September 14, 2021
On September 14, 2021, Senators Klobuchar, Warnock, Merkley, Manchin and four other senators introduced the Freedom To Vote Act, a compromise to The For The People Act, which was already destined to die in the Senate at Mitch McConnell’s hand and which even Democratic Senator Joe Manchin had refused to support. With The For The People Act officially dead, how should we feel about the new compromise bill? At this point, perhaps surprisingly good. Two of the heaviest hitters on voting reform, Marc Elias and Michael Waldman, both came out publicly as strongly supporting the Freedom To Vote Act on September 14, 2021, the very day the bill was introduced in the Senate. This post summarizes the thoughts of both Elias and Waldman on the Freedom To Vote Act. The full text of the bill may be read online by clicking on the link at the end of this post. The bill may also be downloaded and shared on Twitter and Facebook. (The full text of The For The People Act may be found on the previous post.)
Marc Elias is a nationally recognized attorney who is best known for bringing a multitude of successful lawsuits against states enacting voter suppression legislation. Formerly an attorney at the mega-firm of Perkins Coie, Elias has recently formed his own law firm, the Elias Law Group. Elias is also the founder of Democracy Docket, a news website focusing on voting rights and election litigation in the United States. Democracy Docket has been described as “a leading progressive platform dedicated to opinion, advocacy and information about voting rights, elections, redistricting and democracy.” The following text is from an article titled “My Thoughts on Manchin’s Compromise Bill,” published by Elias on the Democracy Docket website on September 14, 2021.
“When it comes to voting rights, being asked to compromise is typically a warning sign. There is no middle ground between the arsonist and the firefighter. Just as we don’t ask the media to compromise their right to publish news stories, we should not require citizens to compromise their rights as voters.
After considering the For the People Act this past summer, Senator Joe Manchin, along with other key Senate Democrats, used the August recess to draft a long-awaited revision of the landmark voting rights bill.
The Freedom to Vote Act, introduced this morning, reveals a surprisingly good voting rights bill. It reflects a sobriety and understanding of the challenges facing voters that is worthy of its lofty name. It is not just a reformulation of the prior For the People Act, but in many places, it is an improvement.
Much of the new bill is familiar to those concerned about voting rights in our country. The new bill establishes minimum requirements for how states conduct federal elections. It expands voter registration, requires a minimum number of days and hours for early voting and creates a nationwide right to vote by mail.
With respect to voting by mail specifically, the bill rolls back many of the Republicans’ latest disenfranchisement schemes. For example, the bill forbids states from requiring notarization or witnesses to vote by mail. It also requires states to count ballots cast by Election Day if they are received up to seven days after the election. It provides for a free postage system for returned ballots, requires states to notify voters whose ballots are rejected due to a signature omission or mismatch and creates an easy way for voters to cure those ballots.
What makes this new bill exceptional, however, is its attention to several small, but important details that have been raised in the last few months. For example, it requires states to count provisional ballots cast by eligible voters in the wrong precinct but in the correct county. It also imposes a 30-minute limit on wait times for in-person voting. And, in a nod to a significant court victory in Florida, it requires polling locations on college campuses.
To prevent voter intimidation, it prevents frivolous challenges to voter qualifications. This provision alone would undo the worst provision of the Georgia suppression law. It bans the pernicious practice of voter caging as a technique to illegally purge voters. It restricts who can serve as poll observers and how close they can be to a voter (no closer than eight feet). It prevents states from outlawing the provision of food and water to voters waiting in line to vote.
The new bill would also provide increased protections for election workers. It would give them new protections from harassment and intimidation, while also making it harder to fire them for improper reasons.
To prevent excessive partisanship from dominating the redistricting process, the new bill imposes new standards prohibiting partisan gerrymandering. It also ensures that Republican efforts to rush new gerrymandered maps into place ahead of its passage will fail.
But, the crown jewels of the Freedom to Vote Act are contained in the judicial review provisions. The bill not only creates a specific “right to vote” in federal elections but guarantees it. Under the new bill, states would be prohibited from enacting laws or policies that are “retrogressive” — i.e., that make voting harder. In addition, the bill would subject significant state restrictions on the right to vote to heightened judicial scrutiny. In another small but important improvement, the new bill allows for virtually all voting rights cases to be filed in the U.S. District Court for the District of Columbia, which has the promise of creating a national, uniform pro-democracy jurisprudence.
Put simply, if the new bill is enacted, more citizens will be able to register to vote, vote in person and by mail and have their votes counted. And, those of us fighting suppression laws in court will have the tools necessary to achieve fast, consistent victories for voters when states fail to follow the law.
This, of course, does not mean the new bill is perfect.
While it gives election officials more protections, it does not tackle the underlying problems facing our counting and certification process. That will require a much more extensive rewrite of how states conduct post-election tabulation and certification. There are provisions, like the new 30-minute standard for in-person voting wait times, that lack sufficient enforcement mechanisms. And, there are additional provisions Congress could add that would prevent the undermining of our elections, such as heightened legal pleading standards for claiming fraud and additional safeguards to the right to vote.
None of these omissions or revisions to the bill are deal breakers. All can be fixed as the legislative process proceeds.
One of the biggest objections to the framework Senator Manchin announced in June related to a national voter identification requirement. The new bill permits states to decide whether to require voter identification, but broadens the list of acceptable IDs for states that choose to require them. Under the new bill, states must allow utility bills and leases as well as student IDs and virtually any identification issued by a governmental entity to serve as an acceptable ID. In effect, the bill would require states with stricter ID laws to accept these documents as well, thereby reducing the disenfranchisement caused by strict ID laws in many red states.
Before the summer recess, Senate Majority Leader Chuck Schumer promised that “last month’s vote [on the For the People Act] represented the starting gun—not the finish line— in our fight to protect our democracy.” While we have not yet reached the finish line, this week he, and Senate Democrats, took a very big step towards making good on that promise.”
Michael Waldman is an attorney and political advisor. He is the president of the Brennan Center For Justice at the NYU School of Law, which he has lead since 2005. The Brennan Center describes itself as “a nonpartisan law and policy institute working to reform, revitalize, and defend our country’s systems of democracy and justice. We work to hold our political institutions and laws accountable to the twin American ideals of democracy and equal justice for all. The Center’s work ranges from voting rights to campaign finance reform, from ending mass incarceration to preserving Constitutional protection in the fight against terrorism. Part think-tank, part advocacy group, part cutting-edge communications hub, we start with rigorous research. We craft innovative policies. And we fight for them — in Congress and the states, the courts, and in the court of public opinion.”
In an article titled “Senators Introduce Freedom to Vote Act; Brennan Center President Michael Waldman Reacts,” published by Waldman on the Brennan Center website on September 14, 2021, Waldman offered the following brief but overall positive comments:
“The Freedom to Vote Act is a very strong bill. It gives powerful new momentum to the fight to protect democracy. It should be passed, and soon.
The Freedom to Vote Act would protect millions of Americans’ access to the ballot box, now under siege by state laws meant to disenfranchise voters and subvert our elections. It would defend civil rights and advance racial justice. It would ban gerrymandering, which entrenches political party control and denies communities of color fair representation. It would curb the role of big money in our democracy through stronger rules on campaign finance and voluntary public financing of elections with an innovative new funding mechanism.
There is now no substitute for action. As redistricting unfolds across the country, time is of the essence. Lawmakers from both parties should embrace this new legislation, and will do so if they are serious about protecting democracy.”
The full text of the Freedom To Vote Act can be viewed in your browser by clicking on the link below titled “Freedom To Vote Act (Full Text).” Other links allow the full text to be downloaded to your device and shared on Twitter and Facebook.