Felon Enfranchisement, National Election Overhaul Top Priority Bill if Dems Retake Senate

Dem victory in Georgia would lead to passage of constitutionally questionable plan

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December 6, 2020

Federal Democrats have put an overhaul of American voting front and center on their agenda if they attain unified government, with a ready-to-go proposal that could give them a durable advantage in future elections.

The party passed legislation aimed at dramatic changes to the American electoral system after it reclaimed the House in 2018. That bill, H.R. 1, was taken as a sign of their main priorities if Democrats retook the White House and the Senate, control of which now comes down to two still-undecided races in Georgia. President-elect Joe Biden has indicated that he would sign the bill—the For the People Act—which Democrats and their allies have presented as an antidote to a hopelessly corrupt and unfair electoral system.

The bill would address Democrats' concerns via a "breathtaking attempt at federal control of national elections," Cato Institute constitutional studies director Ilya Shapiro told the Washington Free Beacon, many components of which are "constitutionally dubious." Provisions of the bill have even raised the hackles of the American Civil Liberties Union, normally a staunch ally to congressional Democrats.

It would also take a number of dramatic and controversial steps, including extending voting rights to millions of currently disenfranchised felons and overhauling the Federal Election Commission to ensure partisan control. Democrats have framed those changes and others as necessary to democracy, but they would also likely give the party a leg up in future elections.

Such interests likely undergird Democrats' agitation about the possibility of seizing Congress's upper chamber in the January Georgia runoff. Those races have seen unprecedented interest from Democratic politicians and donors, including prominent members of the party's left wing, like Reps. Alexandria Ocasio-Cortez (N.Y.) and Ilhan Omar (Minn.).

Running over 700 pages, the For the People Act contains provisions relating to almost every feature of the way America chooses its leaders. The overall approach, Shapiro said, is to "strip states of their longstanding responsibility as electoral gatekeepers by imposing one-size-fits-all rules," withdrawing discretion on issues like the shape of congressional districts or the composition of voter rolls.

Much of that focus is on increasing total voter registration, including through mandatory nationwide automatic voter registration at the DMV and preregistration of 16-year-olds. The bill would also federally guarantee released felons the immediate right to vote, invalidating laws in 33 states that impose restrictions of any sort on those just out of jail. And it would prohibit the practice of confirming that voters are residents at their current addresses and removing them if they're not, called "voter caging"—an election integrity measure that Democrats charge unduly disenfranchises voters.

Such measures would have the added effect of boosting turnout, particularly among young people and the disproportionately minority felon population. Increased turnout in general is thought to be a boon to Democrats, although this claim is disputed. Most recently, record turnout helped President Donald Trump win again in red states like Texas and helped hand a wave of House seats to Republicans.

H.R. 1 also contains an exhaustive list of "ethics reforms," many motivated by Democrats' criticisms of the Trump White House, but which could also benefit them. A provision of the bill would cut the Federal Election Commission to five members, two from each party and one independent. But that independent, Shapiro noted, could be someone like Sen. Bernie Sanders (I., Vt.), and the incoming Democratic administration could effectively seize control of the commission for six years starting in 2022.

The bill also authorizes a task force to consider extending statehood to non-state territories and explicitly endorses statehood for Washington, D.C.—a change that would likely add two solidly Democratic votes to the Senate.

Beyond partisan concerns, many of those proposals—which include new donor disclosure requirements for PACs and limits on lobbying employment—run afoul of the First Amendment, according to a letter from the ACLU to the House in advance of the bill's passage. Shapiro noted other constitutional concerns, including imposing ethics rules on Supreme Court justices—"most scholars think Congress can't regulate the Supreme Court in that way," he said.

Such constitutional concerns are unlikely to constrain Democratic enthusiasm for the bill. Instead, H.R. 1 offers a picture of the kind of sweeping change a unified Democratic government would pursue, changes that could entrench that same government for years to follow.

Published under: Democrats