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

In his keynote address, Attorney General Eric Holder declares that 'the right to vote is not only the cornerstone of our system of government — it is the lifeblood of our democracy.'

Published: May 18, 2016

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 21st 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.