By Lambert Strether of Corrente.
H.R.1 (the “For the People Act“) is the enormous election law reform bill just passed by the House and sent to the Senate. (The PDF has 791 pages.) Black Agenda Report describes the 2019 version as “a sleazy ghetto ice cream truckload of empty promises.” Associated Press uses more measured language:
House Resolution 1, which touches on virtually every aspect of the electoral process, was approved on a near party-line 220-210 vote. It would restrict partisan gerrymandering of congressional districts, strike down hurdles to voting and bring transparency to a murky campaign finance system that allows wealthy donors to anonymously bankroll political causes.
The stakes in the outcome are monumental, cutting to the foundational idea that one person equals one vote, and carrying with it the potential to shape election outcomes for years to come. It also offers a test of how hard President Joe Biden and his party are willing to fight for their priorities, as well as those of their voters.
This bill “will put a stop at the voter suppression that we’re seeing debated right now,” said Rep. Nikema Williams, a new congresswoman who represents the Georgia district that deceased voting rights champion John Lewis held for years. “This bill is the ‘Good Trouble’ he fought for his entire life.”
To Republicans, however, it would give license to unwanted federal interference in states’ authority to conduct their own elections — ultimately benefiting Democrats through higher turnout, most notably among minorities.
- Establish automatic voter registration at an array of state agencies;
- Establish same-day voter registration;
- Allow online voter registration;
- Allow 16- and 17-year-olds to pre-register so they’ll be on the rolls when they turn 18;
- Allow state colleges and universities to serve as registration agencies;
- Ban states from purging eligible voters’ registration simply for infrequent voting;
- Establish two weeks of in-person early voting, including availability on Sundays and outside of normal business hours;
- Standardize hours within states for opening and closing polling places on Election Day, with exceptions to let cities set longer hours in municipal races;
- Require paper ballots filled by hand or machines that use them as official records and let voters verify their choices;
- Grant funds to states to upgrade their election security infrastructure;
- Provide prepaid postage on mail ballots;
- Allow voters to turn in their mail ballot in person if they choose;
- Allow voters to track their absentee mail ballots;
- Require states to establish nonpartisan redistricting commissions for congressional redistricting (possibly not until the 2030s round of redistricting);
- Establish nonpartisan redistricting criteria such as a partisan fairness provision that courts can enforce starting immediately no matter what institution is drawing the maps;
- End prison gerrymandering by counting prisoners at their last address (rather than where they’re incarcerated) for the purposes of redistricting;
- End felony disenfranchisement for those on parole, probation, or post-sentence, and require such citizens to be supplied with registration forms and informed their voting rights have been restored;
- Provide public financing for House campaigns in the form of matching small donations at a six-for-one rate;
- Expand campaign finance disclosure requirements to mitigate Citizens United;
- Ban corporations from spending for campaign purposes unless the corporation has established a process for determining the political will of its shareholders; and
- Make it a crime to mislead voters with the intention of preventing them from voting.
There’s certainly a lot of good stuff here (though as readers know, I loathe early voting, since it can only increase voting for Party, not candidate, and would prefer a system that maximized in-person voting, with Election Day a national holiday, and hand-marked paper ballots hand-counted in public. But I recognize this is an outlier’s position). Whether the bill will pass is, of course, another matter, given the filibuster. In fact, the bill (as BAR points out) seems designed to have its various sections lifted out and turned into standalone bills. From Axios:
Fred Wertheimer, president of Democracy 21 and a longtime proponent of campaign finance reform, says Democrats have a 3–5 year strategy for enacting the key elements of H.R. 1….
So, we’ll see. In this post, I will focus on concerns more familiar to NC readers: H.R.1’s shocking legitimation of the Washington Post’s McCarthyite PropOrNot debacle; its institutionalization of Ballot Marking Devices (which are not the same as “hand-marked paper ballots”), and its provisions to cripple third party formation and growth. I don’t know if these issues are deal-breakers for anyone, or anyone who matters, but I do know that the mainstream has not raised them.
From the text of the bill, “Subtitle C—Strengthening Oversight of Online Political Advertising, SEC. 4203. FINDINGS”:
(2) On November 24, 2016, The Washington Post reported findings from teams of independent researchers that concluded Russians ‘‘exploited American-made technology platforms to attack U.S. democracy at a particularly vulnerable moment * * * as part of a broadly effective strategy of sowing distrust in U.S. democracy and its leaders.”
Frankly, I’m gobsmacked to find this quotation from WaPo codified as a Congressional Finding and embodied in statutory language. For those who came in late, I’ll unpack my gobsmackedness, beginning by quoting Craig Timberg’s WaPo story, “Russian propaganda effort helped spread ‘fake news’ during election, experts say,” which was oddly placed in the Business Section:
Two teams of independent researchers found that the Russians exploited American-made technology platforms to attack U.S. democracy at a particularly vulnerable moment, as an insurgent candidate harnessed a wide range of grievances to claim the White House.
One of those “teams” was PropOrNot:
PropOrNot’s monitoring report, which was provided to The Washington Post in advance of its public release, identifies more than 200 websites as routine peddlers of Russian propaganda during the election season, with combined audiences of at least 15 million Americans. On Facebook, PropOrNot estimates that stories planted or promoted by the disinformation campaign were viewed more than 213 million times.
As described by Max Blumenthal:
[A shady website, PropOrNot,] has compiled a blacklist of websites its anonymous authors accuse of pushing fake news and Russian propaganda. The blacklist includes over 200 outlets, from the right-wing Drudge Report and Russian government-funded Russia Today, to Wikileaks and an array of marginal conspiracy and far-right sites. The blacklist also includes some of the flagship publications of the progressive left, including Truthdig, Counterpunch, Truthout, Naked Capitalism, and the Black Agenda Report, a leftist African-American opinion hub that is critical of the liberal black political establishment.
UPDATE As the Columbia Journalism Review commented at the time:
It became apparent soon after that the Post had itself fallen for shoddy information. The story relied heavily on a report by PropOrNot, an anonymous internet group that bills itself as “Your Friendly Neighborhood Propaganda Identification Service, Since 2016!” While its study claimed to show how a deliberate Russian effort had unduly influenced American public opinion, it included in its calculations non-fake, left-wing sites like Naked Capitalism and Truthdig, among others.
One of the ways the Post’s journalistic malfeasance “became apparent” was a fusillade of posts by Yves (“PropOrNot’s Grandiose Fabrications“, “Washington Post Refuses to Retract Article Defaming Naked Capitalism and Other Sites,” “We Demand That PropOrNot Remove Its Blacklist, Report, and Browser Tool Defaming Naked Capitalism and Issue an Apology“). WaPo ultimately deigned to place a credibility-destroying “Editor’s Note” at the head of article, reading in relevant part:
A number of those sites have objected to being included on PropOrNot’s list, and some of the sites, as well as others not on the list, have publicly challenged the group’s methodology and conclusions. The Post, which did not name any of the sites, does not itself vouch for the validity of PropOrNot’s findings regarding any individual media outlet, nor did the article purport to do so [wowsers]. Since publication of The Post’s story, PropOrNot has removed some sites from its list.
So the story was…. what? Some goons made a list the Post won’t vouch for? Swell reporting standards there. You can’t spell “McCarthy” without including “Marty,” I guess. And there the matter rested, just one of those stupidities that our famously free press routinely emits. One might have supposed it forgotten. Until the story appeared in the text of a bill House Democrats passed!
Institutionalizing Ballot Marking Devices
(2) PAPER BALLOT REQUIREMENT.—
(A) VOTER-VERIFIED PAPER BALLOTS.—
(i) PAPER BALLOT REQUIREMENT.—
(I) The voting system shall require the use of an individual, durable, voter-verified paper ballot of the voter’s vote that shall be marked and made available for inspection and verification by the voter before the voter’s vote is cast and counted, and which shall be counted by hand or read by an optical character recognition device or other counting device. For purposes of this subclause, the term ‘individual, durable, voter-verified paper ballot’ means a paper ballot marked by the voter by hand or a paper ballot marked through the use of a nontabulating ballot marking device or system, so long as the voter shall have the option to mark his or her ballot by hand.
This language is extremely broken. Hand-marked paper ballot advocate Jenny Cohn suggests a revision:
5/ I also suggest that you supplement HR 1 to specify that BMDs “must not put votes into barcodes or QR codes.” This language is important because barcodes & QR codes are not transparent, further endangering integrity and confidence in elections.
— Jennifer Cohn ✍🏻 📢 (@jennycohn1) March 2, 2021
Los Angeles County’s horrid VSAP system uses QR codes (discussed at length here). Here is why QR codes are both unauditable and (if the ballot marking devices are hacked) enable election fraud by insiders:
Voter makes selections on touch-screen (software, hence buggy and insecure), selections are stored (ditto) and printed out (ditto) on a page with a human-readable receipt reflecting (one assumes) the touchscreen selections, and the ballot itself, which is the QR code, which is not human-readable. The page is then scanned (ditto) and QR code is then tabulated (ditto). The sleight of hand is, of course, the ballot itself. A human may think that their reciept, which they can read to check that it matches what they selected on the touch screen, also matches the QR code, which they cannot. But there’s no reason on earth to think that! And the unreadable QR code, since that is what is tabulated, is the ballot! Take the matter out of the delusional digital realm. Suppose voting worked like this: You voted by hand-marking a yellow paper ballot. You then handed the yellow paper ballot to an official who, behind a screen so you could not see, marked a blue ballot that you could not read, sealed it so you could not read it, and then handed the blue ballot back to you and told you to put it in the ballot box, that’s your vote. Does that make any sense? That is how a “Ballot Marking Device” works.
In essence, ballots printed out by Ballot Marking Devices are not hand-marked; the digital (i.e., the hackable) interposes itself at every point: At the touchscreen, at the printer, at the reader. And because the printed-out QR code is what is counted, the QR code is the ballot. And since the QR code is not human-readable, voting is not transparent to the slightest degree. (The VSAP post describes many other problems with ballot marking devices, but this is the most important.)
Crippling Third Parties
Finally, H.R.1 makes ballot access for minor parties even more diffcult than it already is. From Maryland Matters, “Opinion: Sarbanes’ H.R. 1 Has Poison Pill to Kill Minor Party Competition“:
H.R. 1 contains a poison pill designed to reduce political competition and voter choice by weakening minor parties, at exactly a time where, according to a recent Gallup poll, support for a third party is at an all-time high.
Ever since then-presidential candidate Barack Obama shunned the federal public matching funds program in 2008, among all parties’ general election candidates, only Green Party presidential nominees have applied for and qualified for these funds. H.R. 1 would solve this minor party/Green Party “problem” by raising the threshold to qualify for matching funds beyond the realistic ability of Greens (and other minor party nominees) to reach.
This move to disempower minor parties and their voters is cloaked within the promise of a new and improved matching funds program, designed to entice major party candidates to opt into the program, with the promise of substantially increased funding.
The current donation threshold to qualify for a 1:1 match is to raise at least $5,000 in each of at least 20 states, in donations no larger than $250 each. The public already supports funding minor party candidates under this formula. Green candidates Jill Stein (2012, 2016) and Howie Hawkins (2020) each qualified for matching funds in the last three cycles.
The new H.R. 1 threshold would replace the existing 1:1 match program with a 6:1 match, but would simultaneously increase the minimum amount of donations by 500% to a minimum of $25,000 in each of 20 states. It would also increase the minimum number of contributions to reach it by 625%, by subtlety lowering the size of donations that can count toward reaching the threshold from $250 to $200. This would make it even harder on minor party candidates — who are mostly excluded from candidate forums and media coverage and have a far smaller base of well-funded donors to draw from — by disqualifying 20% of the $250 donations they are able to raise.
The real-world effect of eliminating the existing 1:1 threshold would be to eliminate a matching funds threshold that is demonstrably reachable by minor party candidates and replace it with a category reachable likely only by top-tier major party candidates. This sleight-of-hand will lead people to think Democrats are for increased public funding, but apparently only for themselves.
Once again from Black Agenda Report:
I was part of Jill Stein’s campaign team in 2015-2016, and I can tell you we barely met the old threshold in about 22 states. It was a near thing. Eliminating those federal matching funds for a Green Party presidential campaign would mean all but certain erasure of the Green Party from the ballot in a good dozen or more states for 2020, and maybe a dozen more in 2022. Since most states also require a presidential and/or US Senate nominee to appear at the top of the ballot, HR 1 would prohibit the Green Party from running any local candidates in states where a defunded Green Party’s vote drops below a certain level, and it will plummet if Green campaigns, which which accept no funding from corporations will be far less able to hire staff or contractors and to perform the necessary functions of a campaign.
Hard to believe that Democrats would do such a thing deliberately, but here we are.
So these are the three flaws that I can see in H.R.1. Whether these flaws should be sufficient to sink the bill, I don’t know. Readers?
 It does not speak well of our national security goons that this material still lives in their institutional memory.
 A foreshadowing of RussiaGate, perhaps. It turns out that anonymous sources don’t need a layer of indirection, like a shady website. You can just quote them, and nobody calls you on it.
 Timberg’s story dropped on Thanksgiving Eve. We were told at the time by sources in a position to know that his piece made it into the paper without being vetted by the national security desk at which he once worked, which led to some fiery internal email exchanges at WaPo.
 On the begrudging and sluggishly inserted Editor’s Note, CJR commented:
[T]he editor’s note vaults into verbal gymnastics in an attempt to simultaneously rationalize and distance itself from an obviously flawed primary source. Any data analysis is only as good as the sum of its parts, and it’s clear that PropOrNot’s methodology was lacking.
The Post, of course, was merely reporting what PropOrNot said. Yet it used declarative language throughout, sans caveat, lending credence to a largely unknown organization that lumps together independent left-wing publications and legitimately Russian-backed news services. The Post diminished its credibility at a time when media credibility is in short supply, and the non-apologetic editor’s note doesn’t help.
… A Post spokeswoman declined to comment further on the episode, saying that the editor’s note speaks for itself.
 The hacker’s exploit would make it so the human readable part of the ballot read as if the voter voted for candidate A; but the QR code, that which, being tabulated, is the actual ballot, would be for candidate B, or whatever else the hacker wanted it to be, like a spoiled ballot.