By Estelle Rogers, Consulting Attorney, ProjectVote
The National Voter Registration Act (NVRA) has been a disappointment. When the statute was passed in 1993, the civil rights community hailed it as the capstone of the "voting rights revolution" begun by the Voting Rights Act of 1965. In a new report from Project Vote, "The National Voter Registration Act at Fifteen," voting rights attorney Estelle Rogers hones in on several of the most important provisions of the NVRA and finds their impact far less dramatic than expected. Despite the promise of the NVRA, voter registration problems were frequently cited as THE ISSUE marring the 2008 election, just as hanging chads were in 2000 and long lines in 2004.
The NVRA was enacted in response to the shocking statistic that 44 percent of the eligible electorate did not vote in the 1992 presidential election. The legislation's sponsors believed that making it easier to register would eliminate one major barrier to low participation in the future. The primary means Congress chose to increase the number of registered voters was to mandate that registration be offered at places not generally used for that purpose, such as motor vehicle offices and public assistance and disability agencies. Actually, "motor voter" was the original concept. Other agencies were only added later, at the urging of voting rights advocates, who recognized that a broad swath of the American public-particularly low income and minority citizens-does not interact with the DMV at all.
Unfortunately, these other agencies have been treated as the poor stepchildren of the law ever since. Enforcement of the states' obligation to offer registration at public assistance, disability and military recruitment offices has been woefully inadequate. One disability rights activist, who was "present at the creation" of the NVRA, remarked recently that he has not yet displayed the "signing pen" given to him by President Clinton because the law has not yet been meaningfully implemented. But he's hopeful that a new era of enforcement has begun and that his pen will come out of the mothballs soon.
Another big obstacle to realizing the potential of the NVRA is the seemingly limitless creativity of the states when it comes to inventing mechanisms to squelch voter registration drives. The law recognized that these drives would be an effective way to reach out to traditionally disenfranchised communities. But some states have required registration workers-often volunteers from church or community groups-to be deputized or made official agents of the state. Others have prohibited applications from being submitted in a group or required detailed filings with the state before a registration drive could begin. Still others have imposed tight deadlines of 3 or 5 days for the submission of applications, even though the DMV and agencies have 10 days to transmit applications to the state.
"Purging" also received a lot of attention in the 2008 election. The NVRA sets clear and explicit standards for when a voter may be dropped from the rolls, but these standards are widely misunderstood and/or ignored, leading to wholesale purges of eligible voters, often because they haven't voted regularly. Not surprisingly, this was a common occurrence in 2008, when large numbers of African Americans were voting for the first time in many years. Erroneous purges have also led to the disenfranchisement of many voters mistakenly confused with ineligible (in many states) convicted felons, notably a 2004 Florida "match" process in which 15 percent of those dropped from the rolls were not felons at all.
While the NVRA has fallen far short of the great expectations surrounding its passage, several simple fixes could go a long way toward fulfilling its goals. The key word here is leadership. First, the Department of Justice is charged with enforcement of the law. A few strategic lawsuits, for example against states whose agencies are not in compliance, would undoubtedly have a "trickle-down" effect. Experience has shown that states' agency registration rates skyrocket after litigation, and more aggressive enforcement in this area will show dramatic results in the defendant state and send a message to other states as well.
The Department of Justice also has the authority to issue guidance to the states, telling them what will and what will not be considered compliance with the NVRA. Such gentle persuasion might help recalcitrant state election officials to understand all of the NVRA's requirements with respect to agency registration, purging, and registration drives, among others.
Leadership by state election officials will also have a profound impact. When the mandates of the law are obeyed--
- when state employees are properly trained,
- when election officials are not given unbridled discretion to interfere with legitimate registration drives, and
- when agencies are made to understand that voter registration is part of their mission and not an optional activity
--then increases in the number of registered voters and in the diversity of the electorate are sure to follow.
If the NVRA were finally vigorously enforced and properly interpreted, this 15-year old statute could well be the transformative law that its authors envisioned.
As the debate swirls around "universal registration," "automatic registration," "internet registration," and many other ambitious proposals, we would do well to remember that the NVRA remains an underutilized but powerful tool for the expansion of our democracy.