A
Background and Context

THE ROLE AND STRUCTURE OF VOTER REGISTRATION

Voter registration (described briefly in Box A.1) plays a central role in elections in most states. Today, in all states except one (North Dakota), a voter must be registered for his or her vote to count in an election; some states allow same-day voter registration on Election Day.

During reforms of the Progressive era, voter registration procedures spread throughout the states, beginning in urban areas, launched at least in part in an attempt to reform how elections were carried out. These reforms aimed to restore fairness in the conduct of elections by, for example, minimizing the influence of urban political machines over elections. However, many believe that these procedures also caused voter turnout to decline sharply. The use of strict registration rules to verify the eligibility of a voter, such as requiring in-person registration during limited weekday hours, effectively limited the participation of many eligible voters who could not afford to take time off work to register to vote.1 These rules were eventually eased by a series of federal mandates.

The U.S. Constitution (Article I, Section 4 and Article II, Section I) gives states the power to make rules governing federal elections, subject to the authority of Congress to make or alter such rules. Amendments to the Constitution prohibit racial discrimination in the right to vote or gender, prohibit poll taxes, and grant individuals the right to vote at age 18. The one-person, one-vote principle emerges mainly from Supreme Court interpretations of the equal protection clause of the 14th Amendment and subsequent legislation.

In addition, starting with the 1960s civil rights legislation, Congress gradually expanded federal oversight of election administration and registration provisions, although states continue to have considerable discretion in how to implement federal requirements. The Voting Rights Act of 1965 aims to broadly protect voter rights by prohibiting discriminatory voting practices and by preventing an individual from being denied the right to vote “because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under the State law to vote in such election.” Subsequent legislation aimed at facilitating voter registration and increasing the accessibility of absentee ballots for particular classes of voters includes the Voting Accessibility for the Elderly and Handicapped Act of 1984 and the Uniformed and Overseas Citizen Absentee Voting Act of 1986.

The National Voter Registration Act of 1994 (NVRA) added two requirements to voter registration. The first was to increase voter registrations by requiring applications to be made available at a number of physical locations—motor vehicle agencies, all offices that provide public assistance or services to persons with disabilities, other places that states could designate (for example, public libraries), and nongovernmental offices that agree to serve as voter registration sites—and by mail. The second focused on the maintenance of voter lists by establishing rules under which names could be removed from the voter registration list. It also mandated that states monitor and report on their

1

A. Keyssar, The Right to Vote: The Contested History of Democracy in the United States, Basic Books, New York, 2000.



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A Background and Context THE ROLE AND STRUCTURE OF VOTER REGISTRATION Voter registration (described briefly in Box A.1) plays a central role in elections in most states. Today, in all states except one (North Dakota), a voter must be registered for his or her vote to count in an election; some states allow same-day voter registration on Election Day. During reforms of the Progressive era, voter registration procedures spread throughout the states, beginning in urban areas, launched at least in part in an attempt to reform how elections were carried out. These reforms aimed to restore fairness in the conduct of elections by, for example, minimizing the influence of urban political machines over elections. However, many believe that these procedures also caused voter turnout to decline sharply. The use of strict registration rules to verify the eligibility of a voter, such as requiring in-person registration during limited weekday hours, effectively limited the participation of many eligible voters who could not afford to take time off work to register to vote.1 These rules were eventually eased by a series of federal mandates. The U.S. Constitution (Article I, Section 4 and Article II, Section I) gives states the power to make rules governing federal elections, subject to the authority of Congress to make or alter such rules. Amendments to the Constitution prohibit racial discrimination in the right to vote or gender, prohibit poll taxes, and grant individuals the right to vote at age 18. The one-person, one-vote principle emerges mainly from Supreme Court interpretations of the equal protection clause of the 14th Amendment and subsequent legislation. In addition, starting with the 1960s civil rights legislation, Congress gradually expanded federal oversight of election administration and registration provisions, although states continue to have considerable discretion in how to implement federal requirements. The Voting Rights Act of 1965 aims to broadly protect voter rights by prohibiting discriminatory voting practices and by preventing an individual from being denied the right to vote “because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under the State law to vote in such election.” Subsequent legislation aimed at facilitating voter registration and increasing the accessibility of absentee ballots for particular classes of voters includes the Voting Accessibility for the Elderly and Handicapped Act of 1984 and the Uniformed and Overseas Citizen Absentee Voting Act of 1986. The National Voter Registration Act of 1994 (NVRA) added two requirements to voter registration. The first was to increase voter registrations by requiring applications to be made available at a number of physical locations—motor vehicle agencies, all offices that provide public assistance or services to persons with disabilities, other places that states could designate (for example, public libraries), and nongovernmental offices that agree to serve as voter registration sites—and by mail. The second focused on the maintenance of voter lists by establishing rules under which names could be removed from the voter registration list. It also mandated that states monitor and report on their 1 A. Keyssar, The Right to Vote: The Contested History of Democracy in the United States, Basic Books, New York, 2000. 23

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24 STATE VOTER REGISTRATION DATABASES: IMMEDIATE ACTIONS AND FUTURE IMPROVEMENTS BOX A.1 A Thumbnail Description of Voter Registration States generally require that a voter be a U.S. citizen, at least 18 years of age, and a resident (in some cases, a resident for some minimum period of time, such as 30 days). Some states also limit voter eligibility on the basis of criminal status (for example, incarcerated felons may not be permitted to vote), and some on the basis of mental competency, although the specifics of these limitations vary.1 As a general rule, a voter registers to vote in a specific geographic jurisdiction that is determined from the residential address that he or she provides for the purpose of voting. Citizens can register to vote at election offices. Depending on the state, citizens can also obtain voter registration materials in many places, including military facilities, assisted living facilities, high schools, vocational schools, social service agencies, nursing homes, and libraries, or through voter registration drives, or by downloading materials from the Internet. In addition, the National Voter Registration Act requires all states to provide such materials at their departments of motor vehicles, departments of human services, and public assistance agencies. By filling out the required forms and providing the necessary identification, citizens in all states can also register to vote by mail. In at least two states (Washington and Arizona), a citizen can register to vote through the Internet if he or she already has a driver’s license or a state-issued ID from that state. The voter completes the registration form and it is returned to the election office. The returned materials are accompanied by an original signature that serves as an authentication mechanism when voter registration must be checked in the future. If the voter registers at a department of motor vehicles, the relevant information may be extracted from the information on file or provided at the department of motor vehicles (DMV) and transmitted electronically to the election office, along with the signature on file with the DMV as an authentication device for the voter at the polls. Overseas voters, and members of the U.S. armed forces and their dependents, can sometimes register to vote by fax. The voting address of record determines the precinct from which the voter may cast his or her ballot, whether at the polling place, or by absentee or mail ballot, or by an early vote. A precinct is a subdivision of a local election jurisdiction, and all voters in a given precinct vote at one polling place. (Sometimes, a number of small precincts are consolidated at one polling place, and sometimes election officials can require that all voters from certain precincts vote by mail.) A local election jurisdiction is an administrative entity responsible for the conduct and administration of elections within it, and may be a county or a municipality (a city or town). ____________________ 1 A description of the legal restrictions on felons and voting rights in a large number of states can be found in American Civil Liberties Union, Purged! How Flawed and Inconsistent Voting Systems Could Deprive Millions of Americans of the Right to Vote, October 2004, available at http://www.aclu.org/VotingRights/VotingRights. cfm?ID=16845&c=167. SOURCE: Adapted largely from National Research Council, Asking the Right Questions About Electronic Voting, Richard Celeste, Dick Thornburgh, and Herbert Lin (eds.), The National Academies Press, Washington, D.C., 2005. implementation of the NVRA. Figure A.1 illustrates the various list maintenance options under the NVRA. Following the passage of the NVRA, a variety of proposals were made to further enhance voter registration by the creation of centralized statewide voter registration databases. Following the Florida recount in the 2000 presidential election, the Help America Vote Act (HAVA) was passed in 2002 to undertake a number of electoral reforms.

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FIGURE A.1 Voter registration list maintenance options under the National Voter Registration Act. SOURCE: National Clearinghouse on Election Administration, “Implementing the National Voter Registration Act of 1993: Requirements, Issues, Approaches, and Examples,” Federal Election 25 Commission, Washington, D.C., January 1, 1994, p. 5-1.

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26 STATE VOTER REGISTRATION DATABASES: IMMEDIATE ACTIONS AND FUTURE IMPROVEMENTS HAVA aimed to improve election administration by allocating funds to upgrade and certify voting systems and by creating the U.S. Election Assistance Commission (EAC) to provide voluntary guidance to states. Another goal of HAVA was to establish more uniformity within individual states and to empower the states to take a stronger role vis-à-vis local election officials. Finally, HAVA included several provisions related to voter registration databases. It required states to shift to centralized voter registration lists at the state level and away from the estimated 3,000, mostly locally administered, voter registration lists. It requires that each state’s database contain the name and registration information of each legally registered voter in the state and that each legally registered voter be assigned a unique identifier. HAVA specifies that the state list is the official voter registration list for federal elections. It also requires election officials to perform regular maintenance regarding the accuracy and completeness of the registration lists.2 THE POLITICAL LANDSCAPE OF VOTER REGISTRATION The tensions that gave rise to laws related to voter registration persist today. In an ideal world, voter registration lists would include all those individuals eligible to vote and none of the individuals not eligible to vote. In addition, all of the data in the database would be factually correct. For purposes of this report, the term “accuracy” refers to the factual correctness of the data that exist in the database and also the notion that the database contains none of the individuals not eligible to vote. Completeness refers to the presence in the database of all individuals who should be in the database. If the database is perfect, it is both 100 percent accurate and 100 percent complete—that is, all of the data in the database are correct (and thus the database contains no individual who should not be in the database), and the database includes all of the individuals who should be in the database. Notice that in this formulation, accuracy does not subsume completeness, so that a database must be characterized with respect to both attributes. It is often true in practice that efforts to maximize in the voter registration database (VRD) the number of individuals eligible to vote conflict with efforts to minimize the number of individuals in the VRD who are not eligible to vote. One view of this tension emphasizes the risks of voter fraud and highlights the need to maintain the integrity of the voting list by placing the greatest effort on minimizing the number of individuals in the VRD who are not eligible to vote. This side argues that if election fraud were to occur, it could undermine public confidence in an election. A different view of these tensions emphasizes the importance of inclusivity in a representative democracy. Individuals with these concerns believe that the number of eligible but unregistered voters could be decreased through better access to and easier voter registration procedures. This side contends that confidence in the election process could be lost if methods and procedures used to improve the accuracy of voter registration lists cause eligible voters to be removed erroneously, and that overly strict or onerous procedures could suppress registering and/or voting. Additionally, there is concern that the barrier of registration might skew a representative government toward certain interests because the political views and values of those who do not vote as a result of registration issues may differ from those of individuals who do vote. Completeness serves the end of inclusivity by ensuring that all eligible individuals who have sought to register to vote are not erroneously deleted from the VRD. These two views are commonly identified with specific political parties. Another set of concerns about voter registration, generally not associated with one party or another, stems from the fact that exercising the right to vote in the United States requires the active participation of the voter to register— and some individuals in policy-making or operational positions have been known to be dismissive of efforts to ease the voter registration process or to reduce voter effort in maintaining registration by saying, in effect, “If the person isn’t willing to do X, then he or she shouldn’t be voting anyway.” 2 HAVA uses the term “accuracy” to mean a list both from which ineligible individuals have been eliminated and for which safeguards have been established to ensure that eligible individuals have not been improperly eliminated.

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APPENDIX A 27 Ultimately, voter registration lists cannot be perfect with respect to either completeness or accuracy, in part because the voting population changes by the day and even by the hour. But today’s political environment raises the stakes significantly for even small deviations from perfection in either direction. Today’s political campaigns and debates are rancorous and bitter. In addition, many elections today are close—a reflection of an electorate that has been about evenly divided—and close elections are breeding grounds for postelection suspicion, on the theory that even a small amount of fraud or accident or mishap or improperly followed procedure might have tipped the election the other way. While the presidential election of 2000 is perhaps the most salient example, outcomes in other close races have been very closely scrutinized by supporters of the losing side for irregularities in all aspects of the voting process, including voter registration. These tensions and political sensitivities point to the need for voter registration procedures and practices that are transparent, consistent, and robust, and for the use of approaches that balance the inherent tensions. This report does not aim to resolve these tensions, but they must be kept in mind as technical, policy, and procedural challenges of implementing and maintaining statewide voter registration databases are considered. OTHER USES OF VOTER REGISTRATION LISTS Voter registration lists are used for a number of purposes other than establishing the eligibility of an individual to vote in an election. For example, voter registration lists are used by candidates and political parties to reach out to potential voters by phone and by mail. At the local level, they are used to estimate the financial, personnel, and logistical requirements for elections. They are used to track absentee ballots and voter histories. They are used in some jurisdictions to establish signature and vote thresholds for referenda and petitions. They are used, at least in part, to establish jury pools. All of these uses require voter registration information to be as accurate and complete as possible. Some of these applications have led to privacy concerns, and although most voter registration data are generally public information, there are sometimes restrictions on making such information broadly available. For example, some states restrict the sale or use of voter registration lists for commercial solicitation purposes. Concerns have also been raised about the safety of battered men or women if the contact information contained in their voter registration were to be disclosed publicly, and some jurisdictions have enacted special protections in this instance. THE BASIC REQUIREMENT FOR STATEWIDE VOTER REGISTRATION DATABASES HAVA Section 303 requires each state to establish and maintain a “single, uniform, official, centralized, interactive computerized statewide voter registration list” that contains the voter registration information for all eligible voters in the state and requires that the VRD be electronically accessible by any election official in the state. But although HAVA provides some criteria for developing and maintaining this database, and the Election Assistance Commission has issued its 2005 Voluntary Guidance on Implementation of Statewide Voter Registration Lists,3 the states still maintain a degree of discretion in how to conform to HAVA. Such discretion, exercised in different ways by different states, inevitably leads to various problems and inconsistencies within and between statewide voter registration databases. States have taken different architectural approaches to building systems to meet the centralized voter registration list requirement. Under the so-called top-down approach followed by many states, state election officials maintain a single, unified database and local election officials provide the state with the 3 Available at http://www.eac.gov/election/docs/statewide_registration_guidelines_072605.pdf/attachment_download/file.

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28 STATE VOTER REGISTRATION DATABASES: IMMEDIATE ACTIONS AND FUTURE IMPROVEMENTS information needed to update the database. Some states instead opted for a bottom-up approach, in which local jurisdictions continue to maintain their own registration lists but also provide periodic updates to a separate statewide system. Other states have adopted a hybrid architecture that combines elements of both the top-down and the bottom-up approach. Kentucky and Michigan had already implemented statewide voter registration databases before the enactment of HAVA, but most states have had to implement new systems to comply with HAVA. Does HAVA mandate a particular architectural approach to the implementation of VRDs? This issue has been argued both in the affirmative and in the negative at length, and the committee takes no position on this question. HAVA does require that the control of the VRD be maintained at the statewide level. Thus, the committee believes that the particular technical architecture used is less significant than the structure of the actual workflow used within a state. For instance, a county or municipality that remains in full control over the registration process and over who is on or off the voting rolls is not comporting itself within the spirit of HAVA, which mandates statewide control. As a result, any assessment of whether a system conforms to the requirements and expectations of HAVA should consider the processes whereby information is entered into the system, verified, and maintained. It should also be noted that although guidance regarding database structures or system attributes has been promulgated through the EAC’s Voluntary Guidance on Implementation of Statewide Voter Registration Lists,4 the guidance remains voluntary, and the agency charged with enforcing HAVA—the Department of Justice—has not issued guidelines or regulations of its own. Thus, state election officials may proceed at their own risk that some design decision might be challenged later as not being HAVA- compliant. 4 Available at http://www.eac.gov/election/docs/statewide_registration_guidelines_072605.pdf/attachment_download/file.