Earlier this week, the Virginia House of Delegates passed a photo voter ID law that narrows the list of identification voters are required to show on Election Day to vote. The bill, which now sits before Gov. Bob McDonnell to sign or veto, would allow only a driver’s license or US passport to vote. Without either of those, a voter would have to file a provisional ballot, and then bring the required photo ID to the election board by the Friday after Election Day.

If McDonnell signs it, it wouldn’t go into effect until 2014—when the midterm congressional elections are held—but it would have to be approved by the federal government first. Since Virginia is a covered jurisdiction under the Voting Rights Act’s Section 5, any election law they make has to be pre-cleared by the US Justice Department or the US District Court in Washington, DC.

Virginia passed a voter ID bill last year that was pre-cleared by the Justice Department. But that law allowed for non-photo ID forms to be used, like a paycheck or utility bill. Also, Governor McDonnell pledged to send a state-issued voter ID card to everyone in the state who needed one.

As he determines whether to sign this more restrictive photo voter ID law, he may want to consider that Virginia apparently is close to bailing out from Voting Rights Act Section 5 supervision.

In a briefing this morning hosted by the NAACP Legal Defense and Educational Fund, attorney Debo Adegbile told reporters that Virginia is “very close,” probably “within a year” of being “completely bailed out” from Section 5. In that case, the legislature will not need to pre-clear any election laws with the federal government because they proved they had no Voting Rights Act violations for the previous ten years, a stipulation for bail outs.

However, if Governor McDonnell signs this law, and then the Justice Department rejects it due to any discriminatory intent or effect found in the law, then the Section 5 clock starts over, and they will continue to be subjected to federal supervision. Voting rights advocates estimate that as many as 870,000 Virginians lack the proper ID or the documents needed for voting purposes under such law.

Adegbile will be one of the attorneys arguing on behalf of the Voting Rights Act next week as it is reviewed before the US Supreme Court. Governor McDonnell should consider if he wants to make Virginia an example for Adegbile to use in that proceeding.

—Brentin Mock