Walter Olson
Where do the candidates in this fall’s White House race stand on issues of election and voting policy? The record holds few surprises, and the surprises that can be found are mostly negative.
Vice President Kamala Harris has been closely identified with the Democrats’ flagship election reform bill in Congress, previously the For the People Act and renamed the Freedom to Vote Act. As I’ve argued at length, this omnibus package puts its thumb in the eye of libertarian and constitutionalist principle, hews so relentlessly to the perceived electoral interests of the Democratic Party that it has failed to win support from even the most moderate Republicans, and is an obsolete contraption cobbled together from years’ worth of progressive messaging bills (Big Money influence! foreign tampering!), virtually none of which respond to the distinctive perils of the Trump era. And while Congress constitutionally can (and in my view should) pass some simple and straightforward rules curbing House gerrymandering, the Freedom to Vote Act is anything but simple or straightforward on that subject, instead putting litigators and hired experts in the driver’s seat while saddling state line-drawers with baffling standards that would resist sure compliance, even while actively discouraging sound districting criteria such as geographical compactness.
Unfortunately, according to an August 22 report by Patrick Marley of the Washington Post, “Democratic leaders say” this sorry assemblage “will be at or near the top of their governing agenda should Vice President Kamala Harris win the presidency this fall in a blue wave that also ushers in unified control of Capitol Hill.” They’ve had four years to come up with something better and more constitutional than this but apparently still haven’t. As colleague Patrick Eddington noted recently, the Democratic Party platform does not even engage with the dangers of excessive executive power that loomed large after the 2020 election. A better bill would take care to rein in a president who, as some advisers wanted Donald Trump to do, might be tempted after losing an election to invoke the Insurrection Act, order the seizure of voting machines, or even declare martial law.
As governor of Minnesota, Tim Walz has promoted and signed into law many electoral changes popular with progressives, including (to quote Jessica Husemann at VoteBeat) “creating state-level protections similar to the Voting Rights Act, allowing voters to sign up to receive absentee ballots for every election and restoring voting rights to more than 50,000 people who had been convicted of felonies.” Many of these measures are aimed at boosting turnout in a state that already regularly led the nation in that respect. (As I keep pointing out, it’s not clear that high turnout still benefits the electoral interests of the Democratic Party the way it once did.) Walz also signed bills in 2023 and 2024 aggressively regulating election-related use of deepfake images, an issue likely to give rise to First Amendment challenges at some point. On the brighter side, for me, Walz has spoken favorably of ranked-choice voting.
Ohio Sen. JD Vance has not tried to turn into actual legislation his “thought experiment” of giving parents proxy votes for their minor children, so I will not linger over its many complications, such as how the proxy would get voted when Mom and Dad’s opinions diverge. Back on a more familiar planet, Vance has introduced two election bills closely tied to timely controversies. One would cut off federal election administration funds under the Help America Vote Act of 2002 to states whose officials keep an otherwise eligible presidential candidate off the ballot on the basis of the Fourteenth Amendment. Another would, among other provisions, modify the apportionment of the US House of Representatives to base it on numbers of US citizens instead of numbers of persons.
Most pertinent is that Vance has closely aligned his positions with those of his patron, former president Donald Trump. Vance has said that he approves of the idea that after the 2020 election the states should have sent alternative slates of electors to Washington and that Congress should then have decided among them. He has praised Sen. Josh Hawley of Missouri, who led the fight against accepting the actual state certifications. As documented at length in a Politifact roundup, Vance has endorsed Trump’s constant complaint that the 2020 election was not free and fair or above board, that illegal votes were cast “on a large-scale basis.” During a primary debate when running for the Senate, Vance said, “I say it all the time: I think the election was stolen from Trump.”
Trump himself, of course, regularly repeats his much-refuted claims that the 2020 election was rigged, also defending as “warriors” and “hostages” the supporters foolish or fanatical enough to have believed him and to have rioted at the Capitol. To quote scholars Justin Grimmer and Abhinav Ramaswamy, “Trump’s claims of fraud or illegality are riddled with errors, hampered by misunderstandings about how to analyze official voter records, and filled with confusion about basic statistical techniques and concepts.”
I will be surprised if any of the candidates significantly modify their approach between now and Election Day.