From the New Hampshire Municipal Association Legislative Bulletin
We have written several times this year about our concerns with the “For the People Act,” now known as the “Freedom to Vote Act,” the federal legislation that would require sweeping changes in the conduct of elections. Until recently there was little urgency, as the bill’s chances of passage in the U.S. Senate seemed slim. Now, however, there is cause for heightened concern. We will explain the legislation’s procedural posture at the end of this message. First, let’s discuss what the bill would do.
To be clear, there are some good things in the bill, such as a prohibition on partisan gerrymandering of congressional districts, which NHMA supports. Other provisions are not objectionable, at least to NHMA, such as automatic voter registration and campaign finance reform. However, certain requirements in the bill would have catastrophic results for New Hampshire’s election process.
Early voting. The bill requires states to allow early voting in all federal elections (including primaries) for at least 15 consecutive days leading up to election day, and at least 10 hours on each day during that period.
This is impossible for New Hampshire to accomplish with its reliance on volunteer poll-workers. We understand that some states have adopted early voting and apparently have found ways to make it work, but it can’t work in New Hampshire.
Most polling places in New Hampshire are located in non-municipal buildings, such as schools and churches. Few if any of them can be reserved for voting for 15 days at a time. If the school or church refuses, where will people vote?
Most election officials—moderators, clerks, supervisors of the checklist, selectmen, and ballot clerks—have lives outside of their election duties. How many of them will be willing to give up 15 consecutive days to spend at the polls?
By the way, it’s not just 15 days. It would be 30 days over a two-month period: 15 days for the state primary and 15 days for the general election. In a presidential election year, it would be another 15 days for the presidential primary, for a total of 45 days spent at the polls in one year.
There is a very limited exception for jurisdictions with fewer than 3,000 registered voters. It still requires 15 consecutive days of early voting, with slightly reduced hours. This is of little use to the towns that qualify, and of no use to the approximately 100 New Hampshire municipalities that exceed the threshold.
Polling places on college campuses. The bill states, “In the case of a jurisdiction that includes an institution of higher education, the state or jurisdiction shall ensure that an appropriate number (not less than one) of polling places which allow [early] voting will be located on the campus of the institution of higher education.” There are noexceptions.
Thus, for example, the town of Durham will have to move its only polling location to the UNH campus (unless it wants to run two polling places for 15 days). Plymouth will be required to move its polling place to the Plymouth State campus. Polling places will also have to be moved in Berlin, Goffstown, Hanover, Henniker, Merrimack, New London, Rindge, and Warner (and probably a few others that we haven’t thought about), and in one or more wards in Claremont, Concord, Keene, Laconia, Lebanon, Manchester, Nashua, and Portsmouth.
Each of these towns or wards will need to transport its ballots, voter records, checklists, and ballot-counting devices from the town offices to the college campus, and back, every day for 15 consecutive days.
The bill does not say what a town is to do if the local college does not want to make a building available for 30 days (or 45) every other year—or if the building that it makes available does not have sufficient parking or is otherwise unsuitable as a polling place.
Notification of new polling location. For any voter who is assigned to a polling place that is different from the one he or she used at the previous federal election, “the appropriate election official shall, not later than two days before the beginning of an early voting period, notify the individual of the location of the [new] polling place.” This notification must be done “by mail, telephone, and (if available) text message and electronic mail.”
Thus, the towns and cities mentioned above will have to send thousands of letters and make thousands of telephone calls to notify voters that their polling place is being moved to a college campus. As just one example, in Henniker, which has three employees in the clerk’s office, phone calls will have to be made and letters sent to over 3,000 registered voters. And that’s before considering the requirement that notice also be sent by text and email “if available.”
Other matters. The above are only the most serious problems with the bill. Other concerns include:
a requirement that every “jurisdiction” (which is undefined, but in New Hampshire presumably would include, at least, every municipality) provide at least one drop box for completed ballots that is both secure and accessible 24 hours a day, beginning the first day that absentee ballots are sent to voters;
a requirement that 16- and 17-year-olds be permitted to register, but not vote, meaning that they will somehow have to be segregated on the checklist, unless ballot clerks are now going to be expected to check birth dates during election day check-in;
a requirement that all absentee ballots postmarked by election day be counted if they are received within seven days after election day—thus forcing election officials to give up at least one more day and ensuring that no election results will be known for over a week.
Again, there are plenty of reasonable provisions in the Freedom to Vote Act, and we do not doubt that the bill would help to correct abusive election laws that are being enacted in some states. When voters must wait in line for six hours or longer to vote, or when polling places are eliminated without notice, that is a problem. But these problems do not exist in New Hampshire.
In New Hampshire, a “long” wait is typically 15 minutes. (One instance five years ago in which voters in one town had to wait 90 minutes, due to a traffic snafu, made the news precisely because it was an aberration. The problem was corrected before the next election.) No one from eitherpolitical party in New Hampshire has ever suggested that the state should adopt an early voting process like the one in this bill. But the bill obviously was drafted with other states in mind, and it appears that no one gave any thought to how it would work in New Hampshire. If the bill is to move forward, either (1) the requirements discussed above should be removed or (2) New Hampshire should be exempted from those requirements.
If the bill in its current form takes effect in 2022, which is the plan, there seem to be two possible results. The first is that most or all New Hampshire municipalities will not comply—because they can’t—so that our election results for federal offices will presumably be invalid. The second is that, rather than violate the law, election officials will resign en masse and elections simply will not occur. Either scenario would create a constitutional crisis with no apparent solution.
Where things stand. All Democrats in the U.S. Senate are supporting the Freedom to Vote Act, so it has the votes (barely) to pass the Senate. The one thing stopping it is the prospect of a Republican filibuster—the procedural maneuver that prohibits the Senate from voting on a measure unless at least 60 members vote to end debate—but that appears fragile. It would take only a simple majority (50 votes plus the tie-breaking vote of Vice President Harris) to eliminate the filibuster, and once that happens, it would take only the same simple majority to pass the FTVA.
Forty-eight Democratic senators appear willing to eliminate the filibuster; only two, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, are resisting, and they are under intense and increasing pressure to change their minds. We continue to hear that that is unlikely, but there are no guarantees. If those two senators change their minds and vote to eliminate the filibuster, a vote on the FTVA could occur any day.
Both of New Hampshire’s U.S. representatives and both of our senators are on record in support of this legislation. We strongly encourage you to contact your congressional delegation immediately and explain that this bill would create a historic disaster