There is so much swirling in the legislative air regarding election administration reform that it’s hard to keep up.  I’m doing my best.

Last month, the American Constitution Society published a paper by Estelle Rogers, The National Voter Registration Act: Fifteen Years On.  If election adminstrators were to adopt some of its suggested reforms, it would be a major setback for sound election administration.

On the positive side, it makes at least one suggestion regarding agency registrations that needs action.   I have not seen definitive data that makes a strong a case for the failure of agencies to comply with their registration requirements.  I hope to be able to do more research on that in the future.  But the degree of the problem is really irrelevant to one of the more crucial suggestions in the paper which is to make better use of technology to facilitate the registration work of these agencies.

Currently, we get hand written forms from every agency except the driver’s license facilities.  If the forms at other agencies could be generated by the same system that is being used to provide them service, we’d ease the process for voters, agency workers, and election staff.  One hopes that this could be done with little difficulty.  Unfortunately, with the vendor driven software solutions we see in much of government, there is no guarantee as to how easily that could be done (see my open source articles).  At the very least, it needs to be on the table now.

Where the paper goes terribly awry is with its analysis of list maintenance procedures.  While purporting to be an analysis of the NVRA 15 years on, the paper basically ignores HAVA and the advances that have been made in the last 5 years on the HAVA requirement for a statewide voter registration database.

Rogers’ analysis of how duplicate voters are removed from the voter files begins and ends with United States v. Pulaski County, Arkansas.  She cites the 2004 Consent Order in the case as evidence of how duplicate registrations must be handled.  However, she misses two critical points.  First, the Pulaski Consent Order was entered into prior to the establishment of the Arkansas Statewide Voter file.  Second, the Pulaski Consent Order is no longer in effect.

As I said, her claim that jurisdictions are not to remove voters after being identified as a duplicate registration on the Statewide Voter Registration System is belied by Consent Orders subsequent to the Pulaski order as well as the language of HAVA.

For example, in the California Memorandum of Agreement we see this language:

§20108.60. Duplicate Registration Records. (a) Beginning January 1, 2006, the Secretary of State shall conduct weekly checks within the Calvoter statewide registration list to identify potential duplicate registrations for the same voter within that list, based on established rotating criteria. Upon identification of potential duplicate registration records, the Secretary of State shall automatically send an electronic notice to the county with the record that has the oldest date of registration.

(b) Within five (5) business days of receipt of a notice of potential duplicate registration the elections official shall take all necessary steps to determine whether or not the registration record is a duplicate of an existing newer registration, and if a duplicate registration is confirmed, shall cancel the older duplicate registration and submit a registration update file or full load file to Calvoter in accordance with Section 20108.15 and Section 20108.40.

Similar language appears in the Indiana Consent Decree:

The State shall require each county voter registration office to make a determination, consistent with all notice requirements mandated by law, on these potentially invalid registrations by August 2, 2006, including the removal from the list of eligible voters of any voter registration that has been positively identified as being from a deceased voter or as a duplicate registration.

HAVA itself, passed 9 years after NVRA, has strong language regarding the removal of duplicate registrations across the state.

(B) Conduct.–The list maintenance performed under subparagraph (A) shall be conducted in a manner that ensures
(i) the name of each registered voter appears in the computerized list;
(ii) only voters who are not registered or who are not eligible to vote are removed from the computerized list; and
(iii) duplicate names are eliminated from the computerized list.  (Emphasis added)

One of the primary purposes of HAVA was the establishment of the statewide voter file for the purpose of eliminating duplicate registrations.  The suggestion in the ACS paper that the statewide voter file can’t be used for those purposes flies in the face of DOJ opinions as expressed in the memoranda above and the rather common place idea that the strong statements in HAVA regarding elimination of duplicates modify the requirements of NVRA.  It would be absurd to think that Congress created the statewide voter file but gave it no useful effect.  I imagine virtually every state in the country follows these very common sense practices.

The paper also claims that election officials are violating the law as to how they handle registrations that are submitted incomplete.  Good points are brought up here, but the solution suggested is one sided and doesn’t maintain the best interest of voters.

The complaint is that some election authorities return forms back to registrars when they are incomplete and that in the last minute rush to file registrations, some voters are not notified of problems in time to rectify them.

Champaign County is a good example of a jurisdiction facing some of the problems noted here.  We try to turn around “rejections” quickly so as to give voters a chance to correct their error.  In the past we have returned some voter registration applications to groups when information is incomplete in an effort to expedite a correction.  We stopped this practice for a number of reasons which can be summed up with our concern with what was best for the voter.  Our current practice is aligned with what Rogers believes is best and legal practice.

Unfortunately, one item missing from the suggestions is to create a requirement that voter registration forms be turned in by advocacy groups in a timely fashion.  The paper is insistent of the need for enforcing the timelines for agencies, but is silent about advocacy groups.  We routinely have received forms from advocacy groups more than four weeks after the registration form is dated.  One election we received dozens of forms after the election.  Nothing in NVRA even mandates the submission of forms, and certainly no deadlines are present.  If Rogers  is serious about wanting timely disposition of registrations, it needs to first look for timely submission of the forms.

Further, the timeliness of all voter communications is imperiled each and every time a new mandate is placed upon election authorities.  When the days and hours for early voting, grace period voting, and absentee voting are extended, it necessarily creates delays in other parts of the election process.  As I mentioned in my lines at the polling place post, simplifying processes will go a long way to expediting the delivery of services.

Most disappointing in the paper is the unsubstantiated assertion that election authorities are removing voters for failure to vote.  She makes a single reference to this practice.

For example, in 2008 in Miami-Dade County, a number of African American voters who had not voted in many years and had not moved in all that time were told they were not on the rolls at all.

I spoke with Dade County.  They don’t remove people for failure to vote and a simple phone call by the author of the paper would have revealed the same.  I highly doubt that a single election authority in America does this, yet for some reason the author feels compelled to suggest it.  Perhaps this is another one of those “necessarily atmospheric opinions of reformers” that Michelle Gerken writes about that I find disturbing.

As a policy blue print for improving the NVRA, the ACS report is lacking.   More disappointing, the actual arguments that it brings to the discussion are sometimes misleading, inaccurate, or incomplete.  Once again, hearkening back to Gerken.

“When there’s no evidence to analyze, there’s not much left to do but shout.  We lack the information we need to be confident that we’ve correctly identified the problem and chosen the right solution.  We argue incessantly about which path election reform should take even though no one can even map where we are right now.”

For all the work that was apparently put into this report, it would have been nice if the Rogers could have brought more substance to this debate and a little less shouting.

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