WI: No Match, No Vote, Take Two

Having already rejected a proposed rule that would needlessly disenfranchise eligible voters this November—joining forty-five states and the District of Columbia in the process—Wisconsin unfortunately appears to be reconsidering the policy.

Back in July, the state’s Government Accountability Board (“GAB”) considered an emergency rule that would have prevented voters from casting regular ballots if the state didn’t find a “complete match” of the voter’s information in the motor vehicle or Social Security database and the voter did not show up at the polls with acceptable proof of residence.  The GAB rightly rejected the proposal in July, after concluding it had insufficient data about how well “matching” voter data worked, and how many voters would be affected. 

It was a wise decision: matching voter data with other government databases is an error-laden process, and conditioning the right to vote on such an inherently flawed system would inevitably disenfranchise eligible citizens.  But in Wisconsin, the issue hasn’t gone away.  Recent press reports of problems with voter registration drives have given rise to alarmist tales of rampant election fraud and calls for Wisconsin to adopt a strict “no match, no vote” policy.  Just a month after the GAB tabled the emergency rule, the issue is back on the agenda. 

The roots of this “matching” debate in Wisconsin lie in the Help America Vote Act of 2002 (“HAVA”).  HAVA mandated that each state develop a single central, computerized list of voters—a statewide voter registration database, or so-called “VRD.”  Congress mandated VRDs to ensure that no eligible, registered voters would be turned away from the polls because poll workers couldn’t find their names on an outdated registration list—as happened countless times in the 2000 election.  After HAVA, being included in the VRD was the key that unlocked the door to the franchise.

But getting listed in a state’s VRD isn’t always as easy as just filling out a registration card. 

A section of HAVA requires states to collect from new voters their driver’s license numbers or, for voters who don’t drive, the last four digits of their Social Security numbers.  These numbers are used in VRDs as “unique identifiers”—record-keeping numbers that help election officials track voters.  (When voters in the VRD are matched up with their driver’s license number or Social Security digits, it helps with list maintenance.  If a voter moves, she provides the identifying number when she re-registers, and election officials can be sure that the voter’s registration record “moves” with her to her new address.  This eliminates duplicate registrations, ensuring that the VRD contains only one registration record per voter.) 

HAVA requires that states attempt to match the driver’s license number or Social Security digits with information in the motor vehicle or Social Security database, so that election officials can be sure the right voter is paired with the right number.  But under HAVA, “un-matched” registrants are still entitled to cast regular ballots if they provide proof of identity when they register or vote; HAVA only relegates a specific sub-set of voters to casting provisional ballots:  first-time voters who registered by mail, who do not provide proof of identity, and whom the state cannot match.

There’s a good reason why HAVA doesn’t relegate voters to a provisional ballot solely on the basis of a failed match:  a lot of the time, matching doesn’t work.  Even when eligible voters provide complete and accurate information when registering, states often can’t match them with existing databases for reasons that have nothing to do with a voter’s eligibility: typos in a voter’s name, transposition of digits in a date of birth or driver’s license number, inconsistent use of nicknames or maiden and married names, and data entry issues associated with hyphenated or compound last names, for instance.  None of these problems says anything about a voter’s eligibility, but they cause failed matches as often as 20 to 30 percent of the time.  And all these reasons will all keep voters from registering—and voting—if a state won’t register voters it can’t match. 

In developing their VRDs, the vast majority of states recognized that matching is too unreliable to condition the right to vote on it.  Thus, most states adopted a sensible approach to matching that was consistent with HAVA:  if a first-time mail-in registrant wasn’t matched, they were registered and could vote a regular ballot so long as they showed proof of identity before voting.  Only a handful of states adopted a stricter policy in which matching was made a precondition to registering and voting.

Several the few states that initially adopted a “no match, no vote” regime have since changed their policies.  Some did so by statute or administrative rule.  Washington State agreed  to abandon its no match, no vote policy after a federal court struck down its law. Another federal judge enjoined Florida’s law in December 2007, just before that state’s presidential primary, after concluding the law was doing “actual harm to real individuals” and would have kept 14,000 eligible Floridians from voting if allowed to stand.  (The law was amended earlier this year, and litigation continues in Florida.)

Today, only four outlier states—Florida, Iowa, Louisiana, and South Dakota—prevent un-matched applicants from registering and voting regular ballots.  But the fact that forty-six states and the District of Columbia have rejected making matching a precondition to registration and voting hasn’t stopped proponents of such an anti-voter rule from advocating a no match, no vote policy in Wisconsin. 

Along with Professor Dan Tokaji of the Moritz College of Law at Ohio State University, the Brennan Center has written the GAB to explain why the proposals are inconsistent with federal law and would needlessly disenfranchise voters in November.  As we explained, conditioning the right to vote on the process of computerized matching never makes sense as a matter of good public policy.  But to adopt such a policy at the eleventh hour, on the eve of a historic election, and without any time to trouble-shoot the new matching process would be disastrous.

The voters of Wisconsin can only hope that the GAB resists the calls for hasty and misguided action and declines the invitation to erect another unnecessary barrier to voting.