Did you enjoy the 2020 election process? How about making the 2020 elections a permanent fixture in our democracy? Well, that’s what Speaker Nancy Pelosi wants and more, and she has a big head start in the design work in H. R. 1 and its Senate companion S. 1, called “For the People Act of 2021”, all in only 800 pages, and it is horrible. In a nutshell, it is loaded with provisions “that would federalize election rules to dubious result; unsettle longstanding practices; end security measures that local officials think prudent; undermine public confidence; and increase the odds of contested conflict”, as the Wall Street Journal characterizes it.
In addition, it would overrule state laws against ballot harvesting, would make it harder to delete faulty records from voter lists, provide that felons couldn’t be denied the ballot, with the exception of those imprisoned, will create a federal right to a mail ballot, prohibit any form of identification as a condition of obtaining an absentee ballot, and late arriving ballots would be valid nationwide for ten days after Election Day.
There is a lot more, but you get the flavor. And a big disappointment is that the Supreme Court failed to take advantage of an opportunity to weigh in on the problems with the 2020 election rules when it decided 6-3 not to hear the case challenging Pennsylvania’s November 3 election results. There weren’t enough votes at stake to have made a difference in the outcome, but it would have been nice to have the Court rule on the core constitutional issues in the way the Pennsylvania Supreme Court radically changed election procedures just before election day. In dissent, Justice Clarence Thomas wrote, “This is not a prescription for confidence…changing the rules in the middle of the game is bad enough…..These cases provide us with an ideal opportunity to address just what authority non-legislative officials have to set election rules, and to do so well before the next election cycle.” He was joined by Samuel Alito and Neil Gorsuch in dissent. Chief Justice Roberts was silent. A missed opportunity indeed, and if these questions are not addressed soon, we will have another train wreck in 2022.
At least as disturbing as the election procedural issues, according to the Institute for Free Speech, “buried in H. R. 1 is a censor’s wish list of new burdens on speech and donor privacy. It proposes a democracy where civic engagement is punished and where fewer people have a voice in our government, our laws, and public life…….including provisions that unconstitutionally regulate speech that mentions a federal candidate or elected official at any time under a vague, subjective, and dangerously broad standard that asks whether the speech ‘promotes’, ‘attacks’, ‘supports’, or ‘opposes’ the candidate or official.” It does this by creating a new category of regulated speech called “campaign-related disbursements” by non-profit advocacy groups and others interested in communicating about public policy issues. Read it and weep.