Every argument against automatic voter registration, debunked

On Monday, iVote, a project launched by a group of Democratic campaign veterans, announced that they plan to spend $10 million in order to pass automatic voter registration (AVR) in as many states as possible in advance of the 2016 election. Currently, California and Oregon are the only two states with such a policy, although sixteen more have legislation pending and activists in a few others are hoping to put the policy to a statewide vote via referendum.

On the same day, New Jersey Governor Chris Christie vetoed a bill that would have enacted AVR in his state.

It wasn’t as if he had a good reason. In vetoing the legislation, Christie said that the measure was both unnecessary and unreasonably intrusive, citing New Jersey’s existing options for early voting and calling the measure a “government-knows-best, backwards approach that would inconvenience citizens and waste government resources for no justifiable reason.” But these claims, along with all of the other arguments that conservatives and Republicans have made against AVR, fail under even the most basic level of scrutiny.

Register, via Shutterstock

Register, via Shutterstock

Let’s start by reviewing what AVR is. AVR is an exceedingly simple way to expand ballot access to millions of Americans who are denied the right to vote every year by one of the silliest barriers to entry in the voting market ever devised: voter registration. The United States only began requiring voter registration in the early 1800s as a way to keep poor whites, and later blacks, from the ballot box. To this day our country remains one of the only industrial democracies in the world that puts the burden of voter registration on the citizen instead of the state (with the exception of North Dakota, which does not have voter registration). So if we’re going to require voter registration at all, we might as well make it as easy, efficient and equally-administered as possible.

AVR moves toward this goal by getting Departments of Motor Vehicles and other state agencies to change their current implementation of the 1993 National Voter Registration Act, commonly referred to as the “motor voter law,” from opt-in to opt-out. These agencies are already required to provide you the option to update your voter registration status when you interact with them; under AVR, they would be required to tell you that they are going ahead and updating your voter registration status, unless you’d rather they didn’t.

In other words, AVR works using existing bureaucracy and, despite Chris Christie’s objection, is the opposite of inconvenient to the voter. Rather than requiring voters to fill out extra paperwork, anyone with an up-to-date drivers license, Social Security address or other affiliation with a state agency would be registered to vote via interactions with the government that they would have taken independent from the electoral process. The only action they’d have to take would be to opt-out from voter registration, should they so choose.

But Christie’s claim of inconvenience isn’t the only bad argument against AVR. Theories abound as to why making voter registration as easy as possible is a bad idea. Here are the rest of them, and here’s why they’re all wrong.

Before we go any further, is AVR even constitutional?

Yes! At the state level, this isn’t even a serious question. But even if enacted via federal legislation, AVR would absolutely survive 10th Amendment scrutiny.

This is because the original law AVR would be amending, the National Voter Registration Act, has already survived a challenge on 10th Amendment grounds. The federal government retains broad authority to regulate federal elections – including federal voter registration – the Supreme Court declined to even hear a case brought by California challenging the 1993 NVRA on the basis of federalism.

At the end of the day, nationwide AVR is really just a minor tweak on the implementation side of an existing law. Given the federal government’s authority to regulate federal elections, nothing about this tweak suggests that it crosses the line from constitutional to unconstitutional.

Alright, cool, but is it really necessary?

Yes! That is, if you think voting is a good thing that should be easy to do. Critics of AVR, such as Kansas Secretary of State Kris Kobach, argue that AVR would add a bunch of people to the voter rolls who have no interest in actually casting ballots. As he told the New York Times, explaining part of his opposition to AVR: “It’s not going to increase participation rates.”

All available evidence says he’s wrong.

According to research from Demos, AVR would add up to 6.8 million people to the voter rolls. And while not all of those 6.8 million would cast ballots, prior research in political science has shown that up to four million people were closed out of the electoral process last year due to missed voter registration deadlines – people who can reasonably be assumed to have wanted to vote, but were not registered.

What’s more, AVR has only been in effect in two states for a short amount of time, a similar policy has been in effect in eleven states (plus the District of Columbia) for a larger amount of time: Election Day registration (EDR), which eliminates voter registration deadlines and allows citizens to update their registration and cast their ballot in one trip to the polls. In the 2014 election, states with EDR averaged 12 percent higher turnout than states without it. As it happens, when you make voting easier, more people vote.

What if I think voting should be hard?

It isn’t out of the realm of democratic argumentation to say that while everyone has a right to vote, not everyone in a given election should vote. But if you’re in favor of making it harder to vote, you have to ask yourself the question: harder how?

Because there are two ways you can make it harder to vote. You can impose some sort of sophistication requirement – like a civics or political knowledge test – for people who show up to the polls, or you can make it more difficult to get to the polls in the first place.

You could make a reasonable argument for the former by saying that citizens should be required to prove when they show up to vote that they have at least some understanding of what each of their electoral options mean, so that their vote satisfies some definition of what we would call “informed.” However, that implies a fundamentally different definition of democracy than the one we currently have, and the closest America has come to doing this – with literacy tests – is synonymous with the Jim Crow era that we generally try not to emulate.

Either way, that has nothing to do with voter registration, which is a question of access, not of information. So even if you were to argue in favor of sophistication requirements for voting, you’ve still got all of your work ahead of you if you want to argue that the actual mechanics of securing one’s right to vote should be difficult – especially when access to those mechanics are absurdly unequal. The citizens least likely to be registered to vote are low-income, young and non-white. It’s one thing to be for erecting hurdles to voting; it’s another to be for hurdles that have disproportionate effects based on race and class. Those kinds of hurdles don’t survive constitutional scrutiny, and the only way to defend them is to argue that inequality — both economic and racial — is actually good. Do you really want to go down that road?

Fine, but won’t this open the door for more voter fraud? 

No! The state agencies charged with implementing the National Voter Registration Act have faced this question for the last 22 years, and they’ve gotten really good at answering it!

First, federal voter registration requirements already stipulate that would-be voters indicate that they are citizens — and it’s a fourth-degree felony to fraudulently claim citizenship for the purposes of voter registration. State agencies charged with registering voters will still have to register an answer to this question in some form or another; they won’t be blindly passing along every record they receive to state registrars with no check on citizenship status. Second, state agencies already match voter registration records they receive with available databases to ensure that they are only registering citizens – even if a non-citizen fraudulently or mistakenly indicates otherwise. Third, ten states already provide drivers licenses to undocumented immigrants, and the REAL ID Act of 2005 requires that states which adopt this policy make citizen and non-citizen drivers licenses distinct. This means that states are more than capable of identifying non-citizens and keeping them separate for bureaucratic purposes, such as voter registration.

So while a small number non-citizens may or may not have mistakenly made it on to the voter rolls, state agencies such as the Department of Motor Vehicles aren’t how they got there. That won’t change if AVR becomes the law of the land.

OK, that’s alright I guess. But how do you implement it?

Whichever ways states feel are best! That’s the cool thing about the National Voter Registration Act: it gives states a great deal of discretion as to how to ensure that all citizens who interact with state agencies have access to voter registration. That wouldn’t change if AVR were passed at the national level. As Demos counsel Liz Kennedy explained in an interview, AVR “needs to be tailored to the individual technological preparedness of each state that adopts it.”

Different states and state agencies have different technological capabilities. Even in the two states that currently have AVR – California and Oregon – the process is being implemented at different paces and with slightly different procedures. That may suggest the need for discretion when getting into the details of how to turn the idea of AVR into a reality, but that doesn’t say much about whether the idea is good in and of itself.

AVR would certainly be easier to implement in the 26 states (plus DC) that have online voter registration, as the database infrastructure for processing voter registration information electronically already exists. But the lack of a paperless option isn’t too big of a hurdle! Any state agency that collects the information necessary to satisfy federal voter registration requirements – including name, date of birth, residence, signature (either physical or digital) and eligibility – can in theory pass that information on to the state registrar. As Kennedy pointed out, Alaska — which does not have online voter registration — could still match the information they require citizens to submit in order to participate in their permanent funds dividend to update their voter registration rolls (again, with an opt-out provision).

Wouldn’t this make it harder for me to dodge jury duty?

Not really! While it’s true that most states use voter rolls as the primary means of selecting citizens for jury duty, they aren’t the only sources of prospective jurors. Jury selection lists are supplemented with information from the same agencies that would be affected by AVR. What’s more, citizens retain their right to opt-out of voter registration under an automatic system, so if you really want to keep your name off the voter rolls in order to avoid being called, you still can.

With you in principle, but isn’t this going to affect the outcome of elections?

Yes, and that’s fine.

At the end of the day, the only evidence-based claim that can be made against AVR is that it will make it easier for one party to win elections, because the current non-voting population, including unregistered voters, skews lower-income, younger and non-white — i.e. it carries a big-D Democratic advantage. But from a small-d democratic perspective, that’s not a valid reason to nix an otherwise-sound policy. You could just as easily (and more persuasively) argue that the current system tilts the democratic scales toward Republicans. Correcting for an unfair advantage isn’t, itself, an advantage; it’s leveling the playing field.

Automatic voter registration is a simple, efficient, reasonable policy whose time has come. Every argument against it falls under even the most basic scrutiny. A bill to implement the policy is currently sitting in Congress, blocked by Republicans for political, not empirical, reasons. It’s time we got it moving.


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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