State legislatures all over the country are proposing and enacting legislation to change how elections are performed, but some of those efforts could be nullified by a sweeping reform bill being considered in Congress.
The House of Representatives passed H.R. 1, a bill backed by Democrats, on March 3, and it would drastically change the elections if it becomes law. The bill, which received zero Republican support in the vote, would create nationwide automatic voter registration, require states to allow no-excuse absentee voting, and allow felons who have completed their incarceration to vote, among a litany of other changes.
There are only two ways H.R. 1 will pass in the Senate and end up on President Joe Biden’s desk — if the Democrats can convince 10 Republicans to vote in favor of it, or if they eliminate the filibuster because it creates a 60-vote threshold needed for major legislation, though there have been Democratic senators who have refused to date, so both are unlikely to occur.
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But, if it were to happen, the bill would nullify the laws that are in effect because federal laws usurp conflicting state laws per the supremacy clause of the Constitution. This includes laws that were newly enacted, such as the omnibus bill signed by Georgia Gov. Brian Kemp on March 25, or those that have been in place for longer.
There are currently 15 states that do not offer no-excuse absentee voting, though two, Delaware and New York, are expected to pass legislation to change that rule, according to data from the Center for Election Innovation and Research. States would be required to offer it if the bill became law.
Thirty-six states have laws requiring voters to show photo identification in order to cast a ballot at a polling site, a policy provision supported by a majority of the country, per a report from the Honest Elections Project; however, H.R.1 would make those unenforceable and thus voided.
Six states would need to adopt in-person early voting, 29 would need to develop same-day voter registration processes, and 30 would be required to use automatic voter registration systems for the first time.
Jason Snead, the executive director of the Honest Elections Project, told the Washington Examiner that H.R. 1 “purports to nullify contradicting state laws,” adding, “Whether that is constitutional is dubious.”
“There are significant legal infirmities in the legislation that will almost surely be challenged and have to be resolved in court,” he said. “Taking the bill at face value, though, many of the reforms being passed in states today would be superseded, including voter ID requirements, many commonplace absentee ballot protections, list maintenance laws, and ballot trafficking bans.“
Indiana Attorney General Todd Rokita, a Republican, told the Washington Examiner that should the bill get passed, it would be a “rush to the courthouse steps” to file a lawsuit to stop the law. He added that it would “immediately throw states into some kind of upheaval because all of a sudden, basically, election administrators across the country are going to have to decide … do we just throw out or erase or ignore our state and local election laws?”
Should the law be passed and states head to the court system to fight it, Rokita said, “there’s no way” state election officials would have time to implement the required changes before the 2022 midterm elections.
Rokita testified against H.R. 1 last month in front of the Senate Committee on Rules and Administration. It’s unclear when the next hearing on the bill will be.
H.R. 1 wouldn’t only affect Republican-led states currently pushing measures that opponents call “restrictive.”
Delaware, New York, Connecticut, all of which are under Democratic leadership, and New Hampshire, do not offer no-excuse absentee voting. Between the four states, only New Hampshire has a Republican-controlled state Legislature or Republican governor (and it has both). New Hampshire’s Secretary of State Bill Gardner, a Democrat, spoke out against the federal election reform bill during the Senate Judiciary Committee’s Tuesday morning hearing on election integrity.
Gardner, in an interview with the Washington Examiner, noted that the Granite State isn’t “trying to tell the old big states that they should have elections like we have ours, but we really don’t think that they should be creating an election for us.” He added that the state constitution specifically does not allow for no-excuse absentee voting and that its constitution was amended in 1942 to allow for absentee voting in general, which came after two failed attempts to pass it.
The issue of election integrity gained momentum following the 2020 election in which former President Donald Trump refused to concede to then-candidate Joe Biden. For months after, Trump promoted unsubstantiated theories that the election was rigged against him, contradicting assurances by election officials and even officials in his own administration.
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Republicans, some of whom also alleged widespread fraud occurred, have sought to strengthen election laws as it pertains to voter identification, mail-in ballots, no-excuse absentee balloting, and early voting, among other changes. They have argued that these changes are necessary to restore voter confidence, though critics point out that Republicans were the ones doubting the legitimacy of the 2020 election.
Their Democratic colleagues claim that the changes the GOP wants to implement will disenfranchise certain voters, specifically those of color, and that the push is in response to Democrats’ wins in 2020. Democrats have called for election reform in their own right, though they promote different changes than Republicans, such as increasing early voting and weakening voter ID laws.
