Richard F. Shordt · February 2010
78 GEO. WASH. L. REV. 908 (2010)
Elections in the United States are “highly decentralized,” with the vast majority of administrative responsibilities—voter registration, poll-worker training, vote tabulation—performed by state and local election officials. Nonetheless, Congress still has a free hand to influence the administration of federal elections, and in the past forty years Congress has stepped in to establish goals and benchmarks aimed at increasing voter participation and combating voter disenfranchisement.
The major statute through which Congress intended to increase voter participation is the National Voter Registration Act of 1993 (“NVRA”). The express purpose of the NVRA is to make it easier for citizens to register to vote by mandating that states provide uniform voter-registration services at state agencies and libraries, and via a mail-in registration form. A decade later, in the wake of the tumultuous 2000 presidential election which exposed significant flaws in the decentralized electoral system, Congress passed the Help America Vote Act of 2002 (“HAVA”) to establish minimum election-administration standards for federal elections. It also created the independent, bipartisan Election Assistance Commission (“EAC”) to assist states and municipalities with meeting HAVA requirements.
Absent federal, state, and local collaboration, though, these statutes cannot be effective. The NVRA requires state and local compliance with all—not just some—of its registration provisions. There must be consistent application and interpretation of the key portions of HAVA—namely the electronic-database and provisional-ballot sections. States must proactively modernize their hopelessly outdated voter-registration systems. And finally, federal oversight of any noncompliance must be aggressively pursued so that states are induced to adhere to the letter of the law. Individual failures at any point, by any relevant agent, contribute to voter disenfranchisement and decrease democratic participation.
Despite passage of these major voting-rights bills, thousands of citizens continue to be disenfranchised each and every election for mistakes that could easily be avoided. These problems occur both when voters seek to register and when they arrive at the polls to cast their ballots. The causes range from voter errors to clerical errors by state employees, from mistaken computer purges to overworked and undertrained election officials, and from election fraud to political gamesmanship. Although no electoral system is perfect, in a country with tens of thousands of voting schemes, even “almost perfect” will inevitably shortchange too many voters.
This Note argues that because states can no longer be trusted to correct errors in the election process, Congress must step in and build on the reforms instituted in the NVRA and HAVA to make voter registration easier for qualified citizens. The focus on voter-registration statutes and procedures is particularly relevant because registration problems were among the most prevalent voter complaints in the 2008 presidential election. Citizens from around the country reported that on November 4, 2008, they were mistakenly purged from the rolls before the election or that their voter-registration forms were not forwarded to the local board of elections by third-party registration groups or state agency officials.
This Note proposes two solutions to address these problems. First, Congress must pass legislation mandating that states create and administer electronic registration for all voters. The second proposal is that Congress grant the EAC limited but binding authority to issue guidelines and directives in specific areas of election administration that pertain to voter registration.
Part I of this Note briefly discusses the historical evolution of voter suffrage in the United States and introduces the three major federal statutes that govern national voter-registration initiatives. Part II explores how state efforts to comply with these statutes solved some voter-registration problems while simultaneously creating new problems. It also examines how state noncompliance with federal law contributes to voter disenfranchisement. Part III offers two legislative solutions to cure what are, ultimately, state-created barriers to voter registration and democratic participation. Part IV considers potential problems with the proposed scheme and addresses likely counterarguments.
