Combating Racism – The For The People Act (H.R.1)

This past Thursday, both chambers of Florida’s legislature passed an election overhaul bill that would limit the use of drop boxes; add more identification requirements for those requesting absentee ballots; require voters to request an absentee ballot for each election, rather than receive them automatically through an absentee voting list; limit who could collect and drop off ballots; and further empower partisan observers during the ballot-counting process. The governor is expected to sign the bill into law.

According to the Brennan Center for Justice, 253 bills to restrict voting access were introduced in 43 state legislatures as of February 19th and according to FiveThirtyEight (an opinion poll analysis website) at least 53 additional bills have been introduced since then.

These bills, which attempt to impose restrictions on voting, make passage of the For the People Act even more urgent. The For the People Act (H.R.1) was passed in the House of Representatives on March 3, 2021. It went to the Senate where it remains today. In his message to the joint houses of Congress, President Biden encouraged members to pass this piece of legislation.

CONGRESSIONAL AUTHORITY

The U.S. Constitution affirms Congress’ power to protect the right to vote and regulate federal elections. Congress' broad authority to regulate congressional elections is stated in Article 1, Section 4, Clause 1:

The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

This power has been affirmed by the Supreme Court in U.S. v. Mosley (1915) and U.S. v. Classic (1941). The Court has held that the right to vote for members of Congress is derived from the Federal Constitution, and that Congress therefore may legislate under this section of the Article to protect the integrity of this right. Where a primary election is an integral part of the procedure of choice, the right to vote in that primary election is subject to congressional protection.

In addition, the Fifteenth Amendment to the Constitution gives Congress the power to eliminate racial discrimination in voting, which persists in areas like voting restrictions, redistricting, access to the polls, and felony disenfranchisement.

PROVISIONS

I think it important that the public know the most salient parts of this bill, and while it is a lengthy document, below are summaries of 20 significant provisions. In an effort to provide you with facts about the bill, this has become one of my lengthier and more detailed newsletters.

1.  Allow for online voter registration for federal elections nationwide

This would eliminate the need for paper registration forms which then have to be manually transferred into the state’s registration system.  This process is both costly and prone to error. As of October, 2020 40 states and the District of Columbia have implemented online registration.

2. Require states (including U.S. territories) to use Automatic Voter Registration (AVR) for federal elections nationwide

Under AVR, when eligible citizens provide information to certain state agencies (e.g., the Department of Motor Vehicles, social service providers, and public universities) they are automatically registered to vote (or have their existing registration information updated) unless they affirmatively decline. AVR would shift voter registration from an “opt-in” to an “opt-out” approach. If adopted nationwide, AVR could register up to 50 million new eligible voters while making voter registration rolls more accurate, saving money, and cutting down on confusion and other problems at the polls.

3. Require states to offer same day voter (SDR) registration for federal elections

Traditionally, eligible voters have been required to register in advance of an election in order to cast a ballot. In many states, the voter registration deadline falls more than four weeks before a given election. SDR allows eligible residents to register to vote and cast a ballot on the same day. As of 2020, 21 states and the District of Columbia had enacted SDR.

4. Limit states’ use of data compiled through interstate cross-checks

Cross-check programs are shared databases that collect voter registration records from multiple states to identify duplicate registrations. When poorly designed, their use can result in eligible voters being purged from the rolls. One program, created by former Kansas Secretary of State Kris Kobach, was shown in a recent study to have a greater than 99 percent error rate. To protect against wrongful purges related to the use of such programs, this act would bar states from removing any voter’s name from the rolls without first obtaining either:

  • their full name, date of birth, and the last four digits of the individual’s social security number; or
  • documentation that a voter is no longer a resident of that state; and

5. Enhance voter participation by young Americans

Although 2018 and 2020 a saw record-high levels of youth electoral participation, young voters still turn out to vote at a lower rate than the whole electorate. The U.S. Election Assistance Commission (EAC) would create a pilot program to offer funding to local initiatives that provide voter registration information to high school seniors. To qualify for funding, such initiatives would have to prioritize schools with the highest number of students from vulnerable or low-income backgrounds. States would be required to allow future voters age 16 and older to pre-register to vote in federal elections once they turn 18.

6. Improve access to voting for individuals with disabilities

This act consists of the Disability Voting Rights Act, which would increase protections for the more than 35 million disabled Americans who are of voting age. Many people with disabilities face barriers to participation in elections, such as inaccessible registration procedures, polling places, and voting machines. This bill seeks to address some of the biggest challenges confronting these voters by guaranteeing individuals with disabilities the right to register to vote, request an absentee ballot, and cast their ballots by mail or electronically (whichever the voter chooses).

7. Prohibit voter caging

Voter caging is the practice of sending mail to people on the voter rolls, compiling a list of the mail that is returned undelivered, and using that list to purge or challenge voters’ registrations. Voter caging has in the past been employed for discriminatory and/or partisan ends.

8. Prohibit deceptive practices and preventing voter intimidation

This bill contains the Deceptive Practices and Voter Intimidation Prevention Act. The use of deceptive and intimidating practices is a longstanding voter suppression tactic. Moreover, the Internet and social media have made it easier to target specific communities with precision. This is true for foreign as well as domestic actors. For instance, the Kremlin’s disinformation campaign during the 2016 presidential election targeted African Americans, and also spread false information such as suggesting that people could vote by text. Some state laws prohibit such tactics, but there is wide variation across the states. This would establish a uniform national standard and boost related safeguards.

9. Promote accuracy, integrity, and security through voter-verified permanent paper ballot

This bill would require all jurisdictions to use paper ballots that voters can mark by hand or with a ballot marking device. Paper ballots are an important safeguard against threats from hackers and others looking to disrupt or otherwise interfere with U.S. elections, because they create a tangible record of each voter’s selections that the voter can use to ensure their choices have been accurately recorded and that election officials can use to verify electronic results. Ballots that can be marked by hand also provide insurance against ordinary equipment failures that can result in long lines at the polls.

10. Increase safeguards for provisional ballots

Under the 2002 Help America Vote Act (HAVA), voters whose registration and eligibility cannot be determined at the polling place must be offered a provisional ballot that is counted once the voter’s eligibility has been verified. Provisional balloting procedures vary greatly across states. In some places, even eligible voters may not have their provisional ballots counted — if, for example, the voter accidentally cast their ballots in the wrong precinct. To address these issues, this bill would require states to establish uniform and nondiscriminatory standards for issuing, handling, and counting provisional ballots in federal elections.

11. Extend early voting to all 50 states

This provision would establish minimum standards for implementing early voting in federal elections. Voting on a single weekday can be challenging for many Americans with work, family, or other obligations, especially when long lines form at the polls. In-person early voting, including on weekends and during evening hours, helps shorten lines and allows people to cast their ballots when it is most convenient. Specifically, this provision would:

  • require states to allow at least two weeks of early voting for federal elections (including weekends), for a period of at least ten hours per day, including some early morning and evening hours; and
  • require states to ensure, to the greatest extent practicable, that early voting locations are within walking distance of public transportation, are accessible to rural voters, and are located on college campuses.

12. Expand opportunities to vote by mail in federal elections

Voting by mail is a necessary option, as demonstrated by its crucial role during the Covid-19 pandemic. A Pew Research Center survey indicates that 46 percent of people voted by mail during the November 2020 election. The For The People Act would create a national standard permitting ballots to be cast by mail in most instances for federal elections. This would, among other things:

  • require states to allow any eligible voter to vote by mail in federal elections (no-excuse absentee voting);
  • require state or local election officials to transmit mail-in ballot applications to all registered voters at least 60 days before Election Day;
  • require states to allow voters to request mail-in ballots online or by phone;
  • prohibit states from requiring voters casting a mail ballot to provide identification aside from a signature, and require signature discrepancy issues to be resolved by at least two trained election officials affiliated with different parties;
  • require states to make a good faith effort to notify voters of apparent signature discrepancies and provide an opportunity to cure any issues within ten days;
  • prohibit notarization or witness signatures requirements for mail-in ballots in federal elections;
  • require mail-in ballots and ballot applications to be accessible for voters with disabilities;
  • require states to to accept any mail-in ballot postmarked on or before Election Day if it arrives within ten days after the election;
  • direct the postal service to ensure that mail-in ballots are processed and cleared within one day of arriving at a postal facility;
  • prohibit the postal service from carrying out any operational changes that would restrict the prompt and reliable delivery of voting materials within 120 days of a federal election; and
  • require states to allow voters to return mail-in ballots to designated drop-off locations or to a polling place during early voting or on Election Day.

13. Protect Voting Rights for Absent Military and Overseas Voters

This would require all states to comply with the Uniformed and Overseas Citizen Absentee Voting Act mandate to send uniformed service and overseas voters' ballots at least 45 days before a federal election (provided a request was received at least 45 days before the election). According to data compiled by the EAC, 44.4 percent of overseas ballots that were rejected were not counted because they were not received on time. Research from the Federal Voting Assistance Program suggests that if military and overseas voters receive their ballots earlier, they are more likely to return them, and the ballots are less likely to be rejected by state officials. In addition, this provision would extend the guarantee of state residency for voting purposes to all spouses and dependents of absent service members (current law extends the guarantee of residency only to service members themselves).

14. Provide grants to fund poll worker recruitment and training

To help address the problem of inexperienced, untrained poll workers, this bill would direct the EAC to make grants to states for recruiting and training poll workers and prepare a manual for grantees documenting best practices.

15. Promote greater voter access

This part includes several reforms to promote voting access for students, voters who lack identification, voters living on tribal lands, and voters who may have difficulty voting in person on Election Day. Among other things, it would:

  • treat public universities as “voter registration agencies,” which would obligate them to facilitate voter registration in connection to providing other services (as is currently the case for state DMVs and public assistance agencies);
  • allow students to vote in the jurisdiction where they are attending school;
  • require states to provide notice (in a way that accounts for local linguistic preferences) of polling place changes at least seven days before an election;
  • require states with voter identification requirements to permit voters who lack identification to vote if they complete a sworn written statement attesting to their identity (unless the individual is a first-time voter who registered by mail);
  • allow Native American tribes to designate buildings as ballot pickup and collection locations and require states to provide language accessible mail-in ballots to people who live on tribal lands without requiring residential addresses;
  • direct states to ensure that no individual will be required to wait longer than 30 minutes to cast a ballot;
  • require states to ensure that all polling places be open for at least four hours outside of regular working hours;
  • require states to provide a sufficient number of secure, accessible, and widely distributed drop-boxes for completed absentee ballots in federal elections, starting at least 45 days before an election;
  • require that these drop-boxes be accessible for use by individuals with disabilities, by individuals with limited English proficiency, and by unhoused individuals; and
  • make Election Day a public holiday.

16. Restore federal voting rights to disenfranchised Americans

This would restore federal voting rights to Americans who are disenfranchised due to a previous criminal conviction. Felony disenfranchisement laws, most of which date back to the Jim Crow era, disproportionately affect Black Americans; as of 2016, Blacks were disenfranchised at a rate four times that of all other Americans. Federal action would build off recent progress in the states.

17. Create uniform rules for redistricting

This bill establishes new requirements for congressional redistricting, to provide stronger protections for minority communities. In many instances, partisan gerrymandering has limited the ability of communities of color to elect candidates of their choice. Depending on when the Senate passes the For the People Act, some of these provisions might not take effect until the 2031 round of redistricting, but others could be implemented immediately. This bill would, among other things:

~ ban partisan gerrymandering by prohibiting adoption of any map that has the intent or effect of “unduly favoring or disfavoring” one political party over another;
~ establish uniform rules that every state would have to follow when drawing congressional districts, including enhanced protections to make sure the political effectiveness of communities of color is not diluted and a mandate to keep towns, neighborhoods, and other geographic areas where people have shared identities and common interests together in one district, where possible;
~ require that congressional redistricting be transparent and participatory, with open meetings and public hearings, opportunities for the public to review and comment on proposed maps, and public access to underlying data; and
~ require that states carry out congressional redistricting using independent commissions that:

  • include an equal number of Republican, Democratic, and unaffiliated or third-party members selected through a rigorous screening process,; and
  • include members who are representative of the state’s demographic makeup and different geographic regions, with enough members from racial, ethnic, and language minorities to give those groups a meaningful opportunity to participate in the redistricting process.

18. Create new safeguards against improper purges of voting rolls

Purge rates have increased in recent years. Flawed purges can leave large numbers of eligible voters unable to vote. Without adequate notice, some of these voters may still show up on Election Day, resulting in confusion and longer lines at the polls. This bill aims to protect eligible voters from being purged and ensure that purged voters are made aware of changes to their registration status ahead of an election by requiring that any decision to purge a voter be based on “objective and reliable evidence” that the voter is no longer eligible—which could not include:

  • failure to vote;
  • failure to respond to a mailed notice, unless the notice is returned as undeliverable; or
  • failure to take any other action with respect to voting.

19. Ensure campaign finance transparency

The For the People Act would expand the prohibition on campaign spending by foreign nationals; require any corporation, union, nonprofit or similar organization spending more than $10,000 per election cycle to disclose the names of donors (with certain limits to protect donors from harassment or reprisal); increase transparency requirements for online political ads; require disclosure of political spending by government contractors, among other provisions.

20. Use voting machines manufactured in the United States

This bill would direct states to ensure that, as of the November 2024 general election, all voting machines used for federal elections are manufactured in the United States, in response to concerns that have been raised about suppliers with ties to foreign governments.

In addition, this bill would require sitting presidents, vice presidents, and major-party candidates for those offices to disclose their tax returns. It would, require disclosure of personal income tax returns and the returns of any businesses of which the filer is the sole or principal owner, going back ten years.

WHAT CAN YOU DO?

A poll released in January, 2021 by Data for Progress and Equal Citizens found that 67% of Americans say they support the For the People Act, even after being provided opposition messaging. The support was broken down as follows:

  • 67% of national likely voters support H.R.1 | 13% don’t know | 19% oppose
  • 56% of Republican voters support H.R.1 | 13% don’t know | 30% oppose
  • 68% of Independent voters support H.R.1 | 15% don’t know | 17% oppose
  • 77% of Democratic voters support HR.1 | 12% don’t know | 11% oppose

If you support some or most of the provisions of this bill, please call, email, or write to your Senator and encourage him or her to pass this legislation.

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NOTE: Information for this newsletter was attained from the Brennan Center for Justice’s Annotated Guide to the For the People Act of 2021.

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