February 09, 2020 HUMAN RIGHTS

Voter Registration in Today's Democracy: Barriers and Opportunities

by Terry Ao Minnis and Niyati Shah
The requirement of registering to vote before being able to cast a ballot has been integral to how our democracy functions and provides both barriers

The requirement of registering to vote before being able to cast a ballot has been integral to how our democracy functions and provides both barriers

Often when we hear about voting, the public discussion focuses on Election Day (or days in the case of early and absentee voting). However, an important component of the voting process occurs before the actual act of voting—voter registration. The requirement of registering to vote before being able to cast a ballot has been integral to how our democracy functions and provides both barriers and opportunities to voter participation, particularly for communities of color. For example, just slightly over half of eligible Asian Americans and Latinos were registered to vote in the last two federal elections, with a persistent disparity as compared to white voters of 15–20 percent less in voter registration and turnout.

Table 1. Voter Participation Rates and Gaps of Those Eligible by Race and Ethnicity

  Percent Registered of Those Eligible
Gap in Voter Registration Rate (compared to White)
Percent Voted of Those Eligible
Gap in Voter Turnout Rate
November 2016 Election
White
73.9%
N/A
65.3%
N/A
African American 69.4%
-4.5%
59.4%
-5.9%
Asian American 56.3%
-17.6%
49.0%
-16.3%
Latino
57.3%
-16.6%
47.6%
-17.7%
November 2018 Election
White
71.0%
N/A
57.5%
N/A
African American
63.9%
-7.1%
51.1%
-6.4%
Asian American
53.0%
-18.0%
40.6%
-16.9%
Latino
53.7%
-17.3%
40.4%
-17.1%
Source: Census Bureau Current Population Surveys

But we also know that once registered, disparities among different racial and ethnic groups disappear generally (see Table 2). Once registered, people are more likely to take the next step and vote.

There has been growing attention on voter registration and the role it plays in our democracy. On the one hand, voter registration has been increasingly under attack as a way to erect barriers to voting and suppress the vote of certain communities. On the other hand, election reform efforts to increase access to voter registration, in recognition of the fact that more parity in voter turnout is achieved once registered, have also been on the rise. This article will provide an overview of both the attacks and opportunities that currently exist with respect to voter registration, and provide thoughts on how to approach modernizing voter registration.

Table 2. Voter Participation Rates of Those Registered by Race and Ethnicity

  Percent Voted of Registered in 2016 Gap in Voter Turnout Rate (compared to White) in 2016 Percent Voted of Registered in 2018 Gap in Voter Turnout Rate (compared to White) in 2018
White 88.3% N/A 80.9% N/A
African American 85.7% -2.7% 79.9% -1.1%
Asian American 87.2% -1.2% 76.6% -4.3%
Latino 83.1% -5.3% 75.2% -5.8%
Source: Census Bureau Current Population Surveys

Defending Against Attacks to Voter Registration

Diluting the National Voter Registration Act

The National Voter Registration Act of 1993 (NVRA) is a federal law designed to reduce barriers to voter registration. The NVRA governs elements of voter registration in the United States and requires, among other provisions, that certain government agencies—including Departments of Motor Vehicles (DMVs), public assistance agencies, and disability services offices—affirmatively provide voter registration services.

Government Agency Voter Registration

The NVRA requires that DMVs register driver license holders simultaneously and without requiring duplicative information in their DMV and voter registration applications when individuals apply for, renew, or submit a change of address for their driver’s license. For those individuals who do not occasion DMVs, specifically the low-income or disability community, the NVRA requires that public assistance agencies and disability offices provide voter registration each time an individual applies for, renews, or submits a change of address in conjunction with their benefits.

Despite the clear requirements of the NVRA, states often seek to circumvent their voter registration obligations by failing to consistently provide voter registration or limiting voter registration during in-person transactions, even as interactions with government agencies increasingly take place online. A lawsuit in Georgia forced the state’s public assistance agencies to provide voter registration during online transactions. Moreover, there is a pending lawsuit in Texas challenging the DMV’s refusal to provide voter registration during online change of address transactions.

Third-Party Voter Registration Drives

The NVRA also provides for a federal, mail-in voter registration form that is uniform across the country and which is available in 14 languages. This facilitates third parties or community organizations in conducting voter registration drives. These community-based voter registration drives often assist traditionally under-represented segments of our electorate, including those who are limited-English proficient (LEP) and communities of color, usually in a nonpartisan manner.

Despite the clear mandate of the NVRA, there have been attacks on third-party voter registration drives. For example, states restrict and burden voter registration drives by requiring those conducting voter registration, most of whom are volunteers, to be designated as a “deputy voter registrar.” In order to do so, states add additional requirements such as residency requirements and quotas on how many individuals from a single organization can become deputy voter registrars. In addition to these administrative burdens, states further increase the burdens on third-party voter registration drives by requiring submission of complete voter registrations in person (rather than mail) in a relative tight timeframe.

Purging Voters

In addition to increasing voter registration, the NVRA also limits the circumstances in which states can remove individuals from the voter rolls in order to reduce the chance that citizens eligible to vote will be removed from the rolls. The NVRA states that “the name of a registrant may not be removed from the official list of eligible voters except: (1) if the registrant requests he or she be removed, (2) in accordance with state law regarding eligibility in cases of criminal convictions or mental incapacity, (3) where the registrant has died, or (4) where the registrant’s residence has changed.

But some states have begun to aggressively purge otherwise eligible voters from their voting rolls for a host of invalid reasons. For example, in Texas, the Secretary of State attempted to purge naturalized citizens from voter rolls because they had once indicated to the DMV that they were green card holders or legal permanent residents; of course, individuals routinely naturalize before needing to update their DMV records. And in Georgia, the Secretary of State attempted to purge voters from the rolls simply because their name did not exactly match other governmental records. But it is commonplace to have typographical errors in data entry and, in particular, ethnic names often do not conform to the naming format of a given or first name followed by a surname. These practices were only halted after civic engagement organizations filed multiple, successful lawsuits.

Documentary Proof of Citizenship Requirement for Voter Registration

Citizenship is a prerequisite to voting in federal elections. In order to register, individuals must sign a statement under penalty of perjury affirming that they are citizens and that they meet all voter eligibility requirements. While this has been the accepted practice for decades and by courts, beginning in 2004, a handful of states have decided to go further and require voters to provide documentary proof of their citizenship, such as birth certificates, naturalization cards, or Native American tribal documents. Arizona was the first state in 2004 to impose such a documentary proof-of-citizenship requirement, with Kansas, Alabama, Tennessee, and Georgia following suit in the following decade.

Documentary proof of citizenship requirements disproportionately affect students, the elderly, people with disabilities, low-income individuals, the homeless, naturalized citizens, and communities of color. Acceptable documents to prove citizenship for this requirement generally include any driver’s or non-driver’s ID that includes a notation that the person submitted proof of U.S. citizenship, a U.S. birth certificate, a U.S. passport or U.S. naturalization documents, certain tribal IDs, and other rare documents. Obtaining requisite government-issued proof of citizenship requires both the time and cost of physically getting the documentation. Additionally, foreign-born persons will not have some of these documentary options available to them because of their place of birth, and they also face additional fees to obtain a replacement Certificate of Naturalization, which currently requires $555 and takes around 10 to 13 months to process. Thus, these requirements place an unequal and undue burden on those least likely to participate in our democracy.

Additional Requirements for Naturalized Citizens

While not as prevalent, there have been states that have treated their naturalized citizens as second-class citizens by placing additional requirements upon them in order to vote. For example, in Louisiana, a law on the books for almost 150 years required only naturalized citizens to submit proof of citizenship in person at their local registrar’s office after submitting their voter registration form. For groups on the ground, there was a noticeable uptick in strict enforcement of this law around 2012. This resulted in more naturalized citizens declining to register when they learned about the cumbersome process. After a lawsuit was filed challenging this law, Louisiana’s governor signed a bill that repealed the discriminatory requirement in 2016. More recently, in Mississippi, a lawsuit was filed in November 2019 challenging state law that imposes a documentary proof-of-citizenship requirement for voter registration on only naturalized citizens.

Increasing Access for All

Efforts at the state level have not all been negative—there has also been an increase in efforts to pass proactive, affirmative election reform that would increase access to voter registration and voting for all voters. A better understanding about why people choose not to vote is needed in order to best assess which proactive election reform would improve the voter registration process. An analysis of the reasons why people choose not to vote shows that some of the main reasons for not voting are focused on lack of interest (either in voting itself or the specific candidates or campaigns) or forgetting to vote. However, the analysis further shows that around half of those choosing not to vote do so for one of the following lack-of- access reasons: illness or disability; out of town; too busy; conflicting schedule; transportation problems; registration problems; or inconvenient polling place (see Table 3). The following proactive election report policies can address many of these reasons and ensure that those who have an interest in voting, but who have some type of access issue, can still cast a meaningful ballot in future elections.

Table 3. Not Voting Because of Lack of Access by Race and Ethnicity

  Percent Not Voted Because of Access Issues in 2016 Percent Not Voted Because of Access Issues in 2018
White 44.1% 58.4%
African American 43.0% 58.5%
Asian American 38.9% 58.1%
Latino 40.3% 57.2%
Source: Census Bureau Current Population Surveys

Same Day Registration (SDR)

In most states, voters must register by a specified deadline prior to Election Day, usually falling between 8 and 30 days before the election, in order to vote on Election Day. This can cause confusion for voters and creates a barrier for those who miss the deadline to register but become interested in voting between the deadline and Election Day. SDR, also known as Election Day Registration, allows any qualified resident of the state to both register to vote and cast a ballot on that same day. According to the National Conference of State Legislatures (NCSL), as of June 30, 2019, a total of 21 states plus the District of Columbia have enacted SDR, including New Mexico and Nevada, which enacted SDR in 2019.

Online Voter Registration (OVR)

OVR allows one to register to vote electronically over the internet and is a complement to the traditional mail-in process. Online voter registration simply expands the ways in which people can register and makes voter registration more convenient and cost-effective. Even with the ongoing digital divide facing communities of color, online voter registration systems that are accessible on mobile devices help to bridge that gap and ensure communities that tend to be the most marginalized can take advantage of OVR.

Additionally, OVR has been shown to result in significant cost savings to processing registration in jurisdictions where implemented. For example, Arizona went from per-registration costs of 83 cents per paper registration to 3 cents per online registration. As of October 2019, NCSL reports that a total of 37 states plus the District of Columbia offer online registration, as well as Oklahoma, which is currently phasing in implementation of OVR. Finally, beyond the convenience factor of being able to register or update registration information online, OVR provides additional opportunities to provide language assistance to voters through translated online interfaces.

Proceed with Caution—Automatic Voter Registration (AVR)

The current most popular proactive election reform policy is AVR, where the government is responsible for “automatically” registering voters rather than waiting for the individual to submit a voter registration form. While there is value in placing the responsibility on the government to ensure that all eligible citizens are registered to vote rather than on the individual, those considering AVR efforts must approach it cautiously in order to avoid any unintended harm, especially for those who are ineligible but are accidentally registered.

Having an ill-considered system without input from stakeholders to register voters may result in accidental registration of non-citizens where the non-citizens have not actually represented themselves as U.S. citizens. Whether a non-citizen national with a passport or one who is accidentally added due to clerical mistakes by government officials, non-citizens erroneously registered through AVR can face serious immigration consequences, such as deportation or becoming ineligible to naturalize. Under immigration law, making a false claim to U.S. citizenship is a federal felony regardless of knowledge or intent. Additionally, non-citizens are prohibited from voting in federal elections, where liability is triggered if a person does the targeted act consciously, regardless of intent or understanding of the illegality of the act.

There are two general approaches to AVR—a system where existing databases, such as driver license databases, are used to automatically register voters through the use of a mailer for potential opt-outs or a system that uses an opt-out option during transactions with relevant agencies. Because these databases were not designed with this purpose in mind and where the quality of data is likely inconsistent and poor across these different databases, especially with respect to citizenship and naturalization data, the more prudent method for AVR would allow for automatic voter registration where a person is offered the opportunity to opt out in-transaction with the relevant agency. Moreover, often systems using a back-end opt out of voter registration replace front-end voter registration altogether; this would be a violation of the NVRA (discussed above), and the state law implementing a back-end system would be subject to federal preemption.

Any AVR effort at a local or federal level should focus on an in-transaction, front-end opt-out system. Additionally, any bill must offer protections in place for anyone who is ineligible to vote but who is registered through the AVR process as well as those who decided to vote on reliance of that registration. Finally, any local or federal AVR effort must incorporate the importance of provisions for public education to complement an AVR system.

The near parity achieved in voter turnout between voters of color and white voters is due in large part to the extensive engagement of Get Out the Vote (GOTV) and voter mobilization campaigns. In the absence of a public education campaign, many of those automatically registered may not know why it is important to vote, where, when, and how to vote, or what rights they have at the polls. Thus, it is important to include a commitment to, as well as funding for, public education that is conducted in a manner that is culturally and linguistically appropriate to address the needs of the most marginalized communities and encourages participation in our democracy.

Conclusion

Voter registration is an integral part of our democracy that can cause significant barriers to participation. Unfortunately, some are seeking to exploit the voter registration process to make voting even more difficult for those least likely to engage by adding more requirements to voter registration or by recklessly removing potential voters from the voter rolls. These suppressive tactics are being challenged in court and are being dismantled in many cases. At the same time, advocates on the ground are working to make voting accessible for all by championing voter registration reform measures that will increase opportunities and methods to register to vote. And, once registered, all Americans vote at similar rates. As further voter registration modernization efforts continue, we must seek ways to make voter registration more accessible but also safe for those who are not yet eligible to vote.

Terry Ao Minnis is the senior director of Census and Voting Programs for Advancing Justice at Asian Americans Advancing Justice (AAJC). She was one of the key leaders in campaigns on reauthorizing the Voting Rights Act in 2006 and the 2010 and 2020 census and is currently engaged in addressing the Supreme Court’s decision in Shelby County v. Holder.

Niyati Shah is the assistant director of Legal Advocacy AAJC. As such, she leads the litigation program and recently served as one of the lead attorneys in Lupe v. Ross, a case challenging the addition of the citizenship question to the 2020 census.

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