Harry Moroz

Election Day Registration: Combating Voter Disenfranchisement in Contemporary Elections

Despite the high stakes and excitement of this year’s presidential election, it is likely that Hell-Cat Maggie, a voter intimidator of a more violent era, won’t try to impede your entrance to the voting booth. Indeed, the Progressive Era of the late 1800s did much to rid American elections of their overtly crooked, if scandalously fascinating, frauds. Until the Progressive reforms, political parties not only controlled the printing and distribution of ballots, but bought votes and instigated fights to keep “decent folk” from the polls. A drippingly sardonic New York Times article from 1889 describes that when Mr. Richard Croker, the head of the New York City Democratic machine Tammany Hall, went to vote he would have to:

procure from the ballot peddlers, as he approaches the polls to-morrow morning, a Democratic and a Republican State ticket. These he will scrutinize sharply, for he knows that they have been printed by politicians, have been bunched by politicians, have been brought to the polls by politicians, and are given out by politicians. Mr. Croker knows the politicians well enough to have a justifiable fear of accidents and errors.

The Chicago Tribune described that in Tennessee during the 1896 presidential election “The frauds were patent, and it seems that no attempt was made to disguise them. ‘Knock-out drops,’ whisky, violence, and chicanery were the methods employed…” Christopher Ketcham’s 2004 Harper’s piece about machine politics in Brooklyn portrays the electoral politics of the day this way:

In New York, Hell-Cat Maggie, a “shoulder-hitter,” filed her front teeth and wore brass claws on her fingers as she tore into Republicans on Election Day. The brutality reached a high point of sorts in March 1934, when the Tom Pendergast machine in Kansas City (which pushed Truman into national politics) murdered four people and assaulted more than 200 more to secure a plurality of 59,000 votes. “The spirit of graft and of lawlessness is the American spirit,” lamented Lincoln Steffens, the muckraker, in a moment of tragic pique.

The introduction of the Australian secret ballot – though drearier than the patriotic eagles and American flags that had ordained ballots of the past – helped to eliminate these more overt methods of election manipulation: party mercenaries had relied on distinctly colored and uniquely designed ballots to determine for whom a voter had voted. Without the ability to link voter to ballot, ballot peddlers could no longer reward compliance with money and punish disobedience with violence. Yet, in curtailing the most overt means of election fraud, Australian ballots granted political parties a measure of legal standing they had not previously had: the government would now print official ballots listing the parties and their candidates. This and other Progressive Era reforms tied political parties into the legal system and meant that election manipulation would take a less violent, if more insidious, course.

Voting requirements – boring compared to the violent electoral skullduggery of the past – became the means to throw elections and disenfranchise whole swaths of the population. At their worst, these disingenuous regulations were sinister: politicians in the post-Civil War South pioneered the use of poll taxes, literacy tests, vouchers of “good character”, and disqualifications for crimes of moral turpitude to keep former slaves and the poor from the polls, while justifying the requirements with calls for an “invested” and “educated” electorate. At best, such regulations were a compromise. The primary system institutionalized (and so in some ways reined in) machine politics, but at the same time surrendered fully open democratic elections: though state law governs much of how primaries function, parties still decide, for example, how votes are translated into delegates at national conventions (The New York State Democratic and Republican Party rules can be found here.). Election rules have limited electoral manipulation by reducing the potential for fraud, but at the same time voter restrictions have also provided political parties with legal channels through which to suppress voting.

Poll taxes and literacy tests are now unconstitutional (in the case of the former) and illegal (in the case of the latter). But, as these examples suggest, where voting requirements exist so do the disenfranchised. Registration deadlines – the most banal seeming of all structural constraints – are a contemporary manifestation of electoral restrictions that suppress voter turnout and, in some cases, even affect the expression of one’s electoral preference once inside the voting booth.

Registration deadlines purportedly arose to prevent dead people from voting and to impede double dipping, identity theft, and other forms of voter fraud. The process is admittedly straightforward, normally obliging an eligible voter to provide proof of residence and identity several days or weeks prior to an election. (33 states require registration 20 or more days before an election and only North Dakota does not require registration. New York currently requires registration 25 days before an election and the State Constitution mandates a deadline of no fewer than 10 days before an election.)

In the basest of analyses, such deadlines simply increase the cost of voting: an eligible voter must not only decide before Election Day that she will vote, but must fill out paperwork and ready identifying documents in anticipation of voting. Unfortunately, increasing the “cost” of voting not only decreases voter turnout in general, but targets disenfranchisement at particular groups.

The increased voter turnout in states that employ Election Day Registration (EDR), a policy that permits eligible voters to register and to vote on Election Day, demonstrates the vote suppressing effects of registration deadlines. In the eight states that employ EDR, overall voter turnout increases by between 3% and 6%. A 2002 study by the MIT/Caltech Voting Technology Project found that EDR increases turnout by about 12% among voters ages 18-25; by about 11% for Latinos; by about 7.5% for African Americans; by about 10% for those who have recently moved; and by about 12% for non-natives. The policy institute Demos has compiled ample evidence of how EDR increases voter turnout. But why does removing a requirement as seemingly simple as registration prior to Election Day increase voter turnout?

First, for new voters, the “cost” of registering includes not only registration itself, but finding out that registration is necessary at all, finding out where to register, and finding out how to register. Second, and more disturbing, the smaller universe of voters created by registration deadlines means that political parties need only educate registered eligible voters about the registration and voting processes, about candidates, and about electoral issues. (Miles Rapoport, the President of Demos and a former Connecticut state legislator and Secretary of State, described this phenomenon to a congressional committee late last year.) Those groups that are less likely to know to and to know how to register are simply disregarded as if they are not able to vote at all.

Registration deadlines can also distort a citizen’s vote. In states that employ a closed primary system – a system in which voters cannot cross party lines in a primary – voters must express part of their candidate preference (i.e. their party preference) when they register to vote, well before setting foot in a polling booth. This means that in states like New York where changing one’s party registration can take a year, events that alter one’s electoral preference for a certain political party – for instance, a message of hope or the promised abolition of the IRS – must be ignored if one still wishes to fulfill one’s civic duty and vote in a primary election.

But does EDR simply enable procrastinators and cater to aloof college students while leaving our ballot boxes as vulnerable to fraud as an unlocked car is to carjackers, as the former Minnesota Secretary of State believes (Minnesota uses EDR)? The type of voter fraud that registration deadlines purport to prevent – triple or quadruple voting by the deceased – is exceedingly rare. After all, how much value could the vote burglar get from the 3 or 4 additional votes she casts, even if she doesn’t realize that the felony she is committing could put her in jail for 5 years? Empirical studies show the same thing (see here and here). For instance, a study of voter fraud in 2004 in New Hampshire, a state that uses EDR, found that there was no evidence that anyone who had registered on Election Day had voted more than once. Further, in court cases involving requirements for voters to present photo identification, states often admit that voter fraud is either non-existent or is not widespread. Although there is evidence that organized conspiracies to determine the outcome of an election still occur (e.g. in Florida, California, and Missouri), the rampant individual voter fraud that registration deadlines purport to prevent is a myth.

Referring to those individuals who would vote, if only they were not obligated to register, as procrastinators or civic miscreants simply misses the point: civic duty is as much about taking responsibility for the actions of one’s fellow citizens as it is about taking responsibility for one’s own public actions. It is difficult to believe that a requirement as seemingly basic as filling out a form could disengage so many Americans and such particular demographic groups from the electoral process. Purposeful disengagement, a determination to care not for the engagement of certain citizens, is more likely at work.

The violence with which elections are contested in other countries and the brutality that defined elections of America’s past should remind us how much is at stake when we enter the voting booth. It should also lead us to wonder whether the powerful interests that employed Hell-Cat Maggie, “knock-out” drops, and whisky to win past elections have been eviscerated by election reforms or have simply altered their methods of influence. Election Day Registration is no panacea for the structural disenfranchisement that now characterizes election manipulation in the United States, nor does one exist. But EDR at the very least opens elections to groups of voters whom political parties are too often willing to leave behind, but whom political parties would be all too willing to engage, if only they had to.

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Posted at 7:00 AM, Feb 11, 2008 in Democracy | Election 2008 | Voting Rights
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