by By David Howard*
Automatic Voter Registration
Voting “is a fundamental matter in a free and democratic society . . . . [because it] is preservative of other basic civil and political rights.”[1] But before one can vote, that person must first register with the state, often weeks before the election. Voter registration continues to be a contentious issue in the United States, and the current system in many states presents significantly more problems than solutions.
Article I, Section 4 of the Constitution gives the states substantial authority over electoral procedures. As a result, the states have implemented a wide array of varying electoral procedures, making a person’s voting rights depend—to a significant degree—on their state of residence.[2] In the past two years, Oregon, California, Vermont, West Virginia, Connecticut, and Alaska have all passed some version of automatic voter registration, [3] while Illinois and New Jersey rejected similar bills in their state legislatures. And there are still many states with antiquated voter registration processes, some of which were specifically designed for the purpose of disenfranchisement.
At one time, voter registration was relatively “straightforward: it would help to eliminate fraud and also bring an end to disruptive election-day conflicts at the polls.”[4] Today, some claim voter registration is still necessary, arguing the current lax standards “breeds mistrust and can call the integrity of the whole system into question.”[5] This—arguably pretextual—focus on voter fraud filled the airwaves throughout the weeks leading up to the presidential election, and it continues to attract attention, even though the existence of widespread voter fraud has been repeatedly discredited.[6] In fact, there was virtually no evidence of voter fraud this election, except for a women in Iowa voting twice in person for Donald Trump, ironically because she believed the vote was “rigged.”[7] Professor Lorraine Minnite put it best: “The claim that voter fraud threatens the integrity of the American election is itself a fraud.”[8]
Some legal scholars have gone so far as to suggest that allegations of “voter fraud [are] used as a pretext for a broader agenda to disenfranchise Americans and rig elections.”[9] For example, the Voter Registrar for Harris County, Texas has in the past deployed resources to purge the voter rolls of people who are believed to be deceased or have not voted in several elections, yet many of these people were actually still alive.[10] There have even been numerous allegations of voter intimidation in Texas, including attempts to prevent voters from registering.[11]
In sum, there continues to be substantial voter suppression—and negligible voter fraud—in many states. This purposeful suppression of the fundamental right to vote is simply un-American, and states should uniformly adopt automatic voter registration to correct this deeply anti-democratic trend.
Why Should All States Adopt this Process?
On Election Day, many Americans either cannot vote because they were unable to register within the required time, or they find their names wrongfully deleted from the voter rolls.[12] The best way to prevent any claim of “voter fraud” and to prevent further barriers to voting is to have the state register eligible voters itself, by passing automatic voter registration reform in each state. Rather than using extensive regulatory efforts and trying to prevent alleged fraudulent voter registration through third parties, states should register every eligible citizen to vote. This process would decrease the chance of third parties affecting the voter registration system while allowing the voter registration system to actually work the way it was intended.[13]
According to the Pew Center on the States: (1) one in four eligible citizens is not registered to vote; (2) one in eight voter registrations in the United States is invalid or significantly inaccurate; and (3) one in four voters wrongly believes their voter registration is automatically updated when they change their address with the Postal Service.[14] This alone causes extensive problems in our electoral system, as eligible voters must register to vote before even casting a ballot.
Another practical reason for adopting automatic voter registration—one many states should appreciate—follows from the costs of voter registration reformation. Before the automatic voter registration reform in Oregon, a Pew Center study found Oregon’s previous paper-based voter registration system cost the state $7.67 per registration transaction or $4.11 per registered voter in 2008. In contrast, Canada uses modern electronic methods to register voters and spends only 35 cents per voter.[15] Not only would automatic voter and online registration increase access to the fundamental right to vote, but it would also save states a significant sum of money.
How Would Automatic Voter Registration Work?
There is a relatively simple solution that would allow virtually all eligible voters to cast a ballot while maintaining the integrity and accuracy of the voting system: the states must take responsibility for registering every eligible voter. Anytime a citizen came into contact with a state governmental agency, they would be automatically registered through that government agency, and valid voter registration—like citizenship—would eventually become more of an assumption than an aspiration. Automatic voter registration would create two institutional changes to voter registration: (1) eligible citizens would be registered to vote when contacting any government agency unless that person specifically declines, and (2) those departmental agencies would provide the voter-registration information electronically to state election officials. The Brennan Center for Justice at N.Y.U. argues convincingly that this reformation would “boost registration rates, clean up the rolls, save money, make voting more convenient, and reduce the potential for voter fraud.”[16] All while protecting the fundamental right—and civic duty—of every American citizen to vote.
As stated above, Oregon, California, Vermont, West Virginia, Connecticut, and Alaska have already passed some version of automatic voter registration, and similar reforms are being proposed in other states with increasing momentum.[17] In California, West Virginia, and Vermont, individuals are registered to vote when they appear at a state agency, and they are given the opportunity to decline registration when in contact with the state’s motor vehicle agency. In Oregon, the election agency mails the eligible voter a registration-notification card after their contact with the state motor vehicle agency, and the voter is assigned a “pending” status for 21 days, during which they have the opportunity to decline registration, and if they do nothing, they are automatically registered to vote.[18] Legislatures in both Illinois and New Jersey passed this voting reform, but Governors Rauner and Christie vetoed these bills. There have been several national bills proposed in Congress, and a list of the bills introduced has been compiled by the Brennan Center for Justice.[19]
Conclusion
Automatic voter registration will prevent the disenfranchisement of millions of eligible voters, while continuing to protect the integrity of, and trust in, the voting system. Simply put, the states need to take responsibility for registering all eligible voters, by having a state agency transfer all necessary voter registration information to the state’s election agency when a citizen comes in contact with a state agency. All states must pass this type of voter registration reform if our electoral system is to maintain its integrity, because preventing millions of eligible voters from casting a ballot on the baseless claims of preventing alleged voter fraud does tremendous and irreparable harm to the integrity of our country’s elections. This reform would be an important first step towards increasing voter participation in elections, and it will create more accurate voter rolls, reduce the costs on the states, and protect election integrity. It is a simple solution to a complex problem, and one that is desperately needed today.
*David is a 3L at the University of Texas School of Law.
[1] Reynolds v. Sims, 377 U.S. 533, 561-62 (1964).
[2] Brooke Lierman, Election Day Registration: Giving All Americans A Fair Chance to Vote, 2 Harv. L. & Pol’y Rev. 173 (2008).
[3] Automatic Voter Registration, Nat. Con. of State Leg. (Nov. 29, 2016), http://www.ncsl.org/research/elections-and-campaigns/automatic-voter-registration.aspx.
[4] Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 152.
[5] John Fund, Stealing Elections: How Voter Fraud Threatens our Democracy 25 (2004).
[6] See, e.g., Sami Edge, No, voter fraud actually isn’t a persistent problem, Wash. Post (Sept. 1, 2016), https://www.washingtonpost.com/news/post-nation/wp/2016/09/01/voter-fraud-is-not-a-persistent-problem/?utm_term=.42b194533f8c; Associated Press, Studies Contradict Trump Claim That Voter Fraud Is ‘Very, Very Common’, Fortune (Oct. 18, 2016), http://fortune.com/2016/10/18/studies-contradict-trump-claim-that-voter-fraud-is-very-very-common/.
[7] Amy Wang, Trump Supporter Charged with Voting Twice in Iowa, Wash. Post (Oct. 29, 2016, 10:50 AM),
[8] Lorraine C. Minnite, The Politics of Voter Fraud 5 (2007), www.projectvote.org/wp-content/uploads/sites/89/2007/03/Politics_of_Voter_Fraud_Final.pdf.
[9] David Schultz, Less than Fundamental: The Myth of Voter Fraud and the Coming of the Second Great Disenfranchisement, 34 Wm. Mitchell L. Rev. 483, 486 (2008).
[10] Wade Goodwyn, Many Texans Bereaved Over ‘Dead’ Voter Purge, NPR (Sep. 16, 2012), http://www.npr.org/2012/09/16/161145248/many-texans-bereaved-over-dead-voter-purge; Cindy George, Dispute over ‘dead’ voters in Harris County is finally resolved, Houston Chron (Sep. 20, 2012), http://www.chron.com/news/houston-texas/article/Dispute-resolved-over-dead-voter-issue-3879081.php; Lise Olsen, Texas’ voter purge made repeated errors, Houst. Chron. (Nov. 2, 2012), http://www.chron.com/news/politics/article/Texas-voter-purge-made-repeated-errors-4001767.php.
[11] Dale Ho, The Voter Fraud We Can’t Shake, N.Y. Times (Nov. 3, 2016), http://www.nytimes.com/2016/11/04/opinion/the-strange-career-of-the-voter-fraud-myth.html.
[12] See Lise Olsen, Texas’ Voter Purge Made Repeated Errors, Hous. Chron. (Nov. 1, 2012), http://www.chron.com/news/politics/article/Texas-voter-purge-made-repeated-errors-4001767.php; Greg Palast, The GOP’s Stealth War Against Voters, Rolling Stone (Aug. 24, 2016), http://www.rollingstone.com/politics/features/the-gops-stealth-war-against-voters-w435890.
[13] See Spencer Overton, Stealing Democracy: The New Politics of Voter Suppression 166 (2006).
[14] Pew Center on the States, Inaccurate, Costly, and Inefficient: Evidence that America’s Voter Registration System Needs an Upgrade 4-5 (2012), http://www.pewtrusts.org/~/media/legacy/uploadedfiles/pcs_assets/2012/PewUpgradingVoterRegistrationpdf.pdf.
[15] Brennan Center for Justice, The Case for Automatic Voter Registration 5 (2016), https://www.brennancenter.org/sites/default/files/publications/Case_for_Automatic_Voter_Registration.pdf.
[16]Automatic Voter Registration, Brennan Center for Justice (Sept. 22, 2016), https://www.brennancenter.org/analysis/automatic-voter-registration.
[17] Automatic Voter Registration, Nat. Con. of State Leg. (Nov. 29, 2016), http://www.ncsl.org/research/elections-and-campaigns/automatic-voter-registration.aspx.
[18] Id.
[19] For the list of bills introduced, see https://www.brennancenter.org/analysis/automatic-voter-registration.