Testimony Before the EAC on NVRA Changes

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Testimony of the
Brennan Center for Justice at New York University School of Law
Submitted to the U.S. Election Assistance Commission
November 23, 2010

The Brennan Center for Justice at New York University School of Law thanks the U.S. Election Assistance Commission (“EAC”) for the opportunity to comment on the proposed changes to its regulations pertaining to the National Voter Registration Act of 1993 (“NVRA”), to comply with the Help America Vote Act of 2002 (“HAVA”).

The Brennan Center is a non-partisan public policy and legal advocacy organization that focuses on fundamental issues of democracy and justice. Our work seeks to ensure fair and accurate voting procedures and systems and to promote policies that maximize citizen enfranchisement and participation in elections. We submit the following comments on the EAC’s proposed regulations; among other things, our comments seek to 1) ensure that the format of the National Voter Mail Registration Form (the “Form”) is flexible enough to accommodate states that modernize their registration processes, and 2) improve the recordkeeping and reporting requirements for states. 

Comments to the Proposed Changes to the National Voter Mail Registration Form

Format.  We commend the EAC for recommending updates to the format of the National Voter Mail Registration Form to ensure both that the Form complies with HAVA and is usable.  We agree with the Commission’s recommendation that the use of card stock paper no longer be mandated for the Form under § 9428.5(a); this will make the Form more accessible and useable for applicants and election officials alike.  We also agree with the proposed changes requiring all states to offer the Form in 8.5” by 11” paper format.  

We recommend, however, that the regulation, rather than strictly limiting the acceptable format, should make it clear that, while states are required to make the Form available in 8.5” by 11” paper form, it is permissible for states also to make the Form available in (a) card stock, and (b) electronic form.  This will better ensure use of the Form by states or agencies that already make available applications on card stock, and states that have modernized aspects of the their voter registration processes so as to reduce reliance on paper.  By expanding the formatting options of the Form to include electronic forms, the Commission can recognize new technologies of voter registration and support state efforts to modernize their registration systems.  By expanding the formatting options to include card stock, the Commission can help ensure that first-time voters who register by mail also have the option of using a postcard—which uses less postage—and submitting any needed ID later.  There is nothing in the NVRA that limits the Form’s format to paper (see 42 USC § 1973gg-7(b)), and there is no reason for the Commission to create such a limitation.  While there is value in selecting one format to be required for all states, there is no good reason in law or policy to prevent states from using other formats consistent with the NVRA. 

In short, we urge the Commission to retain the requirement that states offer and accept the application in paper form, but also permit states to offer and accept the Form in both card stock and electronic format as well.  To accomplish this, we suggest that the following language be added to 11 CFR § 9428.5(b) and (c) (suggested additions in bold, deletions in strikethrough):

(b) Size.  The application shall All states must offer an application consisting of the top half of an 8.5” by 11” sheet of paper.  The bottom half of the paper shall contain space for the information set forth at 11 CFR 9428.4(c) of this part.  States may also offer the application (1) in electronic format, or (2) on card stock conforming to the requirements of [this part] and containing space for the information set forth at 11 CFR 9428.4(c) of this part.

(c) Layout. Both sides of the any application card printed on paper or card stock shall contain space designated “For Official Use Only.” 

Contents.  To assist states that wish to use technology to better serve registrants and administer elections, the Brennan Center recommends that the Commission amend the regulations concerning Form content to include an optional email address field for applicants.  The request for an email address could simply be added to the list of information requested in 11 CFR § 9428.4 as follows (additions in bold, deleted language in strikethrough):

(5) Telephone number (optional); and
(6) Email address (optional); and
(67) Voter identification number as required or requested by the applicant’s state of residence for election administration purposes or as required by Federal law.

In addition, we recommend that paragraph (5) of the proposed new section entitled “Additional information required by Federal law” be slightly amended as follows (additions in bold):

(5) Include an instruction advising applicants how to mail or otherwise deliver their completed application. 

Instructions.  We also recommend the following change to 11 CFR § 9428.6(a)(5) (additions in bold):

(5) The state election office address or addresses where the application shall be mailed or otherwise delivered.

This change and the one directly above it will ensure that the instructions adequately account for all methods by which the Form may be submitted to election officials.

Comments on 11 CFR § 9428.7 – Recordkeeping and Reporting

We recommend that the Commission expand the data reported by states in order for the EAC and the public to better assess the success of the NVRA, what policies work best for different jurisdictions, and to gauge the challenges faced by different statutory sources of registration under the NVRA.  The regulations already contemplate the specification by source of duplicate registrations in 11 CFR § 9428.7(b)(7). The Brennan Center encourages the Commission to collect additional information about source-based voter registration success rates.  This information would be valuable for policymakers considering how to structure state registration efforts, and enable others to emulate the most successful procedures.

The Brennan Center therefore requests that the Commission amend 11 CFR § 9428.7 to collect the following data essential to assessing the effectiveness of states’ compliance with the NVRA:

• The total number of new registration applications submitted, whether or not valid;
• The total number of new registration applications rejected, along with reasons for the rejections;
• The total number of registration applications submitted by voter registration drives, to the extent known;
• The numbers of registration address changes, name changes, and party affiliation changes submitted;
• The reasons for removal or deletion of registration records;
• Information about the timing and scale of agencies’ receipt of applications;
• A breakdown of registration applications received by jurisdiction;
• A breakdown of registration applications received by each source category identified in 11 CFR § 9428.7(b)(6);
• The number of voters placed on inactive lists as a result of confirmation notices.

In order to collect and maintain this additional data, the Brennan Center recommends the following edits to existing subparts of 11 CFR § 9428.7(b) (additions in bold, deleted language in strikethrough):

(3)  The total number of new valid registrations accepted, both statewide and by jurisdiction, between the past two federal general elections, including all registrations that are new to the local jurisdiction and re-registrations across jurisdictional lines, but excluding all applications that are duplicates, rejected, or report only a change of name address, or (where applicable) party preference within the local jurisdiction;

(4)  The total number of new registrations submitted, both statewide and by jurisdiction, between the past two federal general elections, including all registrations that are new to the local jurisdiction and re-registrations across jurisdictional lines, but excluding all applications that report only a change of name address, or (where applicable) party preference within the local jurisdiction;

(5) The total number of new registrations rejected, both statewide and by jurisdiction, and the reasons for such rejections, broken down into the following categories:

(i)  Registration form arriving after the cut-off date;
(ii)  Registrant ineligible;
(iii)  Registration form illegible;
(iv)  Registration form incomplete on its face;
(v)  Registration determined to be from invalid address;
(vi)  Registration removed from the rolls; or
(vii)  Other invalidity.

(6)  The total number of (1) address changes, (2) name changes, and (3) party affiliation changes submitted both statewide and to each local jurisdiction;

(47)  If the state distinguishes between active and inactive voters, the total number of registrants (1) statewide and (2) by jurisdiction that were considered “inactive” at the close of the most recent federal general election;

(58) The total number of registrations statewide and by jurisdiction that were, for whatever reason, deleted from the registration list, including both “active” and “inactive” voters if such a distinction is made by the state, between the past two general elections, along with the reasons for such deletions.

(69) The statewide number of (1) registration applications received, (2) registration applications rejected, (3) registration applications accepted, (4) address changes, (5) name changes, and (6) party affiliation changes statewide (regardless of whether they were valid, rejected, duplicative, or address, name, or party changes) that were received from or generated by each of the following categories both statewide and by jurisdiction:

(i)  All motor vehicle offices statewide;
(ii)  Mail;
(iii) All public assistance agencies that are mandated as registration sites under the Act;
(iv)  All state-funded agencies primarily serving persons with disabilities;
(v)  All Armed Forces recruitment offices;
(vi) All other agencies designated by the state;
(vii) All other means, including but not limited to, in person, deputy registrars, and organized voter registration drives delivering forms directly to registrars;

(10) For all registration applications reported as rejected by each of the categories in paragraphs (b)(7)(i) through (vii) of this section, the reason the applications were rejected broken down by the categories listed in paragraph (5);

(11)  The number of registration applications submitted, both statewide and by jurisdiction, by organized voter registration drives, whether in person, by mail, or by any other means, to the extent known;

(712)  The total number of duplicate registration applications statewide that, between the past two federal elections, were received in the appropriate election office and generated by each of the categories described in paragraphs (b)(67)(i) through (vii) of this section;

(813)  The statewide number of confirmation notices mailed out between the past two federal elections, and the statewide number of responses received to these notices in the same period, and the number of registrants placed on inactive status as a result of these notices;

(14)  The total number of registration application forms received in each of the categories described in paragraphs (b)(6)(i) through (vii) of this section (1) between the voter registration deadline and Election Day, and (2) in the 30 days before the deadline for voter registration.

If you have any questions or would like to discuss the Brennan Center’s comments further, please contact Lee Rowland at lee.rowland@nyu.edu, 646–292–8334 or Wendy Weiser at wendy.weiser@nyu.edu, 646–292–8318.