It is vague, extremely authoritarian in its impositions on states, neglects the rights of expression of groups and individuals, and constitutionally questionable. In the absence of a radical turnaround, the bill is dead in the Senate, and it deserves to be.
The heart of the bill rewrites electoral rules across the country to force every state to adopt automatic voter registration, same-day registration, postal voting without excuse and early in-person voting, among other mandates .
The assumption that the bill will save democracy hinges on the myth that voters are rejected en masse by onerous state restrictions, even though turnout in last year’s presidential election was the highest since 1900.
Was this the result of the adoption, brought about by the pandemic, of better access, for example, to postal voting? No, there was no difference in turnout between states that did not adopt mail-in voting without excuse and states that did.
States like Georgia have tightened their rules since the election, in part in response to Donald Trump’s ongoing disinformation campaign over the 2020 election, but these provisions are in many cases improvements (e.g. moving away unreliable signature match and instead apply for a driver’s license numbers on Georgia postal ballots) and certainly does not constitute Jim Crow 2.0 as claimed by President Joe Biden and other Democrats .
Thus, HR 1 is a non-solution to a non-crisis.
Even if you think that, for example, same day recording is the preferable policy, it is not at all plausible that this is the difference between democracy and authoritarianism in America. According to the National Conference of State Legislatures, only 20 states and Washington, DC, currently have same-day registration and yet we have always had free and fair elections, including in those states, including New York, Massachusetts, Rhode Island, New Jersey, and Oregon — without it.
There is also no reason to erase all voter ID laws in America, when research shows that even strict ID laws have had no effect on turnout.
As long as they don’t actually deprive people of their rights (which no one does), states should be able to adopt the mix of voting rules that their democratically elected officials deem appropriate and that suit their political cultures. particular.
If the goal is to increase confidence in the electoral system, moreover, having Congress with the finest of partisan majorities makes it more difficult for states to maintain clean and up-to-date electoral lists (such as does HR 1) at the same time. erasing the ID requirements is absolutely not the way to do it.
Then there are all the other provisions.
Do we really need Congress, in its wisdom, to write a code of ethics for the Supreme Court?
How urgent is it to adopt public funding for congressional elections and get taxpayers to fund political candidates they oppose and, in some cases, curse?
Why must the composition of the Federal Election Commission change to make it less bipartisan?
HR 1 is a free speech disaster.
As Bradley Smith, former FEC chairman, explains, so far the definition of the electorate in electoral law has been carefully defined to provide wide latitude in the defense of general policies. HR 1 expands the definition to treat more advertisements as election expenses, thus reducing the ability of groups to criticize elected officials.
The bill would also force more organizations to disclose their donors, exposing them to intimidation. Two ACLU lawyers wrote in the Washington post that HR 1 will likely interfere with the political rights of “many nonprofits, including civil rights organizations and other civil liberties movement builders.”
It requires internet platforms to collect a wealth of information about every political ad and every group that runs ads.
When Maryland passed a similar law a few years ago, newspapers that found the requirements onerous and unenforceable took legal action and won. A circuit court judge called Maryland’s law a “compendium of traditional First Amendment disabilities.”
Indeed, constitutional issues with HR 1 are commonplace. Walter Olson of the Cato Institute cataloged them.
It is not clear that the voting provisions of the bill will withstand constitutional scrutiny. Congress has the power, under the Constitution, to determine “the time, place and manner” of congressional elections, but less power over presidential elections, which HR 1 seeks to micromanage anyway.
The diktat that all states form election commissions to determine redistribution is constitutionally vulnerable as overly federal in scope.
The requirement that presidential candidates publish their tax returns may be inadmissible as a qualification for candidates beyond what is in the Constitution.
Speech restrictions and donor demands will rightly be challenged. In the case NAACP v. Alabama, the Supreme Court ruled that “the inviolability of privacy in a group association may in many circumstances be essential to the preservation of freedom of association, especially when a group espouses dissenting beliefs”.
Unless Joe Manchin changes his mind, HR 1 heads for the legislative trash. Good riddance.