Voter Registration

  • March 21, 2013
    Guest Post

    by Gabriel J. Chin, Professor of Law, University of California Davis School of Law

    This week, the Supreme Court heard argument in Arizona v. The Inter Tribal Council of Arizona, a case at the intersection of two lines of cases which have been prominent on the Court’s docket in recent years. The case is an example of a challenge to Arizona’s apparently endless cornucopia of anti-immigrant legislation. It also tests measures which, according to some conservatives, are designed to preserve the integrity of the ballot box, but according to others are calculated to suppress the minority vote.

    The case involves Arizona’s Proposition 200, passed in 2004, which requires prospective Arizona voters to provide proof of United States citizenship before registration. But the federal National Voter Registration Act of 1993 directed the federal Election Assistance Commission to create a federal form for voter registration (current version here). That form requires applicants to provide a date of birth and other identifying information, and an oath that the applicant is a citizen, but does not require independent documentary proof of citizenship.  Federal law requires states to “accept and use” the federal form. The critical question is whether “accept and use” means that a properly completed form is sufficient for voter registration unless the state independently proves that it is fraudulent, or, rather, that the form is the beginning of an application process during which the state may freely add supplemental requirements and inquiries.

    A panel of the U.S. Court of Appeals for the Ninth Circuit, which included retired Justice O’Connor, invalidated Prop. 200’s proof-of-citizenship requirement, over a dissent by Chief Judge Kozinski. En banc, the Ninth Circuit held 9-2 that the requirement was invalid, this time with Chief Judge Kozinski in the majority. Both the panel and the court en banc Circuit upheld a separate provision of Prop. 200, requiring registered voters to show identification at the polls.

    It is common ground that the federal government has broad power over federal elections.  As the Brennan Center and the Constitutional Accountability Center wrote in a brief for me and other constitutional law scholars, under the Elections Clause (Article I, Section 4), Congress may regulate federal elections and supersede state electoral laws. The Framers recognized the national implications of state electoral improprieties, and granted the national government the power to protect itself.  Neither Arizona nor any of the justices questioned the century of precedents to this effect. Instead, the case seemed to turn on the intent of Congress.

  • December 12, 2012

    by Jeremy Leaming

    In a robust defense of the Voting Rights Act of 1965, U.S. Attorney General Eric Holder blasted the claim that the law’s integral enforcement provision is outdated and said it was time the nation updated the way voters are registered.

    Speaking at the John F. Kennedy Presidential Library, Holder said, “President Kennedy recognized that no force in our history has been more powerful than the continued expansion of what’s been called the lifeblood of our representative democracy, the cornerstone of our system of government, and the ‘most basic’ right of American citizenship: the right to vote.”

    That basic right has been under attack on several fronts. First Sec. 5 of the Voting Rights Act continues to be challenged as unconstitutional by some lawmakers in the South who argue that discrimination against minorities is a thing of the past and therefore they should not be required to get federal preclearance for changes to their voting procedures. The Supreme Court will review a challenge to Sec. 5 brought by Shelby County, Ala. officials who are seeking the demise of Sec. 5.

    Sec. 5 of the Voting Rights Act, has, Holder noted, enjoyed “broad, bipartisan support – including, most recently, in 2006, when an overwhelming congressional majority joined with President Bush to reauthorize its protections. It’s also been upheld as constitution in each of the eight court challenges that the law’s opponents filed between 1965 and 2010 – during the first 45 years after it took effect. Over the last two years alone, however, we’ve seen at least 10 lawsuits – more than in the first four decades of the statute’s existence – arguing that Section 5 is no longer constitutional, and that our nation has moved far beyond the challenges that prompted both its passage and its recent renewal.”

  • November 15, 2012

    by E. Sebastian Arduengo

    For all of the grandstanding some politicians do on the virtues of American democracy, one might think that voting here would be simple and easy. Instead, as shown repeatedly here on ACSblog, it is anything but. American voters, who are more mobile than ever, have to deal with the election bureaucracies of all 50 states, which include over 13,000 election districts and 110,000 polling places nationwide. Getting registered to vote in a new location after a move can be time consuming and cumbersome. The only notable exception to the bureaucratic nightmare that is getting registered and voting in the overwhelming majority of jurisdictions is North Dakota, where citizens to not need to be registered to vote. All they need to do is show up on Election Day.

    In her book, Electoral Dysfunction, Victoria Bassetti argues that America is one of the few democracies in the world that places the burden on voters to prove that they are eligible to vote. So let’s look over our lapping shores to other lands to see how they manage the democratic process, and if there’s anything the United States can learn from their experiences.

    Our neighbors to the north and south provide us with an immediate frame of reference. In Canada voter registration is largely done by the Canadian federal government as a means of protecting the constitutional rights of Canadian citizens. The government refers to other governmental records, like tax records to keep the voter rolls continuously updated. For people that aren’t registered Canada allows for same day voter registration. The government is legally obliged to keep its voter registration list private, and information from it can only be shared with parties and candidates at the time of an election, and then only for electoral purposes. Canada also imposes strict limits on election financing, curbing the amount of money political parties can spend. Major parties like the Liberal and Conservative parties were limited to about 20 million CAD total, and in 2006 the Canadian Parliament passed a bill allowing only individuals to contribute to parties and political candidates.

  • February 15, 2012
    Guest Post

    By Rob Richie and Elise Helgesen. Richie is executive director and Helgesen is a democracy fellow at FairVote, a nonprofit organization promoting voting rights and electoral reform.


    This November’s presidential election will present a stark choice between President Barack Obama and a Republican challenger, and voter turnout analysts predict a decline in voter turnout from our 62 percent turnout of eligible voters in 2008.

    Voter motivation is one reason why American turnout lags behind that of many nations. Most Americans experience limited choice and a relatively low chance of electing strongly favored candidates. For example, in 2010 only one in four eligible voters elected a Member of the U.S. House of Representatives (what we call “the Representation Index”). In contrast, in Denmark’s last elections, nearly five in six eligible voters elected representatives to its national legislature from an array of choices, voter turnout was more than 85 percent, and its system of proportional representation led to more than 95 percent of voters electing their preferred choice.

    Our broken voter registration system is a more direct barrier to participation. In fact, if every single registered voter participated this November, we still would trail many nations in turnout. According to a new study by the Pew Center on the States Election Initiatives, of some 220 million eligible American votes, more than 50 million aren’t registered to vote. Another 24 million voter registrations have serious data problems that could block or interfere with voting.

    It won’t take rocket science to ensure that every eligible voter is registered to vote and that all ineligible voters are not. What we need is a national commitment to take on the challenge, some start-up resources and smart use of existing databases. Other countries continue to modernize their systems, with international norms for voter registration rates typically well above 90 percent of eligible voters.

    Two nations provide recent examples of how it can be done. Chile last month adopted a law designed to register all eligible voters automatically. In its last presidential election in 2010, nearly a third of Chile’s 12 million voting-age citizens weren’t registered. With the new law, more than 4.5 million voters, mostly young adults, will be added to the voter rolls.

  • October 31, 2011

    by Jeremy Leaming

    Leading House Democrats are urging the Judiciary Committee to conduct a hearing on a raft of new state laws that they say could bar millions of voters from participating in next year’s general election.

    Citing a recent report examining the new laws, passed primarily by Republican-controlled statehouses, Reps. John Conyers Jr., ranking member of the Committee on the Judiciary, and Jerrold Nadler, ranking member of the Subcommittee on the Constitution, are calling on Republican Chairman of the Committee on the Judiciary Lamar Smith to “schedule hearings soon to address an issue so critical to our democracy.”

    The lawmakers’ letter cites a report issued earlier this month by the Brennan Center for Justice that concludes that the set of new stringent voter registration laws could affect “more than 5 million voters ….” As The New York Times reported in early October, the Brennan Center study said the new laws “could make it significantly harder for more than five million eligible voters to cast ballots in 2012.”

    Many Republicans have long claimed that stricter voter registration laws are needed to confront rampant voter fraud. But the Brennan Center and Reps. Conyers (pictured) and Nadler say there is no evidence that such fraud exists.

    The Brennan Center’s Executive Director Michael Waldman told The Times that the new laws are really intended to make it much more difficult for African Americans, young and poor voters to cast ballots in the 2012 presidential election. Waldman said the new laws represent “the most significant rollback in voting rights in decades.”

    In a column for Slate, Dahlia Lithwick and University of Virginia law school professor Risa L. Goluboff note the “ugly parallels between Jim Crow and modern vote-suppression laws.”

    The letter from Conyers and Nadler noted that the provisions requiring photo identification, excluding common forms of identification, such as student IDs and social security cards, and requiring proof of citizenship raise the “most serious concerns.”

    Citing the Brennan Center report called “Voting Law Changes in 2012,” the congressmen say the new voting law changes “will have a particularly significant impact on minority voters. The report concluded that African American and Hispanic voters were more likely to take advantage of early voting opportunities and register to vote through the types of voter registration drives now curtailed or eliminated by the new laws.”

    The two continue:

    Most critically, the Report noted that many of the new voter identification laws do not allow voters to present many forms of identification frequently used by minorities, the elderly, and the young. For example, the new Texas law allows for the use of a concealed carry gun permit to vote, but fails to recognize student IDs, Texas Veterans’ Administration identification and event Congressional identification. Further, Texas citizens must also spend $22 to obtain a birth certificate or up to $145 to obtain a passport to present the documentation necessary to acquire a form of ID required to cast a ballot.

    The letter also cites examples “of the anti-democratic impact of these new laws….” The two report, for example, that under Tennessee’s new voter registration law a 96-year old woman was denied a voter registration card because her birth certificate included her maiden name, “rather than her married name.”

    See the lawmakers’ entire letter here.