U.S. Senators Propose to Take Away State and Local Freedoms in So-Called “Freedom to Vote Act”

On Tuesday, eight Senators introduced the 596-page Freedom to Vote Act (S. 2747), asserting “broad authority” to impose massive new federal mandates over elections. Integral to freedom in the United States is the ability of local areas to make rules that fit their communities. A rule set by D.C. politicians does not take into account the diversity of the country that state election laws consider because the federal size of S. 2747 does not fit all. 

The next day, Senate Majority Leader Chuck Schumer started rushing this bill to a vote, without going through the regular process of committee hearings, reports, debates, and revisions after input from fellow Senators, state and local government, and the public. If this sounds familiar, it’s because it’s the same playbook the Democrats used to run through the massive federal takeover of health care known as the Affordable Care Act.

S. 2747 recycles much of S.1, which failed to pass the U.S. Senate earlier this year. 

Currently, Americans choose whether to register and where. Like S.1, S. 2747 would mandate that all states automatically register voters using motor vehicle registration records, and would make it a federal crime for election officials not to accept a voter registration. However, individuals ineligible to vote in federal elections can get drivers’ licenses – such as non-citizens and those under age 18. This automatic voter registration mandate takes away each person’s ability to choose even whether to register. This policy will burden states and local officials who must update their voter rolls and ensure accuracy. 

Additionally, there’s one state in the union that keeps voter lists without burdening voters with the process of registration. The chief elections office of North Dakota explains why such a system is effective for the state: 

North Dakota’s system of voting, and lack of voter registration, is rooted in its rural character by providing for numerous small precincts. Establishing numerous, yet relatively small precincts is intended to ensure that election boards know the voters who come to the polls to vote on Election Day and can easily detect those who should not be voting in the precinct. This network of numerous yet small precincts reduces the need for voter registration.

But such a system wouldn’t work nationwide. Nor should it.

S. 2747 also requires states to accept paper mail-in ballots out of precinct, burdening local election boards to verify with numerous local precincts that there is not a duplicate ballot. North Dakota would be burdened to completely restructure their precinct-based system. This year, the U.S. Supreme Court in Brnovich v. DNC upheld Arizona’s use of precincts and the procedures to separate out-of-precinct ballots from in-precinct ballots to ensure votes are not mistakenly double-counted, and to provide more time for election officials to verify accuracy statewide.

S. 2747 restricts governors from replacing state election administrators who are not properly following election requirements. Take Florida, where an election official was replaced by the governor because of the “failure to properly conduct three contentious statewide recounts for the 2018 midterms.” It’s not fair to the rest of the voters when an election official is not complying with the rules every other voting area is.

Congress can only exercise power that has been delegated by the U.S. Constitution. S. 2747 attempts to rely on supposedly “broad” powers from the elections clause of the U.S. Constitution. Contrary to this claim, Congress has limited power to intervene at the last resort, when states are not operating properly. The minority staff of the U.S. Committee on House Administration explained the limited power of Congress in their report, entitled “The Elections Clause: States’ Primary Constitutional Authority Over Elections.” In 2021, all 50 states have exercised their power to update state laws. Yet today some Senators are attempting to pass an omnibus legislative action to prevent states from continuing to pass such reforms. The last thing Americans want in a future election is for it to be decided by the courts. But S. 2747 hands over to lawyers extra abilities to file election lawsuits. S. 2747’s grant of a new private right of action to sue for voter interference is so broadly drafted that it could be misused by activist lawyers themselves to intimidate and silence election officials or members of the community who are willing simply to ask if a voter actually lives in their community. 

While S. 2747 has the support of only one party, the bipartisan Problem Solvers Caucus in Congress has found bipartisan support for “safe, accurate, and fair elections” that provide “transparency and confidence.” If S. 2747 becomes law, it would give little confidence that future elections would be safe, accurate, or fair for each state, each local area, and most importantly, each American voter. The myopic perspective of Washington fails to recognize that each state and local area is different. Giving the laboratories of democracy — the states — the ability to best determine how to manage elections is the best way to make it easy to vote for the people who live there.