Posted: July 15, 2008
Regulation of voter registration drives: Will there be further litigation?
The EL@M team is currently determining likely areas for litigation going into the 2008 Presidential election. One potential area appears to be litigation surrounding the regulations that some states apply to third-party voter registration drives performed by entities such as ACORN and the League of Women Voters. Lawsuits attacking such regulations have been filed in the past in Ohio, Florida, Georgia, and Pennsylvania, and we may see more pre-election suits of this kind. Litigation is more likely in swing states with a large number of electoral votes, and in states that have the most restrictive kinds of regulations.
One state to watch is Colorado. Many analysts think it will be key to the 2008 Presidential outcome, both because it is a swing state and because it carries a relatively large number of electoral votes (9). This alone puts it at risk of litigation, and that risk is compounded by Colorado’s somewhat restrictive regulations on voter registration drives. Organizations cannot engage in voter registration drives in Colorado unless the leader of the organization first files with the state and undergoes special training. § 1-2-701. Completed applications generally must be submitted within 15 business days of the date they are completed (within 5 business days if the application was completed within thirty days of the registration deadline). § 1-2-702. The rules prohibit tying a ground-level registration worker’s pay to the number of applications submitted. Violations of these rules can lead to fines of $50 to $1,000.
Although these regulations may be restrictive enough to anger voter registration groups and trigger suit, they are by no means draconian compared to regulations that are currently being litigated in other states. The now-enjoined Ohio provisions, for instance, required all compensated voter registration workers—not just those at the top—to register with the state and complete online training. § 3503.29. They also required that ground-level registration workers submit completed forms directly to the Secretary of State, rather than through the workers’ supervisors. § 3599.11. Like Colorado and many other states, Ohio made it illegal to tie the pay of ground-level workers to the number of registration forms submitted. § 3599.111.
The Colorado regulations are more similar to the regulations in Florida, which spurred an ongoing suit. As in Colorado, each Florida registration drive must register a representative with the state. § 97.0575. However, ground-level workers do not have to register and receive training. Also as in Colorado, the code levies fines against registration groups for failing to return completed applications promptly (Florida requires they be turned in within 10 days of completion). However, the Florida regulations are actually milder than the Colorado ones in some ways. For instance, they limit the total amount of fines levied to $1,000 per year. But the Florida law may be tougher in other ways, as it arguably permits the imposition of fines not only against voter registration drive organizations, but also against the individual workers in those drives.
Fortunately from a litigation standpoint, most of the other states we researched had no regulations or only mild regulations that apply to voter registration drives. The most common requirements are some kind of registration with the state (ex: Missouri) and a prohibition on tying the pay of registration workers to the number of applications submitted (ex: Iowa). Other states, such as Nevada, require those requesting large numbers of applications to submit a plan that describes the activities of their drive. Still others, such as Indiana, have no significant regulations at all. Still, we researched only 16 states, and it is possible that there are regulations in the remaining 34 that are strict enough to create controversy.
If litigation is filed, it will not be concluded prior to the election, but there will be time for courts to issue preliminary injunctions. Unfortunately, prior decisions (I, II) in these types of cases have not produced much guidance, but instead have rested on conclusory statements that the challenged rules either did or did not violate the First Amendment or the constitutional “right to vote” (but see here). For that reason, it is difficult to predict how such cases will go. Suffice it to say that any decisions that come down are not likely to derive from pure legal reasoning, but instead are more likely to derive from “common sense,” whatever that is.