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

Online Voter Registration is the Answer

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June 13, 2006

Controversy currently rages in both Florida and Ohio over their new laws regulating voter registration efforts by third-party groups. Civil rights organizations and other non-partisan entities, like the League of Women Voters, have long engaged in voter registration drives in order to increase participation in the franchise by eligible citizens. The practice of recruiting new registrants, however, has intensified recently, especially during presidential elections in battleground states, and some of the newer groups involved in the process, like Moveon.org, clearly favor one political party and its candidates.

Reports of irresponsible and even mendacious practices in 2004 by some third-party groups led legislatures in Florida, Ohio, and elsewhere to believe that new regulations were necessary. There were stories, for example, of groups losing registration forms or submitting them late, thereby disenfranchising the voters they were purporting to empower. There were other allegations of incomplete or improperly completed forms submitted by third-party groups, raising the question whether a state would be required to count provisional ballots cast by voters whose registration forms had been rejected because of these errors. Worst of all, there were even accounts of third-party groups selectively destroying registration forms filled out by would-be voters who identified themselves as affiliated with the "wrong" political party. (In Nevada, it was alleged that a Republican-allied organization intentionally discarded forms listing a Democratic affiliation before submitting the forms of those who registered as Republicans.)

Now we hear cries that the new regulations designed to stop these abuses are too draconian. In Florida, the League of Women Voters itself has filed a lawsuit claiming that the penalties imposed for losing forms ($5000) and missing deadlines ($500) are excessive. In Ohio, the dispute targets a rule requiring any individual who participates in a voter registration drive and collects completed forms to personally deliver those forms to the state's election officials.

These new rules may indeed be overkill. But, for all the fuss they have generated recently, it is important not to lose sight of the fact that they were responses to real and significant concerns. After all, we are talking about protecting a citizen's right to vote.

When a third-party group loses a registration form or misses a deadline, that group should be held accountable. Ironically, those now criticizing the new regulations are often the loudest to attack local elections officials when they mistakenly misplace registration forms or otherwise inadvertently omit new registrants from their voter lists. If a third-party group is going to undertake the responsibility of participating in the registration process, its needs to accept the consequences of disenfranchising citizens because of its own mistakes.

Fortunately, by using internet technology, there is a way to enable third-party groups to conduct voter registration drives without requiring them to accept the risk of heavy penalties due to misplaced forms. The major problems reported in 2004 were caused by the gap between completing a form and delivering it, a gap created when the forms exist on old-fashioned paper and must be either mailed or hand-delivered to the government. Likewise, the criticisms of the new rules in Florida and Ohio result from the need to mail or hand-deliver printed registration forms.

These problems-and these criticisms-disappear if these (and other) states would implement online voter registration as an option. Electronic submission of registration forms over the internet need not entirely replace the submission of printed forms in person or by conventional mail, at least not for the foreseeable future. But online registration ought to be available now, or at least in time for 2008, to supplement traditional methods.

Online voter registration would make completion of the form and its delivery a single step: a click of the mouse on a "SUBMIT FORM" button that appears on the computer screen. A third-party group could give its workers laptops that access the internet using a cell-phone connection, thereby permitting these workers to register new voters door-to-door, in shopping malls, or anywhere else cell-phone connections are available. Receipt of these registration forms by the government would be instantaneous. Indeed, the new registrant could receive an immediate email reply confirming that the government received the registration form. The process would be much like ordering concert tickets online.

There would be no danger of the third-party groups losing registration forms or missing registration deadlines. Indeed, the third-party groups would not really be handling these registration forms at all. Instead, they would simply be facilitating their completion and submission by the new registrants themselves.

Although many states now enable their citizens to download registration forms off the internet, they still require new registrants to mail in or hand-deliver the printed form after signing it. But if it is a signature that these states want, it is possible to have the new registrants sign their names electronically, as shoppers now do in most grocery stores. In addition to giving their workers internet-accessible laptops, third-party groups could equip them with portable versions of these electronic signature readers. In fact, some current laptop models (often called "tablet PCs") have the built-in capacity to digitize a signature written on its screen with an electronic pen.

Alternatively, if a citizen already has a signature on file with the government-for example, as part of obtaining a driver's license-then the citizen can incorporate by reference this existing record. Arizona, which is one state that enables voters to register online, permits this cross-referencing of signatures on file. Sam Reed, Washington Secretary of State, has proposed that his state follow Arizona's lead in this respect.

Online registration, moreover, could facilitate breaking the logjam in the incessantly contentious debate over voter identification. As I have suggested previously, digital photos taken at the time of online registration could be stored in electronic poll books, so that voters would not need to bring an ID when they go to cast their ballot at their polling place. (Spencer Overton, in his new book Stealing Democracy, echoes this observation.) Third-party groups armed with digital cameras in addition to their laptops could take these photos at no charge to the new registrant and, if necessary, show the registrant how to include the photo as part completing the online form.

Any concern about the ability of third-party groups to handle the task of facilitating online registration could be alleviated through a training process that would allow these groups' workers to become "deputized" in much the same way that notaries public have been for years.

To be sure, not all third-party groups would want to avail themselves of the opportunity to facilitate online registration. The cost of internet-accessible laptops (and, if required, additional technology like electronic signature readers or digital cameras) might deter groups operating on a shoestring budget. But 2004 demonstrated that at least some groups are able and willing to devote these kinds of resources to voter registration drives. Deploying Blackberries, PDAs, and other high-tech gadgets, third-party groups in Ohio and elsewhere conducted sophisticated get-out-the-vote efforts, hoping to maximize turnout for their preferred candidate. If online registration were an option, there is no doubt that some groups would begin to supply their workers with the tools needed to take advantage of this possibility.

The ease of online registration would be enough to cause some groups to prefer it to the old-fashioned methods of submitting forms by mail or hand-delivery. Even so, the chance of being fined for failing to submit paper registration forms entrusted to their care would be an appropriate additional incentive for groups to choose the failsafe method of online registration. Especially because it is impossible for a third-party group to misplace a completed online form, these groups should be penalized if they disenfranchise a citizen by losing a paper registration form when they could have opted for the online alternative.

To serve as an adequate incentive, a fine would not need to be as large as those in Florida's new law. Nor would it be necessary to require, as Ohio's new rule does, that the same individual who collects a completed paper registration form to be the one who submits the form to the government. But the current debate risks spending too much time and energy over whether these new regulations for handling old-fashioned paper forms are unduly onerous.

Instead, advocates for making voter registration more accessible should be clamoring for the availability of online registration.