Democrats’ sweeping democracy overhaul bill, the For the People Act, may have virtually zero chance of becoming law. But Republicans in New Hampshire are plotting a backup plan for evading it, just in case.
A top Republican in the New Hampshire House is seeking to amend an innocuous state election bill to blunt the effect of the Democrats’ signature legislation. Her proposal appears to allow the state to create a bifurcated election system, with different rules for federal vs. state elections, in the event that Congress does pass the For the People Act, which contains various provisions setting national standards for ballot access.
That would mean that when Granite Staters voted in federal elections, they would have access to early voting, no-excuse absentee voting and online registration — all required under the ballot access mandates in the federal elections bill, which is also known as S. 1. But for state elections, voters would be subject to New Hampshire’s stricter regime for voting, which does not allow early voting, offers only limited excuses for mail voting and does not allow online registrations.
“It’s bananas,” said Olivia Zink, executive director of the nonpartisan voting rights organization Open Democracy.
“This would require two ballots to be distributed. You’d have one set of rules to register to vote for the federal election, you’d have one set of rules to register to vote for the state elections. You’d have two different checklists, you’d have two different ways to request absentee ballots. It would double the cost of everything,” Zink told TPM.
Up until the proposal of the amendment, the New Hampshire election bill was moving through the statehouse without much controversy. It makes various tweaks to the way in which the state conducts elections, like allowing the pre-processing of absentee ballots (a procedure the state adopted temporarily last year because of the pandemic) and clarifying the rules around photography at voting sites.
The underlying bill, known as SB89, passed unanimously through the state Senate.
But the new amendment has been offered up by Rep. Barbara Griffin (R), who chairs the New Hampshire House Election Law Committee. She did not respond to emails or a voicemail from TPM. A hearing to consider the amendment is scheduled for Wednesday.
Election officials in the state who previously backed the omnibus bill — which incorporated many of their requests — now say they will oppose it because of the new amendment.
Kyri Clafin — who supervises some aspects of election administration in Concord — told TPM that the dual election system the amendment calls for is “unworkable” and “insane.”
“It looks like it would be chaotic and a nightmare” for election officials in the state, she said.
It’s not clear, if the House adopts the proposed changes to the bill, whether the Senate would accept the new version.
New Hampshire Sen. James Gray, the Republican who sponsored the underlying bill, told TPM in an email that due to his “workload” he had not “reviewed the amendment.” (The amendment is eight lines long.)
But it comes as New Hampshire Republicans have whipped up a fury about the For the People Act, the federal elections bill. The state GOP sent out an email Tuesday seeking witnesses to testify in support of the state bill amendment. The email claimed — falsely — that the amendment would “NULLIFY the Federal Election takeover” in New Hampshire. The party didn’t not respond to TPM’s inquiry.
New Hampshire is not the only state where state-level Republicans appear to be contemplating workarounds in the event that the For the People Act became law, though none of those bills targeted the federal legislation as directly as the New Hampshire amendment. There were bills introduced in Texas to create a separate system of voter registration for state elections vs. federal elections. Arizona bills that banned automatic voter registration and Election Day registration, meanwhile, were interpreted by election experts as taking aim at the policies in For the People Act. Neither of those states’ bills have ultimately gotten much traction.
This is also not the first time that Republicans have considered a bifurcated election system so that they can implement stricter voting laws. When then-Kansas Secretary of State Kris Kobach (R) wanted to evade a federal court order halting his proof-of-citizenship registration requirement, he sought to implement the requirement just for state and local elections instead. That workaround was blocked by a state court judge.
The For the People Act currently faces steep if not impossible odds of passing. Sen. Joe Manchin’s (D-WV) opposition to the bill means that not only do Senate Democrats lack the votes to retool the chamber’s filibuster rules so they can get around the GOP blockade of the bill, but also that they don’t have 50 Senate votes in favor of the legislation.
Still, Clafin, the Concord election official, told TPM that she was struggling to see what upside New Hampshire lawmakers saw in floating a bifurcated system, given all the downsides such a dual track presented to election officials and voters.
“It can only be explained as a stunt, this amendment,” she said, “because New Hampshire likes things very simple, very inexpensive. This looks like it would double the costs of elections. The complications are just mind boggling.”