Is Democrats’ voting rights bill too big and doomed to fail? Even some who support it think so

Even backers of the whopping bill are sounding the alarm on “unrealistic” timelines and inflexible provisions

By Igor Derysh

Managing Editor

Published April 10, 2021 6:00AM (EDT)

Senator Amy Klobuchar (Sarah Silbiger-Pool/Getty Images)
Senator Amy Klobuchar (Sarah Silbiger-Pool/Getty Images)

Democrats have coalesced around the For the People Act — also known as H.R. 1 — a sweeping voting rights bill that the party says is necessary to respond to a Republican onslaught of voting restrictions around the country. But years after the bill was first introduced, state election administrators worry that their concerns about "impossible" provisions and "unrealistic" timelines are still being ignored in the scramble to pass the legislation.

The massive 800-page bill includes voting rights provisions that would implement national automatic voter registration, ensure access to mail and early voting, restore voting rights to former felons and shore up election security. It also includes numerous measures to address gerrymandering, money in politics and ethical reforms. Proponents of the bill say the legislation would "stop voter suppression in its tracks." But even some supporters of the bill are concerned that the election administration provisions buried inside the package — separate from the voting rights measures — could make the next election a "total clusterfuck," as Jessica Huseman, editorial director at the nonprofit newsroom Votebeat, wrote in a recent Daily Beast op-ed.

"The thing that most alarms me about the bill is how unrealistic it is for election administrators, even extremely well-intentioned ones, to pass this in the timeframe and with the budget that this allows," Huseman said in an interview with Salon.

Election administrators have quietly lobbied Congress to modify some of the requirements that they believe are "onerous or impossible to put in place by 2022," The New York Times reported last week, after complaining that they were "simply not consulted" on provisions in the bill they worry "overreaches in some places and issues contradictory orders in others."

"I don't know what they were thinking, honestly," the head of an election nonprofit told Huseman. "It's a bad bill. The goals might be admirable, but it's a fucking bad bill."

Some advocates of the legislation have dismissed these concerns, arguing that the ambitious timelines are necessary to push election officials to expedite reforms.

"Voting laws do not exist for the convenience of election administrators," prominent Democratic election attorney Marc Elias said on Twitter. "They exist to protect voters."

Huseman said that argument is "really condescending."

"Election administrators have been working late nights since the pandemic hit to make sure that people can vote effectively by mail. It required an incredible amount of resources and time and organization just to transition from where we were to a partial vote-by-mail system," she said.

Democratic aides pushed back on the claim that election administrators were not consulted. The Senate Rules Committee has held hearings with secretaries of state and other stakeholders and is expected to hold additional hearings in the coming weeks, as well as behind-the-scenes conversations.

A Rules Committee spokesperson gave Salon a statement defending the work put in by two prominent Democrats, Sen. Amy Klobuchar of Minnesota and Sen. Jeff Merkley of Oregon. "As chair of the Rules Committee, Senator Klobuchar has been working with the bill's chief author Senator Merkley as well as the Secretaries of State who are offering constructive ideas," the spokesperson said, stressing that the drafting of the bill is an ongoing process. "We've engaged with state and local election officials throughout this process and have made adjustments based on their feedback and will continue to do so."

One of the provisions cited in Huseman's reporting, which included an "automated telephone-based system" for voter registrations, has already removed from the Senate version of the bill, for example. But while Huseman acknowledged that the problems are "absolutely not unfixable" and Senate staffers working on the bill have been "more engaged" on these issues than House staff, she said the Senate version of the House bill introduced last month "made none of the changes" election administrators have advocated.

"It seems to me that the folks who are publicly in support of this don't really understand the impact that would have on their states," she told Salon.

Fred Wertheimer, the president of Democracy 21, a nonpartisan nonprofit that aims to strengthen elections and is backing the For the People Act, said he expects the Senate to address the concerns raised by election administrators.

"I expect those revisions would take place," he said in an interview. "That happens all the time. We have proposed changes at various points in these kinds of battles."

Some election administrators have raised concerns that the early voting requirements would require a county of 2,000 residents to keep polls open up to 10 hours a day for 15 days, even in off-year primaries that may only draw a "handful" of voters, The Times reported. Some also worry that a provision requiring them to accept late-arriving mail-in ballots up to 10 days after the election and another measure giving voters up to 10 days to correct ballot mistakes would result in a 20-day lag that "threatens to cause havoc" in the election certification process.

The legislation may be too specific in imposing uniform requirements on areas that have vastly different circumstances, Tammy Patrick, a former Arizona election official who served on the Presidential Commission on Election Administration, said in an interview with Salon. Legislation requiring uniformity of voting hours may sound good on its face, she said, but it could prevent additional access opportunities like mobile voting buses or pop-up voting locations.

"The timing of things needs to be a little more flexible just across the board, because there are some places where you can do things more quickly and for longer," said Patrick, who serves as a senior elections adviser at Democracy Fund, an independent nonpartisan group that aims to strengthen elections. Some states "literally don't have the kind of infrastructure" needed to comply with the bill's requirements, she said.

While some jurisdictions will likely have no problem complying with certain requirements, others may find them "incredibly problematic," Patrick added. "I think there's some real challenges that need to be fixed in the language itself to make sure that voters have as many options as they should, so that they have the ability to be able to vote when and where they need to or want to."

Many of the concerns are also aimed at the timelines imposed in the bill. One provision would require states to shift redistricting to independent commissions for maps drawn this year, which officials told the Times would be "all but impossible to meet," especially as the political battle to pass the legislation — against near-certain unanimous Republican opposition — threatens to further compress the schedule to implement the bill's provisions if it finally is approved.

"The time pressures for getting new legislation in place for the 2022 elections are being driven by what Republicans are doing in state legislatures across the country," Wertheimer said. "Frankly, we're in a race to prevent what I believe are the greatest efforts of voter suppression that we have seen in legislatures since the Jim Crow era."

One provision in the bill would require states to buy new paper-backed voting machines that are compliant with new standards approved by the tiny Election Assistance Commission by 2022. But, Huseman reported, the machines "don't even exist yet" because the new standards were only approved in February and the certification process could take another eight to 12 months. Ryan Macias, a former EAC staffer, said that the timeline is "most likely unrealistic." The Brennan Center for Justice at NYU Law School, a leading backer of the legislation, also called for the provision to be "eliminated or altered" while also stressing the need to make the change to paper-backed machines quickly and with a "firm deadline."

"It blows my mind that section wasn't fixed," Huseman said, adding that it shows "this bill was not written in coordination with any election officials," a point Democratic aides refuted because the guidelines were not approved until after the House bill had already passed, saying the Senate version is expected to be updated.

"Election administrators weren't really involved in this conversation until after the bill passed the House," Huseman said. Based on her conversations with those officials, she added, "It's very clear that the authors of this bill have a very antagonistic view of local election administrators who would be pulling this off. There is this deep belief among a lot of the people who are writing this bill that election administrators should be seen as enemies rather than partners in  implementation. That antagonistic view, I think, has really hurt this bill."

The bill would also require states to allow anyone who interacts with the DMV and numerous state social service agencies to automatically register to vote. This provision could pose serious challenges since some state social service agencies maintain their data on mainframes or even simple text files that are not connected to anything, Huseman said.

"It's entirely impossible to implement automatic voter registration in the timeframe and with a budget that this bill has afforded election administrators," she said. "AVR is not a thing that you can just do overnight. For example, a few years ago, California and Illinois, both with very Democratic-leaning legislators, passed bills that required both states to implement automatic voter registration, I think within two or three years — which is exactly what this bill would do — and both of those states still do not have functional automatic voter registration systems. I don't really see how that serves voters."

Other states, such as Michigan, Maryland and Washington, have been able to implement automatic voter registration quickly. The Brennan Center also notes that the AVR timeline includes a waiver provision for states that cannot meet the 2023 deadline to extend the effective date until 2025, and Congress can extend the deadline for state agencies outside the DMV beyond 2025.

Michigan Secretary of State Jocelyn Benson, a Democrat, testified to the Senate Rules Committee that "with sufficient funding, partnerships, leadership and political will, it is entirely possible to sufficiently and successfully implement" to implement the AVR provision of the bill.

Huseman argued, however, that even the 2025 deadline may be unrealistic given the "small amount of money that is afforded going forward in the bill."

The legislation is not an appropriations bill, but it does authorize $1 billion to help states improve their voting systems in 2021 and an additional $175 million in each of the next four election cycles. It also includes another $500 million in 2021 to fund automatic voter registration. That means states are likely on the hook for a large part of the funding needed to comply with the bill, though Congress could authorize additional funds in the future.

Huseman argued that $175 million may not be enough to revamp election systems in a single state, like New York, "because New York's technology is just absolutely terrible. I mean, in order to accommodate the things in this bill, New York would have to buy all new computers for every single social services agency in the state. it's just a gargantuan task."

Patrick agreed that connecting so many agencies that rely on outdated hardware will require a lot of investment in "modernization," and that the money provided in the bill is "definitely not sufficient to do that."

"We need to make sure that if we're going to pass a law that talks about modernizing voter registration, we're providing sufficient funding to some of these other agencies as well," she said.

Huseman questioned why the bill uses the EAC, a tiny federal agency with few staffers, to distribute money among states, noting that Democratic leaders like House Speaker Nancy Pelosi, D-Calif., had recently criticized the agency.

"Pelosi's office, all the folks that are most supporting this bill, called all four commissioners to the fucking carpet in October or November of 2019 to say that the agency was mismanaged, it was feckless, it wasn't doing what it needed to do," she said. "The agency has not changed. So why the bill vests so much authority in the EAC is beyond my ability to understand."

Congress has provided federal election funding in recent years as well, but "it hasn't necessarily been the case that all or any of that money has trickled down to the local election officials," Patrick said. "Not only does the funding need to go to the state, but there needs to be some sort of a channel or mechanism to make sure that the boots on the ground where the election is actually being conducted, that they receive some of that funding as well."

But Patrick predicted the EAC was a "fine" choice if it receives get additional funding to expand its staff, saying they have "done a good job with election-related grants," an argument echoed by Democratic aides.

The Brennan Center acknowledged that the EAC has "sometimes been ineffective at meeting statutory responsibilities in the past," but said the agency has new leadership and has shown that it can "successfully and quickly distribute funds allocated by Congress."

Some provisions in the bill also appear contradictory. The bill requires electronic poll books — those tablets poll workers use to check in voters — to comply with new standards that do not yet exist and to be included in its definition of "voting systems." But federal standards bar any part of voting systems from being connected to a network, whereas e-poll books are typically connected to the internet so poll workers can ensure voters do not cast ballots at multiple or incorrect locations.

"Defining them as part of voting systems would basically force them to be pointless," Huseman said, though this problem could be addressed with a simple technical fix.

The Brennan Center argued that including e-poll books as part of voting systems is important to address security vulnerabilities, and that proposal has received bipartisan support. Thirteen states already certify e-poll books with a patchwork of varying standards and "there is no reason" the EAC should not be required to include e-poll books in federal voting systems guidelines to address the conflicting standards, the organization said.

Other provisions may prove costly to local election offices. One provision requires paper ballots to be stored for 22 months, requiring warehouses that "cost money rural counties don't have, and take up space urban counties have run out of" without providing funding for secure storage, Huseman reported. Another provision encourages election offices to use self-sealing envelopes, which can run costs up by an additional 30% without any real justification.

Some election administrators are particularly worried about a private right of action provision that would allow voters to sue if any of the rights enshrined in the bill are violated. While private right of action is not new and has helped expand voting rights, the provision ignores that most polling locations are not operated by any government agency and could leave election administrators open to lawsuits over things they can't control, Huseman said. If a water line breaks at a polling station located in a church, for example, voters may be forced to stand in line longer than the 35 minutes allowed in the bill.

"It's just not a reasonable thing to sue over. Certainly no judge would hold the county responsible for not being prepared for something like that, but that doesn't mean the county won't have to defend themselves in court and spend thousands of dollars doing it," Huseman said. "Counties are incredibly understaffed, they are incredibly under-resourced, most of them do not have an in-house attorney that is paid to do this stuff. I think that private right of action is great, but only when it is aimed at the institutions that are actually responsible for the harm. In this case, it holds county and state elections officials responsible for problems that they cannot foresee and that they cannot solve."

The Brennan Center argued that while the bill's private right of action provision is "admittedly broader than in the most recently passed election legislation, it is important to have an alternative enforcement mechanism if states refuse to implement the commonsense reforms contained in this bill and the Justice Department fails to enforce the statutory requirements." The organization added that Congress could pare back the provision to "exclude purely administrative reforms, or a safe harbor provision can be added for jurisdictions that take reasonable efforts to comply" with the law's requirements. 

Patrick told Salon that it is important to talk about these issues in April of 2021 rather than April of 2022, "because then we wouldn't have enough time."

Some aspects of the bill, she said, "could be implemented in time for the next midterm and still allow for jurisdictions to iron out the kinks as they go through their local and municipal elections in the next year. I think there is time, but it all depends on how quickly it actually gets implemented, and whether or not it allows enough flexibility for state and local officials to find out the best way to pull it off with the resources they have."

By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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