The Freedom to Vote Act
The image above shows some of the most important parts of the “Freedom to Vote Act”. Before discussing those points, let’s look at how it came to be.
On March 8, 2021, the House of Representatives passed the “For the People Act” as H.R.1, the first House bill of the 117th Congress. That bill was introduced to the Senate as S.R.1. On June 22, 2021, the motion to proceed to debate S.R.1 failed on a 50-50 vote.[1]
With S.R.1 essentially dead, Senators Amy Klobuchar (D-MI) and Joe Manchin (D-WV) prepared a framework that removed the more controversial parts of the “For the People Act” and wrote a bill they believed would be more likely to gain bipartisan support, the “Freedom to Vote Act” (S.R.2747)[2].. Senator Klobuchar designed the actual bill and introduced it to the Senate. In addition to Senator Manchin, it was co-sponsored by Senators Tim Kaine (D-VA), Angus King (I-ME), Jeff Merkley (D-OR), Alex Padilla (D-CA), Jon Tester (D-MT), and Raphael Warnock (D-GA).
On October 19, 2021, Senator Angus King delivered an impassioned speech on the “American Experiment” and why we need to protect the right to vote for all citizens
The only Senate speech opposing the “Freedom to Vote Act” that I have been able to find was given by Senator Mitch McConnell (R-KY) on October 20, 2021.[3]
When Senate Majority Leader Chuck Schumer (D-NY) called for the motion to proceed later that day, it failed on a strict party-line vote.[4]. Another Senate debate had been aborted.
That night, Senator King was a guest on The Rachel Maddow Show. (I’ll bet that Rachel is just thrilled about her picture in the video’s cover image.)
Highlights[5] … The “Freedom to Vote Act”:
o Makes election day a public holiday
Who doesn’t like a National Holiday? Most of us have a day off work. Those who don’t (should) get overtime or a personal day off later. Stores would be able to have “Election Day Special” sales. with the Post Office closed, we’d have another day withour “give to our charity” letters and other junk mail. ATMs help us survive closed banks.
Most importantly, working people would be able to get to the polls without the need to rush there before work or stand in long lines after work. Holding elections on the first Tuesday in November is a remnant of the 18th Century … a time when most of our economy was based on farming. We no longer need to vote after the harvest and sandwich travel to and from the polls between church on Sunday and going to market on Wednesday. Voting was more difficult then. There’s no reason voting needs to be difficult now.
o Requires same-day registration at all polling locations by 2024
Nineteen states and the District of Columbia already permit same-day registration. Sixteen (70%) of them provide this option at polling places. One (5%) requires registration at the office of the city or town clerk, but provides an additional voting place at that office. In the 2020 Presidential election, fourteen (70%) gave their electoral votes to Biden; and five (25%) gave theirs to Trump. Maine split its electoral votes between the candidates.[6]
I see a potential source of complaint with this requirement coming from states with a lot of polling places. They might bemoan the logistics and/or expense of providing a “trusted” registrar at each polling place. A possible work-around procedure might be modeled on the way California handles its “no ID necessary”. Those ballots are considered to be “conditional” until the county elections offices complete their verification processes. Some candidates, media outlets, and members of the public might whine about it taking a day or two delay in determining the winner in a close election. To them I say, “bless their hearts” in the derogatory sense that phrase is often used in southern states.
o Ensures at least 2 weeks of early voting for all federal elections
The bill distinguishes between large and small (3,000 registered voters or fewer) jurisdictions. In the larger jurisdictions, the early voting period must:
- Begin early voting no later than 15 days before the election.
- Allow voting no fewer than 10 hours per day. The hours per day must be uniform and provide the opportunity to vote before 9 AM and after 5 PM local time.[7]
Providing that all voters get an opportunity to vote, smaller jurisdictions may permit early voting during the election office’s regular business hours, but must include 8 hours on at least one Saturday and one Sunday,
o Protects elections officials from undue interference
Poll workers, government employees, and government officials who handle, count, and certify the votes cannot be threatened for doing the jobs for which they hired or elected. They and their families cannot be threatened by anonymous callers, mobs of thugs, or even a President.
Voters must be allowed to cast their ballots without impediment. Having a “poll watcher” from each major party and, perhaps, any minority party with a candidate in a race for a Federal office, seems reasonable … providing they do no more than watch quietly. Intimidating and/or interfering with voters or poll workers is totally unacceptable.
There should be enough polling locations to accommodate the number of voters in a jurisdiction. Those living in densely populated areas cannot be required to stand in line for hours while those in lower density areas breeze in and out of their polling places in minutes. In addition to discouraging voters, long lines add to the time and effort of the people working in the polls … most of whom are volunteers; many of whom are retirees.
o Allows voters to present a broad set of identification cards for in person voting
Some states require voters to present identification to the poll official before receiving a ballot. Subtitle I—Voter Identification And Allowable Alternatives of the “Freedom to Vote Act” lists 20 documents[8] that voters can present as valid identification. Subtitle I begins … in the convoluted, but indisputably precise, language of Congressional bills … with a description of what a voter, who has none of the 20 documents, can obtain as an alternative. Basically, the alternative is a sworn written statement from an adult that is signed in the presence of the poll official. The state is required to provide a pre-printed form for this purpose.
o Bans partisan gerrymandering
The adjective “partisan” seems redundant in the term “partisan gerrymandering”. The purpose of gerrymandering is to retain the control of the party in power. Both of the major parties have used this technique. In fact, gerrymandering was “invented” over two centuries ago in what is now one of the most liberal, if not the most liberal, states in the country.[9]
The Constitution requires a census very ten years. When the results of the census are released, the 435 Congressional districts (and the corresponding Electoral College votes) are reapportioned in relation to state populations.[10] Some states gain districts; some lose districts; some experience demographic changes within their boundaries. Decennial redistricting is intended to compensate for these changes so that Congressional districts … and, therefore, Congress … would properly reflect the ever-changing national mosaic.
Sounds good doesn’t it. It might be, if it weren’t for political parties.[11] Under the influence of partisan politics, the ideals expressed in the Constitution are all too often subservient to the desire to win.
In the best of all possible worlds for the voters, all states would be rectangular with each state’s voters homogenously distributed everywhere within the state. Redistricting would be relatively easy. Unfortunately, we don’t live in that best of all possible worlds for “The People”.
In the best of all possible worlds for the political party in power, all of each state’s voters who would oppose them would be concentrated in a few well-defined enclaves. Fortunately, we don’t live in that best of all possible worlds for “The Parties” either … BUT, never fear. Until the “Freedom to Vote Act” gets through the Senate, those who’d rather cheat than earn the vote still have gerrymandering … and it’s a lot easier to accomplish than it was when Massachusetts’ Governor Gerry “blessed” it with his signature in 1812.
Today, computers can use voter demographics to “pack” those likely to vote for the opposition candidates into a few large districts. Those districts will almost certainly go to the opposition party, but there will be fewer of them. The party in power will retain the majority in the state legislature and in Congress. Conversely, the party in power can “crack” the opposition by creating districts that spread the other party’s voters across several districts … districts dominated by their own voters.
If there were no other reason for passing the “Freedom to Vote Act”, stopping partisan gerrymandering would be enough.[12]. After gerrymandering is illegal, the programs used to create gerrymandered districts can be used to create non-partisan districts. It’s probably as easy as feeding the software a different set of parameters defining the demographic criteria.
What Will It Take To Pass The “Freedom to Vote Act”?
What will it take to pass the “Freedom to Vote Act” into law?
- The bill will have to be passed in the Senate.
This will not be easy. As of October 2021, 19 states have enacted 33 laws that will make it harder for Americans to vote. The 19 states that passed these laws have state legislatures controlled by Republicans. The Senate Democratic Caucus will probably not be able to get 10 members of the Senate Republican Caucus to join them in a cloture vote. Any attempt to introduce the bill to the floor will fail under the silent filibuster. The Democrats will have to “go it alone”. Passage by the reconciliation process will not work because that process applies only to bills with budgetary components. - Because the “Freedom to Vote Act” is different from the House bill (the “For the People Act”), it will have to go to the House for passage. Hopefully, it has enough of the provisions of the original bill to pass.
- After both chambers of Congress have passed the same bill, it will go to President Biden to be signed into law.
If the Senate passes the “John Lewis Voting Rights Act” with no changes from the bill passed by the House, it will go directly to the President. The “Freedom to Vote Act” overrides the voter suppression laws passed in some states since the 2020 election. The “John Lewis Voting Rights Act” will prevent such anti-democratic machinations in the future.
Chuck Schumer’s Plan
On Monday, January 3rd, Senate Majority Leader Chuck Schumer set January 17th as a deadline for attempting to break the stalemate on voting rights.[13]. If Senate Republicans continue to obstruct the election reform bills, Leader Schumer declared that the Senate will vote on changing it’s rules. A rules change can be passed with a simple majority.
He emphasized the urgency of passing the two voting bills on The Rachel Maddow Show:
On January 14th, President Biden attended the Democratic Senators Luncheon to encourage his party’s caucus to support the voting bills. Before the luncheon, Senator Kyrsten Sinema (D-AZ) gave a nearly 20 minute speech on the floor of the Senate about why she is unwilling to tamper with the filibuster. [14]
In his daily commentary show, The Last Word, Lawrence O’Donnell had this to say about Senator Sinema’s speech.
On Wednesday, January 9, 2022, Senator Schumer tried to apply the “nuclear option” to carve out an exception to Senate Rule XXII for a bill that was a combination of the “Freedom to Vote Act” and the “John Lewis Voting Rights Act”. The attempt failed on a 52-48 vote.
Is Our Democracy Doomed?
Is that it? Are we on the slippery slope that will end in autocracy? Not yet, but those of us who prefer the Constitution and the Rule of Law … those of us who want the experiment of “government of the people, by the people, for the people” to continue …, will have to be more determined to make our wishes known in the November 8, 2022 midterm election.
To say that we are a divided nation is understatement. One side … including the election officials of most of the states … sees the 2020 Presidential Election as the most secure election in our history and the events of January 6, 2021 as a violent attempt to interfere with the peaceful transfer of power that we have cherished for more than 200 years. The other side sees that same election as stolen … wracked with fraud amounting to tens of thousands of popular votes and multinational conspiracies to change the “real” results. The Republican National Committee calls this “legitimate political discourse“:
If you read my preceding article, “A Plague on Both your Houses” may recognize this graph:
It shows the distribution of registered Republicans, Democrats, and Independents from 2004 through 2021.
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Footnotes
[1]
The vote was split along party lines, of course. The majority party asked that the bill be brought to the floor for debate. The minority party essentially said, “I don’t want to talk about it.”
This is the part of Senate procedures that seems counter-productive. It is more the product of a lover’s quarrel than the business of “the world’s greatest deliberative body”. A debate that doesn’t begin isn’t much of a debate. The cloture rule (Senate Rule XXII) is designed to end debate. Failure on a motion to proceed would seem to provide the opportunity for those in favor of a bill to continue talking about the bill’s introduction to the floor; not end it. Those who sponsor a bill never seem to take that opportunity.
[2]
If you’d like to read the “Freedom to Vote Act”, click here. In printed form, this PDF file is only 222 pages.
[3]
The only other speeches I found on YouTube related to the “Freedom to Vote Act” were from Democrats who, not surprisingly, favored the bill.
[4]
Maybe the speeches of Senators King, McConnell, and others like them are the debate that 60 votes on the Motion to Proceed would end. If that’s true, why have such speeches stopped? The purpose of Senate Rule XXII is to end debate; not to defeat a bill.
[5]
The Brennan Center for Justice provides a more detailed review of the “Freedom to Vote Act”.
[6]
Maine and Nebraska each have a method for allocating their respective electoral votes in proportion to the state’s popular vote. I think other states should follow their example. It would eliminate a lot of the every-four-years debate about the Electoral College.
[7]
As I read this part of the bill, the minimum early voting period for jurisdictions with more than 3,000 voters is 14 days immediately before the election with polls that are open from 8 AM to 6 PM each day. There is no predefined maximum number of days … although starting more than a month before election day seems impractical. The only upper limit in hours per day is 24.
[8]
This is the list of acceptable forms of voter identification specifically listed if the “Freedom to Vote Act”:
- A driver’s license or an identification card issued by a State, the Federal Government, or a State or federally recognized Tribal government
- A State-issued identification
- A United States passport or passport card
- A employee identification card issued by:
- Any branch, department, agency, or entity of the United States Government or of any State
- Any State or federally recognized Tribal government
- Any county, municipality, board, authority, or other political subdivision of a State<
- Any branch, department, agency, or entity of the United States Government or of any State
- A student identification card issued by an institution of higher education, or a high school identification card issued by a State-accredited high school
- A military identification card issued by the United States
- A gun license or concealed carry permit
- A Medicare card or Social Security card
- A birth certificate
- A voter registration card
- A hunting or fishing license issued by a State
- A identification card issued to the individual by the Supplemental Nutrition Assistance (SNAP) program
- A identification card issued to the individual by the Temporary Assistance for Needy Families (TANF) program
- A identification card issued to the individual by Medicaid
- A bank card or debit card
- A utility bill issued within six months of the date of the election
- A lease or mortgage document issued within six months of the date of the election
- A bank statement issued within six months of the date of the election
- A health insurance card issued to the voter
- Any other document containing the individual’s name issued by:
- Any branch, department, agency, or entity of the United States Government or of any State;\
- Any State or federally recognized tribal government
- Any county, municipality, board, authority, or other political subdivision of a State
- Any branch, department, agency, or entity of the United States Government or of any State;\
[9]
The first gerrymandered congressional district in the United States was named for the Governor, Eldridge Gerry, who signed it into law and it’s salamander-like shape. (Gerry pronounced his name with a hard “G”. The soft “G” sound evolved over time.) It was created in my adopted state, Massachusetts, in 1812.
In 1972, Massachusetts was certainly the most liberal state in the union, It was the only state that gave its electoral votes to Richard Nixon’s ultra-liberal, anti-war opponent, George McGovern.
[10]
Given the population of the United States in 2021, each Congressional district/Electoral College vote should represent about 767,000 people. Because the Constitution requires a minimum of one Congressional district/Electoral College vote per state, it doesn’t work out that way. Four states, Wyoming, Vermont, Alaska, and North Dakota have fewer than 767,000 people. (With a population of about 762,000, North Dakota is close.) As a result, Congressional districts/Electoral College votes in states with large populations (e.g., California. Texas, Florida, and New York) represent more than 767,000 people.
[11]
The framers of the Constitution did not anticipate the rise of political parties. Originally, the President and Vice President were the winners of the first and second highest number of electoral votes respectively. In the 1796 Presidential Election, Federalist John Adams received the most votes; his political rival, Democratic-Republican Thomas Jefferson, came in second. Not surprisingly, there was a lot of acrimony in the Adams Administration. The 12th Amendment was passed and ratified to prevent repetitions of such “unfortunate” situations.
[12]
S.R.2747 goes the extra step of preventing legislatures from overriding election results that have no other flaw than choosing a winner that the legislators don’t like.
[13]
The deadline had to be extended because Senator Brian Schatz (D-HI) tested positive for COVID-19. Unlike the House, the Senate has no provisions for remote attendance. In this respect (and, in my less than humble opinion, several others), the Senate is still living in the 20th Century.
[14]
If you want to listen to Senator Sinema’s whole speech, here it is.
[15]
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My Less Than Humble Opinion 