Last week, Senate Democrats unveiled a new version of their voting rights legislation: a compromise to win the support of West Virginia’s Joe Manchin, one of the most conservative members of the Democratic caucus.
The bill is a pared-down version of their original For the People Act, omitting the prior bill’s ethics enforcements and some campaign finance-related provisions.
But in one area, the new Freedom to Vote Act is stronger and addresses something that the first bill left out: election subversion. The new bill contains numerous provisions to counteract laws passed in Republican-run states allowing partisan actors to subvert elections.
Fears of actual efforts at election subversion were not on the radar when Democrats first introduced voting rights measures in 2019. The For the People Act included some such provisions, like requiring a paper ballot trail and strong chain of custody requirements for voting systems, but did not anticipate the coming threat. The danger burst into the open when former President Donald Trump waged a months-long campaign to overturn his 2020 election loss that ended after he encouraged a mob of supporters to storm the U.S. Capitol to stop Congress from declaring Joe Biden the winner on Jan. 6.
“The Trump presidency moved the voting wars from a tired debate over the relative threats of voter fraud compared to voter suppression to a new level of delegitimation of the election process itself, raising the danger of election subversion,” Rick Hasen, an election law professor at University of California-Irvine, writes in a new paper titled “Identifying and Minimizing the Risk of Election Subversion and Stolen Elections in the Contemporary United States.”
Trump’s lies and the insurrection’s enduring popularity among the Republican Party’s base led GOP-run states to pass new laws that both make it harder for communities that lean Democratic to vote and easier for Republican partisans to disrupt and possibly subvert elections. These included a law in Georgia allowing for the partisan takeover of local election boards that contain large populations of Democratic voters and a law in Texas giving election observers free reign to harass election workers and voters as they cast their ballots.
The Freedom to Vote Act, introduced by Democratic Sens. Amy Klobuchar (Minn.), Jeff Merkley (Ore.), Joe Manchin (W.Va.), Raphael Warnock (Ga.), Alex Padilla (Calif.), Jon Tester (Mont.) and Tim Kaine (Va.) and Sen. Angus King (I-Maine), includes key provisions to counter such laws and other as-yet-undetermined efforts to subvert elections.
In addition to mandating that states provide a paper ballot trail for their elections and enhancing chain of custody requirements for election systems in the original bill, the Freedom to Vote Act features provisions introduced by members of Congress since Jan. 6.
The new bill now includes the Preventing Election Subversion Act, introduced in July, and the Right to Vote Act, introduced in August.
The Preventing Election Subversion Act bans the removal of local election officials for any reason of than a cause such as neglect or malfeasance; makes it illegal to publicly target election workers and their families through doxxing; mandates distance between election observers, officials and voters; and makes it a crime to interfere with the tabulation, certification and canvassing of ballots.
The Right To Vote Act creates a first-of-its-kind legally enforceable presumption of a right to vote. The bill would require any jurisdiction enacting an election law that imposes a “severe or discriminatory burden” to prove in court that law is the “least restrictive means” of ensuring the right to vote. All future election laws aimed at making it harder to vote would therefore need to meet this criteria, with verifiable evidence, or be challenged in court as barriers to the right to vote.
These provisions counteract two of the three threats of election subversion and stolen elections that Hasen identifies in his new paper. They would provide substantial protection against “fraudulent or suppressive election administration or vote counting by law- or norm-breaking election officials” and “violent or disruptive private action that prevents voting, interferes with the counting of votes, or interrupts the assumption of power by the actual winning candidate.”
But the threat that is not addressed is the one that Trump actually pursued up until Jan. 6: “usurpation of voter choices for President by state legislatures purporting to exercise constitutional authority to do so, possibly blessed by a partisan-divided Supreme Court and acquiesced to by Republicans in Congress,” as Hasen puts it.
Trump tried to subvert and overturn his 2020 election loss by manipulating the poorly written Electoral Count Act of 1887, which sets out a procedure for how Congress should handle an election where the veracity of the Electoral College results are in question.
As Trump spread lies about the conduct of the 2020 election before Election Day, numerous publications, including HuffPost, focused on the quasi-legal mechanism through the Electoral Count Act by which he could overturn an election loss. That strategy involved claiming election fraud in states he lost and getting Republican-run state legislatures or other actors in those states to submit an alternate slate of electoral votes declaring Trump the winner. The theory is that these contested states would either throw the Electoral College to Trump or require the House to vote by state to decide who would be president.
It sounds absurd, but this is exactly the path Trump pursued. A memo written by conservative lawyer John Eastman, the former head of the Claremont Institute and a Federalist Society luminaire, disclosed Bob Woodward and Robert Costa’s new book, “Peril,” laid out the plan.
Eastman’s proposal called for Vice President Mike Pence, who presided over the certification of electoral votes, to set aside the votes from Arizona, Georgia, Michigan, Pennsylvania and Wisconsin — all states where groups of Republicans submitted competing slates of electoral votes supporting Trump. After counting all other electoral votes, Pence would declare the five states he set aside to be “failed” elections and rule them invalid. He would then call the election for Trump with 232 electoral votes to Biden’s 222. Pence ultimately decided not to go along with the plan, which prompted the events of Jan. 6.
The National Task Force on Election Crises, a group of election law and democracy experts, called to reform the Electoral Count Act in January and produced a series of recommendations in August. These include limiting the definition of a “failed” election for the purposes of the Electoral College to natural disasters or some kind of catastrophic attack perpetrated by humans, setting the vice president’s role as solely ministerial, and increasing the threshold for congressional objections, among other things.
The Freedom to Vote Act, if enacted, goes a long way to block election subversion efforts at the state level that are inspired by Trump’s effort to overturn the 2020 election. But the avenue that Trump pursued through an abuse of the Electoral Count Act would remain open. No legislation has been introduced to reform it.
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