before the election assistance commission notice: national voter registration act regulations

8/8/2019 Before the Election Assistance Commission Notice: National Voter Registration Act Regulations

1/5

BEFORE THE ELECTION ASSISTANCE COMMISSION

NOTICE EAC-2010-0025

NATIONAL VOTER REGISTRATION ACT REGULATIONS

Comments of Dmos

I. IntroductionDmos appreciates the opportunity to submit these comments in

response to the Election Assistance Commissions Notice of Proposed

Rulemaking regarding National Voter Registration Act Regulations. Dmos is anonprofit, nonpartisan public policy research and advocacy organization that

works to strengthen democracy in the United States by reducing barriers to

voter participation and encouraging civic engagement. Dmos supports

expanded democratic participation by engaging in pro-voter litigation;

providing information and resources to advocates and policymakers; conducting

new research; and advancing a broad agenda for election reform.

In particular, the Democracy Program has worked for the past several

years to improve states compliance with the public assistance provisions of the

NVRA through negotiation, technical assistance, and litigation. Our work

indicates that full implementation of the NVRA can significantly increase the

opportunities for low-income citizens to register to vote and participate in the

democratic process.

II. CommentsIn its notice of proposed rulemaking, the EAC invited public comments

about improving voter registration through the content and format of the Federal

mail voter registration application form. The EAC also asked more generallyfor comments on incorporating new technologies to facilitate applicants use of

the Federal form and about other aspects of NVRA regulations under the EACs

authority, including its biennial report to Congress. Dmos offers the following

comments on these issues.


2/5

1. The Federal FormDmos past and continued NVRA implementation work at the state level has given us a

front-row seat to observe and monitor use of the Federal form by public assistance offices. The

current content of the form is effective and any non-minor modification to the form could

negatively impact its use at Section 7 agencies. Of the suggested revisions in the Notice of

Proposed Rulemaking, proposed 11 C.F.R. 9428.4(b)(4) is potentially problematic in requiring

the registration application itself rather than the instructions to include a list of acceptable

identification for first-time registrants by mail. Use of the federal mail voter registration form is

not the same thing asregistering by mail. Many individuals using the federal mail voter

registration form, including at state public assistance offices, registerin person and not by mail.

Including this information on the registration application itself rather than in the instructions

will create confusion for many of those who use the federal mail voter registration form but do

not register by mail.

Moreover, more than minor modification of the federal mail voter registration application

form will likely impact the implementation of Section 7 of the NVRA at public assistance

offices. The lack of compliance with the NVRA at Section 7 agencies in many places around the

country is well-documented. See, e.g., Editorial, A Welfare Check and A Voting Card,New

York Times at A24 (August 10, 2010); Richard Wolf, Motor voterlaw likely to be a bigger

priority for states, USA Today at 2A (July 22, 2010). Where Section 7 of the NVRA is well-

implemented, however, agency personnel who are not regular elections workers-- are

accustomed to administering the current form and to assisting voters in filling it out when

needed. This interactive assistance is a crucial aspect of agency-based registration, especially in

communities that lack resources. See S. Rep. No. 103-6, at 14 (1993). Any modification to thefederal form, beyond minor changes contemplated in the notice of proposed rule-making, would

create the need for re-training of agency front-line workers at a time of great demand and

diminished resources at these agencies, and that re-training may not happen quickly or

effectively. More than minor changes to the forms content would unnecessarily put additional

hurdles to registration before low-income citizens.

2. New TechnologyOnline voter registration would facilitate applicants use of the federal form and should

be incorporated into the EACs NVRA rules. The mail voter registration application form is

not merely the form used for transmitting registration information through the Postal Service;

instead it sets the federal requirements governing the voter registration application process.

Indeed, the mail form is not limited to forms transmitted through the U.S. mails; a form

received by a voter registration agency or delivered by hand, by an organized voter registration

drive, by a neighbor or by FedEx must be accepted as a complete application in every instance.


3/5

Under the NVRA, states must accept and use the mail voter registration application form

prescribed by the EAC. 42 U.S.C. 1973gg-4(a)(1). There is no reason that mail voter

registration form cannot also be electronic.

The Internet and online communication are now a part of American life, and the voter

registration process should move into the 21st Century by providing for online voter registration

applications. Online voter registration has significant advantages in that it is convenient for

many, reduces costs for states and localities, and increases the accuracy of submitted voter

registration information by reducing errors due to poor handwriting and the need for officials to

retype or re-enter information.

There are a number of steps that the Election Assistance Commission should take in

developing regulations governing the electronic version of the mail voter registration applicationform and, in doing so, care should be taken to ensure that all citizens, regardless of

circumstances, can take advantage of online voter registration:

1) Provide an electronic format for the mail voter registration application form so that itcan be completed and submitted electronically. To that end, the EAC should delete rather

than modify the paper size requirements within 11 C.F.R. 9428.5(b).

2) The electronic version of the federal form should allow the applicant to electronically fillit out, print it with the information included, sign it, and mail it. This electronic version

should be made available on the EAC website and for display on other websites.

3) Recognize that an online submission can be legally binding on the applicant so that theattestation and signature required by Section 9(b) of the NVRA can be provided

electronically. The United States federal courts accept indeed, often mandate thesubmission of-- legal documents through electronic means and without a physical

signature. Nearly every state now recognizes the Uniform Electronic Transaction Act.

Without any physical signature, we sign legally binding contracts online and creditcard invoices to receive merchandise from online vendors. We sign electronic signature

pads at the grocery store or the drug store to make credit and debit cards effective. The

signature standards that serve federal courts and contracts should be imported to apply tovoter registration applications as well.

3. The Biennial ReportDmos relies significantly on the biennial report, and the data on state compliance

contained therein, for current NVRA implementation efforts. Based on our work, we believe

state compliance with the NVRA can be improved through closer monitoring and reporting by

the Election Assistance Commission in its biennial NVRA report. The report to Congress can

and should be used as an opportunity to underscore the states obligation to implement the

NVRA and to report on its impact on election administration. The report would then provide a


4/5

fuller and more accurate picture of the laws implementation in the states, which will allow for

continuous evaluation of the efficacy of the NVRA.

The following recommendations regarding the biennial report would result in a more

complete picture of NVRA implementation and would greatly assist future efforts to improve

state compliance.

a. The EAC, within the biennial report, should include a detailed discussion of NVRA

implementation and compliance problems encountered by states as a predicate to its

responsibility to make recommendations for improvements in Federal and State procedures,

forms, and other matters. Such information is frequently supplied to the EAC by state and local

election officials themselves, who contact the agency with questions or observations concerning

the administration of elections. A more comprehensive discussion of state compliance should

also draw on survey data, as well as information from other sources, such as application form

design, training manuals, and findings adduced in litigation or consent decrees.

When the FEC produced the biennial report (prior to the report on the 2003-2004 election

cycle), it consistently included such a discussion. Often without naming the states involved

(though doing so would have been helpful), the report described various problems, such as motor

vehicle or Section 7 agencies not transmitting applications promptly, not using the proper forms,

or failing to train their staff to help applicants to register. Since the EAC assumed responsibility

for the biennial report, it has not consistently included this type of analysis.

We would also like to note our particular concern that the most recent report to Congress

actually mischaracterized agency responsibilities with regard to NVRA compliance. At page 9,for example, the report recommended that states encourage their public service agencies to

remind voters to check and update their registration information, and that states encourage

agencies to distribute voter registration forms, whereas the law requires these agencies to

distribute voter registration forms and provide the public with assistance completing these forms.

Moreover, the law requires that agencies assist clients not just with updating their registrations

but also with registering for the first time. This inaccuracy should be corrected in the next

biennial report, if not sooner.

b. In order to facilitate the collection and reporting of accurate voter registration data, the

EAC should provide states with increased direction and technical assistance regarding the

collection of data required for the biennial report. In this regard, it has become clear over several

reporting periods that there is a need for some states to take steps to improve significantly the

accuracy of the data they collect and report regarding NVRA registration sources. Reporting the

source of voter registration applications could be made much easier and more accurate if states

used discreet source codes on the voter registration applications provided to agencies. Some


5/5

states already use such procedures or similar techniques, which do not violate privacy laws. It

should also be noted that there are a few states that, in recent reporting periods, have failed to

report any data at all. This fact should be noted prominently in the report.

c. The EAC report should include a complete list of each states designated agencies and

the department under which they fall, as has been done in some past reports. This will provide

clarity as to which specific agencies the state views as falling within the requirements of Section

7 of the NVRA, and will allow users of the report to better understand which additional agencies

have been designated by the state.

d. Forthcoming reports should include a brief statement on the status of NVRA litigation,

as well as court orders or consent decrees entered during the reporting period. The information

itself is clearly germane to an assessment of the impact of the NVRA on the administration of

elections, and it is thus an appropriate part of the EACs report to Congress. In addition, having

a current summary of legal action all in one place would be useful for election officials.

e. The EAC should make a complete, systematic review of State practices with respect to

State procedures, form, and other matters, since the NVRA requires the biennial report to

make recommendations for improvements in these areas. The results of this review should be

featured in the next report to Congress. Our own reviews have found that many state forms

simply do not conform to the mandates of the NVRA. For example, the voter information

(sometimes called declination) forms are frequently incorrectly worded, and occasionally not

used at all.

I. ConclusionDmos urges the EAC to incorporate these recommendations as it undertakes rulemaking

regarding the federal form, the biennial report to Congress, and improvements to NVRA

implementation. We believe these recommendations will enhance state compliance with the

NVRA, expand opportunities to register to vote for all citizens, and help the EAC fulfill its

monitoring and reporting responsibility. All these things, in turn, will advance political

participation by historically disenfranchised populations and result in a more inclusive

democracy.

before the election assistance commission notice: national voter registration act regulations

Documents