First, the good news. Manchin’s outline contains key components assuring the right to vote. No. 1 on his list is making Election Day a national holiday — a no-brainer, for practical and symbolic reasons.
No. 2 is even better: 15 days of early voting, which give voters an adequate opportunity to get to the polls.
Manchin also assures voters an absentee ballot if they can’t vote in person. But he’s right not to insist that states provide absentee ballots on demand. While no-excuse absentee voting works well where it exists, it should not be the subject of a federal mandate, especially not in the current environment.
Former president Donald Trump has irresponsibly bred distrust of vote-by-mail, but the most constructive remedy is not to impose it on states whose voters are especially suspicious. Manchin’s compromise strikes the right balance between voting rights and state autonomy. Republicans should embrace, not resist, this sensible approach.
Manchin’s proposal includes other valuable elements, such as automatic voter registration, to facilitate getting eligible citizens on the rolls, and a prohibition on the ugly tactics of using disinformation or intimidation to try to prevent voters from casting ballots.
Especially welcome is the third item on his list: “Ban partisan gerrymandering and use computer models.” While the proposal lacks details, any act of Congress that curtailed the scourge of gerrymandering would be a big boost for democracy; and depending on the methodology employed, computer models can be an excellent means to accomplish this objective.
Federal courts could enforce this computer-based gerrymandering ban, avoiding the need to require new state-administered commissions — a requirement that could thwart GOP support and cause constitutional problems under a line of 10th Amendment precedent known as the “anti-commandeering” doctrine.
Manchin’s proposal is also praiseworthy for items it excludes. No “same day” voter registration. No ballot collection rules that Republicans understandably deride as “ballot harvesting.” Like nationwide no-excuse absentee voting, these elements of S. 1, the For the People Act as drafted by Democrats, are nonstarters for Republicans. Manchin wisely deletes them as an olive branch to GOP senators willing to rebuild America’s shaken system of self-government.
But other pieces of S. 1 that don’t make Manchin’s list deserve to be added. S. 1 has a section that would require voter-verified paper ballots, meaning voters have the opportunity to review an official paper record of their votes no matter what computer technology is employed to cast ballots. That’s an important way to protect the accuracy of ballot-counting, which is increasingly under threat. Another useful section of S. 1 provides grants to states to conduct risk-limiting audits, a recently developed statistical technique for checking the integrity of vote tallies.
The one overarching deficiency in Manchin’s laudable proposal is its lack of attention to the escalating risk of “election subversion,” the term that election-law expert Richard L. Hasen and others use to describe how Trump-inspired Republicans in battleground states are positioning themselves to undermine vote-counting.
The “audit” of the 2020 presidential election results in Arizona by the state GOP — Rep. Liz Cheney (R-Wyo.) notably called it “an effort to subvert democracy” — could become a model for Trump’s acolytes elsewhere to perpetuate his claim that he was robbed of the election. It’s essential that Congress prevent the methods being used in Arizona, involving one party taking possession of ballots in violation of generally accepted chain-of-custody requirements, becoming the means by which state officials try to repudiate results they don’t like in 2022 and 2024.
Congress could guard against this danger by requiring states to satisfy basic chain-of-custody standards. Each house of Congress ultimately has the power under the Constitution to verify vote tallies in elections to that chamber. Therefore, as long as Congress can keep the integrity of ballots intact while they remain in the hands of state officials, Congress can assure an accurate count of those ballots — assuming that Congress itself will count votes honestly.
There is no such chain-of-custody provision on Manchin’s list. But it isn’t in S. 1 either.
Congress can defer this issue to a later bill, but lawmakers won’t be finished safeguarding democracy before the midterms until Manchin can broker a deal on protections for counting, not just casting, votes.
The more Republicans who join Manchin, the better. But the obligation of bipartisanship in electoral reform extends only to the “loyal opposition” — not to an opposition hostile to democracy itself.
Now that Manchin has offered a responsible plan, any unpatriotic refusal of Republicans to participate cannot justify its defeat.