How This Voting Rights Bill Could Turn the Next Election Into a Clusterf*ck 1

It’s likely you’ve heard virtually unfettered praise in the media for H.R. 1 — a nearly 800-page bill that passed the House this month and was introduced Wednesday in the Senate. The For the People Act is, truthfully, the best piece of legislation proposed to standardize and ensure voting rights for all. But the bar is low for voting bills, and this one barely clears it.

While the tenets of the bill are laudable—its provisions on redistricting and campaign finance are badly needed—and would help America grapple with the very real problem of voter suppression, it was written with apparently no consultation with election administrators, and it shows. While the overall message is positive, it comes packed with deadlines and requirements election administrators cannot possibly meet without throwing their systems into chaos.

“Listen, I’ll do this—if the law passes, I’ll follow it,” said one state-level Democratic election director in the southeast who declined to be named. “But I can’t guarantee it’s not going to be a total clusterfuck the first election.”

The sections of the bill related to voting systems—wholly separate from its provisions on voting rights—show remarkably little understanding of the problems the authors apply alarmingly prescriptive solutions to. Many of the changes the bill demands of election administrators are literally impossible to implement. Others would significantly raise the cost of elections but provide no assured long-term funding.

It empowers an agency—the U.S. Elections Assistance Commission—that was criticized less than a year ago for mismanagement and fecklessness by the same Democrats promoting this bill. And, perversely to its purpose, the bill would make elections less secure by forcing states to rush gargantuan changes on deeply unrealistic time frames. The fixes needed are many and are doable, so it’s unacceptable that the authors of the Senate bill bypassed the chance to improve it.

Perversely to its purpose, the bill would make elections less secure by forcing states to rush gargantuan changes on deeply unrealistic time frames.

“I don’t know what they were thinking, honestly,” said the head of an elections nonprofit. “It’s a bad bill. The goals might be admirable, but it’s a fucking bad bill.” Election administrators used the F-word a lot during my chats with them, frustrated because they’ve eagerly sought federal funding and basic attention to their offices, only to be handed impossible goals they’ll be held individually responsible for meeting. This person isn’t the only one who declined to be named when I asked more than 15 election administrators—a mix of federal, state, and local officials—to comment on the bill. It’s easy to understand why they blanched at offering their candid opinions.

Shortly after the bill was finalized during the last Congress, Republican secretaries of state put out a statement publicly condemning it. Democratic secretaries of state, in turn, put out a statement backing it. And state election directors, who are the most knowledgeable about the systems they run and who report directly to the secretaries of state, don’t feel it’s good for job security to speak out about the bill either way.

Senate staffers in charge of introducing S.1, the Senate version of the bill, were more engaged on these issues than the House staff, but ultimately the bill introduced Wednesday made none of the changes they’d advocated. Election directors weren’t surprised. They have routinely been ignored in favor of appeasing activist and party bases for decades, and they expect nothing different now.

Most officials ardently agreed with the voting rights protections, and these administrators feel they may risk the bill’s chance of improving voting at all by speaking out against its more poorly conceived demands. Currently the bill’s prospects depend on Senate Democrats uniting their caucus behind it and overcoming a Republican filibuster—perhaps by eliminating it altogether. Given Sen. Joe Manchin’s hesitation to do that, it seems the bill faces daunting odds.

HR 1 was introduced by Rep. John Sarbanes, D-Md., who received input from several others and amassed 220 co-sponsors. Among its loudest champions are Rep. Zoe Lofgren (D-CA), House Speaker Nancy Pelosi (D-CA), Rep. Steny Hoyer (D-MD) and Rep. James Clyburn (D-SC).

After the bill was written in 2018, the staffers who did the hard work on it did begin to engage with industry groups and a few election administrators about the problems with the requirements. That the Senate did nothing to address the concerns of election officials has justified the feeling of many administrators that congressional Democrats see the bill more as a symbol—since chances of passage are low—and don’t seem eager to fix the bill’s flaws because of that. While most administrators who were consulted are skeptical, others feel they’ve been heard. Adrian Fontes, the county recorder in Maricopa County, Ariz., said he believed the extremely tight deadlines would be extended and that more nuance would be added to the bill.

That the Senate did nothing to address the concerns of election officials has justified the feeling of many administrators that congressional Democrats see the bill more as a symbol—since chances of passage are low—and don’t seem eager to fix the bill’s flaws/

Now that it’s official the Senate didn’t have any interest in coming to realistic solutions, Senate staffers have told election officials that many of these changes can be made in committee. A lofty goal that is and, based on recent history, completely unrealistic. Even if miraculous changes could be made, election administrators say the structural challenges of the bill would be hard for election administrators to overcome.

One example: The bill explicitly gives voters whose states and counties have not complied with the law the ability to sue their jurisdictions, leaving already-cash-strapped elections offices fearing that they’ll be slapped with expensive lawsuits for their failure to leap over goalposts set unrealistically high.

In addition, the bill requires states to purchase paper-backed voting machines that are compliant with the brand-new standards passed by the Election Assistance Commission only weeks ago. A laudable goal, and a necessary one. But the bill lays out conflicting deadlines for this requirement: by the start of 2022 in one section, and by the November general election in another section.

The larger problem, however, is that the machines the bill requires don’t even exist yet. The Election Assistance Commission’s testing labs say they need eight to 12 more months to develop and finalize their new process for certifying vote systems to the new standards. Certifying the equipment could begin only after that process is complete. Machines that are both paper-backed and certified to the new standards won’t be in heavy circulation until well into 2025. The bill was initially written prior to these guidelines passing, which offers little justification for refusing to update the bill to reasonable deadlines.

The machines the bill requires don’t even exist yet.

Ryan Macias, an elections consultant and former EAC staffer who helped manage machine certification, said the timeline the bill presents is “most likely unrealistic.”

Similarly, the bill presents contradictory demands for e-poll books, the touch tablets poll workers use to check in voters and ensure their addresses are correct. The bill would require the National Institute of Standards and Technology to create minimum standards for e-poll books—standards that currently do not exist. (NIST and the EAC spent 15 years on the new update to voting machine standards.) The bill also includes e-poll books in its definition of “voting systems,” a specific term that brings specific legal considerations to the table. Because e-poll books are not considered part of the “voting systems”—a term the EAC and the uses to refer to the machines, scanners, and other devices that work together to facilitate the vote itself rather than check in—they are not currently required to be certified at all, and none of the certification labs used to perform certification are set up to examine e-poll books, nor do they know how to.

The bill’s demand for paper-backed voting machines does not take into account the physical space paper takes up. Democrats rightly laughed at the poor planning of the Arizona Senate Republicans who demanded 2.1 million ballots be given to them for an audit and then realized they had no place to put all these pallets of ballots. The Democrats’ bill would create that same problem for counties across the country.

Paper ballots must, by law, be stored for 22 months. For some perspective, one 18-wheeler can hold half a million ballots. It takes warehouses to store ballots, not closets. And warehouses cost money rural counties don’t have and take up space urban counties have run out of. The bill does not offer additional funding for counties to purchase or rent secure storage space for ballots if they do not already have it, presenting a clear security problem for cash-strapped counties.

The bill also requires that states implement automatic voter registration (AVR) by 2023, a process by which a citizen who interacts with a department of motor vehicles or social services agency would also be instantly registered to vote. A commendable goal, but one that, again, takes far more time and far more resources than the bill affords. The process requires not only updating the voter registration system, but the systems of multiple other state and even federal agencies so that the agencies’ databases talk to each other.

The bill, however, provides funding for the implementation of AVR to elections offices to be distributed by the EAC, which has no clear authority or mechanism for giving money to offices that do not directly administer elections. While states could, in theory, choose to allocate funding to these offices themselves using these grants, that’s a process fraught with state bureaucracy and has historically failed.

The states that have effective AVR systems took years to implement them. When California and Illinois rushed the process, it led to errors like registering ineligible voters, eligible voters registered incorrectly, and security vulnerabilities. Illinois still has not fully complied with its law more than three years later. These categorical failures of rushed policy have bolstered the opposition to AVR by Republicans, who routinely point to those ineffective systems as a reason not to expand the practice. H.R. 1 asks us to make that same grave error in more states, potentially dooming AVR as a policy goal.

While most of the election administration reforms are at least rooted in good policy, the bill also makes recommendations that appear to solve non-existent problems. It, for example, encourages elections offices to use self-sealing envelopes. These envelopes are about 30 percent more expensive than the envelopes currently in use for ballots, and their glue gums up the USPS’s machines—making voting more expensive and less efficient. It’s not clear what would justify such a change, as even the most disadvantaged voters have access to their own spit.

It is unclear how such an agency even has the capacity to shoulder this much responsibility.

The election administrators I consulted for this piece could only guess that it was to avoid the spread of coronavirus by exposing poll workers to infected saliva, but the Centers for Disease Control and other experts have said this presents little measurable risk, and that such a surface would be free of the virus within 24 hours—certainly far shorter than the average time it takes for a ballot to be mailed, received, opened and processed. And in an increasing number of states and large counties, machines, not people, open and remove the ballots from envelopes.

Similarly, the bill asks states to implement voter registration by “automated telephone-based system” —a wild, almost certainly nonsecure idea that no state currently uses and that election officials are baffled by. Currently, no voting vendor offers such a system, meaning that states would have to create this from scratch. The bill affords neither the time nor the means to implement this demand. Those responsible for drafting this provision say disability advocates requested it, but I cannot confirm this. I have yet to find a single disability organization involved in voter access saying they want or need a telephone voter registration option.

The bill provides funding for these efforts throughout but does not assure cash flow into the future. This is a common theme for election funding, which the federal government has historically dispersed in large, unpredictable blasts while ignoring the needs of election officials until the next disaster strikes. That funding model makes it impossible for election administrators to plan sustained improvements, and H.R. 1 makes this same mistake in a far stranger way.

The bill authorizes the Election Assistance Commission to distribute subsequent funding as it deems necessary. It is unclear to all election officials I’ve spoken to why the authors would vest startlingly broad funding authority in an agency that is so dysfunctional. The very same representatives championing H.R. 1 felt the need to call all four EAC commissioners and its former director to the carpet in a 2019 hearing to demand answers for the agency’s mismanagement, shockingly low employee satisfaction and astonishingly slow progress on the new voting machine standards. Even after that browbeating, the commissioners would not pass those standards for more than a year.

While much of the EAC’s dysfunction is of its own making, it has also suffered deep and consistent funding cuts, resulting in massive staff turnover and dissatisfaction. Congress has itself to blame for the agency’s present state, and it is unclear — nor does the bill address — how such an agency even has the capacity to shoulder this much responsibility.