A quick look at the draft election law ACCESS Act, a part of the draft HEROES Act
H.R. 6800, the Health and Economic Recovery Omnibus Emergency Solutions Act, or HEROES Act, was recently posted. It includes the American Coronavirus/COVID-19 Election Safety and Security Act, or ACCESS Act. (That’s separate and apart from the $3.6 billion in funding for elections given to states.) I thought I’d break down its initial draft provisions relating to federal elections.
Section 160002: Requirements for Federal Election Contingency Plans in Response to Natural Disasters and Emergencies
States have 30 days to develop contingency election plans for natural disasters or infectious diseases, including providing equipment to protect the health and safety of poll works and voters, and to recruit poll workers from “resilient or unaffected populations.” That includes recruiting government employees, or high school or college students.
It includes a private right of action in addition to Department of Justice oversight, which invites individual litigation instead of, say, lodging review exclusively in a federal agency.
Quick take: On the whole, this is a fairly modest requirement that states should be thinking about anyway. I’m not sure allowing individual litigation is the best mechanism for enforcement, but maybe it won’t be significant, and maybe I’m wrong.
Section 160003: Early Voting and Voting By Mail
This section updates the Help America Vote Act of 2002 by requiring early voting at least 15 consecutive days before Election Day, including weekends. It anticipates this will look like in-person voting. It adds some details, like polling places should be “within walking distance of a stop on a public transportation route” where “practicable,” or in areas that “ensure” “residents of rural areas” have access.
It gives the Election Assistance Commission (“EAC”) new power: to “issue standards for the administration of voting prior to the day scheduled for a Federal election,” including “nondiscriminatory geographic placement of polling places.”
It also requires states to begin “processing and scanning ballots cast during the early voting period” before Election Day, but does not compel states “to tabulate ballots in an election before the closing of the polls on the date of the election.”
It would also expand absentee voting. State could not “impose any additional conditions or requirements on the eligibility to cast the vote in such election by absentee ballot by mail”—essentially, no-excuse absentee ballots everywhere. It forbids states from using identification requirements (photo or non-photo), and from requiring notarization or a witness signature for requesting a ballot or casting it. It includes a “due process” requirement in the event of a signature mismatch of an absentee ballot, giving a 10-day window to cure the problem—interestingly, to cure such discrepancy, either in person, by telephone, or by electronic methods.” A similar opportunity extends for lack of signature. States must also provide absentee ballots to be requested online.
In the event of a declared “emergency or disasters,” election officials must mail absentee ballots “to all individuals who are registered to vote in such election.” This rule would extend to the November 2020 election (by statute, independent of any declared emergency or disaster, due to the coronavirus).
Absentee ballots would need to be accepted by any state as long as they were postmarked on or before Election Day and received within 10 days after the election. It would also allow unlimited “ballot harvesting.” States would also need to institute a ballot tracking program.
It also adds a private right of action.
Quick take: Several states do not have early in-person voting. Many others do not have it for 15 consecutive days before the election. This would change how voting works in a number of states. It would also be interesting to see how the EAC would go about issuing early in-person voting standards—how broad or narrow, for instance, in scope. The EAC is a commission consisting of four members, two Republicans and two Democrats, so it requires bipartisan consensus to develop such standards.
It would also rather dramatically expand absentee voting opportunities and alter verification procedures, and it would turn an election into an effectively all-mail election during disasters (including all 50 states in 2020). It would expand ballot harvesting. These are non-trivial changes that, I think, will require some more refinement before a nationwide consensus could be reached—given that it would effectively override at least some election rules in the vast majority of jurisdictions.
Section 160004: Permitting Use of Sworn Written Statement to Meet Identification Requirements for Voting
Well, the title says it all. It preserves the requirement under HAVA that first-time voters who registered by mail must present identification.
Quick take: Many states have some form of identification requirement. Some that do also have a similar requirement as this proposed section. But, again, it would be a fairly significant change in a number of states. I should add that a statute like this (and a similar requirement up in Section 160003) might run afoul of the Elections Clause. States have the power to determine the qualifications of voters; there’s a plausible argument that includes the power to enforce qualifications, as the Supreme Court suggested in Arizona v. Inter Tribal Council of Arizona. In my view, laws like voter identification requirements and voter registration requirements likely pass constitutional muster as a component of the “manner” of holding elections, but I toss it out there as a potential complicating factor.
Section 160005: Voting Materials Postage
This section requires states to prepay postage for absentee ballots and include a self-sealing (i.e., one you don’t have to lick!) envelope.
Section 160006: Requiring Transmission of Blank Absentee Ballots Under UOCAVA to Certain Voters
Certain voters may request an electronically-delivered blank ballot (for an idea of what that “federal write-i absentee ballot” (FWAB ) looks like, see here). That includes those who haven’t received a ballot within two days of the election after requesting one, lives in a jurisdiction with an emergency declaration within 5 days of the election, excepts to be absent to help with an emergency, is or expects to be hospitalized, or has a disability in a state without remote ballot marking.
Quick take: While this expands some emergency voting opportunities, the FWAB is basically a blank piece of paper, and I wonder about expanding its use in these circumstances.
Section 160007: Voter Registration
This Section requires states to offer online voter registration (most do). It requires that the application “does not seek to influence an applicant’s political preference or party registration.” The Section also requires states to have “same day registration” and prohibits them from using more than the last 4 digits of a Social Security Number
Quick take: Again, the bill is a fairly large change for many states—about 21 states have same-day registration.
Section 160008: Accommodations for Voters Residing in Indian Lands
“Given the widespread lack of residential mail delivery in Indian Country,” this Section provides extra locations to pickup and return ballots and to register without a residential mailing address.
Section 160009: Payments by Election Assistance Commission to States to Assist with Costs of Compliance
Detailing how the $3.6 billion will be used.
Section 160010: Grants to States for Conducting Risk-Limiting Audits of Results of Elections
This is an interesting little section—it authorizes $20 million right now and more in the future to repay states if they conduct risk-limiting audits. It doesn’t compel states to do so, but allows them to receive money if they do.
Section 160011: Additional Appropriations for the Election Assistance Commission
Section 160012: Definition
This would define “Federal office” in the Help America Vote Act as “a general, special, primary, or runoff election for the office of President or Vice President, or of Senator or Representative in, or Delegate or Resident Commissioner to, the Congress.”
Quick take: I’ve seen this language elsewhere in the statute. It’s not clear to me how far federal power can necessarily extend in primary elections for President, but my assumption is this definition is designed to ensure U.S. territories must comply and can receive funding.
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In short, there aren’t too many constitutional red flags to me in reviewing this legislation (exception potentially its application to presidential primaries and any overlap it may have with voter qualifications). But it does fairly dramatically alter a number of state practices, including practices that most states currently reject. Maybe it’s time for such a dramatic overhaul of elections—and to implement those new changes this November. But I think, if the ACCESS Act as a part of the HEROES Act becomes law, it will likely undergo some serious revisions to secure support of both houses of Congress and the President’s signature.