Power Grab

by Jason Chaffetz

  If you move, Democrats want you to stay on the list. If you die, they still want your name there. If you haven’t voted for decades, they still want you to receive a ballot. If the bill had become law, verifying current addresses of registered voters against the U.S. Postal Service’s national change-of-address system would become virtually impossible. This is a database that stores submissions of change-of-address requests that people submit when they move. State and local governments should not be prohibited from utilizing this tool in their efforts to maintain accurate voter lists.

  According to an analysis by the Lawyers Democracy Fund, “the overly broad language of the bill would essentially prohibit the transmission of voter registration lists from one election official to another locality to update its voter records, thus dramatically restricting the current ability of localities to interact with each other to maintain the integrity of the voter rolls.”

  To further nullify this provision of the NVRA, Democrats inserted a provision to their bill requiring notification of inactive voters be sent via email rather than mailed to the address on file. Obviously, an email will not detect whether the person has moved and would invalidate the use of such notifications as a means to clean up voter lists.

  Democrats have consistently challenged the provision allowing removal of inactive voters in court—and lost. The bill seeks to nullify a 2018 Supreme Court ruling in Husted v. A. Philip Randolph Institute. The Court held that list maintenance was valid, given that as many as 40 percent of Americans fail to inform the USPS when they move. The volume of outdated addresses on state voter lists compromises the lists and makes them more vulnerable to fraud.

  In testimony before the House Judiciary Committee in January 2019, former Federal Election Commission member and election expert Hans von Spakovsky told the committee, “The proposed change would directly interfere with the ability of states to maintain accurate, up-to-date voter registration lists.” Maybe that was the point.

  The Court in Husted noted that “24 million voter registrations in the United States—about one in eight—are either invalid or significantly registration inaccurate. And about 2.75 million people are said to be registered in more than one state.”

  The millions of voters registered in multiple states are another vulnerability Democrats seem to want to protect. States would be unable to voluntarily participate in cross-check programs like the Interstate Voter Registration Crosscheck (IVRC) and the Electronic Voter Registration Center (ERIC). These voluntary state-run programs compare voter registration lists to identify voters with multiple active registrations. Since their inception, these programs have been targets of Democrats’ wrath. Not every state participates in these systems, but if H.R. 1 became law, election officials would lose yet another tool to help maintain accurate voter lists.

  Beyond opposing the cross-checking of voter registrations, the bill goes a step further, eliminating methods of detecting people who vote in multiple jurisdictions. It compels states to stop using provisional ballots for those who show up on election day asserting that they have moved into the precinct. Those people would now be given a regular ballot, which cannot be later retrieved if the person’s address proves invalid. This creates an opportunity that a corrupt campaign operative or a foreign government could exploit. If someone were to lie about where they live, there would be no way to recall that ineligible vote. Nothing would stop a would-be fraudster—or an organized group of them—from going to one polling place after another claiming to live in that district.

  Even if the crime were later discovered, the damage would be irreversible. Election officials are unlikely to audit the election and find such cases. But such illegal voting is sometimes discovered and challenged. Unfortunately, H.R. 1 removes that option as well.

  Prevention of eligibility challenges: Challenging fraudulent votes would become much more difficult under H.R. 1, which would override existing state laws governing such challenges. The new federal mandate would require such challenges to be sworn under oath and penalty of perjury. State laws authorizing poll workers, poll watchers, or any other person to legally challenge a vote would be nullified and replaced by a more bureaucratic process that could place a person in legal jeopardy if they report potential fraud.

  It’s true. Not only does this bill discourage routine maintenance of voter lists, but it is also written to expose voters to criminal penalties for eligibility challenges that can’t be confirmed. Under current law, if you suspect someone does not actually live in the precinct where they voted, you can challenge that vote. If the validity of that voter is not confirmed, it can be thrown out. Under this bill, many of those votes will be irretrievable once cast and a person who challenges a suspicious vote is at greater risk of criminal penalties than the person who cast the vote.

  Why would anyone risk exposing our elections in this way? As we discussed in an earlier chapter, the bill’s proponents are responding to a narrative that any attempt to secure the election process is really just an excuse to suppress votes. They argue that election fraud simply doesn’t happen, therefore security is unnecessary. Meanwhile, in a report shortly after the 2016 election, the Office of the Director of National Intelligence acknowledged Moscow’s “longstanding desire to undermine the US-led liberal democratic order,” noting that Russia’s activities in that election “demonstrated a significant escalation in directness, level of activity, and scope of effort compared to previous operations.” Although past efforts have been primarily hacking and influence campaigns, making voter fraud too easy risks inviting further escalation by the Russians or any other foreign government with a stake in our election outcomes.

  Nullification of voter ID laws: One provision of H.R. 1 enables voters in states with ID requirements to bypass that requirement by signing a statement agreeing that they are the person whose registration they are using.

  Meanwhile, allegations of fraud in one 2018 race raise more red flags. An audit released in February 2019 found indications of fraud in a New Mexico House race called for the Republican on election night, but won by the Democrat. The tight 3,500-vote margin in that race reversed in favor of Democrat Xochitl Torres Small after absentee ballots broke for the Democrat in a county where voter ID laws are not enforced. The audit, paid for by Republican Yvette Herrell’s campaign, found that a significant number of absentee ballots were time stamped after the 7 p.m. deadline on election night. The consulting company conducting the audit reviewed some 12,000 absentee ballot requests. According to a report in the Daily Signal, the audit found nongovernmental groups “are almost certainly engaging in at best aggressive—and at worst fraudulent—procurement of absentee ballot applications.”

  This conclusion is consistent with reports from other swing districts in which last-minute absentee ballots reversed the election night outcome.

  Online voter registration: The very first provision in H.R. 1 was a new mandate to dictate that states must use an online voter registration process that does not require signatures to be verified. Already thirty-seven states use online voter registration, but some of those would have to reconfigure their systems to remove security features that match a voter to a state division of motor vehicles (DMV) record for signature comparison.

  Automatic voter registration: This sounds like a great idea. We want everyone to vote. But beneath the surface, there is a lot of work to do before we can safely implement such a provision without jeopardizing the security of elections.

  The bill requires states to compel people to register to vote. This unfunded mandate forces states to reconfigure their voter databases to accept record transfers from what the bill calls “contributing agencies” such as the DMV, Social Security Administration, Department of Veterans Affairs, Medicare, and Medicaid, among others. Because the populations served by these agencies include many who are ineligible to vote, these agencies would be required to determine which records are eligible before they are transferred. Therein lies the problem.

  Eviden
ce suggests we should be skeptical of this process. The U.S. Court of Appeals for the D.C. Circuit ruled in 2016 that three states could not ask for proof of citizenship on federal voter registration forms, after left-wing nonprofit groups sued claiming documentation requirements disenfranchise voters.

  If states cannot ask about citizenship, how are they to determine the eligibility of voters? We don’t really know. California officials assure voters that no illegal votes are cast there, but refuse to divulge how they distinguish illegal voters from legal ones in the absence of valid data. The California Division of Motor Vehicles reported in April 2018 that more than 1 million illegal immigrants had obtained licenses to drive in the state over just a three-year period. The Sacramento Bee reports that election officials won’t answer questions about how many of those may have been automatically registered to vote. Nor could they answer questions about how an ongoing investigation will determine which voters were eligible, since voters weren’t asked to make a clear declaration at the time of registration. If California is certain there are no illegal votes, why won’t they answer questions about the methodology for identifying more than one million automatically registered illegal immigrants?

  The Pittsburgh Post-Gazette reported in 2018 that Pennsylvania’s motor-voter system registered more than 8,000 ineligible voters, including many who were not U.S. citizens. And in an ongoing mess in Texas, election officials never could determine how many illegal immigrants were automatically registered to vote through federal motor-voter laws. Initial estimates of 95,000 noncitizen registered voters proved inaccurate, demonstrating the difficulty of accurately confirming eligibility after a person has been automatically registered. The Democrats’ answer to this conundrum is not to clarify citizenship status, but instead to make verifying that status more difficult. Mistakes in Texas’s initial attempt to count illegal voters triggered a lawsuit by the League of United Latin American Citizens. As a condition of settling that lawsuit, LULAC demanded Texas cease some voter list maintenance activities that Democrats consider to be a “purging” of voter rolls.

  While there is bipartisan support for procedures to make voting more convenient, voters should still have a choice to register to vote. Noncitizens should not be compelled to register and risk subsequent pressure by activist groups to submit illegal ballots.

  Mandatory same-day voter registration: The practice of registering voters on election day and during each day of the early voting period has several unintended consequences, not the least of which is the inability to confirm registration information. Polling places can be chaotic on election day, but more so when counties cannot anticipate the number of voters to expect, ballots to have on hand, and precinct workers to manage the volume of voters. Of greater concern, however, is the potential for crooked campaign operatives to exploit the weakness in this system as part of a larger ballot harvesting initiative. These are problems state and local election offices should be free to address in a customized way.

  These are just a few of the thirty different federal mandates Democrats wish to impose on state governments, all of which nullify existing state and local laws.

  An “Independent” Redistricting Commission

  Democrats paid a heavy price for the Republican wave election of 2010, not only losing the House in those midterms, but losing 19 Democrat-controlled state legislatures and 650 legislative seats nationwide. Those losses came just as state lawmakers were poised to redraw the maps for House districts that would dictate boundaries for a decade.

  With redistricting again on the horizon in 2018, Democrats tried to use H.R. 1 to stack the deck in their favor. H.R. 1 transfers state legislatures’ authority to draw voting districts to a so-called independent redistricting commission. The bill’s provision compelling states to create redistricting commissions is blatantly unconstitutional. Although some states have created such commissions, frequently the legislature still holds the ultimate authority. Instead of being drawn by those who are accountable to voters, districts would now be drawn by people who have no fear of being voted out. If voters don’t like the results, they have no recourse.

  The Supreme Court has upheld the rights of states to choose to use independent commissions, but that 5–4 decision included a dissent by Chief Justice John Roberts and depended on a swing vote from Justice Kennedy. There is a strong likelihood the current Court would strike down the redistricting provision.

  The bill bars these federally imposed redistricting commissions from considering “the political party affiliation or voting history of the population of a district.” This is intended to prevent gerrymandering, but it also prevents any pursuit of partisan fairness, which is supposedly the whole goal of an independent commission.

  But the most egregious provision in the bill is the one governing conflicts between state legislatures and independent commissions. If they can’t agree, state maps will be drawn by judges in Washington, D.C. This is an unmitigated violation of the separation of powers. Elections expert Hans von Spakovsky, in his testimony before the House Judiciary Committee, explained, “The bill transfers to the judiciary a power that the Elections Clause of the Constitution exclusively gives to the legislative branch. That violates basic separation of powers principles as well as the delegation doctrine. It is antidemocratic and unconstitutional.”

  Protecting the Green Wave

  One of the bill’s strongest selling points was the promise to end corruption. While chomping at the bit to impose campaign finance reforms, Democrats are careful not to endanger what many dubbed the Green Wave of small-dollar contributions that helped flip the House for Democrats. Speaker Pelosi referred to campaign finance reform as “the people’s interests not the special interests.” That’s cute. But if you understand how Democrats have gamed the campaign finance system in the last election cycle—and they’re hoping you don’t—you’ll see that this legislation not only protects the Democrats’ Green Wave of ostensibly grassroots contributions, but drastically expands it at your expense.

  Remember the settlement slush funds we discussed in chapter 2? Democrats have new plans for that money they were collecting from civil and criminal financial penalties. Instead of diverting it to their nonprofit allies, which is now illegal, they want to create a fund, ironically called the “Freedom from Influence Fund,” that will now be used to fund political campaigns—providing a 6-to-1 match for all donations under $200. To qualify, candidates have to forgo contributions larger than $1,000.

  Why the focus on small donors? Democrats would have you believe they are motivated by a commitment to reducing the influence of money in politics. But a closer look at where Democrat candidates are getting their campaign funds tells a different story.

  In the 2018 midterms, Democrats in vulnerable House districts outraised Republican candidates more than 2 to 1. The difference? Small donors. The New York Times reported that in the 69 most competitive House races, Democrats raised a total of $46 million from small donors compared to just $15 million for Republicans. “[T]he influx of Democratic donations touched every corner of the House map,” reported the New York Times story, “from high-profile races in the suburbs of New York and California, to more rural, conservative-leaning stretches of Indiana, Kansas and Alaska.”

  While Republicans were using the two old-school methods of disclosing donors, disavowing corporate donations and sticking to campaign finance limits—or funding with traditional Super PACs—Democrats pioneered a clever new method of small-donor fund-raising that diminishes their reliance on Super PAC money. It’s a good idea and one that Republicans should have replicated long ago. But it may not be everything it appears to be. The mechanism for this new Green Wave of Democrat fund-raising is called ActBlue. The New York Times calls ActBlue the “piggybank of the Democratic resistance,” having raised a mind-blowing $1.6 billion for Democratic candidates in the 2018 cycle.

  ActBlue is a technology company founded in 2004 that uses inventive online fund-raising software to distribute
donations to Democrat candidates and causes at the federal, state, and local levels. What was once an inconvenient and unwieldy process to donate to multiple campaigns can now be done with the click of a button. According to the ActBlue website, their mission is to “democratize power and help small-dollar donors make their voices heard in a real way.”

  According to ActBlue’s own numbers, the website facilitated 42,093,173 individual contributions during the 2018 election cycle, with an average contribution size of $39.50. There are 14,997 individual groups raising money on ActBlue—that number includes local, state, and federal campaigns as well as 501(c)(4) organizations doing political work on behalf of Democrats. These donations represented huge infusions of cash that likely made the difference on election night. Indeed, ActBlue brags on its website:

  Small-dollar donors proved over the past two years that people power is a winning strategy. Grassroots donors fueled the Democratic takeover in the House, as well as hundreds of victories at the state level. In total, these donors gave more than $1.6 billion through ActBlue during the 2018 election cycle—double the 2016 cycle total—and powered the campaigns and organizations changing the direction of our country.

  It’s a great narrative. The little guy is taking back power from the corporate Super PACs imposed on America when the Supreme Court ruled in Citizens United that campaign donations were protected speech.

  One problem: Some of it is smoke and mirrors. It’s not just little guys using ActBlue. Studies show most of the money comes from coastal states. An analysis of campaign finance data by FiveThirtyEight and the Center for Public Integrity reviewed 38 million FEC records of ActBlue contributions between January 2017 and October 2018. Their analysis revealed: