Walter Olson
I’ve written more than once about why the proposed SAVE America Act merits skepticism even if, like me, you’re fine with its basic objectives of requiring a show of identification at the polls and verifying the citizenship of new voter registrants. However, it grabs broad power over voting and registration that should remain with the states and hands it over to the federal government, in particular to executive branch appointees. Its timelines are thoroughly unreasonable and would cause chaos and mistakes among election administrators as the midterms approach. Once the Trump administration has in hand the voter rolls of the 50 states, as the law provides, we can count on neither its respect for legal privacy safeguards nor its responsible use of evidence should it decide to claim irregularity as a reason to interfere in elections.
At the same time, it’s important that critics be accurate—not an easy task because the various bills have changed and some of the changes are intended to respond to critics. Memes and clips regularly circulate based on old versions of the bill.
Consider, for example, the situation of married women and the millions of other Americans whose current name differs from the one on their birth certificate. It’s important to note that the current bill provides a workaround track that is intended to smooth out the practical problems for most people in this category. (That makes perfect political sense, by the way, since Republicans know that to win majorities at the national polls, they must depend on married women’s votes.) Note also that there’s a second workaround track for persons who cannot lay their hands on proper documentation, whether or not a name discrepancy is at issue.
The better focus for discussion is whether these workarounds would in fact work very well. More on that in a moment.
I’ve been quoted several times in the press about the bill over the past week, including by Minho Kim at the New York Times (“a terribly drafted mess”) and David Morgan at Reuters (even if it fails to pass, “it seamlessly introduces an excuse for losing the midterms” or intervening in them after claiming fraud). And Lori Robertson quotes me at length in her deep dive for FactCheck.org on several controversies related to the bill.
In the FactCheck.org piece, I express unease at the way the bill would give a blank check to the Election Assistance Commission (EAC), an up-to-now obscure federal executive branch agency, to issue guidance to states on how to enforce many of the bill’s key provisions.
For example, when states establish the “Process in Case of Certain Discrepancies in Documentation”—that is, the name-change workaround track—it would be “subject to any relevant guidance adopted by the Election Assistance Commission.” Exactly the same wording applies to the insufficient-documentation workaround track. The bill also formally assigns to the EAC the wording of the affidavits that voters would need to sign to use the alternative tracks as well as the development of a new mail voter registration application form.
That’s a lot of power, and it means that the EAC’s guidance on a variety of topics could make the difference between a harsh law that hassles voters and election administrators a whole lot or a milder one that tries to hold hassle to a minimum.
The EAC guidance may be expected to take the form of “Dear Colleague” letters, the sort that conservatives used to criticize, which are sent out without the bother of notice, comment, public hearings, and so forth. Since states that try to ignore the guidance could get in various kinds of trouble, they would have a significant practical incentive to treat it as binding.
In short, as I told Robertson, we aren’t going to find out what the bill does on many key questions until after we pass it into law and the EAC begins issuing guidance. I don’t like that: “If the EAC is going to issue guidance that causes an uproar because it sets requirements many legitimate voters cannot meet, we should know that now, not later.”
Aside from the broad and dangerous amount of power being delegated to the EAC, what really got my curiosity going was a provision directing the EAC to issue broad guidance to states “not later than 10 days after the date of the enactment of this Act.”
Even in a bill that’s full of absurd timelines and unachievable deadlines, it’s bizarre to allow only 10 days to devise and issue guidance on how key parts of this complex bill would work in practice.
My suspicion therefore is that someone’s already drafted the guidance, in whole or large part. They know what’s going to be in it. They’re just not willing to tell us.