The 2020 US presidential election and down-ballot races were a success for democratic participation. The presidential race saw a record number of people – over 158 million US voters – turn out to vote and the Senate run-off elections in Georgia in early 2021 broke the turnout record for runoff races in the state.
Many US citizens took advantage of the early and mail-in/absentee voting opportunities introduced in many states as a result of the covid-19 pandemic, concretely demonstrating the importance of improving access to democratic participation. The number of those voting by mail/absentee ballot more than doubled between 2016 and 2020 (46% in 2020 compared to 21% in 2016), while those voting early also increased to over a quarter (26%) of all voters.
The fight to protect voting rights
But a recent study by the Brennan Center for Justice – a US-based nonpartisan law and policy institute – has found that, since the election, many states have introduced legislation aimed at restricting voting rights and making it harder for people to participate. Across 28 states, 106 bills are being considered – or have already been introduced – which would restrict access to voting. The comparable figure for February 2020 was only 35 bills. According to the Brennan Centre’s analysis, the bills are aimed primarily at limiting mail voting access and pro-voter registration policies, imposing strict voter ID requirements, and enabling more aggressive voter roll purges.
Despite such blatant attempts at curbing democratic participation, the good news is that, to date, 35 states are considering – or have introduced – bills to expand voting rights. So far 406 bills have been proposed, an increase from 188 similar bills in 2020, covering areas such as mail-in and early voting, voter registration and restoring voting rights.
The For the People Act
In addition to these state-level attempts at restricting or expanding voting rights, a congressional bill that is little known in the UK is back in the headlines and generating considerable discussion in the US among both proponents and opponents of voting reform: the For the People Act.
This bill was originally introduced as H.R.1 in the US House of Representatives in early 2019 by the new Democratic majority in the House, but, after being passed by the House, then Senate Majority Leader Mitch McConnell prevented its being introduced in the Senate, effectively killing it off. Following the 2020 election the bill was reintroduced in the House and introduced in the Senate as S.1, signalling its status as a top priority for the Democrats.
The bill contains a package of sweeping reforms to expand Americans’ access to the ballot box, reduce the influence of big money in politics, and strengthen transparency around online political advertising, among many others. The election law reforms contained in the bill apply only to federal elections (each state is responsible for its own election law) and include:
Improving voter registration and access to voting
- The modernisation of voter registration, including allowing for online voter registration and for citizens to update their registration information online
- Automatic voter registration, for example, when an individual interacts with a state agency
- Same day voter registration
- Extending early voting to all 50 states and establishing minimum standards for its implementation
- Funding local initiatives to provide voter registration information to high school seniors and allowing 16- and 17-year olds to pre-register to vote
- Providing additional funding to states to help boost youth involvement in state election activities and to help states update voter registration processes
- Enhancing transparency around donations and spending
- Clarifying the foreign national ban with regards to national campaign spending and communications (including political ads), among others
- Closing dark money loopholes, including prohibiting the use of corporations or other entities to conceal activities by foreign nationals
- Encouraging the use of small donations, for example by establishing a system of voluntary small donor public financing for elections to the House of Representatives and establishing a small donor matching system for congressional elections
- Overhauling the Federal Election Commission by reducing the number of commissioners from six to five, with no more than two from each party, thus requiring one commissioner to be a tie-breaking independent
- Preventing coordination between candidates and outside groups, such as the so-called ‘super PACs’
Online political advertising
- Extending transparency and other rules to paid online ads
- Strengthening imprint requirements for online ads to ensure these disclose ‘in a clear and conspicuous manner’ who paid for and authorised them
- Requiring online platforms with at least 50 million unique monthly US visitors to create a database of all paid-for politics ads, including the ad’s target audience and views, the price of the ad, and who purchased it
The For the People Act is one of the most comprehensive attempts at reforming federal election law in the history of the United States. Perhaps because of its ambitiousness, it is unlikely that it will be passed by both houses of Congress, at least as in its current form, given the Democrats’ wafer-thin majority in the Senate means they do not have the required 60 votes to get it through. One option to ensure the bill’s passage would be for the Democrats to end the filibuster and pass the legislation with only 50 votes, though this is highly politically sensitive and many Democrats are cautious of pursuing this route. However, some argue that, following the bill’s passage in the House, it may be possible for senators, led by newly-elected Georgia senator Raphael Warnock (a strong proponent of the bill), to use the For the People Act to make the case for ending the filibuster, potentially by paring it back, highlighting its pro-democratic credentials, and demonstrating it has strong support among voters.
Reforming and modernising election law is no mean feat – legislative time and political will are key. This applies not only to the US but also to the UK, where there have been many reform proposals, not least the Law Commissions’ landmark report on simplifying and modernising electoral law. As in the US, reforms aimed at updating electoral law, improving voter registration and reducing barriers to participation, and cleaning up election finance are long overdue in the UK. They are vital to ensuring that our democratic processes are up to date, that voters can participate without undue barriers, and that there is confidence in the integrity and strength of electoral processes.
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