Election laws are extremely consequential, as they determine how we select the people who make all other laws. Without fair election laws, every resulting law feels illegitimate.
But the politicians who craft our election laws have too much skin in the game for us to be able to fully trust them. As humans, they are inevitably tempted to vote for election laws that will ensure their reelection or best serve their party. Our Founders guarded against this basic human weakness by preventing the accumulation of power in one place. The Constitution, thus, assigns power to dictate the “manner” of elections to state legislatures, and assigns exclusive authority to the states in selecting presidential electors. Under this framework, each state maintains the power to run its own elections, although Congress has stepped in where needed to, for example, prevent unconstitutional race-based disenfranchisement.
Should it become law, H.R. 1 would represent a major consolidation of congressional power over elections. Without a hint of irony, this 791-page bill, styled the “For the People Act,” strips power from the American people and gives it to Washington politicians. The bill is rife with problems, but these four aspects are particularly troubling:
- Post-Election Mail-In Voting. H.R. 1 usurps state authority by requiring that every state accept mail-in ballots ten days after the election. Should this provision pass, it will not be uncommon for voters to watch the returns on election night and see that candidate A is winning, only to wake up the next morning to see that candidate B has taken the lead, and to go to sleep with candidate A again forging ahead. (And so on.) It’s not hard to see how post-election mail-in voting invites fraud. If a candidate needs to find only 50 ballots to take the lead, they’ve got 10 days to find those ballots. And sure, the ballot should indicate it was mailed on election day, but H.R. 1 does not require any standard of proof for that. This will no doubt get very messy, quickly.
- Ballot Harvesting. Under H.R. 1, states must “permit a voter to designate a person to return a voted and sealed absentee ballot” for counting. Am I the only one reminded of fraternity “pledges” going room-to-room making sure that everyone voted for the brother running for Student Senate? There, as here, a community organizer can subtly coerce ballots from those who aren’t ready to vote, fear exposure for voting for the wrong candidate, or just don’t want to vote period. And, H.R. 1 bans all limits on the number of ballots a community organizer can collect. (I hear if you serve beer at a harvesting event, it can bring in an animated crowd.)
- Voter ID Ban. H.R. 1 also bans voter ID laws, requiring states to accept a statement from the voter “attesting to the individual’s identity and attesting that the individual is eligible to vote in the election.” H.R. 1 imposes similarly loose identification rules for absentee ballots by preventing states from requiring any identification beyond a signature to cast a mail-in ballot. Any high-school kid who has forged a parent’s signature on a field trip form knows how this goes.
- Soviet-Style Speech Restrictions. Americans value a vibrant marketplace of ideas as a prerequisite for knowing truth. Nowhere is this more necessary than during elections. But ideas don’t fall from the sky—it takes time, resources, and effort to change hearts and minds. The anti-speech provisions in H.R. 1 are laden with complex disclosure requirements that will prevent new ideas from sprouting and thus, as is thematic with H.R. 1, solidify control of elitists in Washington. The bill additionally requires the disclosure of certain donors who donate to an organization generally if that organization later creates a campaign-related ad—even if those donors were completely unaware the organization would engage in this advocacy. Donors, fearful of being targeted by their neighbors and colleagues will simply stop providing the resources necessary for the propagation of new ideas and candidates. Our marketplace of ideas will empty out.
Nobody benefits from sloppy elections with no clear winner, newly-appearing ballots, or unfair district lines. So the states need to continue to improve security and access—and balance the two values—to preserve our democracy. A top-down mandate to exacerbate election uncertainty and entrench incumbent advantage is, by any analysis, no solution at all.