posted by Janai S. Nelson
In the ongoing battle to improve access to elections and expand the electorate, civil rights groups have often used the Voting Rights Act of 1965 (and its amendments) as the preeminent weapon. The most transformative legislation to come out of the civil rights movement, the VRA changed the complexion of this country’s elected bodies and increased access to political power for minorities through muscular remedies. However, it is the NVRA (National Voter Registration Act), the VRA’s lesser known, younger cousin of sorts, that has been stealing headlines this week.
Sandwiched between the VRA and the more recent Help American Vote Act (HAVA)d passed in 2002, the 1993 NVRA is sometimes overlooked as a significant linchpin of voter access. Indeed, the NVRA has played an important role in securing expanded registration opportunities for marginalized populations. And, in the face of stringent voter ID laws that suppress voter turnout and shrink the electorate, both offensive strategies and defensive tools are needed. The NVRA continues to prove that it can be effective on both fronts.
Also known as the “Mot0r Voter” law, the NVRA was enacted in 1993 to help standardize the voter registration process for federal elections which varied widely throughout the states. In an effort to decrease this disparity, the NVRA requires state agencies to give a voter registration application to all individuals applying for or renewing a driver’s license, or applying for (or receiving) services at certain other public offices, such as public assistance benefits. The NVRA also requires states to “accept and use” registration by mail for federal elections. Both of these important aspects of the law were the subject of the NVRA’s prominence this week.
On Tuesday, the Ninth Circuit Court of Appeals issued a fractured, en banc opinion in Gonzalez v. Arizona in a challenge to Arizona’s Proposition 200 that requires prospective voters in Arizona to show proof of U.S. citizenship in order to register to vote. The NVRA requires states to “accept and use” federal voter registration applications where applicants affirm that they are citizens of the United States and that they meet other voting prerequisites. Although states retain the right to reject deficient applications under the NVRA, the Ninth Circuit held that the NVRA does not permit states to independently verify citizenship status by requiring proof of citizenship for registration for federal elections. The court also addressed important claims under the VRA which others have analyzed here and here. However, it was the NVRA that ultimately yielded a coup.
Since its inception, the NVRA has provided registration access to countless recipients of public benefits and government services and has permitted states to reject and purge registrations on a variety of grounds. Nonetheless, states have repeatedly attempted to
undermine the law, as evidenced by the Arizona case, and in some instances evade implementation of the NVRA altogether. Wednesday’s important settlement victory against the State of Georgia is one in a long line of NVRA enforcement actions led by the Department of Justice and civil rights groups to force states to abide by their duty to expand registration opportunities. For years, Georgia refused to implement the NVRA’s registration requirements to the fullest extent of the law. The settlement in NAACP v. Kemp, however, now requires Georgia’s public assistance agencies to provide voter registration every time they apply for or renew benefits, or when they submit a change of address, including when these acts occurs via remote communications such as by telephone, internet or mail. Georgia’s stringent voter id laws still present independent challenges to voter access, especially since the popular Georgia Compass (or EBT (electronic benefits) card is not a photo id. This makes continued enforcement of the NVRA all the more important to increase the overall number of registered voters.
As noted earlier, Georgia is not alone in its obstinance in implementing the NVRA. Over half a dozen states refused, on constitutional grounds, to implement provisions of the Act when it first became effective until DOJ brought enforcement litigation, successfully defending the NVRA’s constitutionality. And, the battle wages on. Most recently, DOJ filed a complaint against the State of Louisiana, alleging that the State and its public assistance and disability agencies failed to offer voter registration opportunities in violation of the NVRA. DOJ filed a similar complaint against the State of Rhode Island that was resolved by consent decree in 2011, as were complaints against Illinois and Arizona, a repeat offender, in 2008.
Given the incessant proliferation of voter ID statutes, the NVRA’s role in increasing the number of registered voters is increasingly important. Both the Arizona and Georgia cases underscore the need both to enforce the provisions of NVRA and protect against its circumvention by clearly defining the limits between federal and state authority under the Act. While the Supreme Court likely will be the final arbiter as to whether stringent vote ID laws like Arizona’s can supplant the rights created under the NVRA, the NVRA remains a significant player in the body of laws that protect and safeguard voting rights.