Rarely if ever has a proposed Congressional enactment been so misleadingly titled as the “For the People Act,” (H.R. 1), the 800-page bill just approved by a purely partisan Democratic majority In the U.S. House of Representatives. If enacted, the bill would override hundreds of state laws governing elections, federalize control of voting and elections to an extent unprecedented in American history, abolish states’ authority to draw congressional districts, transform the bipartisan Federal Elections Commission into a partisan instrument, and restrict political speech in violation of the First Amendment.. The act would obstruct fair voting access and reduce the integrity of elections.
Let’s start with its unconstitutionality. The Constitution doesn’t give Congress the authority to regulate all federal elections in the same way. It has significant power over congressional elections under Article I, Section 4, which specifies that “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…” But it has only limited authority over presidential elections, being authorized only to “determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” (Article II, Section I)
While the Electors Clause gives state legislatures plenary power over the manner of selecting presidential electors, Constitutional lawyer David Rivkin observes, it does not permit lawmakers to promulgate a comprehensive federal election code. Neither does the 15th Amendment, which bars racial discrimination in voting, nor the other amendments extending the franchise. None of the amendments guarantees citizens the right to vote in any particular way such as by mail or in person. Thus H.R. 1 violates the Electors Clause, purporting to govern not merely the time, place, and manner of Congressional elections but of Presidential ones.
The difference between the Electors Clause and the Elections Clause was the result of thoughtful deliberation at the Constitutional Convention in 1787. The Founders chose the Electoral College system, with Electors chosen in a manner to be determined by the legislature of each state, to prevent Congressional influence over the choice of the President.. As Pennsylvania’s Gouverneur Morris explained at the Convention, “if the Executive be chosen by the national legislature, he will not be independent of it; and if not independent, usurpation and tyranny on the part of the legislature will be the consequence.” For Congress to regulate Presidential elections in accordance with H.R. 1 violates the Founders’ intention of keeping them free from Congressional interference.
Aside from the unconstitutionality of this aspect of H.R. 1, the bill contains numerous other provisions that are harmful to the integrity of elections and contrary to the spirit of our federal system. First, it would override state voter ID laws in 36 states that require a voter to authenticate his or her identity. Instead, the bill would require states to allow anyone to vote who simply signs a form affirming his identity. When combined with the bill’s mandate for same-day voter registration, it means that a voter could walk into any polling place on Election Day, register as John Doe, sign a form claiming he’ s John Doe, and cast a ballot. Election officials would have no way of preventing that or verifying that he’s really John Doe, or repeating this process at multiple polling places on the same day. Provisional ballots are accepted only from voters who appear at the wrong polling place.
(Contrary to the claims of HR 1 advocates, a 2019 study by the National Bureau of Economic Research finds “strict ID laws have no significant negative effect on registration or turnout, overall or for any subgroup” of the population. Their only negative effect would be to deter fraudulent voting.)
Second, H.R. 1 would make absentee ballots even more insecure than they already are. States could not apply any ID requirement to absentee ballots, nor could they enforce witness signature or notarization requirements. In addition, states that have banned partisan political operatives from handling or delivering absentee ballots would now be required to provide access to them to third-parties who may have a stake in the outcome of the election.
By contrast, the election law recently passed in Georgia which President Biden labeled “un-American and “sick” and charged with eliminating absentee ballots simply replaces the requirement that counties verify signatures of mail-in voters with the number from their driver’s license, or a photocopy of the IDs given to government employees, military members or tribal members, or from a free, state-provided ID, or even a utility bill, thus making it easier and quicker to verify and process mail-in ballots. The Georgia law also allows unlimited no-excuse absentee voting by mail. (In Delaware, Mr. Biden’s home state, by contrast, no-excuse absentee voting by mail is forbidden. Only voters who meet specific criteria, such as government employees, students, and those suffering from an illness or disability, are allowed to vote by mail.).
Third, H.R. 1 would worsen the problem of inaccurate registration rolls, which are full of people who have died, moved away, are ineligible felons or non-citizens, or are registered more than once. The bill restricts the ability of states to maintain the accuracy of their voter rolls by comparing their lists with those of other states or using the US Postal Service’s Change of Address system to find individuals who have moved.
Fourth, H.R. 1’s requirement that states automatically register individuals who interact with state agencies such as the Department of Motor Vehicles and welfare agencies, as well as any Federal agencies, such as the Social Security Administration, when combined with the aforementioned restriction of states’ ability to compare their registration lists with other state or federal ones, will inevitably lead to multiple registrations of individuals in the same and multiple states, as well as the registration of non-citizens and other ineligible individuals.
This automatic registration provision is presumably designed to increase voter registration. However, voter turnout in recent elections hardly seems to be a problem. Turnout exploded in the 2018 midterms, before the pandemic, and again in 2020 even amid the pandemic.
Fifth, H.R. 1 would require states to allow online registration, subjecting the voter registration system to fraud by hackers and cybercriminals. It restricts the ability of state officials to reject a voter registration application even when the official has reason to think that the individual is ineligible to vote.
Sixth, H.R. 1 imposes onerous new regulatory restrictions on political speech and activity, including online and policy-related speech, by candidates, citizens, civic groups, unions, corporations, and nonprofit organizations. The disclosure provisions would apply to membership organizations such as the National Rifle Association, Planned Parenthood, the American Federation of Teachers, and other organizations that Americans of all political stripes join to multiply their influence on important issues. This provision has been compared to donor disclosure requirements that state governments tried to impose on civil rights organizations in the 1950’s which the Supreme Court ruled unconstitutional, since they serve as means of intimidating supporters of politically unpopular groups from engaging in such civic activity.
Seventh, H.R. 1 would authorize the IRS to investigate and consider the political and policy positions of nonprofit organizations when they apply for tax-exempt status. This would enable the political party in control of the White House to use the IRS to go after anyone criticizing the administration’s policies. We’ve seen this movie before under the Obama Administration, when the IRS under bureaucrat Lois Lerner delayed and/or rejected applications from conservative organizations seeking tax-exempt status. Neither Ms. Lerner nor anyone else involved in that scandal was ever charged or prosecuted.
H.R. 1 will also politicize the Federal Elections Commission, changing it from a six-member bipartisan commission with three members from each party to a five-member partisan entity with at least two members from each major party. The president nominates all members who must be approved by the Senate. At the same time, it will remove redistricting of congressional districts from state legislatures to independent commissions, unelected by the people of their respective states. There is no reason to assume that the commissions will be reliably fair or nonpartisan.
Eighth, H.R. 1 will establish a public funding program for candidates running for Congress. (The government will match $6 for every $1 in campaign contributions up to $200.) The public funding provision will require taxpayers to subsidize the political campaigns of individuals with whose positions they disagree and for whom they would never vote.
If senators approve the “For the People Act,” they will be betraying both their constituents and America’s system of constitutional government. The act would cast the validity and credibility of future elections in doubt, render the electoral process more susceptible to bias from whichever party controls the Federal executive, and weaken or deprive the voters of each state of the right to decide how their elections should be run, or even to engage in honest political activity aimed at promoting their favored candidates and parties. This act must not pass.
—Roberta Schaefer is the founder and former president of Worcester Regional Research Bureau.