2016: The Right to Vote at Risk and the Promise of Automatic Voter Registration

Remarks as prepared for delivery by the 82nd Attorney General of the United States, the Hon. Eric H. Holder, Jr., on Wednesday, May 18, 2016 at the Brennan Center’s Automatic Voter Registration Conference

Today I would like to discuss with you an issue that threatens the integrity of this great nation and puts in peril the future welfare of our country. I would also like to suggest ways in which we might make real for the people of the United States the promise of our democracy.

Fifty years after the passage of perhaps the most significant civil rights legislation in our nation’s history — the Voting Rights Act of 1965 – that most basic of American rights – the right to vote — is under siege. As President Johnson said when he signed the Voting Rights Act,  “the right to vote is the basic right, without which all others are meaningless.” At a time when we should be expanding opportunities to cast a ballot there is a movement in America that attempts to make it more difficult.  Abetted by a wrongly decided, factually inaccurate and disconnected Supreme Court decision, too many in this country are trying too hard to make it too difficult for the people to express their views. 

Let me start with a basic statement upon which all can agree:  every person attempting to vote should have to show that he or she is who they claim to be.  Too many today forget that this has always been the case and that in the past our fellow citizens were allowed to demonstrate this in many credible ways.  Let me say that again: There has always been a component of identifying yourself before you could cast a ballot — it is only very recently that some states have become overly prescriptive and unfairly restrictive in enumerating what is sufficient proof.  It has only been in the very recent past and in certain states with certain legislatures and certain governors that this more restrictive, prescribed approach has been mandated. And why? The usual justification stated is to ensure the integrity of the electoral system by preventing voter fraud. Given the nature of the fraud that is to be eliminated, the new restrictions must, I assume, be designed to prevent in person, false identification voting. 

Although there is no statistical proof that this is, in fact, an issue about which the nation should be concerned, the vote fraud mantra is said so often, almost robotically, that some people have unthinkingly begun to believe that the issue is real. But studies have shown that the actual instance of in person voter fraud is extremely rare.  And this is very logical — the penalties associated with voter fraud, usually felonies, far outweigh the impact that an individual or group of people might effect. To truly impact an election would probably require substantial numbers of people somehow holding themselves out as voters that they are not – which would increase almost exponentially the exposure of the scheme.  No such widespread schemes have been detected. The Brennan Center has stated that “it is more likely that an individual will be struck by lightning than that he will impersonate another voter at the polls”. One expert found 31 cases out of more than one billion ballots cast in the United States form 2000 to 2014.  People of good faith, people grounded in the facts, really have to ask where is the problem and have to conclude that there simply isn’t a consequential one and that the restrictive voting laws enacted to combat the next to non-existent problem — with their serious, negative collateral impacts — are not needed.  Instead of ensuring the integrity of the voting process they actually do the opposite: by keeping certain groups of people away from the polls.

If there is not a fact based voter impersonation problem what then could be the basis for the photo identification push? Sadly, one party has decided to lash itself to short term political expediency and put itself on the wrong side of history.  History will be harsh in its assessment of these efforts.  In a 2007 article the Houston Chronicle quoted the political director of the Texas Republican party and stated: “Among Republicans it is an article of religious faith that voter fraud is causing us to lose elections.” he said. He doesn’t agree with that, but does believe that requiring photo ID’s could cause enough of a drop off in legitimate Democratic voting to add 3 percent to the Republican vote.” 

In Pennsylvania in the last Presidential election in 2012 the Republican state house majority leader listed a few partisan issues that would help Mitt Romney in the state. After listing guns and abortion he said, “Voter ID which is gonna allow Governor Romney to win the state of Pennsylvania – done.”  A federal court in Washington, D.C. in throwing out a Texas Republican supported voter identification law stated that it would impose “strict, unforgiving burdens on the poor”. (And remember, under that Texas law a state university student ID was found not to be adequate proof but a state issued concealed weapons permit was.). Finally, in Wisconsin last year a chief of staff to a leading Republican state senator resigned after attending a party caucus in which, he said, some legislators were “literally giddy” over the effect of the state voter ID law on minorities and college students.

Let us be frank.  Faced with demographic changes that they perceive go against them and saddled with a governing philosophy at odds with an evolving nation, some Republicans have decided that if you can’t beat ‘em — change the rules.  Make it more difficult for those individuals least likely to support Republican candidates to vote.  This is done with the knowledge that by simply depressing the vote of certain groups — not even winning the majority of votes of those groups- elections can be affected.  A 2014 study by the GAO found that more restrictive voter ID laws decreased the votes of young people, minorities and the poor in Kansas and Tennessee in 2012.  A recent study conducted at the University of California San Diego, after controlling for a variety of actors, concluded that these new laws disproportionately affected Democratic voters. The study found that Democratic turnout dropped about 7 percent where strict photo ID laws were in place, Latino turnout decreased by 10% and there was an increase in the participation gap between whites and people of color.  If one were to try to define, to find, vote fraud that, in fact, is where it is.

The nation’s attention and laws should not be focused on these phantom illegal voters. The Census Bureau reported that in the 2008 presidential election of the 75 million adult citizens who did not vote, 60 million were not registered and therefore not eligible to cast a ballot.  That is one of the places where we should focus our efforts.  In a speech I gave in 2011 at the LBJ Library I called for the automatic registration of all eligible citizens.  The logic of the arguments I made then is still sound. The ability to vote is a right — it is not a privilege.  Under our current system, many voters must follow needlessly complex  and cumbersome voter registration rules.  And before and after every election season, state and local officials have to manually process a crush of new applications — most of them handwritten — leaving the system riddled with errors and, too often, creating chaos at the polls. The Pew Center estimates that one in eight voter registrations in the United States is invalid or significantly inaccurate. Modern technology provides a straightforward fix for these problems — if we have the political will to bring our election systems into the 21^st century.

Governments can, and should, automatically register citizens to vote by compiling — from existing data bases- a list of all eligible residents in each jurisdiction.  Several states have taken steps in that direction.  Oregon implemented an automatic registration procedure at its DMV in January and has already seen a nearly four fold increase in registrants. California, Vermont and West Virginia have passed similar laws and other states are leaning in that direction.  It is estimated that if implemented at DMV’s, and other key government agencies, these needed reforms could add 50 million eligible voters to the rolls, save money and increase accuracy in the records necessary to the system. 

We must also address the fact that although one in nine Americans move every year, their voter registration does not move with them. Many would be voters don’t realize this until after they’ve missed the deadline for registering, which can fall a full month or more before election day.  Election officials should work together to establish a program of permanent, portable registration — so that voters who move can vote at their new polling place on Election Day.  Until that happens, we should implement fail-safe procedures to correct voter-roll errors and omissions, by allowing every voter to cast a regular, non-provisional ballot on Election Day. Several states have already taken this step, and it’s been shown to increase turnout by at least three to five percentage points. These modernization efforts would not only improve the integrity of our elections, they would also save precious taxpayer dollars.

Despite these benefits, there will always be those who say that easing registration hurdles and Election Day processes will only lead to voter fraud. Let me be clear: voter fraud, to the extent that it actually exists, is not acceptable — and should not be tolerated. But as I learned early in my career — as a prosecutor in the Justice Department’s Public Integrity Section, where I actually investigated and prosecuted real voting-fraud cases — making voter registration and voting easier are simply not likely, by themselves, to make our elections more susceptible to fraud. Indeed, those on all sides of this so called debate have essentially acknowledged that in-person voting fraud is uncommon. We must be honest about this.

And we must recognize that our ability to ensure the strength and integrity of our election systems — and to advance the reforms necessary to achieve this — depends on whether the American people are informed, engaged, and willing to demand fact based contentions and commonsense solutions and regulations that make voting more accessible. Politicians may not readily and willingly alter the very systems under which they were elected even though 80% of Republicans oppose the Citizens United decision and two thirds of voters support strengthening voting protections and restoring the Voting Rights Act.  Only we, the people, can bring about meaningful change and alter current discriminatory trends. In this regard, I want to commend the Brennan Center for its leadership on these issues. The Center first proposed automatic voter registration in 2007 and has done much since then to advance the policy – and other voting enhancements -through extensive research and public education.

So speak out. Raise awareness about what’s at stake. Call on the political party most responsible to resist the temptation to suppress certain votes in the hope of attaining electoral success and, instead,  work to achieve this success by appealing to more voters.   What do they fear – the very people who they claim they want to represent?  And urge policymakers at every level to reevaluate our election systems – and to reform them in ways that encourage, not limit, participation. Insist that they make it easier to register and easier to vote. Ask them:  why is voting tied to a single Tuesday in November?  Work to expand voting days and hours so that many of our fellow citizens need not choose between casting a ballot and keeping their jobs.  Increase, not decrease as was disastrously done in Arizona recently, the number of polling places where our fellow citizens can truly participate in our democracy.

Today, we cannot — and must not  — take the right to vote for granted.  Nor can we shirk the sacred responsibility that falls upon our shoulders. Throughout his Presidency, Lyndon Johnson, who made the promise of the 1965 Voting Rights Act real,  frequently pointed out that, “America was the first nation in the history of the world to be founded with a purpose — to right wrong, [and] to do justice.” Over the last two centuries, the fulfillment of this purpose has taken many forms — acts of protest and compassion, declarations of war and peace, and a range of efforts to make certain that, as another great President said, “government of…by…[and] for the people shall not perish from the Earth.”

Today, there are competing visions about how our government should move forward. That’s what the democratic process is all about — creating space for thoughtful debate, creating opportunity for citizens to voice their opinions, and ultimately letting the people chart their course. Our nation has worked, and even fought, to help people around the world establish such a process.   Here at home, honoring our democracy demands that we remove any and all barriers to voting — a goal that all American citizens of all political backgrounds must share.

Despite so many decades of struggle, sacrifice, and achievement — we must remain ever vigilant in safeguarding our most basic and important right. Too many recent actions are shameful and have the potential to reverse the progress that defines us — and has made this nation exceptional, as well as an example for all the world.   We must be true to the arc of America’s history, which compels us to be more inclusive with regard to the franchise.  And we must never forget the purpose that — more than two centuries ago — inspired our nation’s founding, and now must guide us forward.

So, let us act — with optimism and without delay. Let us rise to the challenges — and overcome the divisions — and fallacies — of our time. Let us signal to the world that —  in America today — the pursuit of a more perfect union lives on.  

Now is not the time to retreat in the face of a partisan assault on the most basic of American rights. The battle to ensure the voting rights of all Americans is a defining one. This is not only a legal issue, it is also a moral imperative. If we are to be the nation we claim to be, we must challenge, in every way possible, those who would undermine our democracy and who have lost faith with the covenant between government and the people. The right to vote is not only the cornerstone of our system of government — it is the lifeblood of our democracy.  I am confident that with a focused citizenry and with leaders like those in this room today this struggle for right will be won. If we are to remain true to those who sacrificed and died to ensure the right to vote, we must not fail.

Thank you.