While politics may be a zero-sum game, election integrity and voting rights shouldn’t be. Unfortunately, today’s political landscape makes any bipartisan effort to reform elections nearly impossible. It wasn’t always this way. The vast majority of modern election and voting rights bills, from the Federal Election Campaign Act of 1971, Americans With Disabilities Act (ADA), the National Voter Registration Act of 1993 (NVRA), Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), to the Help America Vote Act of 2002 (HAVA) were passed with bipartisan involvement and support. Fast forward nearly 20 years – and two smash-mouth federal election cycles – and we come to the For The People Act, otherwise known as H.R. 1/S.1.
To say there isn’t much bipartisan support for this bill would be a dramatic understatement. The vote in the House for H.R. 1 split exactly along party lines. As H.R. 1 lurches into the Senate to become S.1 on March 24, the stakes get higher, and the odds of the vote getting the 50 votes from the Democrats and 10 votes from Senate Republicans drops precipitously. There is no shortage of strong opinions about this bill, however, expressing those opinions online is guaranteed to start an epic flame war involving all sides. Is H.R. 1 worth this level of emotional involvement? After tormenting myself over a period of weeks reading and re-reading the legislative texts (2019 and 2021) and comparing them to the Congressional acts signed into law listed above, my non-committal answer is “I don’t know”. There is a lot to unpack in this bill, my goal here is to analyze select parts: the good, the bad, and the WTF of H.R. 1 as objectively as possible.
Overall, the voting rights sections of the bill aren’t what make H.R. 1/S.1 problematic. There are several parts of H.R. 1 that I’m actually excited to see signed into law. Support for states to enact online voter registration and automatic voter registration (if they haven’t done so already) is a huge step forward. Mandating and providing funds to each state to implement absentee ballot tracking software is something that should have been codified into law years ago. Granted, I think that providing $3,000 per state doesn’t seem like it would be enough for high population states to set up, but it’s better than nothing. Protections for disabled voters at polling places and mandating some form of curbside voting for voters who can’t physically access a polling place is a step that’s been long overdue. Mandating a nationwide “Safe at Home” registry of protected voting addresses for survivors of domestic violence or stalking is an excellent continuation of state level policies that do a great deal to protect vulnerable populations. I also applaud the push to implement and fund post-election risk limiting audits that help ensure that the outcome of the election was correct.
Title IX, the final chapter of H.R. 1, is a nice Congressional and Executive branch ethics reform framework that should be lauded for cracking down on funds used for government travel and set aside for legal defense funding and settlements. And for those readers who get excited by the thought of compulsively downloading Congressional legislation, task force reports, and other policy wonkery, Subtitle D, Sections 9301-9307 will fill your heart with joy, provided it can be implemented within the next few years.
In her landmark piece for The Daily Beast, award-winning election journalist Jessica Huseman discussed the absolutely unrealistic compliance deadlines imposed by HR1. When I say unrealistic, think September of 2021, a mere six months away. Does Representative Sarbannes, the Bill’s sponsor, think that his bill can move faster than the speed of government? There are better odds that Senate Minority Leader Mitch McConnell will end the filibuster voluntarily than the odds of even one of the voting and election administration reform sections has of being implemented, with status reports filed in good standing by the end of 2021. It took ten years for Washington to roll out their wildly successful Vote by Mail program. It took almost nine years to develop and deploy a successful statewide risk limiting audit in any state. It took 15 years to update the Voluntary Voting System Guidelines from the first version to the second. Certain aspects of elections should not be rushed through. There needs to be time to figure out what isn’t working.
Section 1902 of H.R. 1 sets rules regarding polling place changes and notification of said changes to voters. That isn’t the main problem-the main problem is the assumption that the state has total control over where polling places are located and how they’re booked for future elections. In high population states, or states where counties have home rule, local election officials are who determine polling place locations. And even then, establishments that have hosted polling places in the past are under no legal obligation to serve as a polling place in the future. State and local election officials cannot commandeer polling places, especially those located in places of worship or retirement communities. Under 1902, the State would be obligated to notify voters individually about any polling place change within seven days of the election and place signs at former polling places directing them to other polling places in the jurisdiction. There are no practical way states like California, Texas, or Florida could accomplish this for every voter affected by a change statewide. While the intent may be good, the execution is something that would be far more practical and voter friendly left to county and municipal jurisdictions.
Section 3302 expands the definition of “voting and election systems” to include electronic poll books to check voters in, update their record, handle situations where the voter needs additional assistance. This requires a development of testing and certification standards that… don’t actually exist at a national level yet. Additionally, electronic poll books require significant connectivity with multiple databases in order to perform optimally, which require a different set of election security standards than the ones H.R. 1 sets for ballot tabulators or electronic voting machines-those standards want to eliminate any and all connectivity or transmission of vote totals.
Division A, Subtitle D, Sections 1301-1304, aka the Prohibiting Deceptive Practices and Voter Intimidation Act, is practically begging for a First Amendment challenge. Facially, it prohibits just about any dissemination of materially false information by any means of communication that “intends” to impede a voter from registering or voting, misstates the time and place of an election, the qualifications required to register or vote, false statements about federal elections, false endorsement of candidates, or payments to vote or refrain from voting. And just about any aggrieved citizen may file a complaint or bring civil action. The penalty is five years in prison and/or a fine that could go as high as $100,000 dollars. It’s unclear how strong the plaintiff’s burden of proof must be in a case like this, or how long a statute of limitations lasts. One person’s “materially false” is another’s “well-intentioned but incorrect advice” or still another’s “edgelord shitpost” intended as satire. Under this subsection, all could be considered federal criminals depending on how aggressive enforcement and prosecution is.
Without a single trace of irony, the title of the next paragraph of Division A, Subtitle E is titled “Democracy Restoration”. Everyone deserves a second chance, and the tools needed to reintegrate into society. How can we expect voters who are starting over to take our commitment to democracy restoration seriously when we include that provision in a bloated piece of legislation that introduces no fewer than five separate federal offenses that involve heavy penalties and imprisonment?
The bill has just walked the readers through the creation of a brand-new class of federal criminals, and now they want to restore voting rights to everyone convicted of a felony upon release from prison. And in a startling about-face, Democrats who typically favor open borders and asylum for undocumented immigrants, support H.R. 1’s move to deport foreign nationals over the suspicion of involvement or financial contribution to political campaigns, ignoring the tidal wave of money that pours in from domestic dark money groups.
Is H.R.1 Really About Voting Rights?
If voting rights are your predominant concern, the John Lewis Voting Rights Act of 2021, or H.R. 4, is unquestionably the strongest bill that currently exists to protect voting rights for voters who have been subject to discrimination and abrogation of their right to vote. H.R. 4 can stand alone, can draw at least some bipartisan support and doesn’t really need H.R. 1, although the two are frequently bundled together in the media. It’s a shame to see an elegant, well-written, and laser-focused piece of legislation like H.R. 4 overshadowed by the media circus that follows H.R. 1.
At least three articles covering H.R. 1 have referred to it as a “message bill”. In other words, it passed the House by party majority, everyone knows it can’t get the 60 votes in the Senate, and it will quickly be relegated to partisan onanism. That bothers me. Why create a legislative Leviathan that tries to be everything to everyone, refuses to compromise on so much as a single semi-colon, and doesn’t really provide guidance, clarification, or consistent funding for lasting election reform? H.R. 1 has the potential to be a bill worth signing into law, but it doesn’t seem like anyone in Congress is willing to do the dreary and unpleasant work of negotiating, editing or separating the bill into smaller and more agile bills that can address two to four relevant concerns?
A Better Way Forward
It’s difficult to determine whether H.R. 1 is a necessary overcorrection to several new and unreasonably strict state level voting laws that have multiplied over the past three months. Many of the new proposed state laws fill my stomach, and the stomach of anyone who truly cares about protecting the rights of voters and the integrity of elections, with existential dread. Many of these laws, state and federal, are on a constitutional collision course and the judiciary will spend the next few years sifting through the wreckage, determining what gets salvaged and what goes to the scrapyard of well-intentioned but ultimately doomed legislative graveyard.
In the meantime, there are things that could be ironed out in future legislation that could make a positive difference for voters and election officials:
Set up Election Assistance Commission satellite offices in each state and territory, with a dedicated state expert and staffers to serve as a liaison between the state/territory and the EAC. Their functions could include assisting local jurisdictions with compliance issues, investigating if it is more effective to disburse federal election funds based on need instead of voting age population formulas, working with state/local election officials to identify areas that need a high priority response, such as access for the disabled or assistance with ballots and election materials in multiple languages, phasing out insecure or obsolete voting systems, and determining how to collect election data that jurisdictions can actually use in the real world.
Use the power and diversity of the mappers on Election Twitter to develop real-world jurisdictional boundaries, and either appoint the most qualified to state redistricting commissions, or create partnerships with the academic facilities that they attend or teach at.
Stop trying to regulate every last political comment or ad online. While not everyone agrees with the Citizens United decision, Justice Kennedy wasn’t wrong when he witheringly pointed out in his majority opinion that “The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing re-search, or seek declaratory rulings before discussing the most salient political issues of our day.” Overbroad policing on political speech, particularly on the internet, will inevitably lead to a crackdown on all speech that isn’t approved by the political party in charge. Things go underground, only to erupt in disasters like Charlottesville or the events leading up to the January 6th insurrection at the Capitol.