An expensive and aggressive lobbying step was taken Monday on the uphill climb for HR 1, the congressional Democrats' catchall package for assuring that voting gets easier and governance becomes more fair and ethical.
A pair of progressive organizations announced they will spend $30 million on television and digital advertising, direct lobbying, and creating grassroots pressure on the Senate. Part of the effort is to coordinate with other democracy reform groups to build momentum for what could become one of the most consequential victories over voter suppression since the 1960s.
The legislation's paramount obstacle is unified Republican opposition magnified by the filibuster, which is supposed to help democracy by giving the political minority influence but has also made partisan deadlock the norm. Advocates of HR 1 assert that, if there's ever a moment to confront the filibuster's perverse consequences, it's to pass a measure designed to resuscitate democracy itself.
So far, that argument has not proved persuasive to the two Democratic senators who have publicly committed to retaining the de facto 60-vote requirement for passing most bills, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona. Some of the money in the new campaign — run by the National Democratic Redistricting Committee and End Citizens United's Let America Vote Action Fund — will surely be allocated in an effort to woo them. The organizations say they will run ads in at least a dozen states and finance organizers to target both Democratic and Republican centrist senators in six of them.
But Manchin and Sinema by themselves have the power to preserve the status quo by siding with the 50 Republicans, who deride the Democrats' democracy bill as an electoral power grab in the guise of reform — and are keen to preserve their biggest tool to combat (or else compel bargaining with) President Biden and his fellow Democrats now in control of the Capitol.
It is not yet clear the Senate's consideration of HR 1 will be the venue for deciding the filibuster's future. Democratic leaders are contemplating several modifications that would make the weapon more difficult to deploy but not eliminate it altogether. While gauging support for those, over the next few weeks they intend to focus on legislation with at least a hope of bipartisan support — on infrastructure and China, for example — in part to test the willingness of the GOP to collaborate.
In addition, Democrats say they want to put the democracy reform package through something of a normal legislative process. That means hearings and a committee debate before a climactic vote on the Senate floor. But the Senate companion bill, dubbed S 1 by the Democrats for similar symbolic impact, has not yet been formally introduced, and the first hearing is not expected before next week
The bill, which the House passed two weeks ago on almost pure party lines, has gained significantly more public attention than when it was first deliberated two years ago. That's mainly because the Democrats have started marketing it principally as a voting rights package that would countermand the extraordinary efforts in almost two-dozen Republican-run states to make casting a ballot much more difficult than in 2020.
To be sure, the measure is packed with provisions designed to make voting equally easy no matter where people live — even if that means reversing a wave of new restrictive state laws unmatched since the Jim Crow era.
The bill would require the minority of states that don't already do so, for example, to allow no-excuse absentee voting as well as at least 15 days of in-person voting before Election Day. And it would nationalize online registration, same-day registration for federal elections and automatic registration of eligible voters when they do business with their state agencies — practices not in effect in about a quarter of the states.
It would restrict how states cull, or purge, their voters rolls and make the Postal Service help people re-register to vote when they change their addresses. It would require states give at least a week's notice before changing a polling place location — and assure the average wait times for voting are less than half an hour.
But the new campaign is being spearheaded by groups that have until now been more keenly interested in other aspects of the sprawling package.
End Citizens United is a prominent voice for limiting big money in politics, and so has been primarily focused on language that would create a system of 6-to-1 matching funds for congressional candidates who refuse donations above $1,000 and boost disclosure requirements for politically active advocacy groups.
The National Democratic Redistricting Committee, meanwhile, has mainly focused on the provision turning all congressional redistricting over to politically independent commissions in each state — on the assumption that partisan demographics will put most of the cartography in GOP hands for the foreseeable future.
But the bill's reach extends even further, from ensuring felons could vote after release from prison, to beefing up election cybersecurity, to establishing ethics codes for Supreme Court justices, the president and other executive branch officials.
"This historic investment will harness the grassroots energy for unrigging the system in Washington to make it work for everyone, not just those on top, and will make it clear to the Senate that we must pass this bill," said the announcement by the two groups, who recently released polling they commissioned finding 83 percent support for the bill.
"This is a power grab" by the Democrats, GOP Sen. John Cornyn of Texas said Sunday on Fox News. "It's that simple. They want to install a permanent partisan majority in the United States when it comes to voting in elections."
To be sure, nationwide easements of access to the polls would increase participation, especially by minority voters who disproportionately lean Democratic.
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When Louis DeJoy became postmaster general in 2020, Democrats and vote-by-mail advocates feared the Trump appointee would act to slow the Postal Service's processing and delivery of election materials, even as demand for mail ballots surged during the pandemic.
But DeJoy told Congress in August that ballots would be delivered on time, and a new report from the USPS inspector general proves he largely kept his word.
According to the report, 94 percent of trackable election mail — such as ballots and voter registration applications — was delivered within the expected service window of 2-5 days for first-class mail, and even for some election mail that was sent as a lower class.
While the Postal Service did not hit its on-time delivery goal of 96 percent for election mail, the report noted that, thanks to prioritization by the agency, such mail exceeded on-time processing of other first-class mail by more than 5 percentage points and showed an 11-point increase over 2018.
"The Postal Service prioritized processing of Election Mail during the 2020 general election, significantly improving timeliness over the 2018 mid-term election even with significantly increased volumes of Election Mail in the mailstream," the report states. "Although timeliness was slightly below goals, proper handling and timely delivery of all Election Mail, especially ballots, was the number one priority of the Postal Service."
From Sept. 1 to Nov. 3, USPS processed 134 million pieces of election mail, but only 53 percent could be tracked for performance. The remaining pieces lacked unique barcodes — which are applied at the discretion of state or local elections boards — or were not scanned properly.
According to the U.S. Elections Project, more than 92 million mail ballots were requested or proactively sent to voters in 2020, and more than 65 million were returned by mail.
The Postal Service took a number of steps to increase election mail performance, according to the report, including:
- Treating all election mail as first-class, even if sent as marketing mail, pre-approving overtime during a critical stretch around Election Day and providing extra transportations services. (These steps were mandated by a court order.)
- Expediting delivery of ballots as Express Mail in the final week of voting.
- Speeding up postmarking and sorting.
While election mail performed better, political mail (content created by candidates, campaigns and parties for political purposes) went the other way. Such mail was down 3 points from 2018, showing a 92 percent on-time rate but matching the standard for marketing-class mail.
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The reversal of voting by mail's standing and credibility, with Donald Trump gone and Washington newly in Democratic hands, appears complete.
A symbolic capstone on the transformation — from obscure second-tier cause of democracy reformers before the pandemic, to the heart of Trump's crusade of lies about the election, and now to an established aspect of good governance — was delivered Wednesday by President Biden. He said he wanted to put Amber McReynolds, the most prominent evangelist for absentee balloting as head of the National Vote at Home Institute, on the board that oversees the Postal Service.
Assuming she is confirmed by the Senate, which seems likely given initial positive reaction to the nomination, McReynolds would bring several types of diversity to the job. She would become the only woman on the board, and also its first member with expertise about how the beleaguered USPS could become a lasting force for good in the electoral system.
Of the three Biden proposed for the board of governors, McReynolds is also the only political independent. But her tiny nonprofit advocacy group has gained outsized influence among the mainly left-leaning voting rights organizations that pushed last year to make access to the ballot box easier because of Covid-19 — and are now working to protect those gains from a barrage of Republican efforts in state capitals to roll back the rules.
Slightly more than 40 percent of all votes for president arrived in envelopes last fall — 65 million of them, tens of millions more than in previous elections, either returned by mail or put in drop boxes. The record-shattering number would surely have been higher except for two things: deficiencies in the Postal Service's ability to deliver the ballots to election offices in time to be counted, and Trump's constant false claims about the mail guaranteeing widespread election fraud.
McReynolds, who turns 42 next week, took over the fledgling Vote at Home Institute in 2018 after spending most of the previous decade as the top elections official in Denver, a time when Colorado became the first somewhat politically purple state to switch almost entirely to vote-by-mail.
But her standing in the fix-the-system world was obscure enough that, when the National Association of Nonpartisan Reformers met in Denver in December 2019, her impassioned presentation about the civic virtues of remote voting drew a smaller audience than panel discussions on money in politics or ranked-choice voting. That all changed three months later, when the pandemic took hold of the country and her organization rushed to produce a report for election officials in all 50 states detailing how they could combat the spread of disease by proactively mailing ballots to all voters and giving the option to return them in postage-paid envelopes or secure drop boxes, or with a trip to election offices or voting locations.
Biden's other nominees are Anton Hajjar, a former general counsel of the American Postal Workers Union, and Ron Stroman, who stepped down as deputy postmaster general last year. Their confirmations would mean a board with equal numbers of Democrats and Republicans, with McReynolds the partisan tie-breaker.
This could give her enormous influence over the future of the agency — starting with the fate of Postmaster General Louis DeJoy. The major Republican donor took the job last year and immediately confronted intense criticism for quick changes that prompted national mail slowdowns, and sustained skepticism that his policies were designed to make Trump's derision of voting by mail into a self-fulfilling prophecy.
The criticisms have not let up. While the election was not extensively sullied by postal problems, service delays and financial woes persist. At a testy hearing Wednesday before the House Oversight and Reform Committee, DeJoy defended his stewardship and said he would press ahead with plans to raise prices and slow the mail.
The new makeup of the board could influence the efforts by Democrats in Congress to bolster the future of mail voting, including with potential federal subsidies, in time for the 2022 midterms. That effort could help counter the restrictive absentee ballot measures now moving through many GOP-run legislatures, including those of battlegrounds Georgia, Arizona and Pennsylvania.
Some leading GOP members of Congress, even those who voted to certify the Electoral College count in the face of Trump's lies about the election, are nonetheless supporting such bills.
Former Senate Judiciary Committee Chairman Chuck Grassley of Iowa endorsed a measure, which the Repubican-majority General Assembly of his state cleared this week along party lines, that would reduce the days for early in-person voting, close polls earlier on Election Day and set stricter standards for using absentee ballots.
"State legislatures ought to be working on laws that will enhance the protection for mail-in ballots the same as what we have protection for voting in person," told reporters Wednesday. "In other words, the person that casts the ballot is the person that asks for it and is properly registered and property identified and somebody else isn't voting the ballot."
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We haven't yet seen evidence that would cast doubt on the legitimacy of the 2020 presidential election — even with the unprecedented challenges of a global pandemic, the threat of foreign interference, civil unrest and greater turnout than any time since 1900. That counts as a resounding success.
Once the final tallies are certified, we need to thank the election administrators and poll workers whose heroic efforts preserved American democracy. After that, we need to assess what worked best and what needs to improve, so we can identify achievable steps to make future elections even more secure.
Based on what we know so far, here are five things that should be on the U.S. elections to-do list:
First, counties in eight states are still using paperless voting equipment exclusively. We need them to transition to paper-based systems, providing financial resources if necessary. Voting equipment without an auditable paper trail can produce results that are inconsistent with voter's choices, either because of hackers or a technical failure. In 2020, more than 90 percent of votes were cast on paper-based voting equipment, including all of the states President Trump is contesting or that haven't been called. That's an improvement over the 2016 election, when 80 percent of votes had a paper record. The goal for the 2024 election should be 100 percent.
Second, all states using voting equipment with an auditable paper trail should conduct robust audits before election results are certified. This will ensure all ballots are counted correctly. It will also allow discrepancies to be remedied and reflected in the final results. If any issue threw off the count, election officials would be even more likely to spot it and re-create an accurate count with paper records.
Third, any jurisdictions without backup manual processes for each of their election technologies must obtain them. No technology is infallible. Each piece — including electronic poll books, electronic voting systems, and online voter registration websites — has vulnerabilities that can be exploited or could experience technical failures. As we saw with the 2020 presidential election, safeguards such as backup paper poll books ensure election infrastructure failures only slow down voting, rather than stop it.
Fourth, bolster the mail-in balloting process. Due to the pandemic, far more voters requested absentee ballots this year. Preliminary evidence suggests that relatively few of these ballots have been rejected. Unfortunately, U.S. Postal Service data also shows that at least 150,000 ballots arrived the day after the election, leaving many votes out of some states' counts. To prevent this from happening again, there should be an investigation of USPS processing of election mail. It should determine how many ballots were late to election offices through no fault of the voter.
Fifth, states should also adjust deadlines to reflect the realities of mail balloting and provide even more options for returning ballots, including more ballot drop boxes and in-person drop-off locations. These measures would not only improve the administration of mail-in voting, they would counter the misinformation and disinformation surrounding mail-in ballots we've seen throughout the 2020 cycle.
David Levine is an elections integrity fellow at the Alliance for Securing Democracy and a former election official in Ada County, Idaho. Read more from The Fulcrum's Election Dissection blog. A version of this essay ran previously on the Election Law Blog.
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