish notice in the Federal Register denying the application for an exemption under this subsection.

added “(C) Unjustified objections—If the Attorney General determines that no objection submitted is justified, each person that submitted such an objection may, not later than 90 days after the end of the period established under subparagraph (A), file, in the District Court of the District of Columbia, an action for judicial review of such determination in accordance with chapter 7 of title 5, United States Code.

added “(6) Exemption—The Attorney General may issue an exemption, by publication in the Federal Register, from the application of the provisions of subsection (a) with respect to a political subdivision that—

added “(A) is eligible under paragraph (2); and

added “(B) with respect to which no objection under was submitted under paragraph (4) or determined to be justified under paragraph (5).

added “(7) Judicial review—Except as otherwise explicitly provided in this subsection, no determination under this subsection shall be subject to review by any court, and all determinations under this subsection are committed to the discretion of the Attorney General.

added “(8) Savings clause—If a political subdivision was not subject to the application of the provisions of subsection (a) by reason of a declaratory judgment entered prior to the effective date of this subsection, and such political subdivision has not violated any eligibility requirement set forth in paragraph (2) at any time thereafter, then that political subdivision shall not be subject to the requirements of subsection (a).”

Section 12(d) of the Voting Rights Act of 1965 (52 U.S.C. 10308(d)), as amended by section 9, is further amended by adding at the end the following:

“(2)

changed “(A) In considering any motion for preliminary relief in any action for preventive relief described in this subsection, the court shall grant the relief if the court determines that the complainant has raised a serious question as to whether the challenged voting qualification or prerequisite to voting or standard, practice, or procedure violates this Act or the Constitution and, on balance, the hardship imposed on the defendant by the grant of the relief will be less than the hardship which would be imposed on the plaintiff if the relief were not granted.

“(B) In making its determination under this paragraph with respect to a change in any voting qualification, prerequisite to voting, or standard, practice, or procedure with respect to voting, the court shall consider all relevant factors and give due weight to the following factors, if they are present:

“(i) Whether the qualification, prerequisite, standard, practice, or procedure in effect prior to the change was adopted as a remedy for a Federal court judgment, consent decree, or admission regarding—

“(I) discrimination on the basis of race or color in violation of the 14th or 15th Amendment;

“(II) a violation of the 19th, 24th, or 26th Amendments;

“(III) a violation of this Act; or

“(IV) voting discrimination on the basis of race, color, or membership in a language minority group in violation of any other Federal or State law.

“(ii) Whether the qualification, prerequisite, standard, practice, or procedure in effect prior to the change served as a ground for the dismissal or settlement of a claim alleging—

“(I) discrimination on the basis of race or color in violation of the 14th or 15th Amendment;

“(II) a violation of the 19th, 24th, or 26th Amendment;

“(III) a violation of this Act; or

“(IV) voting discrimination on the basis of race, color, or membership in a language minority group in violation of any other Federal or State law.

“(iii) Whether the change was adopted fewer than 180 days before the date of the election with respect to which the change is to take or takes effect.

“(iv) Whether the defendant has failed to provide timely or complete notice of the adoption of the change as required by applicable Federal or State law.

“(3) A jurisdiction’s inability to enforce its voting or election laws, regulations, policies, or redistricting plans, standing alone, shall not be deemed to constitute irreparable harm to the public interest or to the interests of a defendant in an action arising under the Constitution or any Federal law that prohibits discrimination on the basis of race, color, or membership in a language minority group in the voting process, for the purposes of determining whether a stay of a court’s order or an interlocutory appeal under section 1253 of title 28, United States Code, is warranted.”