//  11/20/18  //  In-Depth Analysis

In collaboration with Election Law BlogTake Care is pleased to present a series of posts offering thoughts on legislation to reform the U.S. electoral process.

Election reform is back on Congress’s agenda.  Having won control of the U.S. House, Democratic leaders have said that their first item of business will be a bill that removes obstacles to voting and otherwise improves the electoral process.   H.R. 1 would reportedly include liberalized voting rules, redistricting reform, enhanced disclosure of campaign money, public financing, and ethics reform. 

These are all worthy proposals.  Given the unfortunate efforts to make voting more difficult in the just-completed election cycle – most conspicuously in Georgia – it’s an opportune time for Congress to take action. But if Democrats are serious about protecting the right to vote, their next item of business should be a bill that has a realistic chance of passage.  With Republicans still in control of both the White House and U.S. Senate, a bill that’s nothing more than a Democratic wish-list of reforms has zero possibility of being enacted into law.  Compromise will be necessary.

What would a reasonable compromise look like?   The short answer is a bill that reforms voter registration while imposing reasonable voter identification requirements in federal elections.   A few years ago, I suggested precisely such a “Grand Election Bargain” in the pages of the Harvard Law & Policy Review.  Perhaps Democrats’ real goal is messaging rather than legislating, as Rick Pildes suggests in his post for this series.  But with a divided Congress and a President who should be hungry for an actual legislative accomplishment, now would be the perfect time to try working out a deal that would improve voting for everyone. 

The central idea of my proposed Grand Election Bargain is simple:  improve voter registration (a priority for Democrats) while requiring reasonable voter ID (a priority for Republicans).  Insofar as these requirements would apply to federal elections, they fall squarely within Congress’s power under the Elections Clause.  The basic outline of the Grand Election Bargain would be the same as that which my Harvard Law & Policy Review article proposed, with modifications to account for recent developments.

There’s good reason for making voter registration a centerpiece of a reform package.  A body of empirical research shows that voter registration matters, probably more than any other aspect of election administration.   Though early voting and voter ID tend to get more attention, voter registration has the most impact on who votes and who doesn’t.  Liberalizing voter registration would help improve voter turnout.  Even more important, it would help make the electorate more representative of the citizenry as a whole.  Although we’ve made great strides in improving access to the ballot, significant turnout disparities remain.  Latino and Asian Americans still vote at much lower rates than other eligible citizens.  And there are big gaps when it comes to age, education, and income, with younger, less educated, and lower income citizens less likely to vote.   

Voter registration reform would increase both turnout and representativeness.  It should be national in scope, thus having a broader impact than the preclearance regime that the Supreme Court effectively invalidated in Shelby County v. Holder.  Preclearance under the Voting Right Act was geographically limited, applicable only to covered jurisdictions, most of them places with the worst voting problems over a half-century ago.  That formula made sense in the 1960s, but not today.  Many of the most serious voting access issues are in places outside the South, including states like Indiana, Ohio, and Wisconsin which were never included in the coverage formula.  To make a real difference, federal voting legislation should lift all votes, not just those of people who live in places with the ugliest histories of race discrimination.

What should voter registration reform look like? One important step, which Democrats on the Hill are already considering, is automatic voter registration.  One of the great flaws in the U.S. system of voter registration is that it puts the onus of registering on the voter.  The government plays a less active role in registration, compared with other democratic countries.  In Canada, for example, a national agency (Elections Canada) is charged with putting together voting lists from a variety of sources.  Congress would do well to borrow from this example, as well as the many states here – fifteen plus the District of Columbia, according to the Brennan Center  that have adopted some form of automatic registration. 

Even more important, Congress should require same-day registration.  Allowing voters to register and vote at the same time has a track record of increasing turnout, more so than any other election administration practice.  It’s not hard to understand why:  such one-stop shopping lowers the costs of voting, especially for first-time voters.  And once people vote for the first time, they’re more likely to keep voting.  The National Conference of State Legislatures reports that same-day registration has already been adopted in seventeen states and D.C..  Especially beneficial is Election Day Registration – allowing voters to register and voting up until the day of the election – which fifteen of those states have adopted, according to NCSL.

Congress should also require online voter registration, allowing peoples to register and update their information more easily.  Most states already have some form of online registration – 37 according to NCSL – which can save money while improving accuracy.  Congress could help by adopting a carrot-and-stick approach, requiring the remaining states to adopt online registration while providing all states with funding to improve their registration systems.  And it should address the list maintenance problems that keep eligible voters off the rolls, as happened in Georgia this cycle under Secretary of State (now Governor-Elect) Brian Kemp.  Congress should prohibit “exact match” requirements like the one that reportedly kept  53,000  Georgians off the rolls, and voter purges that the state used to remove hundreds of thousands from the rolls.  Most distressing is the practice of initiating the removal process for not voting, a practice the Supreme Court regrettably approved in Husted v. APRI.  (Disclosure:  I was co-counsel for plaintiffs in that case.)   Registration reform should prohibit using the failure to vote as the basis for starting the removal process, updating the National Voter Registration Act (NVRA) to conform to Congress’s original intent and to address present-day problems.

So far, I’ve focused on registration reforms.  While some of these proposals would enhance the integrity of the electoral process, a central issue for Republicans, they have more appeal for Democrats.  But to have even a glimmer of hope of passing, any elections bill will have to do more on electoral integrity. 

Toward this end, my proposed Grand Election Bargain would include a reasonable voter identification requirement, one that would provide a uniform rule for federal elections replacing the patchwork of different requirements that now exist across the states.  In a nutshell, it would require voters to provide some form of identification, not limited to the government-issued photo ID required in a handful of states (including Georgia, Indiana, and Wisconsin).  I have long been skeptical that voter impersonation is the serious problem that some people contend it is.  There is precious little evidence of people going to the polls pretending to be someone else.  Perhaps the strongest argument for such laws is that they would give people greater confidence that elections are being conducted fairly, though even that is doubtful. 

With those caveats, there are good reasons for Democrats to support a reasonable federal voter ID requirement as the price for voter registration reform.  Non-photo ID requirements have been implemented in many states.  Because almost all voters have this form of ID – for example, a utility bill, bank statement, or government document with the voter’s name and current address – they’re not likely to have a major effect on turnout.  And as a fail-safe, a federal voter ID requirement should allow voters to cast provisional ballots if they lack any required form of voter ID, verifying their identity and place of residence (if any) under penalty of perjury.  Those ballots would be counted unless there is contrary evidence.  Most important, a federal voter ID law would not just serve as a floor that all voters must meet; it would also be a ceiling, precluding more stringent voter ID requirements in federal elections. 

If Democrats were to propose a Grand Election Bargain of voter registration reform for reasonable voter identification, it would show that they’re serious about making real change rather than just showboating.  The more difficult question is why Republicans should support such a deal.   For those who are genuinely concerned with electoral integrity, a non-photo ID requirement gives them everything they could reasonably ask for.  The one I’ve proposed is similar to the version of South Carolina’s voter ID law that was ultimately upheld by a three-judge panel, in an opinion by Brett Kavanaugh (then a D.C. Circuit judge, now a U.S. Supreme Court Justice).  It would be more than sufficient to address concerns with preventing voter fraud, promoting voter confidence, and modernizing the election system, the concerns that led the Supreme Court to uphold Indiana’s more stringent photo ID requirement in Crawford v. Marion County.

Of course, there are some Republicans who’ve thought that it’s good politics to make voting more difficult.  The leading example is Kris Kobach, who staked his career on stoking fears of voting fraud and pressing for ever-more stringent voting restrictions. His fate in this year’s election – losing the Governor’s race in deep-red Kansas – should be a lesson for any Republican who thinks that vote suppression is smart politics.  Making it more difficult for some people to vote may have some short-term benefits.  But in the long run, it’s likely to trigger a backlash, especially among groups of voters whose share of the electorate is increasing.   Democrats already use the threat of vote suppression as a means by which to raise money and motivate their base.  Agreeing to reasonable voting legislation would help Republicans show that they care about both access and integrity, making it more difficult for Democrats to use the Voting Wars (as Rick Hasen calls them) to their electoral advantage.

Finally, Republicans should support election reform because it will help their voters vote too.  The conventional wisdom has long been that higher turnout helps Democrats.  That’s mainly because groups that vote less consistently – especially people of lower socioeconomic status – tend to support Democratic candidates.  It’s still generally true that low-income voters are more likely to identify as Democrats than high-income voters.  But the demographics of the two parties has shifted and there’s a good chance that will continue. Wealthy neighborhoods are trending Democratic, while less affluent districts (those with median incomes under $50,000) were more closely divided.  College graduates continue to shift toward the Democratic Party, while those who haven’t attended college are roughly divided between the two parties.  We can’t know for sure what the future holds, but if these demographic trends continue, then the Republican Party will increasingly depend on votes from people with lower education and income levels – demographic groups that are most likely to be helped by liberalized voter registration and hurt by stringent voter ID rules. 

No one can deny that passing any voting legislation is a longshot in our hyperpolarized political environment.  Cynics will call any Grand Election Bargain naïve and argue that there’s no point in even trying to craft compromise legislation.  But I think we should aspire to more than empty political posturing, or placeholders for legislation that we might dream of becoming law when our idealized Congress is finally elected.  The reality is that both Democrats and Republicans in Congress have an incentive to get something done.  So should our President, who loves to portray himself as a dealmaker.  There’s no area where a real deal could make more of a difference than election reform.


Legislative Reform of the Electoral Process

12/3/18  //  Latest Developments

Here are the contributions from our recent symposium in collaboration with the Election Law Blog

Take Care

Performance Standards and Design Standards in New Election Legislation

11/27/18  //  In-Depth Analysis

Congress might learn a lesson from the structure of the Voting Rights Act, even beyond its substance.

Justin Levitt

Loyola Law School

Four Priorities for H.R. 1

11/21/18  //  In-Depth Analysis

By Campaign Legal Center: Here are the highest priorities for legislative reform on campaign finance, voting rights, redistricting, and ethics

Take Care