H.R. 1: We Should Have Seen This Coming
H.R. 1 gave them the roadmap … COVID-19 gave them the excuse.
BY JOHANNA REEVES, ESQ.
Did you know that the first bill introduced on the House floor for the 116th Congress (2019–2021) addressed voter access, election integrity and election security? The bill, “to expand Americans’ access to the ballot box, reduce the influence of big money in politics and strengthen ethics rules for public servants … ” sounds commendable, as most bills do; however, as citizens it is our duty to look beneath the covers and stay informed on what our government is really doing. Unfortunately, we did not pay enough attention to H.R. 1. If we had, we might have foreseen what was going to happen in the weeks and months leading up to November 3, 2020.
John Sarbanes, a Democrat representative for Maryland’s Third Congressional District, introduced the bill titled, “For the People Act of 2019” on January 3, 2019. The bill had a total of 236 co-sponsors, all Democrats. A mere 57 days later, the bill passed easily in the House straight down party lines with 234 Democrats voting Yea and 193 Republicans voting Nay. Five representatives did not vote, four of whom were Republicans: Mike Rogers, AL 3rd; Eric Crawfod, AR 1st; Neal Dunn, FL 2nd; and Steve Stivers, OH 15th.
H.R. 1 is a monstrous bill. At 706 pages, the bill is organized into three divisions addressing election access, campaign finance and ethics. Just the list of contents (including 10 titles, each divided into subtitles and numerous parts) is comprised of more than 3,600 words, which far exceeds the word limit for this article. The bill is further complicated because much of the text amends existing statutes, such as the National Voter Registration Act of 1993 (52 U.S.C. 20501 et seq.) and the Help America Vote Act of 2002 (52 U.S.C. 21081 et seq.). With bills like this, no wonder most Americans have become apathetic to our democratic processes and our government operations.
According to the Congressional Research Service (CRS), the For the People Act of 2019 “expands voter registration and voting access and limits removing voters from voter rolls.” But it is incumbent on us, the citizenry, to ask how this bill would achieve these ends if it were passed. In short, H.R. 1 would expand the federal government’s authority to dictate the way states conduct elections, including voter registration, early voting and voting by mail, regardless of current state law or the intent of the respective legislatures.
The bill is divided into three main parts, or “Divisions:” Division A, Election Access; Division B, Campaign Finance; and Division C, Ethics. For this article, I will focus on Division A, Election Access.
Division A, Election Access
I. Voter Registration Modernization
H.R. 1, Division A opens with a powerful policy statement, which states in part, “It is the policy of the United States that all eligible citizens of the United States should access and exercise their constitutional right to vote in a free, fair and timely manner.” To expand election access, H.R. 1 focuses primarily on “modernizing” voter registration by requiring states do the following: (1) accept online registrations through the internet; (2) establish and operate an automatic registration system; (3) permit same-day registrations; and (4) accept registration applications from individuals as young as 16 years old. H.R. 1 also offers financial incentives to states that increase involvement of individuals under 18 in public election activities and restricted the ability of states to remove voters from the official list of eligible voters.
[ADAM–ITAL SUBHEADINGS A & B]
A. Online Voter Registration
H.R. 1 would amend the National Voter Registration Act of 1993 by adding a new section devoted to internet registration. Under this section, each state would have to make available the option to complete and submit voter registration applications through the internet. The individual registrant must meet the same voter registration requirements applicable to mail-in registrants, including age and signature requirements. However, if an online registrant is unable to meet the signature requirements, H.R. 1 requires the state to permit the online registration and allow the individual provide a signature at the time he or she requests a ballot. The bill also requires states to treat those who register online in the same manner as those who register by mail.
B. Automatic Voter Registration
H.R. 1 would establish the “Automatic Voter Registration Act of 2019.” Finding that the right to vote is a fundamental right of citizens and that it is the responsibility of the state and federal governments to ensure every eligible citizen is registered to vote, the bill would require states to establish and operate automatic registration systems. Such automatic registration would be accomplished by a “contributing agency,” electronically transferring information necessary for registration to state election officials. As the title implies, the process would ensure automatic registration, unless the individual affirmatively opts out from such automatic registration.
The “contributing agencies” would include state agencies that control licensing or registration functions, such as the motor vehicle authority, administrator of social security or the Affordable Care Act, regulators of private possession of firearms and the agency responsible for maintaining enrollment information for the public secondary schools (see below regarding the bill’s lowered registration age to 16). Federal agencies may also be contributing agencies, including the Social Security Administration, the Department of Veterans Affairs, the Center for Medicare and Medicaid Services and the Bureau of Citizenship and Immigration Services (only with respect to individuals who have completed the naturalization process).
H.R. 1 prescribes a process whereby each contributing agency would transmit to the chief state election official the information for each individual registered in the contributing agency’s records. The chief state election official would then identify all eligible individuals who are not already registered to vote and then “promptly” send each identified person a notification along with an explanation that the registration is voluntary but will be automatic unless the individual declines the registration. The notification would also instruct the individual to decline registration if he or she is not qualified to vote.
The bureaucratic safeguards may look good on paper, but how effectively can they be implemented? The automatic registration process outlined in H.R. 1 reminds me of the penultimate scene in “Finding Nemo” when Dori is scooped up in a huge fishing net designed to capture everything in its path. The automatic registration requirement set forth in H.R. 1 is in fact a catch-and-release process that could open the door for widespread fraud.
II. Voting Opportunities
In addition to expanding voter registration, H.R. 1 seeks to increase voting opportunities by mandating early voting (to begin at least 15 days prior to and continue to the date of election) and voting by mail. I will focus on the latter, as we saw most states implemented some form of this blueprint due to the COVID-19 pandemic (five states required voters to provide a reason other than COVID-19 to vote by mail: Indiana, Louisiana, Mississippi, Tennessee and Texas).
H.R. 1 requires all states to allow eligible individuals to vote by mail upon request, as long as the state can verify the identification of the voter by comparing the signature on the ballot with the signature on the official list of voters in the state. Although H.R. 1 permits the state to adopt its own procedures for validating signatures, it prohibits any election official from determining that a discrepancy exists between signatures unless: (i) at least two election officials make the determination; and (ii) each official who makes the determination has received training in procedures used to verify signatures. If an election official does determine that a discrepancy exists between the signature on the mail-in ballot and the state list of registered voters, then the election official must make a “good faith effort” to immediately notify the individual and give that individual an opportunity to cure the discrepancy.
H.R. 1 also requires each chief state election official to file a report with Congress providing: (i) the number of ballots invalidated due to a discrepancy; (ii) a description of the attempts to contact voters to provide notice of the discrepancy; and (iii) a description of the cure process developed by the state, including the number of ballots validated as a result of the cure process.
It is interesting to see how the liberal-leaning news outlets presented the H.R. 1 bill back in 2019. NPR’s headline on January 5, 2019, read, “House Democrats Introduce Anti-Corruption Bill as Symbolic 1st Act” (npr.org/2019/01/05/682286587/house-democrats-introduce-anti-corruption-bill-as-symbolic-first-act). When the House Democrats passed H.R. 1, Brian Pascus of CBS News characterized it as “a sweeping anti-corruption and voting rights bill” (cbsnews.com/news/house-passes-hr-1-sweeping-anti-corruption-and-voting-rights-legislation-today-2019-03-08, Mar. 8, 2019). Vox proclaimed in its March 8, 2019, post, “House Democrats just passed a slate of significant reforms to get money out of politics” (vox.com/2019/3/8/18253609/hr-1-pelosi-house-democrats-anti-corruption-mcconnell).
Conversely, The Heritage Foundation focused on H.R. 1’s proposed changes to the election process. In a February 1, 2019, report (“Factsheet No. 182,” available at heritage.org/election-integrity/report/the-facts-about-hr-1-the-the-people-act-2019), Heritage issued this warning:
H.R. 1 federalizes and micromanages the election process administered by the states, imposing unnecessary, unwise and unconstitutional mandates on the states and reversing the decentralization of the American election process—which is necessary for protecting our liberty and freedom. The bill interferes with the ability of states and their citizens to determine qualifications for voters, to ensure the accuracy of voter registration rolls, to secure the integrity of elections, to participate in the political process, and to determine the district boundary lines for electing their representative
The report identified three key takeaways:
- 1) H.R. 1 federalizes and micromanages the election process administered by the states, imposing unnecessary, unwise and unconstitutional mandates on the states.
- 2) The bill interferes with the ability of states and their citizens to determine qualifications for voters and to ensure the accuracy of voter registration rolls.
- 3) H.R. 1 reverses the decentralization of the American election process—which is necessary for protecting our liberty and freedom.
III. Roadmap for 2020 Election?
There are striking similarities between some H.R. 1 provisions and the last-minute changes made in certain states to their respective election processes because of the COVID-19 pandemic. Four states in particular, Pennsylvania, Georgia, Michigan and Wisconsin, were subject to much debate and legal challenges after the election because of alleged voting irregularities and concerns surrounding the validity of the outcome, in which Joe Biden was named the victor in all four states. Most recently, the Supreme Court rejected a complaint brought by the Attorney General of Texas against these four states. Unfortunately, the Court rejected the case based on standing (the Texas Attorney General failed to show an actionable injury) and so did not review the substance of the complaint. Nevertheless, in reviewing the facts alleged in the complaint, it is interesting to see the similarities.
In Pennsylvania, for example, Secretary of State Kathy Boockvar issued guidance on September 11, 2020, that the election code does not authorize the county board of elections to set aside mail-in ballots based solely on signature analysis. This guidance, which was contrary to law, was part of a settlement agreement with the League of Women Voters of Pennsylvania and others, who sued Secretary Boockvar and other local election officials seeking a declaratory judgment that Pennsylvania’s existing signature verification procedures for mail-in voting were unlawful.
In Georgia, the Democratic Party of Georgia filed suit against the Secretary of State Raffensperger, which also resulted in a settlement agreement. The agreement materially changed the requirements under the Georgia Code for verifying signatures on mail-in ballots and made it much more difficult to challenge a defective signature. The process mandated by the settlement agreement required that before a ballot could be rejected, the election official who discovered a defective signature would have to seek a review by two other officials, and only if a majority of the officials agreed that the signature was defective could the ballot be rejected. Sound familiar?
In Michigan, Secretary of State Jocelyn Benson launched a program in June 2020 that allowed absentee ballots to be requested online without signature verification.
We have all heard the emotional outcries condemning the 2020 election. What we have not heard about is how H.R. 1 may have foreshadowed what developed under the COVID-19 excuse umbrella.
After the election, Kimberley Strassel wrote an opinion piece for the Wall Street Journal, titled, “Harvesting the 2020 Election” and the tagline, “Pelosi’s top priority was remaking the electoral system. The virus gave her a boost.” Wall Street Journal, November 12, 2020. In her opinion piece, Ms. Strassel points out that H.R. 1 highlighted the majority party’s top priority for the 2019–2020 legislative session. “When Mrs. Pelosi retook the speaker’s gavel in 2019, her party had just campaigned on a slew of urgent Democratic priorities: health care, climate change, immigration, student debt. None of these rose to the honor of H.R. 1.” Ms. Strassel’s piece is available at wsj.com/articles/harvesting-the-2020-election-11605221974?mod=article_inline.
As I write this, the Senate Homeland Security and Governmental Affairs Committee is holding a hearing on 2020 voting irregularities. It will be interesting to see what, if anything, comes out of this inquiry. We are at the tail end of the 116th legislative session, and the allegations of voter fraud and irregularities made possible under the mail-in voting structure are not dying down, much to the chagrin of the Democrats and most of the media (including Fox News). But regardless of what happens with these claims, do not think we have seen the last of the For the People Act. No doubt it will be resurrected in the 117th Congress and may very well become law.
***The information contained in this article is for general informational and educational purposes only and is not intended to be construed or used as legal advice or as legal opinion. You should not rely or act on any information contained in this article without first seeking the advice of an attorney. Receipt of this article does not establish an attorney-client relationship.
About the Author Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (reevesdola.com). For more than 17 years she has dedicated her practice to advising and representing U.S. companies on compliance matters arising under the federal firearms laws and U.S. export controls. Since 2016, Johanna has served as a member of the U.S. Department of State’s Defense Trade Advisory Group (DTAG). From 2011 through 2020, Johanna served as Executive Director for the Firearms and Ammunition Import/Export Roundtable (F.A.I.R.) Trade Group (fairtradegroup.org). Johanna can be reached at jreeves@reevesdola.com or 202-715-9941.
| This article first appeared in Small Arms Review V25N3 (March 2021) |
