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Federal Election Legislation

Overview

Our democracy depends on free and fair elections in which all eligible voters are free to vote and are assured that their votes will be counted. A concerted effort to overturn the will of the voters in some states following the 2020 general election failed, but has given rise to a new, multi-pronged effort to make it easier for highly partisan actors to subvert election results in the future.

Conspiracy theorists have continued to spread disinformation about the election — including the false suggestion that the election was somehow stolen — intentionally undermining confidence in our electoral system. They have also launched partisan election reviews in Arizona and other states, designed not to uncover any truth or even to improve our election systems, but to sow further doubt and division. These efforts have led to a surge of threats and harassment of state and local election officials and poll workers, who performed their jobs heroically in the face of unprecedented challenges in 2020.

Across the country, state legislators have also tried to leverage the false belief that the election was stolen as a pretext to introduce over 200 bills in 41 states (some of which have been enacted into law) that would give highly partisan actors greater control over election results, while hamstringing experienced state and local election administrators who have traditionally run our voting systems. Events in January also laid bare some of the weaknesses and ambiguities in the antiquated Electoral Count Act (ECA) that could be exploited by a future Congress to refuse to count a state’s lawfully certified election results.

Congress can and should respond to the growing risk of election subversion by enacting a variety of common-sense reforms, as well as updating the ECA, that protect against partisan interference, decrease the chances of future post-election turmoil, and strengthen the bedrock of American elections, regardless of which party controls any given political office or stands to win a given election.

Federal legislation that has been introduced to address this problem of election subversion includes the Freedom to Vote Act, the Right to Vote Act, and the Protecting Election Administration from Interference Act. Those bills include several of the key ways Congress can use federal legislation to protect elections from being manipulated or invalidated by partisan actors, ranging from mandating voter-verifiable paper ballots to enacting a statutory right to vote. A recent poll that found these provisions are remarkably popular across partisan lines. Depending on the proposal, between 79% and 89% of all voters want Congress to pass these bills.

The Freedom to Vote Act

The Freedom to Vote Act is a congressional voting rights bill that pushes back on state legislatures who are systematically undermining the basic principle that voters, not politicians, should decide election outcomes. Americans overwhelmingly support federal legislation that would secure ballots, combat voter intimidation, and protect election results from partisan interference. It’s time for the Senate and the rest of Congress to listen to the American people and pass these common-sense reforms to safeguard our elections from partisan actors who appear willing to subvert the will of the people. For a comprehensive overview of what’s in the bill check out these explainers from our partners at the Brennan Center and the Campaign Legal Center.

To learn more about how the Freedom to Vote Act strengthens judicial protection of the right to vote, click here and for how it would stop election subversion, click here.

How the Freedom to Vote Act Strengthens Judicial Protection of the Right to Vote

The right to vote is preservative of all other rights. As the Supreme Court explained more than 50 years ago, “the right of suffrage is a fundamental matter in a free and democratic society . . . since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights.” Reynolds v. Sims, 377 U.S. 533, 561-62 (1964). All eligible voters must have the basic right to cast a ballot and have that ballot counted. 

Courts play an essential role in safeguarding voting—and voters must have access to real judicial protections. Lately, courts haven’t provided much protection. Constitutional claims are currently the only choice voters have to address general burdens on their ability to vote (as compared to more targeted statutory claims, such as racial or disability-based discrimination). Yet, since 2010, states have imposed more voting restrictions than at any time since Jim Crow, and the Supreme Court has not once struck down a voting restriction as unconstitutional in that time. Voters also face a steep uphill battle in the lower courts, because constitutional claims that state or local governments have burdened the right to vote almost always fail under the existing legal framework. Voters must be able to seek meaningful legal protection when their ability to vote is unjustifiably burdened.

This legislation restores judicial protection of the right to vote. This legislation (Subtitle E, secs. 3401-06 of the Freedom To Vote Act) creates a statutory right to vote in federal elections (and to have that vote counted) and requires courts to engage in a robust analysis when the ability to vote is burdened. The legislation directs courts to apply heightened scrutiny to substantial impairments—and particularly exacting scrutiny when governments actually make it harder to vote than it was before (known as retrogression).

  • In cases of substantial impairment of the right to vote, governments must prove that they are significantly furthering an important, particularized interest. 
  • And in cases of retrogression, governments must employ the least restrictive means of furthering that interest.

What’s more, no government can burden the right to vote unless it proves its justifications with clear and convincing evidence. No government should be allowed to burden the right to vote, unless it shows the burden is necessary to administer safe and secure elections. 

This legislation creates a non-prescriptive tool for protecting elections. Congress cannot anticipate and prevent every suppressive or subversive tactic state and local governments might devise to undermine free and fair elections. Without dictating to state and local governments how they should conduct elections, this legislation nonetheless creates an invaluable tool to prevent them from unjustifiably burdening the ability of eligible voters to cast a ballot and have that ballot counted. A general statutory right to vote with robust enforcement in the courts is a vital complement to other federal legislation.

Congress has the authority to protect against unjustified burdens on voting. As the Supreme Court recently reaffirmed, the Elections Clause in Article I of the U.S. Constitution grants Congress the “authority to provide a complete code for [federal] elections.” Arizona v. Inter Tribal Council, 570 U.S. 1, 8 (2013) (quoting Smiley v. Holm, 285 U.S. 355, 366 (1932)). That authority includes protecting voters by creating a statutory right to vote and judicial standards for enforcing that right, without running afoul of state prerogatives or the separation of powers.  

ADDITIONAL SUPPORT

The legislation can be found in Title III, Subtitle E, secs. 3401-06, of the Freedom to Vote Act. A similar version of this legislation is also included in the Right to Vote Act (S. 2615 and H.R. 4959) and is supported by the American Civil Liberties Union, Campaign Legal Center, Demos, Fair Fight Action, LatinoJustice PRLDEF, Lawyers’ Committee for Civil Rights Under Law, NAACP Legal Defense and Educational Fund, Inc. (LDF), People for the American Way, Protect Democracy, and Southern Coalition for Social Justice.

The full text of the Right to Vote Act (S. 2615 and H.R. 4959) can be found here and here.  

Contact Genevieve Nadeau, [email protected], with questions or comments.

For a PDF of “How The Freedom To Vote Act Strengthens Judicial Protection Of The Right To Vote“, click here.

How the Freedom to Vote Act Stops Election Subversion

Across the country, state legislators have proposed and passed bills that would give partisan actors greater control over elections while hamstringing experienced state and local election administrators who have traditionally run our voting systems. (Protect Democracy, Law Forward, and States United Democracy Center released a report detailing 216+ such bills introduced this year.) Along with phony audits like the one ongoing in Arizona and a harassment campaign that is driving election workers out of their jobs, we are facing unprecedented threats to the integrity of future elections and to Americans’ faith in our election systems. 

The Freedom to Vote Act includes common-sense reforms that protect elections against partisan interference, decrease the chances of future post-election turmoil, and strengthen the bedrock of American elections, regardless of which party controls any given political office or stands to win a given election:

1. Paper ballot requirements

Future efforts to subvert election outcomes will likely involve creating doubt and uncertainty about the actual count of the popular vote in a jurisdiction. In Georgia in 2020, the ability to conduct repeated recounts of physical ballots verified by voters was a critical backstop to disprove unfounded allegations of voter fraud. But as of 2020, eight states still used paperless voting machines in some jurisdictions. Widespread reports that these machines are insecure (and may have been targeted by Russian hackers in 2016) would make it easy to cast a cloud of suspicion over votes not supported by a paper record. To prevent this, the Freedom to Vote Act will require every voter to cast their vote on a paper ballot that they have an opportunity to review before it is cast. (Sec. 3901-08, the “Voter Confidence and Increased Accessibility Act of 2021”) 

2. Chain of custody protections for ballots, other election records, and election equipment

Once voters cast a paper ballot, those ballots must be preserved throughout the tabulation and certification processes. Federal law already requires that ballots be retained for 22 months, but specifies no standards for how they should be stored and monitored throughout that period. The ongoing, highly-criticized partisan election review conducted by the Arizona State Senate illustrates how the integrity of ballot records can be jeopardized by a sloppy counting process — for instance, using pens to mark ballots during review risks permanently obscuring a voter’s true intent. Furthermore, the fact that sensitive voting machines were handed over to third parties means that they should not be used in future elections, which could cost taxpayers millions. The Freedom to Vote Act strengthens federal protections for ballots, other election records, and election equipment, by directing the Department of Homeland Security to issue rules governing how these items should be handled, and by giving candidates and the Attorney General the right to seek judicial enforcement of these rules. (Secs. 3301-03)

3. Judicial review of the vote-counting process

Several states have passed laws that shift responsibility for counting ballots and certifying elections to highly partisan officials. This increases the likelihood that these officials may seek to use their control of the vote-counting process to improperly influence the outcome of an election, for instance by baselessly discarding certain ballots. The Freedom to Vote Act ensures that election administration decisions, as well as decisions about ballot-handling, are explicitly subject to federal judicial scrutiny, by creating a statutory right to have one’s vote properly counted. (Secs. 3401-3404) 

4. Preventing partisan takeovers of election administration

In several states, laws have been proposed or enacted that would make it easier for state legislators and other partisan actors to take control over election administration from local election officials, which would then allow them to more easily manipulate or subvert the results. For example, a provision of Georgia’s new omnibus voting law (SB 202) allows the State Board of Elections—which is controlled by the state legislature—to remove local election officials for little or no reason and replace them with their own handpicked substitutes. Georgia Senate Republicans have already taken first steps towards using this authority to replace election officials in heavily Democratic Fulton County. The Freedom to Vote Act stops this type of partisan interference by barring the removal of local election officials absent good cause, such as substantial neglect or malfeasance. (Sec. 3001)

5. Protections for election workers

Election officials and poll workers play a crucial role in the infrastructure of our democracy, but they are currently under attack. In 2020, and continuing into 2021, election officials have faced unprecedented threats, including death threats, because of the false allegations that the 2020 election was “rigged.” In addition, states are passing harsh new laws to penalize even inadvertent errors and mistakes by election officials and poll workers. The Freedom to Vote Act reaffirms that harassment and intimidation of election workers is unlawful and makes it a crime to doxx them or their family members. (Secs. 3101-02)

6. Reaffirming that election manipulation or subversion is a crime

The 2020 election did not turn into a full-blown crisis in large part because local and state election officials refused to bow to pressure from President Trump and others to subvert the results. However, voters cannot necessarily rely on similar forbearance in future elections, as (1) the pressure is likely to be even greater, (2) many of the officials who refused to subvert the results may be out of office by 2022/2024 and may be replaced by more pliable individuals, and (3) proposed and/or enacted state legislation may make it easier for officials who are so inclined to manipulate or subvert an election. Federal law already prohibits individuals, including election officials, from manipulating or subverting election results, but in order to deter future attempts at subversion the Freedom to Vote Act reaffirms that interfering with the tabulation, canvassing, or certification of ballots is a crime. (Sec. 3206, the ‘‘Deceptive Practices and Voter Intimidation Prevention Act of 2021’’)

ADDITIONAL SUPPORT

For more information, please contact Jessica Marsden, [email protected]

For a PDF of “How the Freedom to Vote Act Stops Election Subversion,” click here.

Updating the Electoral Count Act of 1887

The Electoral Count Act (ECA) governs the process of casting and counting Electoral College votes for president and vice president.  The statute sets the timeline for states to appoint presidential electors in November and for electors to cast their votes in December, and describes the process that Congress should follow when it counts the states’ electoral votes in January.  As the nation learned in January 2021, the statute is badly in need of an update.  It includes antiquated and ambiguous language, and fails to offer clear guidance on key aspects of the process of counting electoral votes and resolving related disputes — weaknesses that render the statute open to misunderstanding or exploitation, and risk the peaceful transitions of power that have been a hallmark of our democracy.

Updating the ECA is something Congress can and should do on a bipartisan basis with no advantage to either party so far in advance of 2024 to help ensure that the will of the voters in each state is respected by Congress and to guard against crises during future presidential elections.

Updates to the ECA should include:

  1. Clarifying the extraordinary circumstances under which states may appoint electors after Election Day;
  2. Better ensuring that state-level determinations of election results made in accordance with state law are respected by Congress;
  3. Clarifying the limited role of the Vice President in the process of counting electoral votes;
  4. Raising the threshold for Members of Congress to object to another state’s certified election results, and clarifying the narrow grounds upon which such objections may be raised or sustained; and
  5. Establish clear rules and processes for resolving disputes in Congress and avoiding a constitutional crisis.

For more information on the Electoral Count Act:

Find out what people across the political spectrum are saying about the need to update the Electoral Count Act:

Polling on the ECA:

According to polling, there is bipartisan support for updating the ECA.  Read more in the Washington Examiner (Oct. 26, 2021).

  • Voters support updating the ECA by a 44-point margin (62% support/only 18% oppose) after receiving a brief description of the law. Majorities of voters across partisan, demographic, and geographic lines support updating the law. 
  • Nearly two-thirds (63%) of voters say they would be more likely to support updating the ECA if the updated law was written and proposed by Democratic and Republican members of Congress. 
  • Voters strongly support limiting Congress’s ability to overrule state election results. By a 33-point margin, voters feel there should be only a narrow set of circumstances that allow Congress to reject certified state election results. Voters believe it should be difficult for Congress to “throw out” results (+29 difficult). 
  • Most Americans are concerned about a party trying to overrule the results of an upcoming presidential election. A majority58% of those polledthink it’s likely a party will try to overturn the presidential election results in an upcoming election

Protect Democracy in the news:

For more information, please contact Genevieve Nadeau, [email protected]

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