By Rich Lowry
Friday, June 11, 2021
H.R. 1 has achieved sacrosanct status on the
center-left, such that the nation’s democratic future is said to depend on it.
If so, it is time to weep for the republic.
H.R. 1 (or S. 1 in the Senate), which is known as a
voting bill but wanders into all sorts of other areas, is objectively terrible legislation.
It is unfocused, highhanded in its impositions on the
states, careless of speech rights, and constitutionally dubious. Absent some
radical turnabout, the bill is dead in the Senate, and it deserves to be.
The core of the bill forces every state to adopt
automatic voter registration, same-day registration, no-excuse absentee
balloting, and early in-person voting, among other mandates.
The case that the bill will save democracy depends on the
myth that voters are being turned aside in droves by onerous restrictions in
the states — even though turnout in last year’s presidential election was the
highest since 1900.
States such as Georgia have tightened up their rules
since the election, in part in reaction to Donald Trump’s ongoing campaign of
disinformation, but these provisions are in many cases improvements and
certainly don’t constitute “Jim Crow 2.0.”
In short, H.R. 1 is a non-solution to a non-crisis.
Even if you believe that, for instance, same-day
registration is the preferable policy, it is not remotely plausible that it’s
the difference between democracy and authoritarianism in America. According to
the National Conference of State Legislatures, only 20 states and Washington,
D.C., currently have same-day registration, and yet we’ve still had free and
fair elections, including in those states — among them, New York, Massachusetts,
Rhode Island, New Jersey, and Oregon — without it.
There’s also no reason to wipe out every voter-ID law in
America, when research shows that even strict ID laws have had no effect on
turnout.
So long as they aren’t actually disenfranchising people
(which no one is), states should be able to adopt the mix of voting rules that
their democratically elected officeholders deem appropriate and that suit their
particular political cultures.
If the goal is to increase confidence in the electoral
system, by the way, making it harder for states to maintain up-to-date voter
rolls (as H.R. 1 does) while wiping out ID requirements is emphatically not the
way to do it.
Then, there are all the other provisions.
Do we really need Congress, in its wisdom, to write an
ethics code for the Supreme Court?
What’s the urgency to adopt public financing of
congressional elections and make taxpayers fund political candidates they
oppose?
Why does the composition of the Federal Election
Commission need to change to make it less bipartisan?
H.R. 1 is a free-speech disaster.
As Bradley Smith, a former chairman of the FEC explains
to this point, the definition of electioneering in election law has taken care
to provide wide latitude for general policy advocacy. H.R. 1 broadens the
definition to treat more ads as election expenditures, crimping the ability of
groups to criticize elected officials.
The bill would also make more organizations disclose
their donors, opening them up to intimidation.
Walter Olson of the Cato Institute has catalogued the constitutional problems with H.R. 1.
Congress has the authority under the Constitution to
determine the “time, places, and manner” of congressional elections, but less
power over presidential elections, which H.R. 1 seeks to micromanage anyway.
The mandate that all states form election commissions to
determine redistricting is constitutionally vulnerable as federal overreach.
The stipulation that presidential candidates release
their tax returns might be impermissible as a qualification on candidates
beyond what’s in the Constitution.
The speech restrictions and disclosure requirements could
well run afoul of the First Amendment.
Unless Joe Manchin has a sudden change of heart, H.R. 1
is heading to the legislative dustbin.
Good riddance.
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