It is unfocused, extremely high-handed in its unreasonable demands towards the states, inconsiderate towards the speaking rights of groups and individuals and constitutionally questionable. Without a radical change, the Senate bill is dead, and it deserves it.
The core of the bill rewrites electoral rules across the country to force every state to introduce automatic voter registration. Registration on the same day, unexcused postal voting, and early personal voting, among others.
Whether the bill will save democracy depends on the myth that burdensome restrictions in the states will turn out voters in droves – even though the turnout in last year’s presidential election was the highest since 1900.
Was this a result of the pandemic-related introduction of better access to, for example, postal voting? Not here was no difference in turnout between states that have not introduced unexcused postal voting and states that have.
States like Georgia have tightened their rules since the election, in part in response to Donald Trump’s ongoing campaign of misinformation about the 2020 election, but those provisions are improvements in many cases (e.g. numbers on postal votes in Georgia) and certainly don’t represent Jim Crow 2.0, like President Joe Biden and other Democrats have claimed.
MR. 1 is therefore not a solution for a non-crisis.
For example, even if you believe that same-day registration is the preferable policy, it is not remotely plausible that the difference between democracy and authoritarianism is in America. According to the National Conference of State Legislatures, only 20 states and Washington, DC currently have registrations on the same day, and yet we still had free and fair elections, even in those states – including New York, Massachusetts, Rhode Island, and New Jersey Oregon – without.
There is also no reason to abolish every voter identity law in America when research shows that even strict identity laws can be found have no influence on voter turnout.
As long as they don’t actually disenfranchise people (which nobody does), states should be able to adopt the mix of voting rules that their democratically elected officials deem appropriate and that fit their respective political cultures.
Incidentally, when it comes to building trust in the electoral system, states will have a harder time keeping clean and up-to-date electoral rolls (like HR 1) at the same time, if Congress has the smallest partisan majorities it will erase ID requirements is specifically not the way to do this.
Then there are all the other provisions.
Do we really need Congress in its wisdom to write a code of ethics for the Supreme Court?
What urgency is required to take over the public funding of congressional elections and get taxpayers to fund political candidates they reject and, in some cases, denigrate?
Why does the composition of the Federal Electoral Commission have to be changed in order to make it less non-partisan?
MR. 1 is a disaster of free speech.
How Bradley Smith, a former chairman of the FEC, explains, up to this point, the definition of canvassing in electoral law has been carefully outlined in order to allow ample scope for general political advocacy. MR. 1 expands the definition to cover more advertisements than election expenditure and limits the ability of groups to criticize elected officials.
The bill would also encourage more organizations to disclose their donors and subject them to intimidation. Two ACLU lawyers wrote in the Washington Post that H.R. 1 is likely to affect the political rights of “many non-profit organizations, including civil rights organizations and other initiators of civil rights movements”.
It requires internet platforms to collect a wealth of information about every political ad and group that runs ads.
When Maryland passed a similar bill several years ago, newspapers found the requirements onerous and impracticable sued and won. A district court judge called Maryland law “a compendium of traditional ailments of the First Amendment.”
In fact, the constitutional issues with H.R. 1 widely used. Walter Olson from the Cato Institute cataloged them.
It is not obvious that the voting provisions of the bill stand up to constitutional scrutiny. The Constitution gives Congress the power to determine the “time, place and type” of congressional elections, but less power over presidential elections, which H.R. 1 anyway tried to manage.
The dictate that all states form election commissions to determine redistributions is constitutionally vulnerable as a federal violation.
Requiring presidential candidates to publish their tax returns could be inadmissible as a non-constitutional restriction on candidates.
The language restrictions and donor requirements are rightly questioned. In the event of NAACP versus Alabama, the Supreme Court ruled that “the inviolability of privacy in groupings can in many circumstances be essential to upholding freedom of association, especially when a group has dissenting beliefs”.
Unless Joe Manchin has a sudden change of heart, H.R. 1 in the trash can of legislation. Goodbye forever.