Sunday, November 9, 2008

The Sunday Reader: Tokaji on Voter Registration

With all the scholarly attention on voting rights--and with all the public attention in the wake of the 2000 and 2004 presidential elections--equally important voter registration issues have gone largely ignored.  Professor Dan Tokaji (of Ohio State and the Equal Vote blog at Election Law at Moritz) seeks to fill that void with Voter Registration and Election Reform, recently posted on ssrn and appearing in the William & Mary Bill of Rights Journal.  This is a very good piece and a welcome addition to the scholarship on voting rights; I highly recommend it.

Tokaji begins by explaining the importance of voter registration and putting his work in historical context:

Voter registration matters.  Political candidates, parties, and advocacy groups have always understood this, devoting a great deal of time and resources to ensuring that their supporters are registered.  Less nobly, there have been frequent attempts by political operatives to impede participation through the adoption and uneven application of registration rules.  Examples include the exclusion of urban immigrants, ethnic minorities, and laborers during the nineteenth century, the mass disfranchisement of southern blacks through most of the twentieth century, and the aggressive purging and caging practices of recent years. . . .

Though voting technology and voter identification issues have typically attracted the lion's share of public attention in the area of election administration, the set of legal issues surrounding voter registration have become even more significant.  In fact, voter registration became the big issue of the 2008 election season, just as were voting machines in 2000 and provisional ballots in 2004.

Despite the importance of voter registration, he argues that the lack of attention may result from "the fact that voter registration rules remain almost entirely a product of statutory law, having not (yet) been constitutionalized . . . ."

Tokaji first explores the fascinating history of voter registration, highlighting the politicization of voter registration requirements and the ways that registration requirements have been used through the early 20th century to exclude blacks from the polls:

The end result of the web of registration requirements, literacy or understanding tests, residence requirements, threats, violence, and other tactics was that over ninety percent of blacks who had previously been registered were disenfranchised by the early 1900s.  In the early 1940s, the black registration rate in every one of the southern states was still under seven percent.

He argues in terms that resonate today: "Voter registration has thus been a means not only of promoting election integrity, but also of impeding eligible citizens' access to the ballot."

Tokaji next surveys the patchwork of federal and state laws on voter registration, starting with the 1965 VRA, the 1993 National Voter Registration Act, and the 2002 Help America Vote Act.  He concludes that the evidence on how well state voter registration systems are functioning is "decidedly mixed":  The U.S. Election Assistance Commission showed that voter registration actually declined from 2004 to 2006; and the EAC reported in 2006 that the most common reason why provisional ballots were rejected was that the voter was not registered (a result that may have been driven by voter error, third party error, or public agency or official error--we just don't know).

Tokaji next highlights the current the legal issues in litigation, focusing on four areas: problems with state maintenance of voter registration lists (see my recent post here); problems with voter registration through state agencies; problems with third party registration drives; and problems showing proof of eligibility at the polls.  He argues that while better enforcement of existing legislation through the federal courts is necessary to open and fair voter registration, it is not sufficient.

And so Tokaji concludes his piece with a series of recommendations.  He argues that we should tailor voter registration laws to inrease access for those underrepresented at the polls--lower income groups, young adults, and racial minorities--so that actual voters better represent the citizenry as a whole.  And while there is little evidence that increasing registration among these groups will lead to increased voter fraud--even as any voter registration effort leads to some increase in voter registration fraud--voter registration requirements should still be sensitive to issues of integrity. 

How to do this?  Tokaji offer six ideas, moving roughly from modest to controversial.  First, registration portability: Allow voters who move within a state to transfer their registration to their new address on election day.  Second, automatic voter registration: Register voters automatically when they sign-up or register for certain other public services, or, e.g., when they graduate high school.  Third, election day registration: Allow eligible persons to register on election day.  Fourth, federalize registration rolls: "transfer responsibility for the maintenance of voter registration lists from the states to the federal level."  Fifth, universal registration: Transfer registration responsibility from the voter to the government.  And sixth, compulsory registration.

While these last two or three might meet some ideological resistance, and while others would undoubtedly run up against objections based on protecting the integrity of the polls, most of these solutions are, at bottom, quite reasonable ways to increase voter registration. 

Tokaji's piece is an important move in starting to fill a gap in scholarship on voter registration.  It raises many questions and ideas that beg for additional scholarly attention.  And the piece will make a very nice complement to your course material on voting rights.  I highly recommend this.


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