While there are many attractive features, election reform bill usurps the rights of states

In preparing for a presentation on election reform proposals, I had the rather daunting task of reviewing the provisions of HR 1, the federal legislation which has passed the U.S. House on a party-line vote, and now is under consideration in the Senate.

This is being considered at the same time that there are many bills in the New Hampshire legislature to affect election laws, registration requirements, voting procedures and other aspects of electing public officials.

Other states face the same onslaught, largely a result of the controversies surrounding the 2020 elections and the irresponsible statements by the former president and his followers who refuse to accept the reality that he lost.

Secretary of State Bill Gardner appeared before Congress to oppose HR 1 on the basis that it usurped the rights of states to run their own elections, and contained many dangerous provisions. After reviewing it, I agree with him on both counts.

Historically, except when civil rights have been involved, the federal government has left it to the states to design and conduct their own elections. In the case of things like the poll tax, blatantly designed to keep poor and usually minority citizens from being able to afford to vote, Congress and the federal courts have protected the constitutional rights of citizens. Otherwise, the states should be left to address election law based on their own experiences and conditions.

In New Hampshire, we traditionally have had among the highest turnouts and least controversial elections in the nation. Our elections are conducted primarily on the local level, by dedicated officials who run clean and efficient elections. We have same-day registration, which eliminates the need for many provisions proposed elsewhere.

Our elections have been designed with basic principles. First, it is easy for anyone to register, even on Election Day. Second, everyone gets a paper ballot, whether machines are involved or not. Third, any mechanized voting device cannot be networked or be capable of being “hacked.”

Last year, as widely reported, many onetime changes were implemented to allow safe voting in a pandemic. They worked well and resulted in a record turnout. However, as the pandemic recedes, we should remember that the prior system worked very well, and avoid “fixing” it if it isn’t broken.

If HR 1 is enacted, it undoubtedly will face a constitutional challenge, and the bet is that most, if not all, of it would be found unconstitutional by the Supreme Court. However, if that does not happen, and it goes into effect, New Hampshire and all other states will have to adopt a raft of new procedures, many of which have been rejected here.

Almost all the proposals made anywhere have found their way into the bill, many objectionable, and many good ideas which could be the subject of individual bills. A few of which would alter New Hampshire procedures for the worse, in my opinion are:

• Requiring online procedures for many steps in the process, subjecting them to potential hacking and insecurity.

• Requiring drop boxes for depositing ballots, probably in a way already rejected by the New Hampshire Legislature and presenting potential for abuse.

• Requiring early voting designed by Congress, not the state or localities to fit their needs.

• Requiring the right to register by those under 18.

• Requiring prepaid postage on return envelopes for absentee ballots, with all the complexities and expenses involved.

• Requiring “no-excuse” absentee voting, which violates provisions of the New Hampshire Constitution but assumedly would be overridden by federal mandate.

• Requiring motor voter registration — unnecessary in New Hampshire.

• Requiring educational institutions to designate voting officers, adding expense.

• Requiring certain kinds of polling place layout, putting burdens on towns and cities.

• Requiring certain kinds of voting machines and procedures probably as we already have.

• Requiring “portability” of registration on Election Day, adding possibility of abuse.

• Requiring that convicted felons be allowed to vote, eliminating state option.

While there are many attractive features in the legislation, and some of the above may be worth debate individually, putting them all in one bill makes it “take it or leave it” for legislators, and has the basic defect of usurping states’ right to fashion their own systems, as long as they preserve certain rights of all voters.

Hopefully, enough senators will see the errors in this approach and defeat this bill, so individual items can be discussed as appropriate and on their own merits. If not, expect a major mess.

Brad Cook is a Manchester attorney. The views expressed in this column are his own. He can be reached at bradfordcook01@gmail.com.