Dan Tokaji's Blog
- Election Law Blog (Rick Hasen)
- Election Updates (Michael Alvarez & Thad Hall)
- Votelaw Blog (Ed Still)
- Leave it to the Lower Courts: On Judicial Intervention in Election Administration, 68 Ohio State Law Journal 1065 (2007)
- The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 South Carolina Law Review 689 (2006)
- Early Returns on Election Reform: Discretion, Disenfranchisement, and the Help America Vote Act, 73 George Washington Law Review 1206 (2005)
An Election Day Registration Bill
A bill has been introduced in the Senate that would require states to allow election day registration (EDR) in federal elections. The bill may be found here and co-sponsor Senator Russ Feingold's statement in support of the bill here.
EDR has been used in nine states some of them since the 1970s. We therefore have quite a bit of evidence on its efficacy. As detailed in our recent report From Registration to Recounts: The Election Ecosystems of Five Midwestern States, it's been very successful in those states, increasing participation without any evidence of an increase in voter fraud -- the main argument that's usually used against EDR. Minnesota and Wisconsin are particularly good examples of the positive effects of EDR, as documented in that report.
Social science research has consistently found an increase in turnout due to EDR, probably in the range of 5-10%, as documented in testimony that I offered to the House Adminstration Committee when it was considering another EDR bill late last year. Senator Feingold's statement in the support of the bill thus aptly cites this as an example of the "moneyball approach to election reform," which I discussed in this post. That's the idea that election reform ought to be based on solid empirical evidence rather than intuition and anecdote -- something that's too often been the case by reformers on both the left and the right.
Another benefit of EDR is that it reduces reliance on provisional ballots and, with it, the likelihood of post-election litigation over whether those ballots should be counted. As I stated in testimony on another EDR bill that was being considered by the House Administration committee late last year:
For these reasons, I hope Congress will give serious consideration to this bill.
While the turnout benefits of EDR are widely recognized, another advantage has received virtually no attention: allowing EDR can almost entirely eliminate the need for provisional ballots. That is primarily due to the fact that voters whose registration forms are mishandled need not cast a provisional ballot in EDR states. Instead, they may simply register at the polls. Consider, for example, voters whose names do not appear on registration lists when they appear at the polling place for any of the following reasons:
-a third-party registration group soliciting voter registration inadvertently failed to return the form,
-a public agency that took the voter's registration application, such as a state motor vehicle office, failed to transmit that registration to the appropriate county election office, or
- the county election office made a data-entry error, say in the voter's home address, causing the voter's not to appear on the registration list for his or her polling place.
In each of these circumstances, the voter's name would not appear on the registration list for the proper polling place when he or she shows up to vote on Election Day. In a state without EDR, that voter would be relegated to the provisional voting process. In an EDR state, by contrast, the voter would be permitted to register and vote on Election Day, provided that he or she satisfied state requirements for confirming eligibility.
The data on provisional voting confirms that EDR states are much less reliant on provisional ballots than other states. In the 2004 election, for example, the EDR states of Maine, Wisconsin and Wyoming all had 0.05% or less of their registered voters cast provisional ballots.1 Maine had only 483 provisional ballots cast statewide, while Wisconsin had only 374, and Wyoming just 95.2 In Minnesota, there were zero provisional ballots cast in the 2004 presidential election. By contrast, almost 2% of Ohio's registered voters - a total of 157, 714 people - cast provisional ballots in 2004. Quite clearly, the much larger number of provisional ballots cast increases the likelihood of a close election turning into a disputed election. It is not difficult to imagine the nightmare scenario that would have emerged in Ohio in 2004, had the margin of victory been closer. The two candidates would have wound up arguing over whether provisional ballots should be counted in counties across the state, just as they argued over whether punch card ballots should be counted after Florida's 2000 election.
Greater participation in our democracy is thus only one of the benefits of EDR. Adopting EDR can virtually eliminate the need for provisional ballots and, with it, a potential source of contestation and litigation over close elections.... Put more simply, EDR promotes the value of finality as well as access, and does so without sacrificing electoral integrity.