Blog No. 283 The Voting War

The election of 2020 did not create partisan warfare over elections and voting, but it brought that conflict to new and unprecedented levels of bitterness. In this toxic climate, political and legal battles are being waged on several fronts. State legislatures controlled by Republicans are considering or have passed laws that, in the name of election security, will make voting more difficult for many. Two such measures, passed by the Arizona legislature are presently before the Supreme Court and the way the Court resolves the case may have far reaching implications for restrictive legislation in other states.

At the same time, the House has passed an 800 page, election reform bill, H.R. 1, that goes far beyond rebuffing the efforts of Republican legislatures, but would put in place a stunning array of electoral reforms long advocated by Democrats. The fate of the bill in the Senate is doubtful, but may not be entirely out of the question. Finally, President Biden has signed an Executive Order designed to broaden the voting franchise.

Legislation in the States and the Supreme Court.

According to the Brennan Center:

As of Feb. 19, 2021, legislators in 43 states have carried over, prefiled or introduced more than 250 bills that would make it harder to vote — over seven times the number of restrictive bills as compared to roughly this time last year. These bills primarily seek to limit mail voting and impose stricter voter ID requirements.

During the same timeframe, pro-voter legislators, often in the very same state houses, are pushing back, seeking to make permanent the changes that led to the biggest voter turnout in over a century. In a different set of 43 states, legislators have carried over, prefiled, or introduced more than 700 bills that, if enacted, would make it easier for people to vote. These bills primarily seek to expand access to mail voting and early voting, ease voter registration, and restore voting rights to persons with past convictions.

Two restrictive state measures are presently awaiting decision by the Supreme Court in Brnovich v. Democratic National Committee. One measure prevents Arizona officials from counting votes when voters accidentally cast them in the wrong precinct; the other bars third party groups from collecting mail-in ballots (a practice pejoratively referred to as “ballot harvesting“). The state measures were challenged by the Democrats under Section 2 of the Voting Rights Act, which bars a law that prevents minority voters from equally participating in the political process.

The Trump administration filed a brief supporting the Arizona laws. Biden’s Department of Justice submitted a letter to the Court stating that, although it did not disagree with the conclusion of the Trump brief—that the Arizona measures did not violate Section 2—the Department “does not adhere to the framework for application of Section 2” set forth in Trump’s DOJ brief. Because the scheduled oral argument of the case was nearly at hand, the Biden Department did not offer its own framework for applying Section 2.

The case is being closely watched by partisans on both sides, not for the result in Arizona, but what it may portend for challenges under Section 2 in cases arising in other states. The oral argument on March 2 indicated that the Court was struggling to formulate a standard. As election law expert Rick Hasen put it, “[I]s Section 2 going to be a test that plaintiffs can actually use in going after very strict voting rules with a racially disparate impact on minority voters, or will it be a test that will be nearly impossible to meet?” A detailed (and pessimistic) analysis of the argument may be found in the Atlantic, “The Supreme Court Might Kill Voting Rights—Quietly.”

However Brnovich is decided, the principal defense to restrictive laws from state legislatures, may have to come from federal legislation. That is the purpose, among others, of H.R. 1.

H.R. 1 For the People Act of 2021.

With the passage of the stimulus bill, the Biden administration and Democrats in Congress can turn their attention to various other legislative challenges. Given Democrats narrow control of the Senate, all of the challenges are formidable, but none is likely to be as difficult as HR. 1. The sweeping election reform bill, has been assailed by Republicans as a “power grab by Democrats,” and they seem to view it as an existential threat.

Even an abbreviated summary of the more important provisions of the bill will give readers an idea of its range and potential significance.

Voter Rights

• Creates new national automatic voter registration when people apply for state services, such as drivers’ licenses or enrollment at public universities.
• Requires states to enable voters to register online.
• Requires at least 15 consecutive days of early voting for federal elections; early voting sites would be open for at least 10 hours per day.
• Prohibits states from restricting a person’s ability to vote by mail and requires states to prepay postage on return envelopes for mail-in voting.
• Allows voters to submit sworn statements instead of providing ID.
• Restricts the removal of registered voters from the rolls.

Gerrymandering

Requires states to establish independent redistricting commissions as a way to draw new congressional districts and end partisan gerrymandering in federal elections.

Campaign Finance

• Requires super PACs and “dark money” groups to disclose their donors publicly.
• Establishes a 6-1 public funding match for small-dollar donations, financed by a fee on corporations and banks paying civil or criminal penalties.
• Requires Facebook and Twitter to disclose the source of money for political ads on their platforms and share how much money was spent.

Ethics

• Requires the president and vice president to disclose 10 years of his or her tax returns. Candidates for president and vice president must also do the same.
• Bars members of Congress from using taxpayer money to settle sexual harassment or discrimination cases.
• Creates an ethics code for the Supreme Court.

On the whole, I support the goals of H.R 1 (now labeled S.1), but I am troubled by the manner by which it was jammed through the House. In 2019, the Republican Minority Report objected strenuously that the large and complex bill had been written without any meaningful committee hearings and had received no input from state election officials. I am doubtless old-fashioned, but I believe there is something to be said for committee hearings, in which witnesses can present opposing points of view, unintended consequences may be exposed, and committee mark-ups at least offer opportunities for bipartisan compromise.

It may be that following such a committee process would not have produced bipartisan agreement on any aspects of the bill, but it is almost certain that there will be none now. A lengthy and detailed diatribe by former Vice President Pence probably reflected the intense opposition that the bill will draw from Senate Republicans. Writing in the Daily Signal, Pence asserted:

HR 1 mandates the most questionable and abuse-prone election rules nationwide, while banning commonsense measures to detect, deter, and prosecute election fraud.

Then, after ticking off various provisions of the bill, Pence concluded:

Every single proposed change in HR 1 serves one goal, and one goal only: to give leftists a permanent, unfair, and unconstitutional advantage in our political system.

HR 1 would turn a blind eye to very real problems at the state level, exacerbate existing vulnerabilities, and further undermine the American people’s confidence in the principle of “one person, one vote.”

However intemperate Pence’s attack, it is unlikely that H.R. 1 will gain a single Republican vote in the Senate, let alone the ten votes required to defeat a filibuster. While Democrats have the option of removing or drastically curtailing the filibuster, it does not appear that they have the will to do so at present. On Sunday, Senator Joe Manchin reiterated his opposition to eliminating the filibuster, although he seemed open to the possibility of some modification to make the act of filibustering “more painful”. And on Monday, White House Press Secretary Jen Psaki reiterated Biden’s previously stated preference for not making any changes to the filibuster rules, and reported his confidence that he will be able to gain bipartisan support for his legislative proposals. Nevertheless, Biden may well find unified Republican opposition to a wide variety of measures from immigration to infrastructure (and how to pay for it), climate change legislation and civil rights protections. In the face of such opposition, the pressure from progressives and others in the Democratic ranks to jettison the filibuster may well become irresistible and may persuade Biden.

The Biden Executive Order

On Sunday, President Biden signed an Executive Order intended to promote access to voting. The order  directs federal agencies to promote voter registration and participation, and to work with states to help register voters. It also directs federal authorities to overhaul the vote.gov website, to ensure federal employees are given time off work to vote or volunteer as poll workers, and to provide more resources to make sure people with disabilities, active duty military and other overseas voters, and Native Americans, have opportunities to register to vote. So far as it goes, the order seems constructive but its impact may be primarily symbolic. It will not be a significant counterweight to the mischief of Republican legislatures, and it does not address at all the broader goals of H.R. 1. The voting war will continue unabated, with the outcome uncertain.

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A Book Recommendation. I highly recommend a new book by my long-ago law partner, Judge Jed S. Rakoff, Why the Innocent Plead Guilty and the Guilty Go Free: And Other Paradoxes of Our Broken Legal System. Rakoff is one of our most distinguished jurists, and he not only presents a thoughtful and disturbing critique of justice in America, but suggests possible reforms. It is a highly readable book and one that can be appreciated by laymen as easily as by lawyers.