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NOTICE EAC-2010-0025


Comments of Dēmos
I. Introduction

Dēmos appreciates the opportunity to submit these comments in
response to the Election Assistance Commission’s Notice of Proposed
Rulemaking regarding National Voter Registration Act Regulations. Dēmos is a
nonprofit, nonpartisan public policy research and advocacy organization that
works to strengthen democracy in the United States by reducing barriers to
voter participation and encouraging civic engagement. Dēmos supports
expanded democratic participation by engaging in pro-voter litigation;
providing information and resources to advocates and policymakers; conducting
new research; and advancing a broad agenda for election reform.

In particular, the Democracy Program has worked for the past several
years 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 the
opportunities for low-income citizens to register to vote and participate in the
democratic process.

II. Comments

In its notice of proposed rulemaking, the EAC invited public comments
about improving voter registration through the content and format of the Federal
mail voter registration application form. The EAC also asked more generally
for comments on incorporating new technologies to facilitate applicants’ use of
the Federal form and about other aspects of NVRA regulations under the EAC’s
authority, including its biennial report to Congress. Dēmos offers the following
comments on these issues.
1. The Federal Form

Dēmos’ past and continued NVRA implementation work at the state level has given us a
front-row seat to observe and monitor use of the Federal form by public assistance offices. The
current content of the form is effective and any non-minor modification to the form could
negatively 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 requiring
the registration application itself rather than the instructions to include a list of acceptable
identification for first-time registrants by mail. Use of the federal mail voter registration form is
not 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 do
not register “by mail.”

Moreover, more than minor modification of the federal mail voter registration application
form will likely impact the implementation of Section 7 of the NVRA at public assistance
offices. The lack of compliance with the NVRA at Section 7 agencies in many places around the
country is well-documented. See, e.g., Editorial, “A Welfare Check and A Voting Card,” New
York 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-- are
accustomed to administering the current form and to assisting voters in filling it out when
needed. This interactive assistance is a crucial aspect of agency-based registration, especially in
communities that lack resources. See S. Rep. No. 103-6, at 14 (1993). Any modification to the
federal form, beyond minor changes contemplated in the notice of proposed rule-making, would
create the need for re-training of agency front-line workers at a time of great demand and
diminished 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 additional
hurdles to registration before low-income citizens.

2. New Technology

Online 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” is
not 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 form
received by a voter registration agency or delivered by hand, by an organized voter registration
drive, 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 21st Century by providing for online voter registration
applications. 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 to
retype or re-enter information.

There are a number of steps that the Election Assistance Commission should take in
developing regulations governing the electronic version of the mail voter registration application
form 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 it
can 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 fill
it out, print it with the information included, sign it, and mail it. This electronic version
should 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 the
attestation and signature required by Section 9(b) of the NVRA can be provided
electronically. The United States federal courts accept –indeed, often mandate the
submission of-- legal documents through electronic means and without a physical
signature. Nearly every state now recognizes the Uniform Electronic Transaction Act.
Without any physical signature, we “sign” legally binding contracts online and credit
card 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. The
signature standards that serve federal courts and contracts should be imported to apply to
voter registration applications as well.

3. The Biennial Report

Dēmos relies significantly on the biennial report, and the data on state compliance
contained therein, for current NVRA implementation efforts. Based on our work, we believe
state compliance with the NVRA can be improved through closer monitoring and reporting by
the Election Assistance Commission in its biennial NVRA report. The report to Congress can
and 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
fuller and more accurate picture of the law’s implementation in the states, which will allow for
continuous evaluation of the efficacy of the NVRA.

The following recommendations regarding the biennial report would result in a more
complete picture of NVRA implementation and would greatly assist future efforts to improve
state compliance.

a. The EAC, within the biennial report, should include a detailed discussion of NVRA
implementation and compliance problems encountered by states as a predicate to its
responsibility to make “recommendations for improvements in Federal and State procedures,
forms, and other matters.” Such information is frequently supplied to the EAC by state and local
election officials themselves, who contact the agency with questions or observations concerning
the administration of elections. A more comprehensive discussion of state compliance should
also draw on survey data, as well as information from other sources, such as application form
design, training manuals, and findings adduced in litigation or consent decrees.

When the FEC produced the biennial report (prior to the report on the 2003-2004 election
cycle), it consistently included such a discussion. Often without naming the states involved
(though doing so would have been helpful), the report described various problems, such as motor
vehicle or Section 7 agencies not transmitting applications promptly, not using the proper forms,
or failing to train their staff to help applicants to register. Since the EAC assumed responsibility
for the biennial report, it has not consistently included this type of analysis.

We would also like to note our particular concern that the most recent report to Congress
actually mischaracterized agency responsibilities with regard to NVRA compliance. At page 9,
for example, the report recommended that states “encourage their public service agencies to
remind voters to check and update their registration information,” and that states “encourage”
agencies to distribute voter registration forms, whereas the law requires these agencies to
distribute voter registration forms and provide the public with assistance completing these forms.
Moreover, the law requires that agencies assist clients not just with updating their registrations
but also with registering for the first time. This inaccuracy should be corrected in the next
biennial report, if not sooner.

b. In order to facilitate the collection and reporting of accurate voter registration data, the
EAC should provide states with increased direction and technical assistance regarding the
collection of data required for the biennial report. In this regard, it has become clear over several
reporting periods that there is a need for some states to take steps to improve significantly the
accuracy of the data they collect and report regarding NVRA registration sources. Reporting the
source of voter registration applications could be made much easier and more accurate if states
used discreet source codes on the voter registration applications provided to agencies. Some
states already use such procedures or similar techniques, which do not violate privacy laws. It
should also be noted that there are a few states that, in recent reporting periods, have failed to
report any data at all. This fact should be noted prominently in the report.

c. The EAC report should include a complete list of each state’s designated agencies and
the department under which they fall, as has been done in some past reports. This will provide
clarity as to which specific agencies the state views as falling within the requirements of Section
7 of the NVRA, and will allow users of the report to better understand which additional agencies
have been designated by the state.

d. Forthcoming reports should include a brief statement on the status of NVRA litigation,
as well as court orders or consent decrees entered during the reporting period. The information
itself is clearly germane to an assessment of the impact of the NVRA on the administration of
elections, and it is thus an appropriate part of the EAC’s report to Congress. In addition, having
a current summary of legal action all in one place would be useful for election officials.

e. The EAC should make a complete, systematic review of State practices with respect to
“State procedures, form, and other matters,” since the NVRA requires the biennial report to
make “recommendations for improvements” in these areas. The results of this review should be
featured in the next report to Congress. Our own reviews have found that many state forms
simply do not conform to the mandates of the NVRA. For example, the voter information
(sometimes called “declination”) forms are frequently incorrectly worded, and occasionally not
used at all.

I. Conclusion

Dēmos urges the EAC to incorporate these recommendations as it undertakes rulemaking
regarding the federal form, the biennial report to Congress, and improvements to NVRA
implementation. We believe these recommendations will enhance state compliance with the
NVRA, expand opportunities to register to vote for all citizens, and help the EAC fulfill its
monitoring and reporting responsibility. All these things, in turn, will advance political
participation by historically disenfranchised populations and result in a more inclusive