VIA EMAIL

Wayne Thorley Deputy Secretary of State for Elections Office of the Secretary of State wthorley@sos.nv.gov Management Analyst III Department of Motor Vehicles tmartin01@dmv.nv.gov October 28, 2019

Re: LCB File Nos. R028-19 & R052-19

Dear Deputy Secretary Thorley and Mr. Martin, I write on behalf of the Brennan Center for Justice at New York University School of Law to comment on the regulations proposed by the Secretary of State and the Department of Motor Vehicles (DMV) as File Numbers R051-19 and R028-19, respectively. The Brennan Center supports the adoption of these proposed regulations because we believe they provide protections for non-citizens against inadvertent registration under the forthcoming automatic voter registration (AVR) system. However, we want to make clear that our support is based in part on our understanding, set forth below, that these protections will be implemented in a way that also ensures that all eligible DMV customers will be provided an opportunity to register.

The Importance of Protections for Non-Citizens

The Brennan Center has worked to advance AVR for over a decade, through research, legislative advocacy, and public education.

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 In a recent, first-of-its- 

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 The Brennan Center for Justice at NYU School of Law is a nonpartisan public policy and law institute that works to reform, revitalize, and defend our country’s system of democracy and justice. The Brennan Center’s work on AVR has been widely cited by legislators, government agencies, academic journals, and the media, and our experts have testified frequently before Congress and state legislatures across the country. The opinions expressed in this comment are only those of the Brennan Center and do not necessarily reflect the opinions of NYU School of Law.

 

 

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kind study, we found that AVR substantially increased registration numbers everywhere it has been implemented.

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 However, because AVR makes voter registration the default, it is important to incorporate protections for non-citizens, who are not eligible to vote, into the design of the AVR process. The proposed regulations provide one form of such protection by ensuring that DMV customers that definitively demonstrate that they are non-citizens by presenting certain forms of identification at the DMV are screened out of the AVR process.

Ensuring Compliance with Federal Law

We think it is critical, both as a matter of policy and for purposes of maintaining compliance with the National Voter Registration Act of 1993 (NVRA), that the DMV continue to offer all eligible customers an opportunity to register to vote. So, while we are supportive of the Secretary of State’s and the DMV’s attempts to reduce the potential for error by screening out ineligible applicants, we offer our support based on our understanding that the screening mechanism is designed in a way that does not create a high risk that eligible DMV customers will not be offered such an opportunity. We believe this is the case because of two design features in particular, which are not explicitly addressed in the regulations, but which we believe will be in place based on prior communications with the Secretary and the DMV. First, we understand that applicants will be screened out of the AVR process during a transaction based only on the identification they present

during that same transaction

. This approach ensures that someone who has naturalized since their last DMV transaction will not be improperly denied the opportunity to participate in the AVR process, based on the identification they presented prior to being naturalized. While the proposed regulations do not specifically address this issue, we understand that the DMV does not maintain records regarding identification that was presented during previous transactions. As a result, the DMV only has the capability to screen based on the identification shown at the current transaction. Second, we understand that applicants for Driver Authorization Cards (DACs) will continue to be offered the NVRA-compliant “opt-in” voter registration opportunity that is currently offered to all DMV customers. The proposed regulations do not purport to alter the current process for DAC applicants. As a result, we read the regulations to leave in place the current “opt-in” process for DAC applicants, ensuring that any eligible citizen applying for a DAC will be offered an opportunity to register.

Conclusion

For these reasons, and based on our understanding of the two design features referenced above, the Brennan Center for Justice supports the regulations proposed in File Numbers R051-19 and R028-19.

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 Kevin Morris & Peter Dunphy, AVR Impact on State Voter Registration, 2019, https://www.brennancenter.org/publication/avr-impact-state-voter-registration.