As you may know, there has been a concentrated movement in
NYS to improve the process of voter registration and that of voting. To be sure, there is a broader movement to
institute an in-depth reform of the election system within NYS, and other states.
NYS has been woefully behind other states but is currently attempting to change
its horrible record on voter registration, voter participation and the voting
process. Kudos to Governor Andrew Cuomo,
the new Democrat-controlled legislature and the numerous individuals and organizations
dedicated to a successful outcome regarding election reform, especially the
organization known as “LETNYVOTE” ( www.LetNYvote.org; www.facebook.com/LetNYvote;
www.twitter.com/LetNYvote)
With the history-making signing, on Monday, January 14, 2019,
of a package of bills passed by the NYS Senate and Assembly, we are now seeing long-awaited
(and long fought-for) reforms that will start to correct previously promulgated
and supported laws, rules and regulations that prevented citizens from voting.
Fortunately, the legislation passed in the NYS Senate and
Assembly will provide for some of the needed changes in voter registration, in
particular:
ü
early registration for 16 and 17-year-olds
ü
early voting (period of nine days)
ü
same-day registration will require constitutional
amendment after approval by voter referendum and second passage by the next
legislature
ü
‘no excuse’ absentee voting must also be passed
again by the next legislature and go to ballot referendum before being
finalized as an amendment to the NY constitution
ü
portable registration, meaning when a New Yorker
moves elsewhere within the state, his or her voter registration will be updated
ü
combining primaries into one day and therefore
having one deadline for registration of party affiliation
The reforms that passed are fairly comprehensive, but we
must remember that NYS is playing catch-up here; it has had one of the worst
records for voter registration, voter turnout and for innovative election reform. When liberal-leaning NY state, with a
reputation for voting fairly progressively on most matters, was used in federal
court by another state to defend its inadequacies (actually, two states – North
Carolina and Ohio), it was certainly past time to acknowledge that NY was not
out ahead or at par with progressive states; it had not been a good role model
for election reform. New York still has work
to do to overcome remaining shortcomings when the leaders of the NY Legislature
meet this coming week before the session ends to iron out some of the ‘left-overs’
in the package of reforms, such as these 3 laws:
1) A 25 DAY party enrollment deadline (S2338/A1423)
2) Automatic voter registration (S6457/A8280)
3) Voting rights restoration for people on parole
(S1931/A4987)]
So, let’s be clear about this: NYS has taken much needed reform steps, but
is still some distance from completing the journey. The bills passed in both the state Senate and
the Assembly will put NYS on the road to reform, but some of the chores that
remain have to do with:
- truly automatic voter registration,
- campaign finance reform
that removes big money and special interests from their dominant position,
- automatic portability of
voter data from one location to another, not just within the state,
- completing amendments to
the state constitution for ‘no excuse’ absentee voting and same-day
registration,
- automatic registration
using the DMV (and other state agencies) as designated source centers for
registrations,
- re-enfranchisement for
those completing felony penalties,
- How to pay for the cost
of nine days of early voting must be resolved. The New York State Association
of Counties estimates between $500,000 and $1 million will be needed per
county board of elections to cover the cost of additional space and staff
for more days of voting.
- Even the LetNYVote folks
admit that we are just getting started on first steps with most of this
legislation.
Indeed, we must attend to some remaining conceptual shortcomings:
- Registration still depends
upon individual initiative
– if you don’t act to register, you can’t vote
- There is still too much paper involved in the registration process – an
unnecessary burden in the electronic age.
NY is one of the few remaining states that requires voters to mail
paper registration forms, and to update their records every time they move
- Designated registration ‘source’
agencies and locations are not
only limited, they are often unavailable (and
sometimes repugnant) to certain cohorts of our population
- Some Deadlines and restrictions are still burdensome,
like party registration
- Unreported changes for whatever reason often disqualify voters because
registration is “out-of-date”
- As yet, we have no Same-Day registration but
still require registration at least 10 days before a general election, and
this is one of those reforms, although passed in January of this year, that
must go through constitutional amendment procedures so it will be delayed
at least until 2021.
- As mentioned, we still
have restrictive deadlines for registering
party affiliation before the newly consolidated primary
- Electronic submission of a voter registration
application online directly to BOE is still not possible in NYS, (unless
done through DMV), while making out an online form that can be printed and
mailed is possible.
Nation-wide American elections are marred by a ramshackle
voter registration system. Still based largely on paper, the system is plagued
with errors, which create needless barriers to voting, frustration, and long
lines at the polls. According to the Pew Center on the States:
• One in four eligible citizens is
not registered to vote.
• One in eight voter registrations
in the United States is invalid or significantly
inaccurate.
“For too many
citizens in 21st century America, voter registration is a 19th century relic. Today we deposit checks on
our iPhones and push a button to start our cars, yet many states and localities
still rely on piles of paper records to maintain voting lists. Civil servants
who perform data entry from paper-based applications must interpret citizens’ chicken
scratch handwriting. Typos are common.”
Thus, today I have chosen to concentrate on universal
automatic voter enrollment, because, in my thinking, this is where we must fulfill
the constitutional promise of the franchise for all citizens. The right to vote
must be based on at least three principles, originally advanced by the Brennan
Center for Justice:
1) Sovereign—i.e. voting must be
enshrined as the absolute right of every citizen and revered as the foundation of
our form of government; without which, our democracy is made null and void because
consent of the governed is the bedrock upon which democracy is based and fulfilled.
2) Easy to obtain and to maintain—registration
to vote must be made to be a system or process that does not in itself present
obstacles, challenges or restrictions to potential voters. Enrollment is a necessary process (for
identification, eligibility and notification), but must not be a restrictive
process that results in nullification of one’s right to vote.
3) Universal—one person or one segment
of citizens denied the ability to exercise this right through easy and
obtainable registration amounts to a nullification of the equality of every
vote; such restriction or denial unbalances the scale and makes every other
vote weighted beyond one person, one vote. Such restrictions when multiplied, can
result in consent to govern by plurality rather than by majority. In other words, restrictions placed upon voter
registration can easily result in oligarchy, plutocracy or even authoritarian government
and governance.
“Automatic voter
registration would add up to 50 million eligible voters to the rolls, save
money, and improve accuracy and security. It is the centerpiece of a modern voter
registration system built on four components:
• Automatic
Registration: State election officials automatically register eligible
citizens using reliable information from other government lists.
• Portability:
Once eligible citizens are on a state’s voter rolls, they remain registered and
their records move with them.
• Online Access:
Voters can check and update their
records through a secure and accessible online portal.
• Safety Net:
Eligible citizens can correct errors on the rolls or register before and on
Election Day
According to the Brennan proposal, “Every
citizen should have a fair and equal opportunity to get, and stay, registered
to vote. Citizens must take the responsibility to vote, but government should
do its part by clearing bureaucratic obstacles to the ballot box. Automatic
voter registration would vastly improve American democracy.”
Based on these concepts, and the shortcomings of current
proposals, here is my own prescription for universal automatic voter enrollment,
based somewhat on that proposed a few years ago by the Brennan Center for
Constitutional integrity.
In my opinion, one of the problems that still exists in New
York and other states is continuing to believe that contact with state agencies
(especially the Department of Motor Vehicles, but also the Health Department)
is the definitive answer because these agencies either have or can collect
information about us that can be used for voter registration. In my opinion, this has always been a
stop-gap measure designed to increase voter registrations, and it has borne
some fruit, but is not the final word.
RED FLAG – while some State DMVs
have reported substantial increases in interactions that have produced significant
increases in voter registrations (like Oregon in its first years using this
method), the sad fact is that state agency registrations are not capturing everyone
who is eligible to vote. In one study in
California in 2018, it was found that 40% of those eligible to vote left the
DMV without registering. Another report from AVRNOW.com, according to Census
Bureau data, only 33% of registered people report registering at the DMV.
Executive Order 169 from NY Governor Andrew Cuomo attempted
to increase the number and type of state agencies involved, like state universities,
Medicaid offices and others. But this is
a concept that will not fill the gaps because there are substantial numbers of
eligible voters, like non-college young people between the ages of 18-29,
minority members and many persons in poverty who have limited contact with
these agencies. An experiment here in
the Utica NY area of recruiting non-profit agencies in low-voter areas as source
agencies for registration during 2017-18 did not produce substantial results, although
it was successful in expanding the number of registrations in targeted areas and seems to be
ongoing.
The increase of source agencies is probably not the final answer
either. What then is the answer? I believe we have
to change our focus on the stop-gap effect of the NVRA of 1993 (“Motor Voter
Law” using DMVs and other state agencies as major source agencies for registration)
and take a new look at where there may be a greater likelihood of capturing
vital statistical information that can be used for universal voter enrollment.
But first, there is a difference of opinion that needs to be
addressed. There are two main systems
for implementation of voter registration: front-end and back-end. In a back-end system, like in Oregon,
eligible voters are automatically added to the voter rolls when they interact
with a designated government or “source” agency, like the state DMV, unless
they “opt-out.” If they opt to stay in
the system, addresses and other changes are transmitted to the Board of
Elections by that agency.
In “front-end” systems, as in California and Colorado,
eligible individuals are required to decide whether they want to register to
vote, update their address, or make some other change, while interacting with a
source agency. They have to opt-in or opt-out
on the spot! Both systems have been successful in increasing voter registrations,
so something is better than nothing. One website – AVR.NOW – recommended to NY
state that it adopt a hybrid system that would fit different-sized
agencies.
I want to go even further to suggest that we should support
a nation-wide system of enrollment (as called for in HR–1) implemented by the
states, that would assure that all voters are recorded on a register (or
database), not by opting-in or opting-out, but by simply becoming a citizen! As
I read our Constitution, the right-to-vote must be conferred upon every citizen
as a sovereign right, not dependent on an individual’s initiative to seek it out
through some process invented for registering to vote! It’s like free speech, or freedom of
religious expression, or right to trial by jury, or any other right which is
constitutionally guaranteed – it is there automatically -- unsolicited, but
inherent and inalienable.
On that basis, I propose
that every state be responsible for certifying the sovereign right to
vote on the occasion of people becoming citizens. Such notification could be in the form of a
certificate (see sample below) or a simple card.
_______________________________________________________________________________
Certificate of Voter Enrollment
THIS ACKNOWLEDGES THAT
JOHN (or MARY) DOE
IS RECOGNIZED AS A NEW CITIZEN OF THE UNITED STATES OF AMERICA
AND ENROLLED AS A POTENTIAL VOTER IN LOCAL, STATE AND NATIONAL ELECTIONS
PENDING FULFILLMENT OF NECESSARY LEGAL QUALIFICATIONS.
PENDING FULFILLMENT OF NECESSARY LEGAL QUALIFICATIONS.
Your Permanent Voter Enrollment record is available for your inspection
and appropriate amendment at http://www.nysboe.gov
CONGRATULATIONS AND BEST WISHES
Name and address of local BOE
PROGRAM COORDINATOR
DATE
_______________________________________________________________________________
The only
opting in or out will occur when a voter makes his or her choice to vote or not
to vote in an election. Whatever choice
is made, the potential voter’s record will remain on the books (most likely, in
a national and/or state database) and will be removed only when that person
dies. In case you missed it, this is
much like new citizens automatically receiving an SSN at birth but being delayed
until a certain age to start receiving a benefit check. Meanwhile, they do not have their SSN inactivated
or removed until death occurs. There are
already several databases that provide birth and death information to the government. And, SSA
has its own widely used database (SSN Death Index) that is utilized by many
groups and organizations. We already
know how to do this!
It is my firm belief that any other method or steps toward registering
to vote constitute nothing less than obstruction of the sovereign right to vote
inherently possessed by every citizen. Requiring a citizen to be the initiator of this right is basically
restrictive of that right. We do not make application in order to
use our freedom of speech; we do not apply to government every time we worship
in a new place of worship; we do not apply or update every time we protest a
governmental act or regulation. Voting is a sovereign right of every citizen
not meant to be restricted by registration requirements! It is past time to differentiate
and separate the absolute right to vote by every eligible citizen from dependence
on application to register to vote, and the updating of registrations as a
further requirement for voting.
Initiating an application to register to vote is an unnecessary burden
on the voter.
Moreover, it is not appropriate to opt in or out of a constitutional
right – you either use it as needed, or you don’t. In this case, you either vote or don’t vote –
that is the choice everyone makes. However,
there is a necessary consideration: if
one feels threatened in any way by having personal information displayed and publicly
accessible (such as the victim of a stalker or of domestic violence), then
provision should be made for opting out of public enrollment (see #4 under
miscellaneous thoughts below) while the right to vote is maintained.
In order to provide some structure to this process, let me use
the provisions in HR-1 (“For the People ACT of 2019”), Division A – VOTING,
Title I – ELECTION ACCESS, Subtitle A – Voter Registration Modernization, Parts
1-7. I have indicated in red letters where it is that I would change, modify or eliminate
the proposed provisions in their national plan.
PART 1 – PROMOTING INTERNET REGISTRATION
Sec. 1001. Requiring
Availability of Internet for Voter registration
Each state, acting through their chief state election official,
shall ensure that the following services are available to the public at any
time on their official website:
a. Online application for voter registration – rather, the voter’s
enrollment record is made available online (and/or by postal mail) to be corrected or modified by the
voter or a surrogate
b. Online assistance to applicants in applying
to register to vote – rather, agency assistance given for updating or amending (or
disagreeing with) the government record
c. Online completion and submission and updating is available to applicants
Ø
Voter registration application forms – no ‘applications to
register’; only voter enrollment record to modify
Ø
Voter registration drives, National VR Day,
state agencies (and others) as registration sources – instead, use agencies as reminders and resources
for voters to check their records; all registration activity becomes null and
void
The following procedures and structures will need to be added,
substituted or strengthened:
ü
Use of national vital statistics databases; especially
national birth records, naturalizations, and death records (for some existing
resources, see the following link)
ü
Involvement of federal, state, county, municipal
and non-profit agencies serving a particular clientele or consumer base, and
meeting national guidelines (certified by their State as voter rights monitors or
navigators) who shall aid their clients in maintaining up-to-date voter enrollment
records
ü
Any person at a voting location not having an up-to-date
voter enrollment record shall be assisted in amending those records on-the-spot,
and shall be assisted in finding their proper polling place if they are not at
the right location; more thought needs to be given to having greater numbers of polling
places and allowing persons to vote at any poll within a broad area
(such as a county); on-line voting should also be considered as should mail-in paper ballots
ü
Registration records shall be available online
at all times, and shall be able to be amended online with proper ID and secure
encryption;
ü
BOE’s role shall be strengthened with entirely adequate
technology and technicians able to initiate and update all records from
national and state databases
ü
Those turning age 17 shall receive a ‘voter
activation notice’ from state DOE reminding them to activate their sovereign
right to vote in the next election after they turn 18; also, send record as it
is and ask for updates if there are any by return mail, email, online, at an
agency, at their ‘polling place’, etc.
The following miscellaneous items, policies, procedures or
structures could also prove necessary to this proposed system:
- Notices from BOEs to:
- Parents or guardians of
new-born children as soon as birth is reported in a national database or
directly to BOE; such notice to include certificate of voter enrollment and
reminder that child will receive notice at (or around) age 17 to remind
them of their on-going enrollment and their right to vote at age 18
- New citizens as soon as possible
after they have taken the oath of allegiance
- Children and adults not
found in the usual databases – including homeless persons and those who
have served out a required term as convicted felons. Again, a certificate of right to vote shall
accompany the notification
- Similar treatment shall
be undertaken for citizens found to be unregistered by “source agencies.”
Source
agencies need to be greatly expanded to include non-profit agencies;
libraries need to be included; all high schools, universities and
colleges as well
- Notify all enrolled
voters in the database at least twice a year (January and September or
October) to update their record online, at the BOE, at a Source Agency if
any changes have occurred; and, deliver any needed guidance on voting
- Publicity needs to be
ongoing in regard to the procedures and importance of updating records
- USPS involvement mandated
by federal legislation to transmit changes of address directly to local
BOE.
- For people who do not
want their name to appear on a national (or state) database for a valid
reason: they should still be able to vote at a polling station if they submit
at time of voting: the original voter recognition certificate or the BoE notice
of activation of right to vote; OR: an acceptable form of citizenship (birth
certificate; passport) and their signature on a form that certifies their
right to opt-out of having their name on a database
- Usual notices that remain
relevant to the new system
- It will be necessary to protect
this new method of universal automatic voter enrollment with appropriate
laws and regulations. The BOE should
be responsible for overseeing that process.
- One provision of federal law
that makes sense to me would indicate something like this:
“The right to vote belongs inherently to all citizens,
without exception. Under no
circumstances shall any government official restrict the sovereign right to
vote beyond the requirements listed herein”:
v
Must be a United States citizen
v
Must be 18 years old by the date of the primary,
general or other election in which he/she will cast first vote
v
Must be a resident of the state, county, town,
city, or village in which voter has chosen to vote
v
Must not have been judged mentally incompetent
by a court
v
Other restrictions might be necessary on a
national level. Congress should consider
whether one may exercise the right to vote who:
o
Publicly advocates overthrow of government by
violent means;
o
Has been convicted of a treasonous act against this
country;
o
Is in prison for a violent felony conviction
“No other restrictions or exceptions may be legislated or enacted
by any state or local government (or agency of government) without the legislative approval
of the United States Congress.”
In conclusion, let me re-iterate my main points in this
concept of the sovereign right-to-vote:
1) Having
to apply to register to vote is a restriction of the sovereign right to vote because
it depends on the voter initiating (and maintaining) a registration application
and record which no other constitutional right requires
2) Having
government agencies maintain records of enrolled voters (on basis of birth and
acquired citizenship) voids any necessity for making application to register to
vote.
3) Required
voter registration, up-dating of such registrations, determining ‘incorrect’
registrations, choosing political affiliation by an advanced date certain in
order to vote in a primary, and making registrations non-portable are all ways
in which voter participation has been restricted. Such restrictions need to be
replaced by assumptions and procedures that enhance, not restrict, voter participation.
4) New
York is on the right track but still has some distance to go before we can
rest.
5) Universal Automatic Voter Enrollment is the way to proceed!
Voters opt in or opt out, not of registering to vote, but of whether-or-not to activate
their right to vote. That sovereign
right to vote is always available and viable; the voter simply activates that right when
appropriate just as we do with our other inalienable rights!
The State of New York has an opportunity to re-affirm our
motto: EXCELSIOR! Will the leadership
ever move beyond (“rise above”) mere automatic voter registration to automatic
universal enrollment of potential voters?
Your guess is as good as mine…
