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The Election-Reform Bill That Might Just Save Our Democracy

Unlike H.R. 1, the new Freedom to Vote Act has the backing of Joe Manchin.
September 16, 2021
The Election-Reform Bill That Might Just Save Our Democracy
Voting rights activists hold a sign that reads "Freedom To Vote" during a “Good Trouble Candlelight Vigil for Democracy” at Black Lives Matter Plaza July 17, 2021 in Washington, DC. (Photo by Alex Wong/Getty Images)

For those of us who have spent years shouting from the digital rooftops about the increasingly dire outlook for American democracy, this week brought a promising development: The announcement of a new election-reform bill that has the backing of several key moderate Democratic senators.

Sen. Amy Klobuchar is introducing the Freedom to Vote Act, an ostensible replacement for the bulkier For the People Act, which passed the House as H.R. 1 back in March but stalled in the Senate because it lacked the support of moderate Democrats. Right out of the gate, however, Klobuchar’s new bill has the support of Sens. Tim Kaine, Angus King, Jeff Merkley, Alex Padilla, Jon Tester, Raphael Warnock, and—crucially—Joe Manchin, whose support or lack thereof has been decisive on various bills before the Senate this session.

Like the earlier bill, the Freedom to Vote Act offers a uniform federal response to the toxic anti-voting laws that have spread across the country in the wake of the January 6th insurrection and Donald Trump’s Big Lie about last year’s election. Senate Majority Leader Mitch McConnell has already come out opposing the new bill, but even he cannot evade the merits of common sense.

According to the Brennan Center for Justice, as of July, 18 states had enacted 30 laws this year that make it harder for regular people—all of us, not just the ever-elusive “fraudsters”—to vote. Over 400 bills that restrict voting in some way have been introduced in 49 states. Although these are sometimes described as “voter suppression” measures, a better term is “anti-voting” laws, because that’s their raison d’être: imposing stricter and arbitrary identification requirements, purging legitimate voters from the rolls, shortening the window to apply for and/or submit mail-in ballots, restricting assistance for voters who use the mail, limiting access to ballot dropboxes, increasing barriers for voters with disabilities, banning snacks and water to voters waiting in line, reducing the locations or hours of polling places, eliminating registration on Election Day, shrinking the days or hours for early voting, and so on.

Meanwhile, nobody has been able to gin up any meaningful voter fraud. Considering the size of the country, real voter fraud is vanishingly rare. (Fraud involving those on the ballot for office is easier to come by, ironically.)

Worse, laws that encourage potential violence around elections and/or punish election officials for making honest mistakes are on the horizon. A recent survey revealed that a third of local election officials have felt unsafe due to harassment, with social media vitriol cited as a key concern. Florida enacted a law that could impose a $25,000 fine on election supervisors for leaving ballot dropboxes open outside set hours. Iowa passed a bill pinging workers with a $10,000 penalty for a “technical infraction” of election rules, and Texas has made it a felony to send voters absentee ballot information that was not specifically requested. Texas has also empowered random citizen “poll watchers” to have “free movement” at polling places, to watch “the sealing and transfer of a memory card, flash drive, hard drive, [or] data storage device” and to hound election workers as they transfer materials to a regional tabulating center. (Meanwhile, Texas also just passed a disturbing law allowing Texans who legally own firearms to carry them openly in public without a permit or any training.)

This is not to mention the faux election audits, like the comical but dangerous mess in Maricopa County, Arizona, and various attacks on vote certifiers, like Georgia Secretary of State Brad Raffensperger, who refused Trump’s request to “find” enough votes to hand the win to Trump, the losing candidate (aka to commit election fraud). Georgia’s latest package of revised election laws took that power from the secretary of state and handed it to the state’s Republican-dominated general assembly, which now gets to choose a “nonpartisan” chair of the state elections board in future elections. Bloomberg reports that, across the country, the “once-obscure state-level job of overseeing elections has emerged as a prime target for wealthy donors and national organizers from both parties seeking an edge in the 2022 midterms that could shift control of Congress.”

For his part, McConnell cynically asserts that “I’ve taken a look at all the new state laws—none of them are designed to suppress the vote.” Ahem.

Unfortunately, the new Freedom to Vote Act would do little to stave off true election theft in 2024, currently made possible by gaping holes in the arcane Electoral Count Act of 1887 that were laid bare on January 6. These include the absence of any legal requirement that states base their Electoral College certifications on the popular vote rather than legislators’ will, or a parallel mandate that Congress respect the state certifications. The joint session of Congress on January 6 after a presidential election is supposed to be a purely ceremonial transfer of power; this year’s events show how it could be used to steal democracy from voters in 2025.

But Klobuchar’s 588-page bill does a number of things to push back against shameless anti-voting laws at the federal level (which is perfectly constitutional, mind you)—including addressing Republicans’ largely false claims of widespread election fraud and insecurity. Its veritable cornucopia of voter-friendly reforms includes:

  • establishing automatic registration of voters upon application for a drivers’ license, including those under the age of 18;
  • authorizing Election Day voter registration;
  • banning prosecutions for errors in registration;
  • making Election Day a legal public holiday;
  • requiring that states make online voter registration available;
  • requiring states to implement ballot-tracking services so voters can have accurate information on the status of their applications and ballots, and establishing a uniform system of postmarking absentee ballots;
  • mandating that completed mail-in ballots be postage-free;
  • establishing pilot programs to enable people with disabilities to register and vote privately at home;
  • requiring states to provide secure ballot dropboxes that are placed in accessible locations;
  • establishing a 30-minute maximum wait time for casting a ballot at a polling place and calling for a study on how to implement it;
  • prohibiting states from banning the provision of food and water to voters waiting to vote;
  • prohibiting states from restricting curbside voting;
  • forbidding states from banning voting by citizens with criminal convictions unless still incarcerated at the time of an election;
  • mandating minimum notification requirements for voters affected by polling place changes;
  • prohibiting “voter caging,” whereby mail is sent to addresses on the voter rolls, returned undelivered, and then used to purge voters as ineligible, and otherwise making it harder for states to purge valid voters from the polls in advance of an election;
  • requiring verifiable backup paper ballots that can be manually counted;
  • establishing a uniform method of counting provisional ballots (those that are cast by voters who are deemed not eligible to vote at a particular site, for whatever reason, on Election Day);
  • prohibiting the use of wireless ballot marking or tabulation devices and any connection to the internet;
  • mandating a series of voter privacy and security measures;
  • requiring government-issued voter identification as a condition to receiving a ballot—but allowing acceptance of a sworn written statement by a third party as to a voter’s identity so long as the person has known the voter for at least six months—and providing for payments to states to cover the costs of required identification documents;
  • establishing a duty of “each candidate and each immediate family member of a candidate” to report foreign election interference within three days, and making violations a crime punishable by a fine of up to $1 million and 5 years in prison;
  • making it a crime to more generally attempt to hinder or interfere with a person’s efforts to register or to vote (threatening voters is already a federal felony);
  • authorizing funding to carry out other parts of the bill, such as ensuring the accurate tracking of absentee ballots, as well as offering grants to states for poll worker recruitment and training;
  • precluding “politically motivated removals of local election officials” by confining removal to “gross negligence, neglect of duty, or malfeasance in office,” and giving affected election administrators a private right to sue in court;
  • limiting poll watchers’ ability to challenge voters’ qualifications except as documented in writing under oath, and banning such challenges on Election Day if they could have been made earlier;
  • defining a “post-election audit” as one that “has the probability of at least 95 percent of correcting the reported outcome if the reported outcome is not the correct outcome”;
  • making it a crime for public officials and private individuals to attempt to “intimidate, threaten, coerce” election officials and workers from executing their duties;
  • making it a crime to spread materially false statements to voters within sixty days of an election “by any means, including by means of written, electronic, or telephonic communications,” creating a private right for affected voters to sue in court, and empowering the attorney general of the United States to correct the false information through public education; and
  • establishing an affirmative right to vote in federal elections: “Every citizen of legal voting age shall have the right to vote in elections for Federal office” (there is no such express right in the Constitution). The bill establishes a higher standard for states seeking to pass restrictive laws and makes clear that voters can sue to enforce this part of the law.

The act also takes a stab at nonpartisan redistricting reform, pushing back on abject gerrymandering that enables entrenched politicians from both parties to pick their voters rather than the other way around. It establishes criteria for drawing districts “to represent communities of interest and neighborhoods to the extent practicable,” forbids favoring or disfavoring of political parties, and enables courts to review new redistricting plans. The bill also addresses loopholes in campaign spending laws involving foreign nationals in elections and the reporting of campaign-related disbursements, including money spent on federal judicial nominations.

The bill even establishes a program for states to carry out “democracy promotion”—activities to improve the operation of and equitable access to elections. Hallelujah!

Bear in mind that the Constitution only gives Congress power to manage federal elections. But down-ballot state and local races inevitably follow suit because it’s impractical to have multiple procedures for different races. Remember, too, that the new 6-3 conservative majority on the Supreme Court is no friend to voting rights, as evidenced by the aggressive 6-3 decision this term in Brnovich v. Democratic National Committee under the Voting Rights Act. The Court might well strike down parts—of not all—of the Klobuchar bill if it becomes law. Yet all told, given how many of these common-sense reforms benefit regular American citizens of all parties who are simply trying to go about living busy and sometimes stressful lives, there is no rational basis for McConnell’s hyperbolic statement that “[t]here is no rational basis for the federal government to take over all of American elections.”

The fact that Joe Manchin, who opposed the prior bill, is a backer of the Freedom to Vote Act is a big deal. It means that Democrats have the votes to get it done on their own, assuming Manchin and Sen. Kyrsten Sinema go along with the filibuster reform that would be needed if Democrats can’t get ten moderate Republicans to sign on. It is difficult to overstate how crucial it is to do whatever it takes in this moment—including tweaking the procedural relic of the filibuster—to pass some version of this law. Without it, we could be one election cycle away from the end of American democracy.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.