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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

Sharing the Burden: Some Thoughts on Voter Registration Lists

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July 12, 2005

One Congressional response to the irregularities of the 2000 presidential election was to require states to create statewide voter registration lists. The Help America Vote Act of 2002 (HAVA) mandates that each state create a "single, uniform, official, centralized, interactive computerized statewide voter registration list defined, maintained, and administered at the State level that contains the name and registration information of every legally registered voter in the State and assigns a unique identifier to each legally registered voter in the State . . . ." 1  Forty-one states availed themselves of HAVA's option of extending the deadline from January 1, 2004, to January 1, 2006, but, even with the extensions, doubts remain as to whether all states will have such lists operational by the deadline. 2

Efforts to complete this transition to statewide lists should be a high priority. As numerous states struggle to balance access to the voting process and integrity of the vote itself, accurate and current lists of eligible voters will enable states to maintain that balance with less sacrifice to either value. Additionally, the types of identification required both during registration and at the polling place, another controversial area of election administration, can be impacted by how registration lists are created and maintained. One of the goals is to maintain accurate registrations lists while at the same time avoiding the problem of making the registration process too cumbersome for new or existing registrants.

The purpose of requiring citizens to register to vote is to establish the voter's eligibility to vote and to avoid various kinds of fraud. Generally, eligibility requires being of voting age, being a U.S. citizen, being in the proper jurisdiction to cast a vote, and not being excluded for a variety of state-specific reasons. In most states, those exclusions are related to conviction of a felony or, in rare circumstances, adjudication as incompetent for the purpose of voting.

Before going further, I would like to issue a caveat. This posting should be seen as a thinking-out-loud kind of piece. I have no doubt omitted many aspects of the registration issue, but I also have hopes that the conversation can be furthered by more people thinking out loud.

When considering the list of "proofs" provided by registering, the list can be divided into status conferred by the state (citizenship and the exclusions), status chosen by the voter (place of residence), and status conferred by the mere passage of time (the minimum age requirement). In the system currently in place in most states, the burden is on the voter at registration to aver age, citizenship, and address, and the state is responsible to check for exclusions once the voter has registered and to put the voter on the proper list by jurisdiction.

My proposal is to place the burden on the state to keep track of what it controls, and the voter to provide information over which the voter has control. I suggest that the state be responsible to provide a "voter eligibility card" to each citizen when she or he turns eighteen or when an immigrant is naturalized. The state would be responsible to update the statewide voter registration list when a person becomes ineligible to vote due to a felony conviction or incapacity. The voter would be responsible bring the card to the polling place along with documentation of the voter's current address.

Some further details: first, documenting age. Schools are probably the best source for the states to gather information about addresses and birth dates. While educational privacy laws would need to amended, use of address and birth date information for the limited purpose of the state issuing a voter eligibility card is far less controversial than the No Child Left Behind Act of 2001's current requirement that schools provide such information to military recruiters. HAVA requires the statewide voter registration list to be linked to other sources 3, thus other records may also be used. In any case, the information would need to be gathered from students while they were still mandated to attend school, so that students who drop out would still receive a voter eligibility card.

Another question concerns what happens at the polling place. The moment of voting is when both eligibility determination and fraud prevention are most critical. One issue is the type of address documentation that would be acceptable at the polling place. HAVA provides guidance about what should be sufficient to prove that the voter is in the proper jurisdiction. According to HAVA, a first-time voter who registered by mail and failed to provide one of a listed set of documents must bring documentation to the polling place. Documents that suffice to establish that the person is in the proper jurisdiction include: a current and valid photo identification, a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter. 4  If these documents are sufficient to establish residency for federal elections, states should be satisfied that these documents are sufficient to protect the integrity of state elections.

A person bringing a voter eligibility card would be in a position similar to a mail-in registrant, in that no proof of identity or residency would have been provided to that point. While registering in advance permits elections officials to verify and update lists for each jurisdiction in advance of each election, the six states that currently permit election day registration ( Idaho , Maine , Minnesota , New Hampshire , Wisconsin , Wyoming ) have found successful alternatives. While some of those states require photo identification in order to establish identity, photos are not required by all of them. HAVA does not require a mail-in registrant to provide photo identification at any stage of the process.

But what of the fraud prevention role of registration? Voter fraud can involve voting under a false identity, voting on behalf of someone else, or voting multiple times, either in the same jurisdiction or in multiple jurisdictions. My proposal would reduce the chances of voting under a false identity, because the fraudulent voter would have to proffer another's voter eligibility card in addition to providing false documents at the time of voting (both acts should be criminalized). A safeguard would be to require that the voter eligibility card be signed, with a signature match at voting. That requirement may have a deterrent effect, but because age and illness, among other causes, can affect signatures, and because detecting falsified signatures can require training, I do not believe that such a safeguard would have much impact on detecting fraud. Since the government issues the original card, it is not possible to apply for the card as someone else. Lastly, voting on behalf of someone else is a problem seen mostly with absentee ballots, and is not impacted by registration systems.

The possibility of voting multiple times remains, as it will with any registration system that does not create a federal registration list that is instantaneously updated to indicate when each voter has voted. Perhaps our best chance of preventing multiple votes is to take a lesson from Iraq and use blue ink on fingers to indicate those who have voted!

To wrap up this exercise in thinking aloud, the benefits of this system would be several. The default assumption is that citizens of a certain age are eligible to vote. The burden for providing information is placed on the party most able to control that information. The card has a very limited use, as it includes only age and citizenship, thus should reduce fears of a "national identity card" and invasions of privacy. The disadvantages include the fact that people need to keep track of the card between intermittent election events. I have not discussed what to do with people who come to the polling place without their cards, but provisional ballots may be useful in that circumstance. A mobile society adds difficulty to sending a voter eligibility card to persons turning eighteen. And perhaps most importantly, this system still requires documentation of identity and residency, requirements which are more difficult for some sectors of our society to meet.

Notes

1. 42 U.S.C. 15483(a)(1)(A).

2. William Welsh, "Penalties unlikely for missing voter database deadline," Washington Technology, Thursday, July 7, 2005. http://www.washingtontechnology.com/news/20_13/statelocal/26525-1.html

3. HAVA requires that the statewide voter registration list be coordinated with other agency databases within the states, which should provide access to age and address information. See 42 U.S.C. 15483(a)(1)(A)(iv).

4. 42 U.S.C. 15483(b)(2)(A)(i).