In-Depth: Rep. Rodney Davis (R-IL), Ranking Member on the Committee on House Administration, introduced this bill as an alternative to the Democrat-led SHIELD Act of 2019 (which passed by a 227-181 party-line vote on October 23, and which he objected to on multiple levels). Both bills are election security bills aimed at preventing foreign actors from meddling in our nation's elections, but differ in their specific tactics. When he introduced this bill, Rep. Davis said:
“The type of interference we saw in the 2016 presidential election with Russia's misinformation campaign is unacceptable, which is why I'm putting forth the Honest Elections Act. Our bill is designed to fight nefarious actors from intruding in our elections without infringing on Americans' right to free speech or requiring unworkable standards for digital communications. We may never be able to prevent criminal activity, whether that’s in our elections or in our day-to-day lives, but we can provide our law enforcement with the best tools and resources available. It's imperative that our elections systems are free from foreign influence, and I hope my colleagues on both sides of the aisle will support this legislation and put the needs of the American people first."
While the idea of allowing non-citizens to vote may sound outlandish, proponents of the idea point out that from America’s founding up until the 1920s, 40 states and federal territories allowed noncitizens to vote. At that time, non-citizens voted in local, state, and even some federal elections. They were also permitted to — and did — hold public offices such as alderman, coroner, and school board member.
Ron Hayduk, a professor of political science at San Francisco State University, says offering non-citizens the vote was one way that frontier territories attracted settlers. For example, under the Northwest Ordinance of 1787, residents of the Northwestern Territory were enfranchised after three years; and under the Illinois constitution, they were enfranchised after only three months. However, Hayduk also observes that the naturalization process used to be quicker, easier, and seemingly inevitable. This, he argues, led people to think that everyone was on a path to citizenship. Thus, of the non-citizen enfranchisement, he argues, “it’s like: ‘So what? You aren’t a citizen now, but you will be.”
In fact, in 1874 — before women’s suffrage — after Missouri citizen tried to vote and was denied the right to vote, she took the case before the Supreme Court, which ruled against her based on gender, not citizenship. In that ruling, the Court ruled that “citizenship has not in all cases been made a condition precedent to the enjoyment of the right of suffrage." The Court would go on to revise its opinion on voting rights in later decisions, however: in 1904, it ruled that states have jurisdiction over voter eligibility criteria (“the privilege to vote in a State is within the jurisdiction of the State itself”); and in 1973 it ruled that while citizenship can be used to limit enfranchisement, it isn’t a mandatory condition for such (“citizenship is a permissible criterion”).
Non-citizen voting across the U.S. peaked around the 1860s through 1880s, when lawmakers began rescinding non-citizen voting laws and changing their state constitutions. From 1880-1920, the flow of migrants escaping political instability and famine in Eastern Europe caused both the Republican and Democratic parties to leverage what Citylab writer Tanvi Misra terms “the simmering racism and rising xenophobia accompanying World War I” to clamp down on non-citizen voting rights on a state-by-state level. The rollback of non-citizen voting rights coincided with the rise of other tactics to suppress voter turnout, such as poll taxes, literacy tests, felon disenfranchisement, and restrictive residency requirements. Finally, the passage of the Immigration and Naturalization Act of 1965 opened the door for the reintroduction of local non-citizen voting, and campaigns to expand the vote to non-citizens have been launched in several states since. Since 1996, federal law has prohibited non-citizens from voting in federal elections.
Proponents of immigrant voting believe that allowing non-citizens to vote is a question of equity. Manuel Castro, executive director of New Immigrant Community Empowerment (NICE), an organization that promotes immigrant workers’ civic and social empowerment, says, “We’re not visitors. When you’re here, you’re part of this community that’s ever-changing and ever-evolving.”
Lawyers for Civil Rights civil rights fellow Lauren Sampson and Lawyers for Civil Rights executive director Iván Espinoza-Madrigal made the case for “all resident” voting in a February 27, 2019, joint op-ed:
“Non-citizen residents are the epitome of ‘taxation without representation.’... Deprived of the ability to vote, non-citizen residents have no reason to believe their elected representatives will actually represent them, and they have no way to hold those officials accountable should they fail. [With the right to vote], non-citizens can become even more embedded in their communities: they can vote on policies affecting their families, businesses and homes, and have a say on how their economic contributions to the city are used… All-resident voting could draw in hundreds of new voters and leaders… [and help meet the goals of] increasing voter participation, lowering barriers to candidate participation and increasing the openness and transparency of the electoral process.”
In response to Portland, Maine Mayor Ethan Strimling’s proposal to allow non-citizens to vote in municipal elections, Ross Baker, a political science professor at Rutgers University, argued against non-citizen voting in an August 20, 2018 op-ed:
“The right to vote is a component of citizenship. It is not a dispensation granted to those who may or may not apply for citizenship… [Mayor Strimling], a Democrat, is obviously counting on antipathy to Donald Trump to induce progressives looking for any opportunity to stick it to the president to put the measure over the top this time. We may suspect that the mayor sees in these newly-enfranchised residents a healthy crop of New Democratic voters. It is understandable that a politician would want to ingratiate himself with a sizable portion of the population in his city. But bestowing the power to vote on those who have not and may never achieve citizenship debases the value of the franchise. Nor should it be reduced to a mere symbol of disapproval of the president. Donald Trump may well be worthy of disapproval, but there are better forms of opposition to his immigration policies than to create a new political constituency of non-citizen voters.”
Former Arizona Republican Party chairman Robert Graham, who backed an anti-ballot harvesting law in the state in 2016 (that, after being challenged in the Supreme Court, was ultimately allowed to stand by the Supreme Court), says, “I think at any level, Republican, Democrat or anything, it’s wrong. It’s a terrible practice. People should be responsible for their own votes.”
Steven F. Huefner, a law professor at Moritz College of Law at The Ohio State University, notes four ways in which ballot harvesting by political operatives increases the risk of voting fraud:
- Ballot harvesters can destroy or discard ballots from those whom they know or believe voted for the “wrong” candidate.
- Ballot harvesters can collect ballots in unsealed envelopes, or open sealed envelopes, and either alter votes or fill in blank portions of undervoted ballots (those in which the voter did not vote in some races).
- Ballot harvesters can collect unfilled ballots and fill them in themselves.
- Ballot harvesters can exert improper influence on voters while the voters are completing their ballots.
The Native American Rights Fund (NARF) defended ballot harvesting in a March 5, 2019 letter to House leadership. It defended ballot harvesting as particularly important to protecting the Native vote, as it helps mitigate challenges due to long distances and limited mail services:
“Several examples illustrate the reliance of Native voters on community members to collect their ballots as a necessary part of their ability to exercise their fundamental right to vote. In Montana, Election Day voting for voters on the Flathead Indian Reservation requires a three and one-half hour roundtrip drive from Dixon to the Sanders County courthouse. On the Duckwater reservation in Nye County, Nevada, the nearest in-person early voting and Election Day voting location is at least a five hour roundtrip drive because of the road conditions and mountainous regions. Mailing locations are not as accessible for Natives on tribal lands as they are to non-Natives off tribal lands. Home mail-service does not exist throughout Indian Country. On parts of the Spirit Lake Nation in North Dakota, the Navajo Nation in Arizona, Lac du Flambeau Band of Lake Superior Chippewa Indians of Wisconsin (to name a few reservations) homes are unmarked and do not receive regular mail service. Reservation homes that are unmarked are entirely reliant on P.O. boxes to conduct their business affairs. Even where mailboxes, post office boxes, and postal services exist, they are often great distances away from where Native voters live. The Intertribal Council of Arizona has testified that rural post offices are often 20 miles or more away from tribal communities. Roads within reservation communities can be difficult to navigate and dirt or gravel roads may be impassable during bad weather, especially during the winter election season of November. Mail-services are often limited… The answer to… [occasional ballot harvesting] violations is to use existing state laws, not to pass unneeded federal legislation that will disenfranchise Native American voters.”
David Wolfe, president of Well Versed Consulting, a Sacramento-based lobbying and marketing firm, made the case for improving, not eliminating, ballot harvesting in a February 2019 article in The Ripon Forum:
“[T]he question of whether ballot harvesting should be allowed is filled with nuance and is not a black and white issue. The idea is not a partisan one. After all, predominantly Republican states such as Texas and Utah have ballot harvesting. So do predominantly liberal ones, such as Oregon and my home state of California… On the one hand, no voter should be disenfranchised and prevented from casting his or her ballot, especially due to age or disability. On the other hand, the prospect for fraud is real and legitimate… But allegations about fraud in this area remain unproven. And while individuals are of course entitled to their opinions, conservatives in California and other states where ballot harvesting is legal would be better served by raising money to take better advantage of this new voter outreach tool. Conservatives should work to do everything possible to improve the current harvesting system. For instance, ballot harvesters could not only be certified and trained by county election offices to collect ballots, but also be required to wear identification badges, as well. There could also be citizenship requirements, or requirements that harvesters be registered to vote in the county where the ballots are collected. Further, country registrars could be required to call or mail absentee voters during the canvassing period following the election to ensure that their ballot was collected and submitted by the harvester who collected it. If the individual didn’t vote, the ballot could be disputed. Finally, to further limit potential fraud, a harvester could be permitted to only collect up to 10 ballots per election cycle. Texas and Colorado have a similar restriction, and it is a far preferable solution to California, where, under AB 1921, an unlimited number of ballots per person are allowed to be turned in. In the last election, one harvester in Orange County submitted over 200 ballots at one time. Clearly, that doesn’t mean those ballots were collected fraudulently. But this restriction would minimize the risk of this occurring.”
This legislation has 20 Republican cosponsors.
Of Note: Investigations and whistleblower accounts have detailed extensive communications between the Trump White House, Trump campaign, and foreign governments. Investigators have found over 100 contacts from Russia and Wikileaks between President Trump and at least 17 of his campaign officials and advisors. Recently, the President and his administration have solicited foreign interference in the 2020 American elections from multiple foreign governments, including China, Ukraine (which he’s facing impeachment proceedings over), and Australia.
In June 2017, Sen. James Risch (R-ID), chairman of the Senate Committee on Foreign Relations, interrogated then-Attorney General Jeff Sessions about collusion with foreign governments to influence an American election. Sen. Risch said, “Collusion with the Russians - or any other government, for that matter, when it comes to our elections – certainly would be improper and illegal. Would that be a fair statement?” to which then-AG Sessions answered, “Absolutely.”
FEC chair Ellen Weintraub notes that the law is already clear on the illegality of accepting foreign nationals’ help in U.S. elections. In an interview on “Morning Joe,” she said, “[T]he law is pretty clear. ... It is absolutely illegal for anyone to solicit, accept, or receive anything of value from a foreign national in connection with any election in the United States.”
Edward B. Foley, director of the Election Law Program at the Ohio State University’s Moritz College of Law, argues that “[h]istory shows that a president sometimes might be justified in asking a foreign country to investigate a political rival, including a former vice president.” For example, in 1804, Aaron Burr contacted the British government, apparently to peddle a plan for severing part of the U.S. to form a new country in western territory. In response, President Thomas Jefferson had Burr prosecuted for treason (he was found not guilty).
In this case, Foley contends, Jefferson would have been justified in asking Britain to help gather more information about Burr’s involvement in this plot, even though Jefferson was seeking reelection at the time and Burr might have coveted the presidency in spite of his plot. Given the circumstances, Foley concludes, “Whatever the circumstances of the electoral rivalries at that moment—and campaigns back then were, of course, very different from today—Jefferson as president would have been acting responsibly if he had requested Britain’s assistance in the investigation of Burr.”
The House has already passed three pieces of legislation to protect U.S. elections in the current Congressional session. They are the For the People Act (H.R.1), which passed the House by a 234-193 party-line vote in March 2019; and the Securing America’s Federal Elections (SAFE) Act (H.R.2722, also sponsored by Rep. Lofgren), which passed by a 225-184 vote in June 2019. Finally, the bill that Rep. Davis introduced this bill as an alternative to, the SHIELD Act (H.R.4617), passed the House by a 227-181 vote on October 23, 2019 without any Republicans voting for it.
Both the For the People Act and the SAFE Act were rejected by Senate Majority Leader Mitch McConnell (R-KY) due to Republican concerns over elections being federalized and concerns that their language didn’t address election security. They remain in limbo as of mid-October 2019.
Commenting on the For the People Act's and SAFE Act's fates, Rep. Zoe Lofgren (D-CA) says, “The committee and House have acted twice to shore up confidence in elections…we should all be able to agree we need to protect our democracy and with a sense of urgency. This shouldn’t be a partisan opinion.”
Even as it criticizes ballot harvesting by Democrats, the California GOP is working to expand ballot harvesting in the state. In a private conference call with GOP donors in February 2019, Rep. Tom Emmer (R-MN), chairman of the National Republican Congressional Committee (NRCC), says, “We got our clocks cleaned.” He added, “While the Democrats had an operation on the ground that was actually doing the ballot harvesting, we did not have a corresponding organization that was doing that. That won’t happen again.”
Summary by Lorelei Yang(Photo Credit: iStockphoto.com / stuartmiles99)