By Robert Bauer and Trevor Potter
Thursday, June 25, 2009
Too often, attention to problems with the nation's electoral process rises and falls with the coming and going of election seasons. Occasionally it happens that events force the issue back onto the agenda, such as the upheaval in Florida during the 2000 presidential election and the Supreme Court's decision in Bush v. Gore. A new discussion began this week when the Supreme Court declined to rule on the constitutionality of the Voting Rights Act; Chief Justice John Roberts's opinion ensures that the constitutional question will continue to be raised.
But there is a persistent threat to ballot access from election to election, and it is implicated in all reform debates: the voter registration system. Unlike on many issues in election law and administration, there is a surprising amount of agreement on both sides of the aisle about how to modernize the registration system, for example by eliminating arcane inefficiencies that waste resources, disenfranchise voters, frustrate election officials and complicate campaigns. For two years, we were on opposite sides of a historic election, serving as general counsels to the Obama and McCain presidential campaigns. As adversaries, we disagreed passionately about many issues. Our roles in the campaign, however, were often similar; each of us was responsible for guiding our candidates and campaigns through the overly complex gantlet of election administration. Those experiences led us to an inescapable conclusion: Bringing our voter registration system into the 21st century must be the priority for improving the election process.
It is fortunate that many now recognize this pressing need. Election officials, voting experts, candidates, campaign operatives, policymakers from both parties and -- most important -- voters are frustrated by the current registration system and the resources it wastes, the fact that millions of eligible Americans are prevented from casting ballots and the insufficiency of the current protections against registration fraud. These problems are rooted in the system's near-exclusive reliance on paper voter registration forms. In 2008, tens of millions of registrations nationwide were submitted to election officials who had to enter handwritten and often illegible forms into databases, often during the crush leading up to registration deadlines. As we were reminded last year, the lists generated by this process frequently contain large numbers of duplicates, invalid registrations and other errors.
The costs of administering paper-based registration systems are staggering. Designing and printing millions of forms, training staff, hiring temporary workers, mailing materials to inactive addresses and ensuring quality control cost taxpayers hundreds of millions of dollars every election cycle. These inefficiencies create distractions that infect the whole process of election administration, causing the absentee ballot system, election material production and voter education to suffer. The system relies on independent third-party registration drives that often utilize undertrained canvassers. Unfortunately, an unacceptable percentage of registration forms generated by these organizations are duplicates or otherwise invalid, overwhelming election officials and raising questions of registration fraud.
Voter registration is the single largest cause of problems on and before Election Day. Voters left off the rolls, confusion at polling places and voter information incorrectly entered into the system all lead to long lines and problems at the polls. These problems affect all voters, but some more than others. Voters who move frequently, such as military service members and young voters, are particularly vulnerable to the system's inefficiencies.
There is a better way: In 2002, Congress passed the Help America Vote Act, which assisted states in centralizing their voter registration lists into single databases. The logical next step is to build on innovations put in place over the past few election cycles and shift the responsibility to automatically identify and register eligible voters from individuals and independent voter registration organizations to the states. An automatic system would eliminate the need for paper, alleviate the last-minute deluge of registration activity that consumes election officials and address the risks of registration fraud. Registration should also be portable, eliminating the unnecessary step of re-registering when one moves or changes one's name. Finally, there should be fail-safe mechanisms -- online and offline -- for voters to securely update and correct information and vote on Election Day.
We cannot be faithful to our core democratic values without ensuring that all eligible voters -- and only eligible voters -- have a chance to register their judgment through the ballot box. Congress should act this year, helping the states complete the transition to a paperless system, when we are at a safe distance from the partisanship of a campaign season. There is no excuse for letting more elections come and go without bringing our voter registration system into the 21st century.
Robert Bauer, chairman of the political law group of Perkins Coie, is general counsel to Obama for America and the Democratic National Committee. Trevor Potter, who leads the political activity law practice at Caplin & Drysdale, served as general counsel to John McCain's 2008 campaign and is the founding president and general counsel of the Campaign Legal Center.