A Legislative Proposal To Help Safeguard Elections
A Legislative Proposal To Help Safeguard Elections
CAP’s new proposal can help a polarized Congress come together to protect democracy.
In this article
Getting Congress to pass almost any legislation concerning voting in U.S. elections is very difficult, and it will continue to be as long as the Senate filibuster persists and Democrats and Republicans remain intensely divided. Many election reform proposals get sucked into the same decades-old conflict: Senate Democrats generally want more robust federal standards to protect voting rights, and Senate Republicans mostly want to leave election administration up to the individual states. These positions are hard to reconcile.
However, giving up is not an option, because these are unusually troubled times for American democracy. Partisan officials have always fiercely contested the outcomes of elections, but some are now challenging the democratic system itself—and, worse yet, taking steps to undermine it. In the past two years, there have been a range of efforts to destabilize elections that have no recent precedent, including tampering with election equipment,1 threatening and harassing election officials,2 and refusing to certify election results.3 In addition, many candidates for public office have campaigned on the premise that previous elections were fraudulent and that election results should not be respected.4 Unless action is taken, threats to elections are likely to increase.
As a nation, we must ensure that every election is fair and free from interference.
For the United States to continue as a democracy, the wind must be taken out of these sails. As a nation, we must ensure that every election is fair and free from interference. The challenge is determining how to do that in a politically feasible way. At a minimum, any proposal to protect elections from the serious threats that they are facing will likely have to balance Republican concerns about federalism with Democratic concerns about voting rights, which is no easy feat.
However, a new Center for American Progress proposal—presented below—attempts to thread that needle in order to address a core problem facing American democracy. This issue brief first looks more closely at the problem and then provides an overview of the proposed solution as well as the path forward.
The core threat to democracy
A bedrock principle of democracy is that no eligible voter is prevented from casting a ballot. The gravest challenge to a democracy, however, is when a whole group of voters faces obstacles that other voters do not, which can change the outcome of an election. For example, if poll watchers overrun urban polling places, if rural counties refuse to certify their results, or if harsher standards are applied only to mail-in ballots in certain places, those kinds of discrimination could alter the results of an election. These situations are easily imaginable in an era of election denial.
The primary challenge, therefore, is to ensure that similarly situated voters are treated similarly. To some degree, more stringent enforcement of laws already on the books can help.
However, in the face of new challenges, existing law is not enough. For one thing, at least some insiders—poll workers and election officials—will themselves be motivated to undermine elections.5 Current state and federal standards do not go far enough to constrain their discretion. Moreover, in some states, the fox may be guarding the henhouse: Officials responsible for enforcing election laws have partisan and electoral incentives to look the other way when members of their own party bend or break the rules. It is critical, therefore, that there is some federal tool limiting the ability of state or local officials to subject particular voters to unwarranted, discriminatory treatment.
How to prevent discriminatory treatment of voters
One way to safeguard elections, while balancing concerns about federalism, is simply to require states to apply the same rules and practices to similarly situated voters. The proposal suggested here would allow states to continue to have complete control over their elections; it would impose no new across-the-board federal rules. At the same time, it would prevent the worst kind of electoral misconduct: selectively forcing certain voters to endure additional obstacles or scrutiny without legitimate justification.
Additional details of this proposal are provided below, including a detailed Q&A and draft legislative language that could serve as a starting point for federal legislation.
The core text of the draft language states that “No individual’s opportunity to vote in an election for Federal office may be restricted unless the restriction is authorized by state or federal law, and unless the state or federal law that is the basis for the restriction is consistently enforced across the state where the individual intends to vote.” The draft language, however, also builds in flexibility, ensuring election administrators can adopt different procedures when different circumstances require it. Just as importantly, the language ensures that nothing prevents a well-meaning official from going out of their way to help someone vote.
There are a lot of different ways that this proposal could be crafted, and those details are ultimately the province of legislators. But the suggestion here is that a basic principle of fairness—that voters within a state should have essentially the same opportunity to vote—should be achievable without getting bogged down in long-standing disagreements about particular voting policies.
The challenges ahead
No doubt, even passing a proposal such as this—one that simply promotes equal treatment among the citizens of a state—is likely to be an uphill battle. Early this year, Congress considered two much more ambitious proposals: the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act, which, though supported by every congressional Democrat, did not receive support from congressional Republicans and therefore were unable to reach the 60 votes needed to overcome the Senate filibuster.6 These bills were broad in scope; not only would they have strengthened federal standards for the right to vote, but they also would have taken a range of other steps, including prohibiting partisan gerrymandering and requiring disclosure of dark money spent on political campaigns. CAP strongly supported those proposals and continues to support policies that protect the right to vote, prevent partisan gerrymandering, and increase the transparency of money in politics.
The proposal suggested here, however, is much more modest; it will not come close to achieving the worthy goals that CAP shares with other voting rights advocates. It will, however, be an important step toward curbing the worst abuses of the U.S. electoral system.
To be sure, there are also plenty of challenges facing American democracy that are outside the scope of this proposal. For example, it would not address the scheme to undermine the Electoral College vote that culminated in the attack on the U.S. Capitol on January 6, 2021. However, that is a topic that should be a source of hope. A bipartisan coalition in Congress has been working over the past year to reform the Electoral Count Act (ECA) and help protect future presidential elections, and that legislation appears poised to pass.7
This proposal would give members of Congress a chance to show that what they have come close to achieving with ECA reform is not merely a one-off. It would be another major step toward eliminating the gravest threats to elections. And it would demonstrate that members of Congress have the resolve to set aside their differences for the long-term preservation of democracy.
Electoral Count Act Reform Is Now Within Reach
Draft legislation to ensure the fair administration of state voting laws
The text below could be used as a starting point for legislation that would require even-handed enforcement of a state’s own voting laws.
Consistent and fair enforcement of state voting laws
(a) Prohibition on selective enforcement of voting laws: No individual’s opportunity to vote in an election for federal office may be restricted unless the restriction is authorized by state or federal law and unless the state or federal law that is the basis for the restriction is consistently enforced across the state where the individual intends to vote.
(1) Opportunity to vote: The term “opportunity to vote” in subsection (a) includes the ability to register to vote and the right to have one’s vote counted. The term “have one’s vote counted” means all actions necessary to have a vote included in the appropriate totals of votes cast with respect to candidates for public office for which votes are received in an election and reflected in the certified vote totals by any government responsible for tallying or certifying the results of elections for federal office.
(2) Restrictions on voting: An individual shall be considered to face a restriction on their opportunity to vote if any policy or practice makes it more difficult to exercise their opportunity to vote, regardless of whether other factors may contribute to the additional difficulty.
(3) Consistent enforcement: As used in subsection (a), the phrase “consistently enforced across the state” means:
(A) In the case of a restriction that does not deny an individual the opportunity to vote, that the policy or practice restricting the individual’s opportunity to vote is enforced with regard to at least 90 percent of voters in the state and that any lapse in enforcement for the remaining 10 percent of voters serves a legitimate administrative purpose and is not intended to influence the outcome of the election.
(B) In the case of a restriction that denies an individual the opportunity to vote, that the policy or practice that denies the individual’s opportunity to vote is enforced with regard to all other voters in the state.
(4) Elections for federal office: The terms “election” and “federal office” have the meanings given to such terms in Section 301 of the Federal Election Campaign Act of 1971 (52 U.S.C. 30101).
(c) Exception for voters facing unusual obstacles: Nothing in this section shall be read to preclude state and local officials from helping voters who face unusual obstacles to their opportunity to vote from overcoming those obstacles in order to have a more equal opportunity to vote. Voters who do not face the same obstacles shall not be entitled, under this section, to the same accommodations.
(d) Enforcement and judicial review:
(1) Burden of proof: If an individual demonstrates that they faced restrictions on their opportunity to vote that at least two other individuals in the same state did not face, then there will be a presumption that the policy or practice restricting their opportunity to vote is not consistently enforced across the state as required by subsection (a) and the burden will be on the state to prove otherwise.
(2) Private right of action: A person who is aggrieved by a violation of this section may bring a civil action in an appropriate district court for such declaratory or injunctive relief as may be necessary to carry out this title, consistent with paragraph (4).
(3) Action by attorney general: The attorney general may bring civil action in an appropriate district court for such declaratory or injunctive relief as may be necessary to carry out this title, consistent with paragraph (4).
(4) Relief: To the maximum feasible extent, any relief granted under this section must serve to reduce restrictions on the opportunity to vote of the person(s) who are aggrieved by a violation of this section and others similarly situated and must not restrict other individuals’ opportunity to vote in the state.
(5) Duty to expedite: It shall be the duty of the court to advance on the docket and to expedite to the greatest reasonable extent the disposition of the action and appeal under this section.
(6) Attorneys’ fees: Section 722(b) of the Revised Statutes (42 U.S.C. 1988(b)) is amended:
(A) By striking “or section 40302” and inserting “section 40302”
(B) By striking “the court” and inserting “[this section of this bill], the court”
What conduct is this proposal designed to prevent?
The proposal is intended to prevent misconduct by rogue state and local election officials. Unfortunately, in recent years, election administrators increasingly face intense political pressure to change the outcomes of the elections they oversee. Despite the admirable resolve and professionalism of the vast majority of those officials, a growing number of new officials appear sympathetic to election conspiracies and open to appeals to change election results. Given the level of polarization and distrust in elections, it is no longer hard to imagine that some partisan officials—from either major political party—might be tempted to interfere with election outcomes.
One of the primary threats to the legitimacy of elections is that state and local officials could exercise their discretion—or act unlawfully—to favor some voters over others. For example, depending on state law, officials could:
- Set different standards for determining when a vote can be disqualified for minor ballot issues.
- Subject some groups of voters to cumbersome and unnecessary scrutiny.
- Take steps that excessively slow the voting process in certain locations.
This proposal intends to prevent officials from engaging in this behavior. In addition, in cases where the behavior is already illegal under state law, this proposal would provide an additional tool to resolve the illegal behavior on an expedited basis.
How will the proposal work?
Under the draft language, if a voter faced a restriction, or outright denial, of their opportunity to vote, they would have the ability to bring an action in court. If the voter could show that at least two other voters were not subject to the same restriction, the burden would be on the state to prove that the restriction is, nonetheless, consistently enforced across the state—meaning that, in the case of a restriction, at least 90 percent of voters are subject to the same restriction. And in the case of an outright denial of the opportunity to vote, the state would need to prove that all voters are in fact subject to denial under the same circumstances.
The proposal requires courts to expedite litigation to “the greatest reasonable extent” and allows successful plaintiffs to recover attorneys’ fees.
Is this a voting rights proposal?
No. This proposal does not specify how easy or difficult it should be to cast a vote under state law. Instead, it merely attempts to ensure that election standards already in place are consistently and fairly enforced. Put simply, this proposal seeks to safeguard the integrity of elections and ensure election results are not undermined.
Would this proposal preclude policies that help particular voters—either individuals or groups that face unique challenges—cast a ballot?
No. This proposal intends to prevent malfeasance in election administration, not to prevent election administrators from helping voters cast ballots. For restrictions that do not prevent a voter from casting a ballot, the provision’s text does not require absolute consistency across the state. Moreover, paragraph (c) of the draft language specifically states that nothing in this proposal can be read to preclude state officials from helping voters who face unusual obstacles to overcome those obstacles. This should include, for example, voters with disabilities, voters who live in remote locations, voters in the armed forces, and voters who have faced a history of discrimination.
Additionally, note that relief granted under this proposal is required, to the maximum extent possible, to diminish barriers to voting faced by the plaintiffs, not to diminish the ability of other voters to cast a ballot and have it counted.
Does this proposal overlap with any current voting laws?
This proposal is most closely analogous to the Equal Protection Clause of the U.S. Constitution, insofar as it requires voters to be treated equally under law. However, this proposal would make it substantially easier to ensure that voters are treated similarly and that any litigation is resolved expeditiously.
Does this proposal interfere with any current voting laws?
Nothing in the language affects other federal statutes that impact voting.
Is this proposal consistent with the U.S. Constitution?
Yes. Although the Constitution provides states, in the first instance, with the responsibility for regulating the time, place, and manner of elections, it also specifies that “Congress may at any time by Law make or alter such Regulations.”8 This proposal does not even go so far as to alter state regulations; it merely requires that they be uniformly applied. Arguably, the draft language simply strengthens enforcement of the Constitution’s Equal Protection Clause with regard to voting.
- Blair Miller, “Mesa County grand jury indicts Tina Peters, Belinda Knisley in relation to election tampering,” Denver 7, March 9, 2022, available at https://www.thedenverchannel.com/news/politics/mesa-county-grand-jury-indicts-tina-peters-belinda-knisley-in-relation-to-election-tampering; Emma Brown and Amy Gardner, “Georgia county under scrutiny after claim of post-election breach,” The Washington Post, May 13, 2022, available at https://www.washingtonpost.com/investigations/2022/05/13/coffee-county-misty-hampton-election/.
- Michael Waldman, “Attacks Against Election Officials Are Taking a Toll” (New York: Brennan Center for Justice, 2022), available at https://www.brennancenter.org/our-work/analysis-opinion/attacks-against-election-officials-are-taking-toll; Greta Bedekovics, “Protecting Election Workers and Officials From Threats and Harassment During the Midterms,” Center for American Progress, October 13, 2022, available at https://www.americanprogress.org/article/protecting-election-workers-and-officials-from-threats-and-harassment-during-the-midterms/.
- Jane C. Timm, “Under court order, GOP officials in New Mexico county certify election results,” NBC News, June 17, 2022, available at https://www.nbcnews.com/politics/2022-election/court-order-gop-officials-new-mexico-county-certify-election-results-rcna34219.
- Elaine Kamarck and Norman Eisen, “Democracy on the ballot—How many election deniers are on the ballot in November and what is their likelihood of success?”, Brookings Institution, October 7, 2022, available at https://www.brookings.edu/blog/fixgov/2022/10/07/democracy-on-the-ballot-how-many-election-deniers-are-on-the-ballot-in-november-and-what-is-their-likelihood-of-success/.
- Lawrence Norden and Derek Tisler, “Addressing Insider Threats in Elections,” Brennan Center for Justice, December 8, 2021, available at https://www.brennancenter.org/our-work/analysis-opinion/addressing-insider-threats-elections.
- Clare Foran, Ali Zaslav, and Ted Barrett, “Senate Democrats suffer defeat on voting rights after vote to change rules fails,” CNN, January 19, 2022, available at https://www.cnn.com/2022/01/19/politics/senate-voting-legislation-filibuster/index.html.
- Alex Tausanovitch, “Electoral Count Act Reform Is Now Within Reach,” Center for American Process, September 27, 2022, available at https://www.americanprogress.org/article/electoral-count-act-reform-is-now-within-reach/.
- U.S. Constitution, “Article I Legislative Branch: Section 4 Congress,” available at https://constitution.congress.gov/browse/article-1/section-4/clause-1/.
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