Nullification of voter ID laws: One provision of H.R. 1 enables voters in states with ID requirements to bypass that requirement by signing a statement agreeing that they are the person whose registration they are using.
Meanwhile, allegations of fraud in one 2018 race raise more red flags. An audit released in February 2019 found indications of fraud in a New Mexico House race called for the Republican on election night, but won by the Democrat. The tight 3,500-vote margin in that race reversed in favor of Democrat Xochitl Torres Small after absentee ballots broke for the Democrat in a county where voter ID laws are not enforced. The audit, paid for by Republican Yvette Herrell’s campaign, found that a significant number of absentee ballots were time stamped after the 7 p.m. deadline on election night. The consulting company conducting the audit reviewed some 12,000 absentee ballot requests. According to a report in the Daily Signal, the audit found nongovernmental groups “are almost certainly engaging in at best aggressive—and at worst fraudulent—procurement of absentee ballot applications.”
This conclusion is consistent with reports from other swing districts in which last-minute absentee ballots reversed the election night outcome.
Online voter registration: The very first provision in H.R. 1 was a new mandate to dictate that states must use an online voter registration process that does not require signatures to be verified. Already thirty-seven states use online voter registration, but some of those would have to reconfigure their systems to remove security features that match a voter to a state division of motor vehicles (DMV) record for signature comparison.
Automatic voter registration: This sounds like a great idea. We want everyone to vote. But beneath the surface, there is a lot of work to do before we can safely implement such a provision without jeopardizing the security of elections.
The bill requires states to compel people to register to vote. This unfunded mandate forces states to reconfigure their voter databases to accept record transfers from what the bill calls “contributing agencies” such as the DMV, Social Security Administration, Department of Veterans Affairs, Medicare, and Medicaid, among others. Because the populations served by these agencies include many who are ineligible to vote, these agencies would be required to determine which records are eligible before they are transferred. Therein lies the problem.
Evidence suggests we should be skeptical of this process. The U.S. Court of Appeals for the D.C. Circuit ruled in 2016 that three states could not ask for proof of citizenship on federal voter registration forms, after left-wing nonprofit groups sued claiming documentation requirements disenfranchise voters.
If states cannot ask about citizenship, how are they to determine the eligibility of voters? We don’t really know. California officials assure voters that no illegal votes are cast there, but refuse to divulge how they distinguish illegal voters from legal ones in the absence of valid data. The California Division of Motor Vehicles reported in April 2018 that more than 1 million illegal immigrants had obtained licenses to drive in the state over just a three-year period. The Sacramento Bee reports that election officials won’t answer questions about how many of those may have been automatically registered to vote. Nor could they answer questions about how an ongoing investigation will determine which voters were eligible, since voters weren’t asked to make a clear declaration at the time of registration. If California is certain there are no illegal votes, why won’t they answer questions about the methodology for identifying more than one million automatically registered illegal immigrants?
The Pittsburgh Post-Gazette reported in 2018 that Pennsylvania’s motor-voter system registered more than 8,000 ineligible voters, including many who were not U.S. citizens. And in an ongoing mess in Texas, election officials never could determine how many illegal immigrants were automatically registered to vote through federal motor-voter laws. Initial estimates of 95,000 noncitizen registered voters proved inaccurate, demonstrating the difficulty of accurately confirming eligibility after a person has been automatically registered. The Democrats’ answer to this conundrum is not to clarify citizenship status, but instead to make verifying that status more difficult. Mistakes in Texas’s initial attempt to count illegal voters triggered a lawsuit by the League of United Latin American Citizens. As a condition of settling that lawsuit, LULAC demanded Texas cease some voter list maintenance activities that Democrats consider to be a “purging” of voter rolls.
While there is bipartisan support for procedures to make voting more convenient, voters should still have a choice to register to vote. Noncitizens should not be compelled to register and risk subsequent pressure by activist groups to submit illegal ballots.
Mandatory same-day voter registration: The practice of registering voters on election day and during each day of the early voting period has several unintended consequences, not the least of which is the inability to confirm registration information. Polling places can be chaotic on election day, but more so when counties cannot anticipate the number of voters to expect, ballots to have on hand, and precinct workers to manage the volume of voters. Of greater concern, however, is the potential for crooked campaign operatives to exploit the weakness in this system as part of a larger ballot harvesting initiative. These are problems state and local election offices should be free to address in a customized way.
These are just a few of the thirty different federal mandates Democrats wish to impose on state governments, all of which nullify existing state and local laws.
An “Independent” Redistricting Commission
Democrats paid a heavy price for the Republican wave election of 2010, not only losing the House in those midterms, but losing 19 Democrat-controlled state legislatures and 650 legislative seats nationwide. Those losses came just as state lawmakers were poised to redraw the maps for House districts that would dictate boundaries for a decade.
With redistricting again on the horizon in 2018, Democrats tried to use H.R. 1 to stack the deck in their favor. H.R. 1 transfers state legislatures’ authority to draw voting districts to a so-called independent redistricting commission. The bill’s provision compelling states to create redistricting commissions is blatantly unconstitutional. Although some states have created such commissions, frequently the legislature still holds the ultimate authority. Instead of being drawn by those who are accountable to voters, districts would now be drawn by people who have no fear of being voted out. If voters don’t like the results, they have no recourse.
The Supreme Court has upheld the rights of states to choose to use independent commissions, but that 5–4 decision included a dissent by Chief Justice John Roberts and depended on a swing vote from Justice Kennedy. There is a strong likelihood the current Court would strike down the redistricting provision.
The bill bars these federally imposed redistricting commissions from considering “the political party affiliation or voting history of the population of a district.” This is intended to prevent gerrymandering, but it also prevents any pursuit of partisan fairness, which is supposedly the whole goal of an independent commission.
But the most egregious provision in the bill is the one governing conflicts between state legislatures and independent commissions. If they can’t agree, state maps will be drawn by judges in Washington, D.C. This is an unmitigated violation of the separation of powers. Elections expert Hans von Spakovsky, in his testimony before the House Judiciary Committee, explained, “The bill transfers to the judiciary a power that the Elections Clause of the Constitution exclusively gives to the legislative branch. That violates basic separation of powers principles as well as the delegation doctrine. It is antidemocratic and unconstitutional.”