Challenges implementing federal automatic voter registration

Last week, Hillary Clinton proposed automatic voter registration at a campaign event. I'd like to focus less on the wisdom of such a proposal and more about the challenges that would confront an actual piece of legislation. Fortunately, we have that bill, H.R. 2694, the Automatic Voter Registration Act. It was introduced yesterday, June 9, by David Cicilline of Rhode Island, and currently has 42 co-sponsors (all Democrats).

The bill would amend the National Voter Registration Act of 1993 for automatic voter registration of anyone who registers with a state's department of motor vehicles for a driver's license, unless that person opts out. The following information would be collected:

(a)(2)(A) The individual’s legal name.

(B) The individual’s age.

(C) The individual’s residence.

(D) The individual’s citizenship status.

(E) The individual’s electronic signature.

I pause to wonder what this means for the myriad other things that come along with voter registration. Some states ask for your party affiliation; would all automatically-registered voters simply not be affiliated with a party (and perhaps be ineligible to vote in a state primary unless they took the affirmative step to affiliate)? Many states forbid ex-felons from voting (which is probably less problematic for 16-year-olds applying for driver's licenses but could impact other applicants). Would automatic registration force states to ignore ex-felon status?

Indeed, the proposed law would actually abolish Section 5 of the current NVRA, which requires states to provide a form that would include "the minimum amount of information necessary to (i) prevent duplicate voter registrations; and (ii) enable State election officials to assess the eligibility of the applicant and to administer voter registration and other parts of the election process." (That form has led to some recent litigation of note.) So it appears that the "federal form" would no longer exist under such a proposal, and a smaller quantum of information would be provided for registration.

Of course, another sticky point is citizenship status. Some states have moved away from requiring proof of citizenship status to obtain a driver's license, and others have sought more aggressive citizenship investigation in their own states. The law would qualify the collection and use of this information:

(3) Restriction on use of information on citizenship status. A State may not use any identifying information regarding an individual’s citizenship status which is transmitted under this subsection for any purpose other than determining whether the individual is eligible to vote in elections for Federal office.

It would allow states to collect information on citizenship status, but then forbid them for using that information for any reason other than voter registration.

And the final twist is that this law, like others, would only apply to federal elections. Arizona disapproved of the federal form so strongly regarding its own proof of citizenship that it developed a federal-only ballot for those acting pursuant to the Election Assistance Commission's directive, and a ballot for its state and federal elections for those who could also comply with state law apart from the EAC. There's some risk that an undertheorized--or, perhaps, simply unpopular--"automatic" voter registration that affects only federal races would prompt states to create a dual track for ballots. (Whether that could be mitigated with conditional federal funding or other types of incentives is another matter.)

Again, the purposes of this discussion is not to address the underlying merits of automatic voter registration. Instead, it's simply to highlight some of the challenges that may exist in actually implementing it at a federal level--and, with an actual bill now before Congress (with, admittedly, little likelihood of enactment), it's a point for some actual discussion.