Daniel P. Tokaji1Daniel P. Tokaji is the Fred W. & Vi Miller Dean and Professor of Law at the University of Wisconsin School of Law (effective August 1, 2020) and the Associate Dean for Faculty, Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law at The Ohio State University Moritz College of Law (until July 2020). The author thanks Xuechun Wang for her research assistance.
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A part of the Pandemic Elections series.
No facet of election administration affects who votes or doesn’t vote as much as voter registration.2Daniel P. Tokaji, Responding to Shelby County: A Grand Election Bargain, 8 Harv. L. & Pol’y Rev. 71, 90 (2014); Barry Burden et al., Election Laws, Mobilization, and Turnout: The Unintended Consequences of Election Reform, 58 Am. J. Pol. Sci. 95, 96 (2014). Yet despite the considerable attention to the effects of the COVID-19 pandemic on other aspects of the electoral process, voter registration has mostly been overlooked. Media and public attention has instead fixated on the turn away from in-person voting toward postal voting, as well as last-minute election changes ordered by executive branch officials in states like Wisconsin and Ohio.3Even election experts offering otherwise sound advice on running an election in the midst of a pandemic have devoted scant attention to voter registration. These are significant issues, to be sure, but they may ultimately pale in comparison to the pandemic’s consequences on who registers and therefore can vote in the 2020 general election. The most thorough study to date found a precipitous drop in voter registrations in the spring of 2020, compared to the comparable period in 2016. Voters who rely more heavily on registration drives and other in-person means of registration, such as college students and people of color, are likely to be especially hard-hit.
With the usual in-person channels for registration closed, it is essential to find other means through which new voters can register, existing voters can update their information, and all eligible voters can have their votes counted. This essay assesses the pandemic’s negative impact on voter registration, putting it in the context of the varying rules and practices employed in the states. It suggests four areas of response to the pandemic’s negative effects on registration: (1) expanding online registration; (2) expanding same day registration; (3) counting the votes of eligible citizens who have moved or been removed from the rolls; and (4) the private sector stepping up to help would-be voters register and update their registration.
I. How COVID-19 Is Affecting Voter Registration
Without remedial action, the COVID-19 pandemic is likely to have a negative impact on voter registration and participation in 2020 and perhaps even beyond. Presidential election years are usually a time when millions of new voters sign up to exercise their rights as citizens by registering to vote, and when millions more update their registration information so that they’re able to vote and have their votes counted on Election Day. This year, however, fewer people are registering than four years ago. The State of Washington, for example, had only one-third of the registrations in March 2020 that it had in 2016, while new registrations fell by around one-half or more in Georgia, Maryland, Missouri, North Carolina, Virginia, and Texas. Some civic groups report an uptick in voter registration arising from the activism surrounding the inexcusable killing of George Floyd at the hands of Minneapolis police. But it remains to be seen whether this is a blip or a trend, sufficient to counter the general downward trajectory of registration in 2020.
What accounts for the diminution in voter registration, in a year of such political, economic, and social turmoil, with an incumbent president who triggers such strong feelings on both ends of the ideological spectrum? The answer lies in the means that U.S. citizens ordinarily use to register or update their registration, many of which are unavailable due to the pandemic. Data compiled by the U.S. Election Assistance Commission (EAC) show that many—and probably most—would-be voters register through means that involve in-person contact. Under the National Voter Registration Act of 1993 (NVRA), states are required to offer people the opportunity to register to vote at motor vehicle offices, public assistance offices, and offices that serve people with disabilities. In 2016, 33.7 percent of registration applications came through motor vehicle offices, while 13.5 percent came through other in-person means. Just 21.5 percent of registrations were online, while 17.6 percent came through mail, email, or fax. In 2018, motor vehicle agencies accounted for an even higher percentage of registrations (44.9 percent), while online registrations were slightly down (16.1 percent). While the data do not clearly identify what percentage came through means that involve face-to-face contact, the fact that a substantial majority come through motor vehicle offices, in person, or other transactions (a total of 62.5 percent in 2016 and 67.4 percent in 2018) suggests that the most common registration methods have either been closed or constricted.
With the usual registration channels blocked, it’s no great surprise that registrations are down. The available data on registration are unsettling, not just because this could mean fewer new voters participating this year, but also because many existing voters won’t have updated their registration information before the general election.4In 2016, 37.3 percent of registration forms were new valid registrations, while 45.6 percent were registrations with an address change. Voters who have moved may thus appear at the polls on Election Day, to find that they are not registered at their current address. If their polling places have changed as a result of their move, they are likely to cast a provisional ballot, which may or may not be counted. Other existing voters who have moved won’t realize that their registration information is outdated until after the registration deadline, and may therefore not even try to cast a ballot.
The inaccessibility of the usual means for registering is therefore likely to have an especially severe impact on young citizens who would otherwise be exercising their right to vote for the first time, as well as voters who have recently moved—groups that already tend to vote at especially low rates.5Per U.S. Census Bureau data for the 2016 Presidential Election, 43.0 percent of citizens ages 18-24 voted, compared to 61.4 percent overall (tbl. 4c); 55 percent of citizens who moved in the last year voted, compared to 75.6 percent of those in their residence for five years or longer (tbl. 8). It may also affect communities of color, where people often rely on face-to-face interactions like church gatherings, picnics, and door-to-door canvassing to register. Fewer people registering or updating their registrations is thus likely to diminish voting in 2020. This could have ripple effects in future years, as those who register and vote in one year are much more likely to keep voting than those who don’t.
II. Interstate Differences in Voter Registration
Complicating the challenge of enabling voter registration in the pandemic are the differences in voter registration rules and practices among states. Four areas of difference deserve special attention:
- Online voter registration has become the norm—though not yet the uniform practice—in the United States. For the 2020 election, forty of the fifty states allow voters to register or update their registration online, up from thirty-one in 2016. The information voters submit online is generally verified against the information in the state’s motor vehicle database, with the signature on record becoming the citizen for voting. Although the empirical research on the effects of online registration is limited, one recent study found a three percent increase in turnout among young voters in presidential election years due to online registration.
- Automatic voter registration (AVR) allows voters to automatically register (subject to an opt out) or have their information updated when they interact with motor vehicle offices or other state agencies. The number of states with some form of automatic registration has increased significantly in recent years, with nineteen states having some form of automatic voter registration in place as of 2020. There is preliminary evidence that AVR increases registration and voting, though its long-term effects—especially in helping close the turnout gap for historically underrepresented groups—are less certain.
- Same day registration (SDR) is a form of one-stop shopping that allows voters to register and vote at the same time. A total of twenty-one states have some form of same day registration. Most of these states allow voters to simultaneously register and vote on Election Day, a form of same day registration known as election day registration (EDR). Some states have had election day registration for decades, and a substantial body of research documents its positive impact on turnout.6Burden et al., at 95–96 (summarizing the “consistent line of research” finding that EDR increases turnout); Tokaji,at 91 & nn. 98-102 (summarizing research and collecting sources). If early voting locations or polling places are available for in-person voting, same day registration (and especially election day registration) could mitigate some of the pandemic’s adverse effects on registration earlier in the cycle.
- List maintenance is another important area of difference among states. Under the Help America Vote Act of 2002 (HAVA), every state with voter registration7Every state but North Dakota has voter registration. must have a statewide voter registration database. All these states have processes through which people who have moved, died, or become ineligible are removed (or “purged”) from the rolls, though they vary dramatically among the states. In some states, the removal process is triggered by the failure to vote, a practice that the U.S. Supreme Court upheld 5-4 in Husted v. A. Philip Randolph Institute.8I was one of the attorneys for the plaintiffs-appellees in that case. And litigation is ongoing in Wisconsin, over whether approximately 200,000 people should be removed from the state’s voting rolls because they did not respond within thirty days to a state mailing.
A state’s election ecosystem depends not only on the above rules, but also on differences in political culture and practices. In addition to the above differences in states’ registration rules and practices, there are on-the-ground differences in how people register or update their registrations. Among those differences is the degree to which states depend on face-to-face contacts that are likely to be most affected by the pandemic. For example, in 2016, just over three percent of registration forms came through voter registration drives conducted by advocacy groups or political parties nationally. But in Florida and Nevada, around a quarter of all registrations were from such registration drives. Registration and turnout in those states are likely to be especially hard-hit by the pandemic, absent ameliorative action.
States also vary dramatically in how many people use motor vehicle offices to register or update their information. In Minnesota (an EDR state), just over seven percent of voters use this means of registration; but in nearby Michigan, over seventy percent of registration forms come from motor vehicle offices. States where people predominantly register or update their registration through face-to-face means are likely to see much greater effects from the pandemic.
Another important difference is in the utilization of online registration. While there was no state in which internet registrations accounted for a majority of all forms received in 2016, over two-fifths of Arizona’s registrations (40.5 percent) and nearly half of California’s registrations (48.1 percent) came through this means, compared to 17.4 percent nationally. States with a well-established practice of registering or updating registrations online should see more stability in registrations than states that have little or no online registration.
All these differences in voter registration rules and practices make a one-size-fits-all solution unlikely. The pandemic’s effect on voter registration—and thus, on turnout, absent remedial action—will be severe in some states and modest in others. At the federal level, the CARES Act provided $400 million in “Election Security Grants” to states, administered by the EAC. Though the legislation contained nothing specific on registration, the language is broad enough to allow some of those funds to be spent on registration. Some states, particularly those that rely most heavily on in-person means of registration and updating, should spend some of their available CARES Act funds on registration efforts. The next section considers how those funds might be spent and other steps that might be taken to address the registration shortfall arising from the pandemic.
III. Addressing the Registration Shortfall
While we should recognize that the measures taken to counter the pandemic-induced decline in registration will vary among states, there are four major steps that should be taken:
A. Expand Online Registration
As noted above, forty states now have online voter registration. This is no longer an innovation; it is a necessity. The handful of laggard states that haven’t yet adopted online registration should get with the program. Litigation is one available means by which recalcitrant states might be compelled to adopt some form of online registration. Texas has seen years of legal battles, which continue to this day, over whether voters who renew their driver’s licenses online should simultaneously be permitted to register or update their registration information.
Even better than lawsuits would be federal legislation requiring all states to create an online means for registration and updating. Although such legislation may seem unlikely in the current political environment, there are good reasons for Republicans as well as Democrats to support it. In addition to making the voting process more convenient for everyone, online registration will help reach voters across the ideological spectrum who are less likely to vote. Even before the pandemic, Texas Republicans recognized the necessity of investing in registration efforts this cycle for the first time in years.
States that don’t have online registration should adopt it as soon as practicable. But even if those states were willing to implement online registration immediately, it will likely take some time for it to be used widely and to function effectively. Accordingly, extra efforts to help people register through other means (such as by mail) will be necessary in those states. The majority of states that do have online registration should invest available resources in trying to encourage citizens to use online registration, either to register for the first time or to update their registration information. For both groups of states, CARES Act funding is one available source of funding, which the EAC should authorize to be used for implementation or improvement of online registration systems.
B. Expand Same Day Registration
The unavailability of in-person means of registration will inevitably result in some would-be voters being omitted from the rolls, or not having their current information (most notably their address) updated. In every election cycle, a substantial number of would-be voters appear to vote, only to find that their names aren’t on the rolls. We can expect to have more of those voters than usual this year as a result of the pandemic. The most effective way of addressing this problem is to allow people to register when they go to vote.
Same day registration facilitates voting not only by eligible citizens attempting to register for the first time, but also by people who were registered but whose addresses have changed or who have been removed from the rolls. Currently, registration deadlines vary state by state from thirty days before the election to Election Day. Voters who don’t register by the deadline will be out of luck. Provisional ballots are available only to voters who affirm in writing that they are registered and eligible to vote in the jurisdiction. Voters in states with same day registration—and especially election day registration—are better situated to exercise their fundamental right to vote. Even if some in-person voting locations are closed due to the pandemic, state and local authorities can and should provide a means for eligible citizens to simultaneously register and vote. States that don’t have election day registration should consider adopting it for this election, at least on a temporary basis, to compensate for the unavailability of the usual means for in-person registration this cycle.
C. Count the Votes of Moved or Removed Voters
Some states are likely to have more provisional ballots this cycle than in past years. That’s because many voters who have moved or been removed from the rolls, but would otherwise have updated their registrations (or registered anew) before voting, won’t have done so. Before every election, voters move without updating their registration information, or at least without election authorities having received this information. We can expect more of these voters in 2020, due to the unavailability of in-person means through which to update registrations. Others have been removed (or purged) from the rolls. Some of them would normally have re-registered through in-person means, but won’t have done so this year due to the pandemic.
The NVRA provides a partial answer to the problem of voters who have moved without updating their registration information. It enables people who have moved within the same “registrar’s jurisdiction” (in most states, the county) to cast a vote that should be counted, a practice known as “failsafe voting.” Voters who have moved within the same polling place area may update their information and vote by going to that polling place. Voters who have moved from the area covered by one polling place to another must also be given the opportunity to vote and update their information, either at their old polling place, their new one, or a central location designated by the local registrar. Although the NVRA does not speak to voters who have moved from one registrar’s jurisdiction to another, some states allow those voters to cast provisional ballots. Under HAVA, those provisional ballots should be counted if the voters are determined to be eligible to vote under state law.
Under the NVRA, then, people who have moved within the same registrar’s jurisdiction are entitled to cast a ballot that should be counted, even if they haven’t updated their address before voting. The situation is more complicated for people who have moved from one registrar’s jurisdiction to another—which usually means one county to another—without updating their address. States should adopt laws or rules that allow those voters to cast provisional ballots that will be counted, so long as they previously registered somewhere in the state. Given that HAVA requires all states to have statewide registration databases, it is not onerous for states to allow intrastate movers to cast provisional ballots and to count those ballots, as many already do. For voters who have moved from one state to another without registering in their new state, the most effective remedy is same day registration—and another reason why states should consider adopting or expanding this means of registering and voting in this election cycle.
Voters who were removed from the rolls present a more difficult problem. Millions of voters are removed (or purged) from the rolls each election cycle, because they’re believed to have moved, died, or become ineligible.9Over 16 million voters were removed in the 2016 cycle. The NVRA provides a detailed process and requirements that states must follow before removing voters from the rolls. In general, the NVRA allows voters to be removed from the rolls if they request to be removed, have died, have become ineligible due to a criminal conviction or mental incapacity, or have failed to respond to a state mailing (called a confirmation notice) or to vote in the next two federal election cycles.
The question that’s likely to emerge in this election cycle is what to do about voters who have been removed from the rolls, especially those removed because they did not respond to the state mailing or vote in the two subsequent federal election cycles. According to the EAC, over thirteen million voters were removed from the rolls in 2016 because they were believed to have moved or died, or because they failed to respond to the state mailing. In an ordinary year, many of those voters would be able to re-register, but the pandemic will curtail some of the usual means by which they might do so. Some of those voters may wind up casting provisional ballots, as they are entitled to do under HAVA if they affirm in writing that they’re registered and eligible to vote in the jurisdiction.
In a close election, states are likely to face the question whether to count the votes of people who were removed from the rolls, but cast a provisional ballot. People who were unlawfully removed from the rolls should have their provisional ballots counted, because they are undeniably eligible to vote. The more difficult question is whether the provisional ballots of those who were lawfully removed from the rolls should be counted. There is a textual argument for counting those votes under HAVA, which provides that provisional ballots should be counted if “the individual is eligible under State law to vote.” While states might argue that people who were lawfully purged are no longer “eligible” to vote, the better view is that those voters remain eligible to vote, so long as they continue to meet the qualifications for voting in that jurisdiction—that is, they haven’t become ineligible due to a criminal conviction or mental incapacity, died, or moved to another jurisdiction. Accordingly, states should count the provisional ballots of all those who were removed from the rolls, so long as they haven’t moved to another jurisdiction.
As the above discussion suggests, many thorny problems are likely to arise from the constriction of the usual means for voter registration, some of which could create post-election disputes over the results of close elections. Same day registration, and especially election day registration, provides the easiest means of avoiding these problems. Failing that, states should adopt rules that allow for the counting of provisional ballots, particularly of those who have moved or been removed without updating their registration information.
D. The Private Sector Must Step Up
Up to this point, I have focused on steps that legislators and election officials might take to address the pandemic’s effect on voter registration. But even if state and local actors take the most aggressive steps imaginable to include people in the democratic process, some would-be voters are still likely to fall through the cracks in this election cycle. With the usual means for registration closed, they won’t have registered or updated their information. Some of them may try to cast provisional ballots but, as set forth above, it’s uncertain—and in some cases unlikely—that those votes will be counted.
To minimize these problems, the private sector—especially online retailers—should step up to the plate, by directing voters to registration resources when consumers buy their products.10I am indebted to Kristen Clarke, President and Executive Director of the Lawyers’ Committee for Civil Rights Under Law, for this idea. This provides an alternative means of including voters who would otherwise register through in-person means that are unavailable due to the pandemic. More than one-hundred companies recently called on state and local governments to expand access to mail voting. That’s a worthy proposal, but those companies could do even more on their own, by helping direct voters to register or update their registration. As opportunities for face-to-face contact have declined, e-commerce revenues have risen substantially. Although Amazon founder and CEO Jeff Bezos has described the pandemic as “the hardest time we’ve ever faced,” the reality is that Amazon and other online retailers are likely to emerge from it even bigger and stronger.
Those who are benefitting financially due to the pandemic have a responsibility to give back, by helping people register to vote or update their registrations. For customers in states with online registration, this can easily be done by directing them to the state registration portal after their purchases. People in the handful of states without online registration can be sent to the National Mail Voter Registration Form, available on the EAC’s website. Available in fifteen different languages, this uniform form may be used by eligible citizens in every state and territory, following state-specific instructions. Though more cumbersome than online registration, it provides a means by which people can register to vote (if they have access to a printer). The private sector, and especially online retailers, should fulfill their civic responsibilities by directing people to online registration and the federal mail form. Their doing so could make up for the registration shortfall caused by the pandemic, allowing millions of people whose votes would otherwise be lost to participate in this year’s election.
As we consider how to register eligible citizens in these challenging times, some historical perspective is helpful. Questions surrounding the registration process have a partisan valence. Voter registration has always been a double-edged sword, used both for the legitimate purpose of ensuring electoral integrity and the nefarious purpose of making it more difficult for some eligible citizens to vote. The most infamous example of the latter is the mass disenfranchisement of African Americans in the South, which lasted from the late 1800s until the 1960s, and was not undone until the enactment of the Voting Rights Act of 1965. Manipulation of the voting rolls was not confined to the South, but was also a means by which party bosses in northern cities ensconced themselves in power by making it more difficult for supporters of the other side—especially immigrant communities—to vote.
In the current era of hyperpolarized politics, questions of voter registration have had similarly partisan complexion, the Democrats more often pushing to liberalize registration and Republicans urging greater restrictions. While acknowledging this history of partisan division over voter registration, we should also see the COVID-19 pandemic as an opportunity for unity. Both sides have an interest in making sure that eligible citizens are able to register, vote, and have their votes counted. Although conventional wisdom has long held that easing registration helps Democrats more than Republicans, it’s no longer clear that’s true (if it ever was). Republican candidates increasingly depend on voters without a college education, a group that traditionally registers and votes at lower rates. There are, accordingly, self-interested reasons for both parties to support the expansion of registration opportunities in the current pandemic.
The diminution of voter registration is one of the pandemic’s less visible effects on the electoral process, but it could well be the most significant. It’s in all of our interests to facilitate voter registration, in a time when some of the usual means of registration are constricted. Online registration and same day registration can help compensate for the pandemic-induced registration shortfall. States should also adopt rules that allow for the provisional ballots of voters who have moved or been removed to be counted. Finally, the private sector—and especially online retailers—should step up, by directing consumers to sites that will allow them to register online or by mail. While the pandemic poses great challenges for our electoral system, it also presents an opportunity for corporate America to do its part to make our democracy better by expanding opportunities for voter registration.
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Daniel P. Tokaji is the Fred W. & Vi Miller Dean and Professor of Law at the University of Wisconsin School of Law (effective August 1, 2020) and the Associate Dean for Faculty, Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law at the Ohio State University Moritz College of Law (until July 2020). The author thanks Xuechun Wang for her research assistance.