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Earlier this week, Jessica Huse­man, the edit­or­ial director of Vote­beat, published an opin­ion piece in the Daily Beast that — while laud­ing many of the goals of the For the People Act (H. R. 1/ S. 1) — raised a number of concerns about the bill, includ­ing that elec­tion offi­cials were worried about how diffi­cult it would be to admin­is­ter.

While we agree that there are fixes that should be made to the bill, which Huse­man herself noted “are doable,” we want to clarify some misim­pres­sions that may have been left by the critique. We do not believe any of the points made in the article under­mine our assess­ment that the For the People Act is an excep­tion­ally import­ant piece of legis­la­tion that can and should be passed by Congress.

Below are some import­ant things to know about the For the People Act:

1. The Bill Author­izes Ongo­ing Fund­ing

The Daily Beast article asserts that the bill fails to provide for “cash­flow into the future.” It’s true that it is not an appro­pri­ations bill (nor could it be under congres­sional rules), but S. 1 author­izes $1 billion in appro­pri­ations for voting system improve­ment grants in 2021 — far more than the previ­ous rounds of elec­tion secur­ity fund­ing in 2018 and 2020 combined. The bill also author­izes $175 million in each of 2022, 2024, 2026, and 2028 to ensure that elec­tion offi­cials can continue to improve elec­tion systems and cover ongo­ing main­ten­ance costs of new systems. For auto­matic voter regis­tra­tion (AVR), S. 1 author­izes $500 million in fund­ing for 2021 and addi­tional sums in years after as may be neces­sary for states to meet the bill’s require­ments.

2. Tele­phone Regis­tra­tion Is Not in S. 1

The Daily Beast Article criti­cizes “For the People Act” for mandat­ing tele­phone regis­tra­tion. We agree that requir­ing states to allow regis­tra­tion by tele­phone presents admin­is­trat­ive and secur­ity issues. While the version passed by the House would require states to make regis­tra­tion avail­able “through the use of an auto­mated tele­phone-based system,” this provi­sion was fortu­nately not included in the Senate’s version.

3. Creat­ing a Federal Elec­tronic Poll­book Certi­fic­a­tion Program, as For the People Act Would Do, Is Import­ant and Widely Suppor­ted by Offi­cials of Both Parties

Includ­ing e-poll­books in the defin­i­tion of voting systems for the purposes of certi­fic­a­tion is an import­ant change to address an emer­ging secur­ity vulner­ab­il­ity. Congres­sional Repub­lic­ans and Demo­crats alike have suppor­ted this change, and a bipar­tisan group of state secret­ar­ies of state recently called on Congress to require e-poll­book certi­fic­a­tion. Thir­teen states already certify e-poll­books, demon­strat­ing that such a program is clearly admin­is­trable. But these indi­vidual state efforts have created a patch­work of vary­ing or conflict­ing stand­ards, and far too many states do not have the resources or expert­ise to imple­ment some­thing similar.

While the U.S. Elec­tion Assist­ance Commis­sion (EAC), the federal agency charged with setting federal voting system guidelines and admin­is­ter­ing federal elec­tion funds, does not currently include e-poll­books in its voting system test­ing and certi­fic­a­tion program, there is no reason the agency should not be required to do so. Indeed, last year, the EAC partnered with the nonprofit Center for Inter­net Secur­ity to launch a pilot project to develop meth­ods for assess­ing e-poll­books and other nonvot­ing tech­no­logy. Nor — contrary to the implic­a­tion in the Daily Beast article — is there any reason to expect that feder­ally certi­fied test­ing labs are incap­able of test­ing e-poll­books to federal stand­ards, merely because they do not currently do so.

4. Feder­ally Accred­ited Voting System Test Labor­at­or­ies Already Exam­ine E-Poll­books

The article expresses concern about whether feder­ally accred­ited certi­fic­a­tion labs can exam­ine e-poll books. This should not be an issue. While e-poll­books are not yet tested to federal stand­ards (because there are none), these labs already do test e-poll­books to state stand­ards — for instance, the common­wealth of Virginia has required the use of feder­ally certi­fied voting system test labs to conduct test­ing of elec­tronic poll­books under the state’s elec­tronic poll­book certi­fic­a­tion program since 2015.

5. The Trans­ition Away from Paper­less Voting Machines Mandated by the Bill Is Over­due and Reas­on­able

Paper­less voting systems are a signi­fic­ant secur­ity risk, and the complete trans­ition away from these systems is long over­due. The require­ment that states stop using paper­less voting machines by the fall 2022 elec­tion is entirely reas­on­able. Only seven states still use at least some paper­less voting machines, and other states have shown that moving to an all-paper system is possible in a shorter time than what is allot­ted in this bill. Virginia decer­ti­fied paper­less voting machines in Septem­ber 2017 and replaced all decer­ti­fied equip­ment by the Novem­ber general elec­tion just three months later. New Jersey — one of the seven states that still uses paper­less systems — imple­men­ted an entirely new paper-based all-mail elec­tion for 2020 in a matter of months.

This change can happen fast when there is an impetus or mandate to do so. The secur­ity and integ­rity of our elec­tions cannot wait any longer. We need a firm dead­line for when we will no longer have outdated, vulner­able voting equip­ment.

And unlike the states that made this change in prior elec­tion cycles, these remain­ing states are no longer without resources to make this trans­ition. Congress already alloc­ated $380 million in 2018 and $425 million in 2020 to help fund new elec­tion equip­ment. S. 1 would author­ize another $1 billion to fund voting system improve­ments, with an addi­tional $175 million each elec­tion year from 2022 to 2028. These grants can be used for a broad range of purposes that help facil­it­ate the trans­ition away from paper­less machines, includ­ing to address concerns about paper ballot stor­age in any trans­ition­ing juris­dic­tions that are large enough to require signi­fic­ant adjust­ments to current prac­tice.

6. EAC Respons­ib­il­it­ies in the Bill Are Appro­pri­ate

While S. 1 does deleg­ate addi­tional respons­ib­il­it­ies to the EAC, these respons­ib­il­it­ies mostly build on things that the agency already does — distrib­ut­ing fund­ing, issu­ing best prac­tices, and certi­fy­ing voting systems. We acknow­ledge that the EAC has some­times been inef­fect­ive at meet­ing stat­utory respons­ib­il­it­ies in the past, partic­u­larly when the agency lacked a quorum. But in the past year, the agency has brought on effect­ive new staff lead­er­ship and facil­it­ated some much-needed meas­ures to improve elec­tion secur­ity and admin­is­tra­tion.

In partic­u­lar, the EAC has shown that it can success­fully and quickly distrib­ute funds alloc­ated by Congress. In the past three years, it distrib­uted more than $1.2 billion to help states address elec­tion secur­ity needs and respond to chal­lenges of the pandemic — and getting addi­tional funds to states is the largest respons­ib­il­ity that S. 1 deleg­ates to the agency.

While the bill gives the agency author­ity to decide how to distrib­ute some of these funds based on need and past perform­ance, it limits the like­li­hood of partisan grid­lock or favor­it­ism in such distri­bu­tion by creat­ing an advis­ory commit­tee of experts to provide the agency with public recom­mend­a­tions as to where such funds should go. To the extent that Congress is uncom­fort­able with even limited discre­tion, it could ensure that supple­mental funds are subject to a stat­utory formula.

7. The Auto­matic Voter Regis­tra­tion Timeline Includes a Waiver Provi­sion

S.1 gener­ally requires states to imple­ment auto­matic voter regis­tra­tion by 2023. This timeline should be typic­ally reas­on­able to meet, accord­ing to the exper­i­ence of multiple states. In fact, of the states that have imple­men­ted AVR to date, six did so in less than a year from legis­lat­ive enact­ment, and five did so in less than two years. Other states quickly adop­ted auto­matic voter regis­tra­tion without author­iz­ing legis­la­tion, and several have begun but not yet completed imple­ment­a­tion.

But even if states cannot meet this dead­line, S. 1 allows states to seek a waiver and extend the effect­ive date to 2025. While it’s true that S.1 covers state agen­cies beyond Depart­ments of Motor Vehicles, Congress can extend the timeline for addi­tional state agen­cies or the timelines can be addressed in court if the AVR dead­line of 2025 proves to be a prob­lem.

S.1 author­izes $500 million in fund­ing for 2021 and addi­tional sums as may be neces­sary in succeed­ing years. There is no reason to believe that these sums are not enough. Multiple states, includ­ing Mary­land, Michigan, and Wash­ing­ton, imple­men­ted AVR wholly in-house, without signi­fic­ant addi­tional costs. Moreover, there will be no costs for the 14 states and D.C. that already have AVR in place, and likely others that are in the process of imple­ment­ing it, as they will be exemp­ted from S. 1’s require­ments.

While it is true that success­ful AVR requires coordin­a­tion with multiple state elec­tion agen­cies, we agree that states can “choose to alloc­ate fund­ing to these offices them­selves using” grants that the EAC distrib­utes. There is no reason to believe that states cannot direct money to the right place to satisfy federal require­ments. As Secret­ary of State Jocelyn Benson of Michigan noted in her testi­mony to the Senate Rules Commit­tee, “with suffi­cient fund­ing, part­ner­ships, lead­er­ship and polit­ical will, it is entirely possible to suffi­ciently and success­fully imple­ment” AVR and other reforms contained in the For the People Act.

8. The Private Right of Action Isn’t So New

When federal elec­tion stat­utes create new rights for voters, as For the People Act does, it is common to expli­citly provide a right of action for voters in stat­ute, or for courts to imply a right of action so that indi­vidu­als can go to court to protect those newly created rights. While the private right of action in S. 1 is admit­tedly broader than in the most recently passed elec­tion legis­la­tion, it is import­ant to have an altern­at­ive enforce­ment mech­an­ism if states refuse to imple­ment the common­sense reforms contained in this bill and the Justice Depart­ment fails to enforce the stat­utory require­ments.

Even with a private right of action, courts will still get to determ­ine whether lawsuits are reas­on­able, and they will reject suits if stat­utory require­ments are impossible to comply with in prac­tice. In any event, the lack of an expli­cit stat­utory private right of action in the past has not preven­ted private indi­vidu­als from suing state and local juris­dic­tions over federal elec­tion stat­utes or the secur­ity of their voting systems. It is not unusual for litig­a­tion to follow elec­tion admin­is­tra­tion changes, but this cannot be suffi­cient reason to refrain from needed changes.

If Congress would like to consider an altern­at­ive to the current language, the right of action provi­sion can be pared back to exclude purely admin­is­trat­ive reforms, or a safe harbor provi­sion can be added for juris­dic­tions that take reas­on­able efforts to comply with S. 1’s voting system require­ments.

9. Some Tweaks to the Bill Need to Be Made

Huse­man’s Daily Beast article does raise some concerns we fully agree with.

For instance, the article raises valid concerns around the timeline for decer­ti­fy­ing voting systems that do not comply with the latest volun­tary voting system guidelines (VVSG). The Bren­nan Center has previ­ously recom­men­ded that this provi­sion be elim­in­ated or altered. With the EAC just recently approv­ing a new VVSG, more time is needed for voting system manu­fac­tur­ers to respond and develop compli­ant systems and for elec­tion offi­cials to purchase and imple­ment this new equip­ment.

We also agree that the recom­mend­a­tion in the bill that states use self-seal­ing envel­opes can present admin­is­trat­ive diffi­culties and unne­ces­sary costs. While we under­stand the desire to provide self-seal­ing envel­opes in the middle of the COVID pandemic, we do not believe this should be a perman­ent require­ment.

As Huse­man herself noted these prob­lems are “abso­lutely not unfix­able.” Given how import­ant “For the People Act” is for Amer­ican demo­cracy, it is crit­ical that this fact not be ignored. The Bren­nan Center (and other groups) are work­ing closely with elec­tion offi­cials to identify any addi­tional fine-tuning that will ensure that this bill is as effect­ive and admin­is­trable as possible.