Automatic voter registration doesn’t require a Constitutional amendment, but we still need one

Automatic voter registration is the single biggest expansions of the franchise states are currently engaging in, and they don’t even have to go out of their way to implement it. Rather than requiring citizens to opt in to the electoral process by actively registering, California and Oregon now merely ask citizens that interact with state agencies (usually the DMV) if they’d like to opt out of updating their voter registration. If they don’t, they are automatically registered to vote at the address they used to interact with said state agency.

But while it’s one thing for California and Oregon (and Illinois, depending on how their legislation fares) to take this action on their own. It’s another thing to mandate it from the top of the federal government down — that may run afoul of the Tenth Amendment without new constitutional authority being granted. At least, that’s what National Review writer Charles C.W. Cooke argued yesterday in response to a tweet from Bernie Sanders calling for automatic voter registration nationwide.

But Cooke is almost certainly wrong. Nationwide automatic voter registration would amount to nothing more than a small bureaucratic tweak on a service that the agencies in question are already required to provide. Per the National Voter Registration Act of 1993, DMV offices and offices that conduct “agency based” state services such as SNAP, Medicaid and Social Security must give the people they serve the option to register to vote. If the federal government had the constitutional authority to require the DMV to provide access to voter registration in 1993 (it did, as the law easily survived a short-lived Supreme Court challenge), it has the constitutional authority to require the DMV to automatically register voters — provided those voters are allowed to opt out.

But it does raise an interesting question, though: Where exactly does the federal government derive its constitutional authority to regulate state Departments of Motor Vehicles? Is it the Equal Protection Clause (as the government has an interest in equalizing citizens’ access to the ballot)? Or is it the Supremacy Clause (as the federal government has the authority to regulate federal elections, along with services provided by the federal government)? Take your pick; I think you could make an argument for either. In any case, the Supreme Court declined to hear a challenge to the provision on Tenth Amendment grounds in 1995, so it appears as though federalism alone isn’t enough of an issue to nix the federal government’s imposition of voter registration upon the states.

Nevertheless, the fact that Tenth Amendment objections could be raised in the first place highlights the fact that these questions of how the federal government interacts with the states with respect to elections — particularly the “who?” and “how?” of voting — are a lot more complicated than they need to be. Without an affirmative right to vote in the Constitution, we’re left with an inconsistent system in which states can keep separate voter registration rules and lists for state and federal elections. More importantly, we’re left with a system in which the capital-S State wields massive power over the very individuals supposedly charged with governing it — and has a history of abusing that power.

Freedmen at a voter registration office, via Shutterstock

Freedmen at a voter registration office, via Shutterstock

Currently, our Constitution only guarantees that the right to vote won’t be taken away from specific groups — racial minorities via the 15th Amendment and women via the 19th; Native Americans weren’t granted the right to vote until 1924. It doesn’t state explicitly that everyone has the right to vote in the first place, and it doesn’t prevent the state from passing laws that significantly burden the right to vote. Case in point: literacy tests for voting, a hallmark of Jim Crow, actually survived a Supreme Court challenge shortly before the passage of the Voting Rights Act because they weren’t held to be racially discriminatory, per se, since they could theoretically be administered to everyone.

Without an affirmative right to vote in the Constitution, the burden of proof is on citizens who feel that their voting rights have been abridged to prove discrimination — a difficult task in the face of “colorblind” laws like literacy tests and, this day and age, voter ID (although such laws are slightly easier to overturn when the disparate impact test is applied). The federal government has established that it has a compelling interest in protecting against discrimination, but not in protecting the right to vote, so restrictions on voting rights are only unconstitutional if they are also discriminatory. With an affirmative constitutional right to vote, however, that’s no longer the case; the state would have to provide a compelling interest in order to pass any voting restriction.

This would make it nearly impossible for the government to actively restrict the right to vote, as states would have to prove — in each case — that their proposed changes to election law wouldn’t unnecessarily restrict voter turnout, on top of not being discriminatory. As I wrote in August:

By establishing the right to vote as all-inclusive, any and all restrictions on that right have to have a compelling state interest, regardless as to whether those restrictions have a discriminatory effect. Want to require an ID that over ten percent of your citizens don’t have in order to vote? You’d better have some evidence that that kind of verification will stem some kind of widespread voter fraud. If you don’t — and you won’t — then you need to slow your roll. Want to conduct a purge of your county’s voter rolls? It had better be because those voters no longer live in that county, and not because their names are similar to those of criminals.

States couldn’t successfully maintain photo ID requirements for voting without being able to show that such a law fulfilled a compelling state interest in protecting the integrity of their elections. In other words, they’d have to prove that voter impersonation fraud was actually affecting the outcome of elections, which it isn’t.

You could make the argument that voting should be difficult — that voting is so special it should only be available to those who deserve it. But this leads to the question of different how? Should voting be made difficult via the erecting of hurdles to accessing the ballot — be they voter registration requirements or photo ID laws that will inevitably have disparate effects across the income scale? Or should voting be made difficult by imposing sophistication requirements on everyone who shows up to cast a ballot — which is officially neutral to demographics but carries both a discriminatory past and a fundamentally different definition of democracy than the one Americans have come to understand?

All this is to say that automatic voter registration is good, and does not require an amendment to the Constitution, but that an actual amendment to the Constitution would be even better. Thus far, only one presidential candidate has made that distinction. It’d be great to see a few more hop on board.

Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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