Voter Registration and Election Reform

By Tokaji, Daniel P. | The William and Mary Bill of Rights Journal, December 2008 | Go to article overview

Voter Registration and Election Reform


Tokaji, Daniel P., The William and Mary Bill of Rights Journal


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.1 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,2 the mass disfranchisement of southern blacks through most of the twentieth century,3 and the aggressive purging4 and caging5 practices of recent years. A growing body of social science research assesses the impact of various registration practices on voter turnout.6 Voter registration has also attracted the attention of election reformers over the years. Key portions of the Voting Rights Act of 1965 (VRA),7 the National Voter Registration Act of 1993 (NVRA),8 and the Help America Vote Act of 2002 (HAVA)9 are designed to reduce registration barriers. Litigators have increasingly focused on voter registration as well, with disputes over the laws and procedures governing voter registration forming an important part of the growing election law docket. 10 Though voting technology and voter identification issues have typically attracted the lion's share of public attention in the area of election administration,1! the set of legal issues surrounding voter registration have become even more significant.12 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.

And yet, for all this activity, legal scholars have paid relatively little attention to voter registration.13 There has been some research on federal registration laws, but relatively little scholarly analysis of the many registration issues that have found thenway to the courts or of the possibilities for future legislative reform.14 Even within the generally underexamined election law sub-field of election administration, voter registration is an especially underexamined topic.15

The relative lack of interest in voter registration in the legal academy may partly reflect the lack of cache that election administration matters in general had before 2000. The "nuts and bolts" issues surrounding election administration were of less interest to legal scholars than topics like redisricting and campaign finance regulation, which they tended to view as "more conceptually interesting."16 This has changed considerably in recent years, at least partly due to the "constitutionalization" (to borrow Rick Pildes' term) of the vote counting process in Bush v. Gore.11 Perhaps the fact that voter registration rules remain almost entirely a product of statutory law, having not (yet) been constitutionalized, makes them of only passing interest even to most election law scholars.

The purpose of this Article is to help fill that breach. It examines legislation and litigation surrounding the voter registration process, including the requirements with which voters must comply to register, the public and private entities that assist voters in registering, and the systems used to maintain registration rolls. Part I looks backward, providing historical background on the uses and abuses of registration, while Part ? describes the patchwork of laws governing registration today. Part ?? discusses recent litigation over voter registration, including the maintenance of registration lists, state agency registration, registration drives, and proof of eligibility. During the George W. Bush administration, the U.S. Department of Justice (DOJ) has been disappointingly inactive in enforcing provisions of federal law designed to increase registration, focusing instead on trying to make states remove ineligible voters from the rolls. 18 Enforcement of laws designed to promote the inclusion of all eligible voters has been left mostly to non-governmental organizations. …

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