Symposium | Winning the Voting Wars

Make It Easy: The Case for Automatic Registration

By Heather K. Gerken

Tagged voting rights

A campaign boiler room is the best place to see the ugly underbelly of our election system. As a senior legal adviser to the Obama campaign, I spent November 6 in the Chicago boiler room, where roughly a hundred people ran Election Day operations. The campaign had developed a sophisticated system for spotting, surfacing, and solving polling-place problems as they arose. The election unfolded across my screen in real time.

It wasn’t pretty. From our vantage point, we saw what many saw—ridiculously long lines. But we could also discern the root causes of those long lines. Much of what we saw confirmed what election experts already know: Many, if not most, of the problems voters encounter can be traced back to our badly functioning and entirely outdated registration system.

The registration process is plagued by two problems: paperwork and parties. In most states, citizens who wish to vote must obtain and fill out a paper application. Between the 2006 and 2008 elections, for instance, states had to process 60 million registration applications, most of them on paper. The voter’s information is then entered manually into a statewide database. Errors inevitably occur along the way. Moreover, most states demand that voters notify their election office of a change of address, and few jurisdictions have an adequate system for taking dead people off the rolls. The result is that many statewide lists are filled not just with errors but with “deadwood” (registrations that are no long valid).

Third-party groups compound the heavy costs associated with this paper-driven process. Because we place the burden on individuals to register themselves, third parties inevitably step in to help. The trouble is that not all of them are helpful. These groups can make mistakes; some have even committed registration fraud. One study, for instance, found that one-third of the registration applications submitted in 2008 didn’t result in a valid registration or address change. The problem of third-party involvement goes deeper, however. Political parties take on much of the registration work. Their incentives are skewed, and as a result the electorate can become skewed. That’s because the political parties’ goal isn’t to register people. Their goal is to register their people. And even when third parties are on their best behavior, they do most of their work immediately before the election, which means that under-resourced and understaffed election administrators struggle to deal with the onslaught of paper applications filed during the weeks leading up to the election.

The end result is depressingly familiar to election experts. A recent Pew study reveals that at least 24 percent of the eligible voting population isn’t registered. One in eight registrations in the United States is either invalid or contains significant inaccuracies. Nearly two million dead people are on the rolls, 2.75 million people are registered in more than one state, and 12 million voter records contain incorrect addresses.

All of these problems generate headaches on Election Day. An MIT study estimated that 2.2 million voters weren’t able to cast a ballot that counted in 2008 due to registration problems. In addition, 5.7 million voters had a registration problem that had to be resolved before they could cast a ballot.

Lost votes are the most obvious consequence of our registration system. The indirect consequences are almost as troubling. Precious poll-worker time is wasted every time a voter shows up at the polls and discovers he’s not registered or is listed with the wrong name, address, or birthday. Poll workers have to double check the list, explain the problem to the voter, listen to his inevitably frustrated response, and help him fill out a provisional ballot. All the while, the line gets longer and longer. If you’ve ever stood in line at a grocery store, you know exactly how it works. The moment a clerk flicks on the light to ask for a price check, the line begin to grow.

The problem is far more acute in the polling place. Many polling places already have too few poll workers or voting machines or polling books to process voters quickly. Registration problems put more pressure on the system than it can bear. Little wonder there were people voting after midnight in 2012.

Fixing the Problem

What makes this all so frustrating is that there is an obvious solution. We could do what other democracies do—register everyone automatically. State officials have plenty of information on us. They know who we are and where we live. Using data-matching technology widely deployed in the private sector, creating a universal voter-registration list would be a relatively simple matter.

It would be simple for the voter as well. In some states, the DMV already asks people applying for a license or changing their address whether they want to register to vote. Those who do fill out a quick form using an electronic pad and stylus. The relevant information—including the voter’s signature—is then transmitted electronically to election officials, who ensure that the person is eligible to vote in that jurisdiction.

Now imagine every public organization—a state university, the Department of Veterans Affairs, your local Social Security office—providing the same kind of one-stop shopping. These organizations routinely ask you for just the kind of data you need to register to vote. It wouldn’t be difficult for them to forward that information to election officials, thereby eliminating one more chore off every voter’s “to do” list.

Making the case for universal registration is about as easy as making the case for flossing. And yet most election policies inevitably push us into the access/integrity debate. Whenever a state tries to make voting easier, opponents of the policy shout about fraud, real or imagined. Whenever a state tries to ensure that only eligible voters cast ballots, opponents invoke Jim Crow. The truth is, we do need to balance these two important values when we set policy. But these questions have become so politicized, so filled with sloganeering, that the public debate resembles that old Miller Lite commercial—“Tastes great!” “Less filling!”—and is only slightly more illuminating.

Universal registration is different. We don’t have to trade off access or integrity because it promotes both. Liberals should welcome universal registration because it makes voting easier. Conservatives ought to like the system because it prevents registration fraud (countries with universal registration don’t have ACORNs). And everyone will appreciate the fact that universal registration is cheaper. The Pew Center on the States found that Canada spends 35 cents per voter to register its citizens. Oregon (the only state that makes such data available), in contrast, spends more than $4 per voter. And Canada gets more bang for the buck. Ninety-three percent of eligible voters are on the Canadian rolls; the Brennan Center for Justice reports that it’s 68 percent in the United States.

America: A Global Outlier

If good governance arguments aren’t enough, how about a normative appeal? Voting has long been considered the touchstone of our democracy. And yet we force voters to jump through unnecessary bureaucratic hoops to perform this sacred act of citizenship.

Keep in mind what you are doing when you register to vote. You are simply asking the state to acknowledge something it already knows—that you are eligible to cast a ballot. Would we ever ask American citizens to fill out paperwork before they exercised another right to which they are automatically entitled—the right to free speech? Even setting aside concerns about prior restraints, it would be unthinkable. Would we ever be satisfied with a paperwork process that barred citizens from exercising their First Amendment rights because of bureaucratic errors that were eminently preventable? No. In this day and age, I can’t even imagine a private company requiring customers to fill out a piece of paper, mail it in, and let it get processed through an error-prone system before anyone could buy its products. Why do we treat our most precious noncommodity so differently?

Our registration system isn’t just inconsistent with our country’s deep commitment to the right to vote. It’s also made us a global outlier. The Brennan Center recently ranked countries based on how much responsibility the state took for registering its voters. On one side of the scale were the usual suspects—European democracies, Australia—and places like Argentina, Peru, and Indonesia. On the other? The Bahamas, Belize, Burundi…and the United States. In its very first election, Iraq created an automatic voter-registration system for its people. Too bad we haven’t caught up yet.

Some voters, of course, may not want to be registered because of privacy concerns. But bear in mind that voter lists would be compiled using information that the state already has. And it’s easy enough to take the steps necessary to shield that information from third parties. As to the argument that some voters simply don’t want to be registered, the notion collapses as soon as you press on it. There’s nothing magic about the act of registering; North Dakota, for instance, doesn’t even require it. All states are doing during the registration process is identifying who is eligible to vote, and you’re eligible to vote whether you like it or not. If you don’t want to vote, well, then, don’t vote. Moreover, it’s simple enough to create an opt-out process for anyone who can’t bear the thought of being eligible to vote.

I’m too much of a cynic to believe that common-sense arguments win the day in election reform. If they did, we wouldn’t have the election system we do. Indeed, sometimes I think that election reform may require divine intervention. But whether or not the Almighty will force politicians to do the right thing, the Almighty Dollar might. A universal voter-registration system will save a great deal of money. Election administrators spend roughly a third of their budgets on the registration process. If we enjoyed the savings Canadians enjoy, it would make a big difference. At the very least, one would hope that most states will adopt online voter-registration systems. These systems don’t get us all the way there; they still require citizens to jump through bureaucratic hoops to exercise their right to vote. But they are much cheaper and much more accurate than what we have now.

Perhaps the high costs of registration will eventually register with politicians. We tax voters’ paychecks by demanding that they pay more for a registration system than they should. We tax their time by requiring that they do more work to cast a ballot than they need to. And we do more than tax the luckless souls who do everything right but still don’t manage to get registered—we disenfranchise them. If voters knew the real story behind our registration system, maybe politicians would feel enough pressure to create the kind of system Americans deserve. As it is, they risk taxing voters’ patience.

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Heather K. Gerken is an expert in constitutional and election law, and the J. Skelly Wright Professor of Law at Yale Law School.

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