Landmark bill would enact long-overdue voting reforms, but needs at least one key rewrite to close a loophole regarding hand-marked paper ballots...
By Ernest A. Canning on 2/5/2021, 10:35am PT  

As their first official bills in each chamber of Congress --- H.R.1 in the House and S.1 in the Senate --- Democrats are proposing a remarkably ambitious election, campaign and ethics reform measure which would go a long way towards enhancing our system of democracy. At least one important rewrite is needed, however, in order to close a loophole in its mandate regarding hand-marked paper ballots.

H.R.1 or the For The People Act of 2021, was introduced by Rep. John Sarbanes (D-MD) with hundreds of Democratic co-sponsors on January 4. It is supported by both Democratic House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer.

With the exception of partisan gerrymandering as applied to State legislative offices --- which is out of the hands of federal lawmakers --- the bill would, for all intents and purposes, outlaw a wide array of voter suppression, intimidation and deceptive practices that have, for decades, been used to undermine American democracy.

The massive bill, clocking in at nearly 800 pages, also includes Congressional ethics reforms and other important measures, but we focus here on the statute's provisions to help outlaw suppressive measures and improve election security, transparency and the verifiability of results.

As presently written, the measure appears to mandate the use of "voter verified permanent paper ballots" in all federal elections. That aspect, however, must be improved with minor, but very important revisions to mandate the availability of hand-marked paper ballots --- the only type that can be known to be "voter verifiable" --- for all voters at the polling place for both early and Election Day voting.

H.R.1 also includes provisions for either hand-counting of paper ballots or the use of optical scanning computers accompanied by Risk Limiting Audits. It includes mechanisms to fund those post-election activities.

The bill provides for minimum periods during which States must make early voting available in federal elections and promotes, streamlines and secures mail-in voting. It tightens ethical standards and also takes a stab at reducing the role of dark money in campaigns, while prohibiting the presence of foreign money and interference in our elections. This includes a mandate that TV, radio and online platforms "make reasonable efforts to ensure that [election-related] communications...are not purchased by a foreign national".

The real question isn't whether H.R.1, if appropriately amended, should become law. The question is whether a sufficient number of Senators are willing and able to do what is necessary to ensure it becomes law...

Bypassing Shelby County

The landmark Voting Rights Act of 1965 (VRA) relied primarily upon the Equal Protection Clause of the 14th Amendment to ostensibly prohibit racial discrimination in all elections, both state and federal. The VRA's most powerful enforcement mechanism involved what was known as Section 5 preclearance. States and local jurisdictions with a past history of racial discrimination in elections had to first obtain preclearance from either the Department of Justice (DOJ) or a three-judge D.C. District Court panel before implementing new election laws. That enforcement regime was generally more effective when the DOJ was headed by Democratic-appointed Attorney Generals than when the AG was a Republican appointee.

In 2013, by way of a controversial 5-4 decision, in Shelby County v Holder, the U.S. Supreme Court effectively struck down Section 5 by nullifying the formula used to create the list of jurisdictions covered by it, finding that formula to be based on what the Court regarded as out of date criteria. The Court majority's tortured reasoning was that a significant reduction in discriminatory voting laws since passage of the Act, thanks to the effectiveness of Section 5, suggested that preclearance was no longer needed. The late Justice Ruth Bader Ginsberg famously shot back in her dissent for the minority:

Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.

H.R.1 contains a "finding" that underscores Congressional disgust with the impact of the Shelby County decision. It proclaims that the Court "gutted decades-long Federal protections for communities of color that face continuing discrimination, emboldening States and local jurisdictions to pass voter suppression laws and implement procedures, such as requiring photo identification, limiting early voting hours, eliminating same day registration, purging voters from the rolls, and reducing the number of polling places."

Rather than attempt to reinstate Section 5 with new criteria for selecting covered jurisdictions --- an action that could very well be struck down again, given the Court's current 6 - 3 right-wing majority --- H.R.1 bypasses the Court's decision in Shelby County altogether.

Like the National Voter Registration Act of 1993, which it amends, H.R.1 is based upon the Elections Clause of the U.S. Constitution (Art. I, §4). That Clause expressly grants to Congress the power to regulate the time, place and manner of federal elections. As they relate to elections for federal office, H.R.1's prohibitions against voter suppression, intimidation and deceptive practices would preempt any conflicting State laws.

Litigation meant to block voter suppression under the VRA continues to be an uphill battle. Congress' direct assertion of its power over federal elections via the NVRA, however, has led to multiple successful federal court decisions in recent years. One, for example, struck down repeated efforts by Kansas to add a "Proof of Citizenship" voter registration requirement and even resulted in the imposition of sanctions upon the Sunflower State's duplicitous former Republican Secretary of State, Kris Kobach.

As a practical reality, H.R.1 would help put an end to the voter suppression laws and tactics that arose in the aftermath of Shelby County because state and federal elections are usually simultaneous and because it would be unduly expensive for States to create separate state and federal systems for registering voters and conducting elections.

In hopes of insulating these changes, H.R.1 expressly mandates that any legal action contesting its constitutionality must be filed in a U.S. District Court in Washington D.C. and appealed to the D.C. Circuit Court of Appeal, where seven (7) of the 11 appellate judges now serving had been appointed by Democratic Presidents.

The measure also includes a severability clause so that if one section is found unconstitutional, that will not invalidate the remaining sections of the Act.

Partisan gerrymandering

As defined by the Congressional Research Service, partisan gerrymandering involves "the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power."

Congressional district lines are redrawn by state legislatures every ten years in relation to the decennial Census. In the aftermath of their 2010 victories in multiple Statehouses, the GOP embarked upon an extremely partisan gerrymandering scheme known as REDMAP. With the aide of experts and finely-tuned computer programs, GOP-controlled State legislatures carved out Congressional districts with surgical precision. Democratic-leaning voters, especially African-Americans, would be packed into a select few districts, while the rest of the districts would be carefully drawn up to ensure that the GOP retained a majority.

The results of the 2020 Election in North Carolina provides a textbook example. As Bill Corriher of Facing South reported: "In 12 of the State's 13 Congressional Districts, Democratic candidates got well over half of the total votes, but Republicans won eight of the seats."

The undemocratic nature of partisan gerrymandering within State legislatures is quite telling. During the 2018 "blue wave", according to the Washington Post, Democrats won 60% of the Statewide popular vote in PA and MI, yet secured only 45% and 47% of their respective State Assembly seats.

In Rucho v. Common Cause (2019), the U.S. Supreme Court, by way of a 5-4 decision, held that it could not rule on the constitutionality of partisan gerrymandering; that it was "nonjusticiable" at the federal level, in the absence of direct Congressional intervention. The Elections Clause in the U.S. Constitution, in the view of the Court's right-wing majority, leaves the issue to the respective partisan State legislatures, to wit, to the gerrymandered source of the partisan gerrymandering itself. The only true recourse, according to the Supreme Court, is for Congress itself to exercise its Constitutional power over federal elections under the Elections Clause; ergo H.R.1.

H.R.1 cannot and does not prevent partisan gerrymandering with respect to State legislative districts. What it does do is take the power to draw up federal Congressional Districts out of the hands of partisan State legislators and place that task within the exclusive purview of 9-member "Independent Redistricting Commissions." It lays out a series of rules governing the pools from which each member must be selected and the methodologies for drawing lines to maximize impartiality and fairness for voters.

Voter registration

H.R.1 expands upon the voter registration provisions of the National Voter Registration Act of 1993 (NVRA). The new statute not only mandates that States offer Election Day registration but also facilitate online registration that voters can access and update. If a voter has provided his/her email address, state and local election officials, at least 7 days prior to an election, must notify the voter via email of the name and address of their polling site and hours.

Another key mandate of the measure requires that States submit notice to eligible voters that they will automatically be registered to vote unless they decline. In States with closed primaries, the Notice must provide voters with an option to select party affiliation.

The measure would make it "unlawful for any person, whether acting under color of law or otherwise, to corruptly hinder, interfere with, or prevent another person from registering to vote or to corruptly hinder, interfere with, or prevent another person from aiding another person in registering to vote."

H.R.1 contains vital protections against wholesale efforts to purge large numbers of eligible voters from the rolls, by prohibiting removal of a voter from the rolls via "Interstate Cross-Checks" unless a "State [has] obtained the voter's full name (including the voter's middle name, if any) and the date of birth, and the last 4 digits of the voter's Social Security Number. Alternatively, election officials can rely upon the Electronic Registration Information Center (ERIC), which utilizes the same reliable data (including the last four digits from the Social Security number).

In the past, millions of voters were purged between elections by reason of a deeply flawed cross-check system that relied solely upon names and birth dates. That system was suspended in December 2019 as a result of a court-approved settlement of a lawsuit filed by the American Civil Liberties Union. H.R.1 essentially represents a codification of the results of that litigation.

The bill also prohibits the use of "voter caging" --- purges or challenges to voter eligibility based solely upon mail addressed to the voter that is returned undeliverable unless ineligibility is "corroborated by independent evidence."

While it's certainly acceptable that voters be allowed to register to vote and confirm their registration online, H.R.1 should be amended to ensure that precincts are furnished with paper backups to electronic poll books on Election Day to assure that no one is either intentionally or accidentally disenfranchised when they show up to vote.

Deception and Intimidation

A subsection of H.R.1 is labeled the "Deceptive Practices and Voter Intimidation Prevention Act of 2021". It's directed at a wide variety of deceptive and intimidating tactics that Republicans have resorted to over the past 50 years.

For example, it prohibits, within the 60 days before an election, knowingly communicating materially false information in order to impede another person from exercising their right to vote. Those deceptive communications could include robocalls falsely challenging eligibility or falsely claiming eligible voters could face criminal penalties if they cast their vote.

A violation of this subsection could result in a maximum 5 year prison sentence and a $100,000 fine.

Provisions are also included to permit the U.S. Attorney General to "publish written procedures and standards for determining when and how corrective action will be taken" in response to deceptive practices and to directly "communicate accurate information to the public" if State officials fail to do so.

Ending Felon Disenfranchisement

Another subsection of the statute is called the "Democracy Restoration Act of 2021". It declares:

The right of an individual who is a citizen of the United States to vote in any election for Federal office shall not be denied or abridged because that individual has been convicted of a criminal offense unless such individual is serving a felony sentence in a correctional institution or facility at the time of the election.

The "serving a felony sentence" language supports the right of incarcerated individuals who are serving a misdemeanor sentence and individuals who have not been convicted of a felony but are being held in pretrial detention to cast a vote.

It would also allow those who have been released from incarceration to immediately re-enter the community with a right to participate in their democracy. H.R.1 mandates that States must notify felons upon their release as to their right to vote in federal elections and to provide them with voter registration forms. It expressly authorizes the DOJ to initiate a federal legal action to enforce this section of the Act.

Voter-Verified Paper Ballots

H.R.1, §1502, is problematic as currently written. It mandates the use of permanent "voter-verified paper ballots" in federal elections, providing, in pertinent part:

The voting system shall require the use of an individual, durable, voter-verified paper ballot of the voter's vote that shall be marked and made available for inspection and verification by the voter before the voter's vote is cast and counted, and which shall be counted by hand or read by an optical character recognition device or other counting device. For purposes of this subclause, the term 'individual, durable, voter-verified paper ballot' means a paper ballot marked by the voter by hand or a paper ballot marked through the use of a nontabulating ballot marking device or system, so long as the voter shall have the option to mark his or her ballot by hand.

In additional subsections, 1502 mandates that the "paper ballots must be suitable for a manual audit, and shall be counted by hand in any recount or audit;" and that, if a discrepancy arises, the hand tally of paper ballots will prevail over a machine tally.

Section 1503 mandates that disabled voters must have access to "at least one voting system" that includes "enhanced visual accessibility for the blind and visually impaired, and nonmanual and enhanced manual accessibility for the mobility and dexterity impaired, at each polling place."

A separate section of the Act provides funds for conducting post-election risk limiting audits to paper ballots that have been tallied by optical scanners.

The devil is in the details here. It is critical to provide specificity to assure that resourceful elections officials do not exploit any ambiguities. As currently written, State election officials could potentially argue they are fulfilling the hand-marked paper ballot (HMPB) directive by instructing voters to use mail-in balloting if they wish to cast their vote on a hand-marked paper ballot.

There must be no ambiguity. HMPBs are the most important element for ensuring ballots can be known to reflect the actual intent of the voter, according to Election Integrity, voting system, and cybersecurity experts. The option to vote on an HMPB must be offered to voters at the polling place during both early and Election Day voting, as well as when voters elect to cast mail-in ballots.

This remains one area in which H.R.1 should be revised. With the exception of disabled voters who choose to use an assistive device, such as a touchscreen Ballot Marking Device (BMD), no voter should be required to cast their vote on such a system when they go to the polls. In federal elections (and state as well, though this bill doesn't have authority over those), everyone should be allowed to cast a verifiable hand-marked paper ballot (HMPB) either directly at the polls or via mail-in voting.

We recommend Section 1502 be revised to include the following language:

All voters shall mark their ballots by hand (pen and paper), with an exception for disabled voters, who, upon request, must be afforded the opportunity to vote in the manner set forth in Section 1503.

This would assure that no one, other than voters who may optionally decide they need to use an assistive device, utilize unverifiable touchscreen BMDs to cast their votes.

As observed last year by Brad Friedman in covering the disastrous roll out of Los Angeles County's new, $300 million touchscreen "Voting Solutions for All People" (VSAP) systems, BMDs are inordinately expensive. More importantly, they are unverifiable and vulnerable to hacking and/or insider manipulation even when they are not directly connected to the Internet. BMDs, along with e-poll books, are also prone to Election Day failures. During California's March 3, 2020 primary, the system "failed spectacularly", Friedman reported. "Voters were disenfranchised by...VSAP...as many across the nation's most populous voting jurisdiction were either turned away or forced to wait for hours in line to vote."

Most importantly, however, BMDs are 100% unverifiable after polls have closed. It is impossible to know if even one ballot printed out by such systems actually reflects the intent of any voter. Recent studies have confirmed that the vast majority of voters do not review the computer-printed paper ballot summaries produced by BMD systems, and that an astounding 93% of them do not notice when the computerized system has changed one or more of their votes on the paper printout.

The ideal method for the tabulation of hand-marked paper ballots entails Democracy's Gold Standard: A public hand-tally with the results posted at each precinct on Election Night before ballots are securely transferred to a central location. If ballots are to be publicly hand-counted or recounted at a central location, it is critical that strict, secured, well-documented chain-of-custody procedures be in place to prevent even the possibility of tampering.

H.R.1 doesn't mandate public hand-counts at all, though it does require that the use of computer optical-scan tabulation include post-election risk limiting audits.

Mail-in voting

H.R.1 would require that all States make voting by mail (VBM) in federal elections available to all registered voters. "If an individual in a State is eligible to cast a vote in an election for Federal office," per H.R.1, "the State may not impose any additional conditions or requirements on the eligibility of the individual to cast the vote in such election by absentee ballot by mail."

If a voter requests VBM for one federal election, the State must send the voter a mail-in ballot for all subsequent federal elections, unless the voter chooses otherwise.

Mail-in ballots cannot be rejected for signature mismatch or for a defect without first notifying the voter of the discrepancy "by mail, telephone, and (if available) text message and [email]". Voters must be provided with an opportunity to cure the perceived mismatch or defect.

H.R.1 provides for the availability of official drop boxes --- at least one in every county. States must provide for curbside voting. H.R.1 permits one or more voters to designate an unpaid individual to return their sealed VBM envelopes via mail or direct drop off.

The designation provision does raise legitimate concerns about the illegal so-called "ballot harvesting" scandal that led to the indictment of a paid Republican operative and the nullification of a U.S. House election in North Carolina in 2018. In that case, the operative was charged with fraudulently filling out ballots himself and then delivering them as if they represented actual votes cast by eligible voters. Here, H.R.1 mandates that the ballot envelope be sealed before they are handed over to the designee.

Conflict of Interest

The Act would prevent anyone serving as a State's chief election official from simultaneously taking on an active role in a campaign for federal political office. This would help eliminate, for example, the apparent conflict-of-interest that arose in 2000 when Florida's Republican Secretary of State Katherine Harris simultaneously served as a co-chair of the Bush-Cheney campaign.

Unfortunately, if H.R.1 had become law before 2018, it would not have eliminated the conflict-of-interest that arose when then Georgia Secretary of State Brian Kemp oversaw his own campaign for Governor.

Ensuring democracy's survival

In October 2016, while commenting on a Los Angeles Times op-ed, "Nazi echoes in Trump's tweets", that had been penned by the neoconservative columnist, Max Boot, we included the brutally sarcastic remark once made by the infamous Nazi Minister of Propaganda, Joseph Goebbels. The remark related to the collapse of Germany's fragile democracy, the Weimar Republic. "It will always be democracy's best joke," Goebbels said, "that it provided its mortal enemies with the means by which it was destroyed."

Over the last four years, we witnessed a relentless assault on our constitutional democracy and the rule of law, which culminated in the January 6 attack on the Capitol building by the American version of Nazi brownshirts. Many of the violent insurrectionists expressed a desire to assassinate our elected leadership. Even after the mob was gently removed by late-arriving law enforcement, 147 House Republicans and several Republican Senators voted to overturn the lawful results of a Presidential election.

If those events have taught us anything, it is that our American democracy is far more fragile than we may have realized. As Benjamin Franklin famously observed upon the adoption of the U.S. Constitution, ours is "a republic, if you can keep it."

An appropriately amended H.R.1 goes to the very foundation of constitutional democracy --- the right of every citizen to cast a vote and to have that lawfully cast vote be accurately counted.

One would hope that there are enough patriotic Republicans in the Senate that it would not be blocked by the filibuster. If not, every Senate Democrat must be willing to jettison the filibuster --- at least as it pertains to election law legislation. We cannot permit the filibuster to become the "means" by which our precious constitutional democracy is destroyed.

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Ernest A. Canning is a retired attorney, author, and Vietnam Veteran (4th Infantry, Central Highlands 1968). He previously served as a Senior Advisor to Veterans For Bernie. Canning has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing