March 19, 2021

S.1: Chaos in the Election Law


KEY TAKEAWAYS

  • S.1 would nationalize key components of election law and require implementation on short deadlines, introducing uncertainty and chaos into the administration of elections.
  • It would require states to allow felons to vote in federal elections, provide ballot drop boxes, implement ballot harvesting, cease enforcing voter identification laws, and implement no-excuse mail-in ballots, potentially delaying outcomes for months.
  • The bill would politicize the Federal Election Commission by reducing its membership from six to five commissioners, ensuring a partisan split.

The Democrats’ election law bill, S.1, would introduce many new federal rules that states would struggle to implement, increasing distrust of the electoral system. Among other things, S.1 and its House companion, H.R. 1, would make changes to voter registration, early voting, and voting systems. State and local governments would not be allowed to require any form of voter identification, and states would be heavily restricted in how they maintain the integrity of their voter rolls. In addition, it would legalize ballot harvesting in every state, force states to allow felons to vote in federal elections, and require states to implement no-excuse mail-in ballots. It also would make major changes to the campaign finance system, including politicizing the Federal Election Commission and creating judicial review for matters where the FEC has found no violation of campaign finance law.

Ballot Harvesting in the Headlines

Ripped from the Headlines

A Radical Change for Every State

States have built their electoral systems on more than two centuries of experience. No two states have solved their problems in the same way. Imposing a host of new rules on all of them, on very short deadlines, would guarantee that virtually every state will experience difficulties in administering the next election.

Consider the teething problems states had with mail-in balloting this past cycle. Some states have had no-excuse mail-in balloting for many years. But most states had to learn on the fly, without the extensive planning and voter education that usually comes with implementation of new election procedures. This inevitably led to controversy. Each state had to figure out deadlines for mail-in ballots, which led to litigation and judicially mandated changes in the months leading up to the election. States also had to make major decisions regarding irregularities like a missing or illegible postmark. Counting the ballots caused long delays in declaring a winner, not just in the presidential race, but in down-ballot races. New York’s 22nd Congressional District had no victor for 97 days. The outcome of a state senate race in Pennsylvania turned on whether to count ballots that voters failed to date.

While no federal election outcome was close enough to be swayed by such problems, if similar procedural questions arose in several different aspects of the voting process, some outcomes in the next election could be changed.

S.1 would make major changes in virtually every part of election law, compounding chaos and confusion. One particularly awkward area is requiring states to allow felons to vote in federal elections once they have been released from prison. That rule must be limited to federal elections, since Congress has limited power over state elections. However, it is unclear how states would navigate a situation where felons could vote in only federal elections. Maintain two voter lists, one for federal and one for state elections? Issue two ballots?

Under S.1, states would also have to register voters through their department of motor vehicles and other state offices. Initiatives in some states have already led to thousands of erroneous registrations as state employees struggle to take on new responsibilities.

S.1 requires states to allow ballot harvesting, where a third party is allowed to collect and return other people’s absentee ballots. S.1 permits paying ballot harvesters as long as the person doing the harvesting is paid by the hour instead of per ballot collected. While some states allow harvesting, most notably California, there have been serious scandals when candidates or people affiliated with campaigns illegally harvested ballots. States unaccustomed to harvesting will inevitably encounter problems delineating between coercive or deceptive efforts and more benign instances where someone returns another person’s ballot.

Big New Federal Programs and Rules

Just as S.1 introduces major changes to state election law, it also creates disruptive new federal initiatives that could lead to all manner of disarray and unforeseen consequences.

S.1 would politicize the Federal Election Commission by changing it from a six-member commission, evenly divided by party, to a partisan, five-member commission. Under the provisions in the bill, the chair of the FEC would be able to make key staffing changes, which would allow the commission to be used for partisan attacks on party opponents. S.1 would also allow for judicial review of matters that were dismissed by the FEC because no violation of law was found. This could lead to more litigation costs for those participating in the federal campaign finance system.

The bill’s ambitious new restrictions on political speech could also backfire in many ways. It mandates public disclosure of the names and addresses of donors who give $10,000 or more to organizations engaged in “campaign-related disbursements.” Those “disbursements” could include any sort of paid communication that mentions a candidate, regardless of whether it expressly advocates a vote for or against that candidate. There have been any number of anonymous political activities in U.S. history, including paid communications, that proved vital for moving our country forward – from before the American Revolution, to the Federalist Papers, to the abolition of slavery, to the civil rights movement. Forcing people who fund those activities to reveal themselves will inevitably lead to fewer donors taking the risk of retaliation.

One controversial part of the bill requires the federal government to provide $6 in matching funds for every $1 a campaign raises from individual donations of up to $200. Under that system, the federal government will inevitably end up using taxpayer money to support politicians with abhorrent views. And, since candidates can pay themselves a salary under some circumstances, taxpayers will in all likelihood end up directly paying salaries to candidates who can obtain a few small donations.

There are provisions in S.1 that do not have the slightest bearing on election law that could also create havoc. Among other things, S.1 directs the Judicial Conference of the United States to issue a code of conduct for Supreme Court justices. Who will enforce it? How will, say, a requirement to recuse in a given case affect the balance of the court?

These are just a few of the problems caused by the major new initiatives in S.1. If it becomes law, the next election will see all of the changes running at the same time, further undermining voter confidence and providing abundant opportunities for mischief, for misinformation, and for people to deny the legitimacy of the election.

Issue Tag: Judiciary