The Senate’s recently introduced Freedom to Vote Act (FTVA) incorporates most of the critical provisions from the For the People Act (FTPA), landmark voting rights and anti-corruption legislation that passed the House of Representatives in March 2021. It also includes new, much-needed safeguards against attempts to undermine the electoral process.
Nevertheless, the FTVA is compromise legislation that reflects important concessions responsive to critics of the FTPA, including both Republicans and moderate Democrats, such as Sen. Joe Manchin of West Virginia (an original sponsor of the FTVA). It also incorporates extensive feedback from election officials and others who advocated to preserve sufficient flexibility for states to tailor election practices to their individual circumstances. Finally, while in certain respects the FTVA is narrower legislation than the FTPA, in other instances it actually expands protections for voting rights and other electoral process safeguards relative to the prior bill.
Here are some of the most notable changes:
New Protections Against Voter Suppression and Attempts to Undermine the Electoral Process (Title III, Subtitles A, B, D, E & H)
- While the FTPA contained many provisions to guard against voter suppression, disinformation, and other attempts to subvert the electoral process, it did not respond specifically to certain recent tactics, like extreme partisan attacks on election officials, fake “audits” of election results, efforts to ban the distribution of food and water to those waiting in long lines to vote, and meritless refusals to certify election results.
- The FTVA addresses such practices with new provisions restricting the removal of election officials without cause, imposing stronger protections for federal election records, protecting the vote tabulation process from interference and intimidation, prohibiting mishandling of ballots and other sensitive materials, restricting states from banning the distribution of food and water to those waiting in line to vote, and allowing voters to go to court and challenge burdens on the right to vote, including the right to have your vote appropriately counted and certified.
Election Day as a Legal Public Holiday (Title I, Subtitle A, Part 2)
- The version of the FTPA that passed the House designated Election Day as a legal public holiday, but that provision was dropped from the companion bill introduced in the Senate. The FTVA restores it.
Automatic Voter Registration (Title I, Subtitle A, Part 1)
- The FTPA as passed by the House set forth a detailed blueprint for automatic voter registration (AVR) based on best practices from states that have already implemented the policy.
- The FTVA’s automatic voter registration provisions, in contrast, give states more flexibility than the provisions of the FTPA. Most notably, under the FTVA, states are only required to offer AVR at the DMV, as opposed to the longer list of agencies the FTPA had required (although the FTVA provides funding to states that want to expand automatic voter registration to other agencies, such as housing or health agencies).
Early Voting (Title I, Subtitle C)
- The FTPA established a uniform national two-week early voting period, which required that the early voting period include weekends and times outside of regular business hours, as well as that polling places be open for at least 10 hours per day. The bill also required states to ensure that early voting polling places are accessible to public transportation, rural voters, and college campuses.
- The FTVA also requires the uniform two-week early voting period as outlined in the FTPA but includes exceptions for vote-by-mail jurisdictions and small jurisdictions. Jurisdictions that send every registered voter a mail ballot are not required to provide two weeks of early voting, so long as they provide reasonable early voting opportunities during election officials’ regular business hours and at least one weekend of early voting. Small jurisdictions, including counties with fewer than 3,000 registered voters and certain small towns and cities that administer their own elections, are only required to offer early voting during the regular business hours of their election office and on at least one weekend.
Voting by Mail (Title I, Subtitle D)
- The FTPA as passed by the House required states to allow any voter to cast a mail ballot without an excuse, required states to offer multiple options for returning a ballot, prohibited states from imposing voter ID requirements for mail voting, and required states to mail absentee ballot applications to all registered voters.
- The FTVA retains the requirements that all states allow no-excuse mail voting and offer multiple ways to return ballots. It omits the House bill’s requirement that election officials distribute mail ballot applications to all registered voters (although states cannot prohibit them from doing so) and allows for mail ballot voter ID requirements that are not more restrictive than a state’s in-person ID requirements.
Voter ID (Title I, Subtitle I)
- Voter identification laws disproportionately burden communities of color, women, and other marginalized groups, and their main justification is to prevent a problem — widespread in-person voter fraud — that doesn’t exist. The FTPA did not preempt these laws, but it required any state with an in-person voter identification requirement to let registered voters lacking ID cast a regular ballot upon signing a sworn written statement attesting to their identity.
- The FTVA adopts a different approach. It requires any state that has a voter ID requirement to accept the many forms of ID accepted in West Virginia, including utility bills and bank statements. Voters without such identification would have to vote provisionally, subject to their identity being verified through a process similar to the process in West Virginia.
Voter List Maintenance (Title I, Subtitle J)
- While the FTPA would have still allowed states to engage in appropriate maintenance of voter lists, the bill placed tight limits on the methods states could use to determine which voters to purge. The legislation prohibited error-prone methods like interstate cross-check programs, which compare voter records from multiple states looking for supposed duplicates (the vast majority of which have tended to be false matches). Some have argued that states and localities need more flexibility to remove a voter from the rolls based on reliable information that the voter is deceased, has moved, or is no longer eligible.
- Accordingly, the FTVA slims down the restrictions on voter list maintenance. The bill allows states to mark voters as ineligible based on objective and reliable evidence, such as a death certificate or change of address form. The restrictions on some faulty methods remain, such as removing a voter from the rolls for failing to vote in an election or failing to respond to election mail. And like the FTPA, the FTVA requires states to provide purged voters with notice and an opportunity to show their eligibility.
Provisional Ballots (Title III, Subtitle K)
- The FTPA as passed by the House required states to count otherwise valid ballots cast in the wrong precinct anywhere in the state.
- The FTVA contains a narrower requirement that states count provisional ballots cast in the wrong precinct only if cast in the correct county. It also includes new language prohibiting states from imposing any further restrictions on out-of-precinct provisional ballots.
Nonpartisan Redistricting Reform (Title V)
- The FTPA as passed by the House banned partisan gerrymandering for congressional redistricting and required states to establish independent redistricting commissions to draw future maps.
- The FTVA does not include the independent commission requirement, but it retains and strengthens the general ban on partisan gerrymandering with specific court-enforceable standards, including a requirement that states use computer modeling to assess the partisan fairness of maps, and adds stronger protections for communities of color, and new requirements to ensure the redistricting process is more open and transparent. In a change from the For the People Act, partisan gerrymandering claims would have to be litigated in Washington D.C., and all redistricting appeals would go to the D.C. Circuit rather than directly to the Supreme Court.
Campaign Finance Oversight (Title VII)
- The FTPA as passed by the House would have overhauled the evenly divided Federal Election Commission, which has consistently failed to enforce campaign finance laws for more than a decade. The overhaul would have included turning the FEC into an odd-numbered body to bring its structure more in line with other independent regulators. (Although unlike those agencies, the FEC would have had one seat reserved for a political independent, so that neither party could exert full control.) This model was based on bipartisan legislation introduced in the last three Congresses.
- The FTVA significantly scales back changes to the FEC, but the remaining reforms would still be a marked improvement to the status quo. The FTVA maintains the FEC’s existing evenly divided structure but overhauls enforcement procedures at the commission so that partisan gridlock cannot be used to block investigations of alleged violations of the law.
Citizen Empowerment (Title VIII)
- The House and Senate versions of the FTPA would have created a voluntary small donor matching system for all federal elections, under which participating candidates would have had donations of $200 or less matched 6-1. By giving candidates a path to fund their campaigns without relying on a small group of wealthy donors, small donor matching offers the single most effective response to the growing dominance of big money in the wake of Citizens United and other misguided court opinions. The system in the FTPA would not have used any taxpayer funds.
- The small donor matching system in the FTVA is significantly scaled back (and still does not rely on taxpayer funds). It would only be available for House elections, and only in states that choose to opt into the program. States that do not participate would be able to use the money for other purposes, such as upgrading voting systems.
Campaign Finance Transparency (Title VI)
- The original FTPA included not only long-overdue campaign finance transparency provisions but also a comprehensive overhaul of federal ethics laws for the executive branch, Congress, and the Supreme Court.
- The FTVA adopts a more streamlined approach, paring back the campaign finance disclosure provisions in the FTPA to key priorities such as the DISCLOSE and Honest Ads Acts. It also omits the ethics titles, which are likely to be advanced through separate legislation.