Voter Registration: Changes of Address

The Carter-Baker Commission, more formally known as the Commission on Federal Election Reform, released its final report last week, providing an array of recommendations that it contends would strengthen election administration, and confidence in elections, in America.

While the Commission's recommendation regarding photo identification has received the most attention from commentators (for example, see here, here, here, here and here), there are other issues that should be given additional consideration as well.

One of those issues, which in fact is a major point of concern, is the accuracy of voter lists. In particular, the Commission has made recommendations for ensuring that people ineligible to vote in a given jurisdiction are removed from the voter list. One of the tools that the Commission would like the states to implement is interoperability between their respective statewide voter registration databases (see section 2.2 on page 12 of the report). Under this recommendation, states would be able to cross-check their records with other states and remove people who have moved across state lines, much like counties can check for duplicate registrations within a state when hooked to a statewide database.

While I have no particular quarrel with this recommendation, it is unlikely that such a system would go into effect anytime soon. First, implementing such a system would require resources at a time when many states are faced with fiscal constraints. Second, there are issues related to privacy and the accessibility of personal data that such a system would provide, even with a distributed database system that the Commission recommends. Anytime governments look to link databases, there are also the inevitable concerns about "Big Brother". Last, some states may have laws that would need amending or repeal to permit out-of-state election officials access to their voter lists. Changing such laws through each state's respective legislative process could take a considerable amount of time.

The Commission's concerns about people being registered in more than one state are legitimate. The current process for notifying states of previous registration for voters is cumbersome and has too many weak points and thus is prone to failure. As the Commission report points out:

Current procedures for updating the registration of voters who move to another state are weak or nonexistent. When people register to vote, they are usually asked to provide their prior address, so that the jurisdiction where they lived can be notified to delete their names from the voter list. Such notification, however, often does not occur. When a voter moves from Virginia to Illinois, for example, a four-step process is required to update voter registration: (1) election authorities in Illinois must ask for prior address; (2) the voter must provide prior address; (3) Illinois election authorities must notify the correct election authorities in Virginia; and (4) Virginia election authorities must remove the voter from its list. Unless all four steps are taken, this voter will remain on the voter list in Virginia. In fact, states often fail to share data or notify each other of voters who move. [page 12 of the report]

However, there may be other options we should explore that can be just as effective, if not moreso. One of these possibilities involves the expansion of the U.S. Postal Service's National Change of Address system (NCOA) to record whether a voter would like her change of address form to apply to her voter registration record.

It would seem that the best time to remind a voter of the need to update his voter registration information, or to register when moving to a new jurisdiction, is when he is moving and actively making address changes with businesses and other organizations. The Postal Service, in conjunction with state and local election officials, has recognized the utlity of bringing voter registration to the attention of movers close in time to the actual move. After submitting a change of address form to the Postal Service, the Postal Service, through a designated vendor, sends a notice to the person's new address which contains various information, including where to get registered to vote.

As the Commission report notes, though, it may not be enough to just get someone registered in a new jurisdiction, although we certainly would want to facilitate that. The voter may not provide the address where she was previously registered to vote. Or, even if she did, the election officials may not notify the appropriate officials so that her name can be removed the previous jurisdiction's voter list.

Efforts to keep the voter list accurate could be greatly strengthened if a voter has the option to mark on the change of address form that it should apply to her voter registration as well. The NCOA database could be modified to include this data element. State's could then use the NCOA data to remove those voters who have indicated that the former address is no longer valid for them.

Several benefits would be available under this system. First, the voter would be able to confirm, personally, whether the change applies to their residence for voting. If a person is a student moving for college, but is keeping her voting residence at her parents house, then she can skip that section of the form. Similarly, someone joining the military could do the same.

Second, election officials would have a clear statement of intent as to whether the voter was abandoning his previous residence for voting purposes. Although this intent would be just as clear when the voter registers in a new jurisdiction, that information may not be available to the former jurisdiction for the reasons discussed above.

Third, the system would work regardless of whether, or when, the voter registers in the new jurisdiction. The voter loses eligibility to vote in the former jurisdiction when he no longer resides there. However, he may not register to vote in the new jurisdiction until later. Using NCOA, election officials would be able to clean their list even if the person doesn't immediately, or ever, register at the new residence.

Finally, the new jurisdiction could be notified of new residents so that it could proactively market voter registration to them by, for example, mailing them a voter registration form.

It would seem worthwhile to engage the Postal Service in a discussion of how the agency that works most closely with people's addresses can be leveraged to help election officials work on issues involving the addresses of voters.

Voter ID and Provisional Ballots

As noted by Dan Tokaji on his blog, Equal Vote, the U.S. Department of Justice issued a letter to the Secretary of State of Arizona addressing the Help America Vote Act's requirements regarding provisional ballots and voter identification requirements. DOJ stated in its letter that a voter who lacks the state-required identification must be permitted to vote a provisional ballot, but that it's within the state's discretion to determine if the ballot should be counted without the requisite identification. Previously, Arizona, with the DOJ's blessing, was going to deny a provisional ballot to any voter lacking identification.

Tokaji takes exception to the DOJ characterization that it's within the state's power to determine if a provisional ballot should be counted. He argues that such an interpretation would allow Arizona to issue "dummy" ballots to voters with no identification - ballots that local officials have no intention of counting.

It's important to understand the purpose of a provisional ballot to discern whether the DOJ's comments are in accord with the Help America Vote Act.

A provisional ballot is a tool that allows a person to cast a ballot on election day when there is a question about his or her eligibility. Perhaps his or her name was (by design or error) left off the voter list and registration officials cannot yet confirm that he or she submitted an application. Perhaps the voter's name was wrongly removed from the voter list based on incorrect information related to a change of residence or felony conviction. Or, in the case, of Arizona and Alabama (as will be discussed below), the voter does not have a required form of identification.

The provisional ballot allows the voter an opportunity to cast the ballot and get his or her votes on record so that they can be included in official tabulations if the eligibility issues are resolved in his or her favor. This procedure ensures the voter is not denied a ballot on election day only to discover later that he or she was indeed qualified to vote.

The provisional ballot is not intended as a means to avoid voter eligiblity requirements. A voter who casts such a ballot must actually be a registered voter and must meet the state's qualifications for voting. To say otherwise would suggest that provisional ballots are a form of election day registration which allows a voter to avoid whatever mechanisms a state has put in place to ensure the integrity of its election process.

In Alabama, voters have two choices if they show up at the polls without their identification. They can return home to get their identification or they can vote a provisional ballot. If they vote a provisional ballot due to lack of identification, they have until the Monday after the election to present their ID to registration officials. If they do not present ID by that Monday, then their ballot will not be counted. Given the various forms of identification permissable under Alabama election law, this procedure seems to strike a good balance between the goal of election integrity and ensuring a voter unfamiliar with the ID requirement can remedy the problem and thus have his or her vote counted.

According to this Associated Press report, Arizona intends to implement a similar procedure by providing the voter a designated number of days after an election to present his or her ID.

There can be honest debate as to whether Arizona's, or Alabama's, or Georgia's, voter identification requirement is properly crafted to meet the goal of election integrity (if it's even necessary to prevent fraud) while minimizing any burden on the voter. And in point of fact, based on what I have read of the situation in Georgia, I share Tokaji's and other's concerns about that state's new photo identification requirement.

But, in those cases where the identification law is not an insurmountable or discriminatory burden to voting, states would appear to have the right to use that requirement and be able to enforce that requirement.