Most states close their registration books before Election Day, claiming that they need time to verify new registrations and prepare for voters to come to the polls on Election Day. The Supreme Court has accepted these proffered explanations for advance deadlines and upheld constitutional challenges to advance voter registration deadlines. These deadlines, however, disenfranchise eligible voters who have moved right before Election Day. This Note provides statistical evidence that suggests that for voters that have recently moved, these deadlines disenfranchise minority voters at a greater rate than white voters, contravening the Voting Rights Act. States should make changes to their registration deadlines, either allowing Election Day registration, as some states have already done, or otherwise providing recent movers with the opportunity to register after registration books have closed. If states do not voluntarily make such changes, litigation under Section 2 of the Voting Rights Act may be successful in forcing states to make adaptations to enfranchise recently moved voters.
The American people met the November 2008 election with both excitement and concern. Many predicted an unusually large and potentially overwhelming voter turnout in response to the campaign,1 which featured a "long and divisive" Democratic primary season,2 the first African-American major party ticket presidential candidate,3 and an unpopular second-term incumbent president.4 Although the focus in 2008 was on the federal election, state and local governments determined the state-by-state procedures for administering that election, and these bodies were tasked with preparing for the predicted large turnout. States have both the power to determine the qualifications of voters for local and state elections and the power to determine the methods and administration of elections for candidates for those offices, which occur at the same time as federal elections during federal election years.5 Therefore individual states have developed differing election regulations that affect the right to cast a ballot for president and vice president of the United States.
Although states administer elections, federal legislation places some limitations on states' discretion. This is necessary because in the past states have used their administrative power to disenfranchise minorities.6 Piecemeal litigation against these state practices was ineffective, consuming much time and energy.7 Congress passed the Voting Rights Act (VRA)8 in 1965 to address the disenfranchisement of black voters by providing more effective measures to enforce the Fifteenth Amendment's protection of the right to vote.9 In particular, Section 2 of the VRA establishes that election administration practices violate the VRA when they "are not equally open to participation by members of a class of citizens protected by [the VRA] ... in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice."10 Thus, states do not have complete freedom to determine election practices and are prohibited from employing some practices that were previously used to determine voter qualifications.11
One election practice that states have developed is advance voter registration deadlines. Originally adopted to combat voter fraud,12 advance voter registration deadlines are one way states attempt to manage the unwieldy task of assuring the accuracy of voter registration rolls.13 States justify advance registration deadlines by claiming they need time between receipt of registration materials and Election Day to verify the accuracy of registration.14 However, advance voter registration deadlines unquestionably burden the right to vote: witnesses at congressional hearings leading up to the passage of the National Voter Registration Act (NVRA) informed Congress that registration deadlines were a barrier to voting. …