If You Thought the 2020 Elections Were Chaotic, Just Wait
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H.R.1 packs into one 791-page bill every bad idea about how to run elections and mandates that the states must adopt -- the very things that made the election of 2020 such a mess. It includes all of the greatest hits of 2020: Mandatory mail ballots, ballots without postmarks, late ballots and voting in precincts where you don't live. It includes so many bad ideas that no publication has satisfactory space to cover all of them. The Senate companion bill, S.1, might be even worse.
These bills rearrange the relationship between the states and the federal government. The Constitution presumes that states regulate their own elections, but the Constitution has a big "but" in what is called the Elections Clause. The Constitution says, "but the Congress may at any time by Law make or alter such Regulations." For over 200 years, Congress rarely used this power. After all, the power was put in the Constitution only to prevent the states from suffocating the federal government out of existence by never holding federal elections.
Do not assume that the bills will stall and wither in the process. They are named H.R.1 and S.1 for a reason. The bills are the top priority of the newly empowered Democrats in Congress.
Dissatisfied with the effectiveness of the last federal mandate -- 1993's Motor Voter law -- H.R.1 dispenses with the idea that an American should go affirmatively register to vote.
In 2020, states such as Nevada and New Jersey sent ballots through the mail to anyone on their registration lists despite having voter rolls full of errors. The Public Interest Legal Foundation documented thousands of ineligible registrations in Nevada alone that received mail ballots. Some were sent to vacant lots, abandoned mines, casinos and even liquor stores.
States also would be blocked by H.R.1 from signature verification procedures.
H.R.1 rigs the system for any lawsuits challenging the constitutionality of the law. All lawsuits can only be filed in one court – federal court in the District of Columbia. And all opposition must be consolidated into one brief with only one attorney being able to argue the merits. It also grants automatic intervention to any legislators who want to join in the fight against the lone opposition.
It prohibits states from conducting list maintenance on the voter rolls. That means deadwood and obsolete registrations will stack up.
HR.1 and S.1 are omnibus bills that would change every American citizen's -- and foreigner's -- relationship to voter registration.
Universal automatic voter registration has, for years, been a top priority of the institutional left. In fact, H.R.1 would do away with actual voter registration and instead make the voter rolls merely a copy of anyone already on a government list -- such as welfare recipients and other social service beneficiaries. The bills would expand well beyond to federal entities like the Social Security Administration, Department of Defense, Customs and Immigration, and elements of Health and Human Services.
Naturally, a giant federal database would serve as the home for this list of people who must be automatically registered to vote, whether they know it or not.
Imagine the number of government databases in which your information is contained. Do your names and addresses all match? Does Social Security know you moved out of your birth state? Are your married and maiden names different? Did you get a driver's license before obtaining American citizenship?
You can see the pitfalls. One person will be "registered" to vote multiple times, with slight variation in names, and perhaps greater variation in residence addresses.
Making it "easier" to get registered to vote through automatic registration from government lists might seem attractive, until you consider the disaster of universal auto-mail voting as we saw in 2020.
H.R.1 and S.1 will force states to push ballots into the mail. It builds slack into the election system. Decentralized mail elections introduce error because of error-filled rolls. Mail-in ballots delay results, create uncertainty and push the elections into kitchens and bedrooms where election officials cannot observe the voting process and cannot protect the voter from coercion.
H.R.1 takes the absolute worst emergency rule changes of 2020 and enshrines them as federal law. Gone also are state witness and notary requirements during the mail ballot application process. Nor may states enact identification requirements of "any form" for those requesting a ballot. That means no more voter ID as a matter of federal law.
States also would be blocked by H.R.1 from signature verification procedures.
It gets worse. The 791-page bill also includes:
- "Congress can reduce a state's representation in Congress when the right to vote is denied." Without qualification or definition, Congress could rely on this sentence unilaterally to cut the number of House members from any state it claims is denying the right to vote.
- It criminalizes anyone who uses state challenge laws to question the eligibility of registrants wrongly. The penalty is up to one year in prison per instance.
- It prohibits states from conducting list maintenance on the voter rolls. That means deadwood and obsolete registrations will stack up.
- It criminalizes publishing "false statements" about qualifications to vote and "false statements" about which groups have endorsed which candidates. Information banned from being published includes false qualifications to vote and the penalties for doing so. What is a false statement will apparently be in the minds of the Justice Department lawyers who bring the charges. And if they do not act, the law provides a private right of action to individual plaintiffs to drag speakers to court. You can be sure this provision would be used as a merciless weapon against political opponents.
- And in case it was not clear that H.R.1 was dismantling state power to run their own elections, the bill makes it clear: "The lack of a uniform standard for voting in Federal elections leads to an unfair disparity and unequal participation in Federal elections based solely on where a person lives." In other words, state laws which have the Constitutional authority to determine the voting eligibility of its residents, will be preempted by a federal uniform standard.
That is not all. Nationwide, states must accept mail ballots on Election Day plus 10 days later. States are allowed to add extra time to the window. No more election day. It will be election season, with a month of early voting and weeks of ballots arriving and being counted.
And of course, unlimited ballot harvesting -- having a third party "help" to fill in and gather up ballots, then drop them off at a polling station or other designated station -- is guaranteed.
Misinformation, protests, unrest, and even violence were all symptoms of the trauma of 2020. Activist groups and collusive officials in 2020 turned courts into weapons to transform state laws into election procedures that were favorable to one particular party. H.R.1 would finish the job, and federalize the policies and election procedures that made 2020 such a mess.
It is no solution to presume that federal rules, even if they were crafted the right way, would solve the problem. When Washington D.C. gets control over elections, the policy always skews in one direction.
I worked at the Justice Department, where career staff ignored federal laws they didn't like, and only enforced the ones they thought would help advance their political beliefs. Motor Voter, for example, had a federal mandate that states clean voter rolls. Guess what happened after that rule passed in 1993? No private enforcement actions were brought for two decades until I brought one against Indiana.
There is a federal mandate, passed in the 19th Century, to have one single election day. The bureaucrats in Washington in charge of enforcing that law ignore that law. Federal mandates are a one-way political ratchet. They always and only help one political party.
The nation has seen this line of thinking before. Like Obamacare earlier, H.R.1 transitions our federalist Republic to some other brave new system that purports to right generations of structural wrongs, while at the same time entrenching other wrongs. Unifying American experiences such as coming together to vote on one single Election Day, governed by rules passed by state legislators, well, to the authors of H.R.1, that is just old fashioned.
J. Christian Adams is the President and General Counsel for the Public Interest Legal Foundation and a former Justice Department lawyer. He also served on the Presidential Advisory Commission for Election Integrity and currently is a Presidentially appointed Commissioner on the United States Commission on Civil Rights.