Election Law @ Moritz


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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

Verifying Voter Registration Lists

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March 22, 2005

As states endeavor to comply with the congressional requirement that they create statewide voter registration lists, rather than relying on lists developed by local boards of election, it is important to emphasize the need for procedures to verify the accuracy of these new statewide lists. These verification procedures, moreover, can reduce the need to rely on provisional ballots: if voters have a fair opportunity before Election Day to rectify any inappropriate omissions from the list, then these voters can cast a regular rather than provisional ballot on Election Day. As I have argued elsewhere, as have others, it is better both for the voters themselves as well as for the public as a whole if questions about voter eligibility can be resolved by verifying registration lists before Election Day rather than adjudicating disputes over contested provisional ballots afterwards.

What, then, would a fair pre-election process for verifying registration lists look like? Its key components would be notifying new would-be voters of any material defects in their registration forms, which would prevent them from being registered, as well as enabling voters (and the interest groups that represent them) to examine the registration lists in sufficient time to raise objections to omissions. A fair process would also provide other citizens (and interest groups) with a chance to challenge new registrations as improper, while giving these new registrants an adequate opportunity to rebut such challenges.

Structuring a fair verification system is largely a question of timing: how to provide adequate notice and an opportunity to correct mistakes between the deadline for submitting registration forms and Election Day. If the deadline for submitting registrations were much earlier than it is currently — say, 60 days before Election Day, rather than 30 — then there would be sufficient time for correcting errors and resolving any disputes about voter eligibility before the casting of ballots. But an early registration deadline denies the right to vote to those who moved to the state during the month of September of an election year.

One way to balance the advantages and disadvantages of early and late registration deadlines would be to adopt both: for those who submit their forms by the early deadline, they can take advantage of a more robust set of procedures for verifying registration lists; whereas if individuals are unable to submit their forms until the late deadline, then they must accept the limitations of a more streamlined verification process. (This two-tiered system would be a bit like college admissions: early applications have a better chance of success.)

What follows is a brief sketch, for illustration only, of how a two-tiered registration system might work. Before any such system were implemented, its details would need to be developed based on input and review from election administration officials, policy analysts, and others. Think tanks need to kick around the idea before legislative committees in various states begin drafting statutes. (The Century Foundation is one such organization that has assembled a group, of which I am a member, to consider such proposals.) But even a brief sketch can be useful to demonstrate the basic concept.

I have based the following schedules on 2006 dates, when Election Day will be Tuesday, November 7. But 60 days before Election Day is always a Friday, 50 days before Election Day is always a Monday, and so forth. So the basic architecture of these schedules would be the same for any election year. (In the tables below, the notation "E-60" means 60 days before Election Day, "E-50" means 50 days before Election Day, etc...)

Verification Process for Early Registration Deadline

Day Date Election Day minus X days Event
Friday Sept. 8 E–60 early registration deadline
Monday Sept. 18 E–50 state must notify voter of any problem
Saturday Sept. 23 E–45 state must publish voter list on web site
Tuesday Oct. 3 E–35 voter must (a) respond to notice, or
(b) inform state of omission from list
Tuesday Oct. 10 E–28 state must (a) add voter to list, or
(b) schedule hearing to resolve eligibility
Tuesday Oct. 24 E–14 state must complete eligibility hearings;
voter may appeal ruling of ineligibility
Tuesday Oct. 31 E–7 state must resolve appeals
Friday Nov. 3 E–4 state publishes verified list on web site
Tuesday Nov. 7 E–0 Election Day

Verification Process for Late Registration Deadline

Day Date Election Day minus X days Event
Monday Oct. 9 E–29 late registration deadline
Friday Oct. 13 E–25 state publishes updated list on web site
Tuesday Oct. 17 E–21 voter must inform state of omission from list
Monday Oct. 23 E–15 state must (a) add voter to list, or (b) notify voter of adverse determination, which voter has limited opportunity to appeal
Tuesday Oct. 31 E–7 state completes limited appeals in late cases
Friday Nov. 3 E–4 state publishes verified list on web site
Tuesday Nov. 7 E–0 Election Day

A comparison of these two schedules shows that an early registrant gets the advantage of a more robust verification process than the late registrant. First of all, the early registrant receives personal notice from the state of any registration problem of which the state is aware, as well as the opportunity to challenge omissions from the voter list published on the state's web site 45 days before the election. By contrast, the late registrant receives no such personal notice, but must rely on the initiative to challenge the updated voter list published on the web site 25 days before the election. Moreover, the timetable for challenging omissions is shorter for late registrants: they must do so within four days of the list's publication, whereas early registrants have 10 days to present such challenges.

More significantly, if in response to a challenge of this kind the state takes the position that the omission of the would-be voter from the list was proper (on the ground that the individual is ineligible to vote), the early registrant gets the benefit of much more favorable review procedures than the late registrants. The early registrant in this position is entitled to a hearing, to take place between 28 and 14 days before the election, at which the registrant has an opportunity to present evidence in favor of eligibility and contest the state's evidence of ineligibility. Moreover, if the early registrant receives an adverse ruling of ineligibility after this hearing, the early registrant is entitled to an appeal of this ruling, which occurs between 14 and 7 days of the election. Conversely, the late registrant is entitled only to a limited appeal of the state's adverse determination of ineligibility, with no opportunity for the kind of evidentiary hearing available to the early registrant.

In structuring this two-tiered verification process, it is necessary also to consider the timetables by which citizens (and groups) can challenge the inclusion of individuals on the published lists of registered voters. These additional timetables will be presented in a subsequent Weekly Comment, along with the timetables for voters to defend against being purged from these lists. Meanwhile, the two schedules set forth above are enough to provide an initial indication of the main benefit that a bifurcated system of registration deadlines would provide: the ability of early registrants to employ favorable procedures for correcting errors to the processing of their registration forms and resolving any disputes that might arise over their eligibility to vote.