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BEFORE THE ELECTION ASSISTANCE COMMISSIONNOTICE EAC-2010-0025NATIONAL VOTER REGISTRATION ACT REGULATIONSComments of D
ē
mos
I.
 
Introduction
D
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mos appreciates the opportunity to submit these comments inresponse to the Election Assistance Commission’s Notice of ProposedRulemaking regarding National Voter Registration Act Regulations. D
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mos is anonprofit, nonpartisan public policy research and advocacy organization thatworks to strengthen democracy in the United States by reducing barriers tovoter participation and encouraging civic engagement. D
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mos supportsexpanded democratic participation by engaging in pro-voter litigation; providing information and resources to advocates and policymakers; conductingnew research; and advancing a broad agenda for election reform.In particular, the Democracy Program has worked for the past severalyears 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 theopportunities for low-income citizens to register to vote and participate in thedemocratic process.
II.
 
Comments
In its notice of proposed rulemaking, the EAC invited public commentsabout improving voter registration through the content and format of the Federalmail 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 EAC’sauthority, including its biennial report to Congress. D
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mos offers the followingcomments on these issues.
 
1.
 
The Federal FormD
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mos’ past and continued NVRA implementation work at the state level has given us afront-row seat to observe and monitor use of the Federal form by public assistance offices. Thecurrent content of the form is effective and any non-minor modification to the form couldnegatively 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 requiringthe registration application itself rather than the instructions to include a list of acceptableidentification for first-time registrants by mail. Use of the federal mail voter registration form
isnot the same thing
as
 
“registering by mail.” Many individuals using the federal mail voter registration form, including at state public assistance offices, register 
in 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 donot register “by mail.”Moreover, more than minor modification of the federal mail voter registration applicationform will likely impact the implementation of Section 7 of the NVRA at public assistanceoffices. The lack of compliance with the NVRA at Section 7 agencies in many places around thecountry is well-documented.
See, e.g.,
Editorial, “A Welfare Check and A Voting Card,”
 NewYork Times
at A24 (August 10, 2010); Richard Wolf, “‘Motor voter’law 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-- areaccustomed to administering the current form and to assisting voters in filling it out whenneeded. This interactive assistance is a crucial aspect of agency-based registration, especially incommunities 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, wouldcreate the need for re-training of agency front-line workers at a time of great demand anddiminished resources at these agencies, and that re-training may not happen quickly or effectively. More than minor changes to the form’s content would unnecessarily put additionalhurdles 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 EAC’s NVRA rules. The “mail voter registration application form” isnot 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 formreceived by a voter registration agency or delivered by hand, by an organized voter registrationdrive, by a neighbor or by FedEx must be accepted as a complete application in every instance.
 
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 21
st
Century by providing for online voter registrationapplications. 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 toretype or re-enter information.There are a number of steps that the Election Assistance Commission should take indeveloping 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 versionshould 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 providedelectronically. The United States federal courts accept –indeed, often mandate thesubmission of-- legal documents through electronic means and without a physicalsignature. 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. Thesignature standards that serve federal courts and contracts should be imported to apply tovoter registration applications as well.3.
 
The Biennial ReportD
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mos relies significantly on the biennial report, and the data on state compliancecontained therein, for current NVRA implementation efforts. Based on our work, we believestate compliance with the NVRA can be improved through closer monitoring and reporting bythe Election Assistance Commission in its biennial NVRA report. The report to Congress canand 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
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