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Article for discussion purposes.  The following is an excerpt of a section.

Six Ways to Reform Democracy Samuel Issacharoff is the Reiss Professor of Constitutional Law at the New York University School of Law

Originally published in the September/October 2006 issue of Boston Review

Six Ways to Reform Democracy

Other than calling our U.S. a democracy, consider...

THREE: Create a national voter-registration list.

Samuel Issacharoff

The heated events in Florida in 2000 and Ohio in 2004 brought to light once again the problem of facilitating voting by those eligible to vote. One cause of this problem is the well-known and understandable difficulty of maintaining accurate voter-registration rolls: the American population is highly mobile, with significant numbers moving regularly across electoral districts and oftentimes across state lines. Thus, voter lists regularly become obsolete, voters register simultaneously in multiple states, and the election-day administrative burden becomes increasingly difficult to bear.

Absent federal intervention, efforts among the states to coordinate with each other are often frustrated. At present, a citizen who moves from one state to another may re-register within a short period of arriving, but there is no formal mechanism to ensure that her name is withdrawn from the rolls in her previous state of residence. Similarly, a citizen who lives in Ohio but winters in Florida may very well find himself on the rolls in both places should he decide to opt for Florida as his primary residence and fail to notify Ohio of that fact. The effect is to make it difficult for states to maintain accurate lists, a failing that may result in contested eligibility claims on election day.

The good news is that the Constitution provides a mechanism to help states coordinate a system of better election practices by using congressional elections as a source of federal authority. The specific provision is found in Article I, Section 4, of the Constitution:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.

Under this provision, the authority of Congress is plenary in settivng the manner of holding congressional elections, something that is reinforced by the Supreme Court’s holding in U.S. Term Limits v. Thornton. Federal authority over congressional elections could be used as a way to compel states to use more responsive processes in both state and federal elections.

The proposal here is to federalize the voter-registration lists for federal elections. A federal list that is updated for each congressional election cycle could serve as a template for updating state lists with the addition of new registrants and the removal of those no longer eligible to vote. Only the federal government has the authority to compel (or induce) state compliance with a centralized, regularly updated voter-registration list. As with the requirement of a federal census, the expectation is that federalized registration lists would erode any state interest in independent voter-registration practices and allow a simple and uniform system of identifying eligible voters. Maintaining two voter-registration systems, much like maintaining two census systems, is wasteful and provokes uncertainty when disparities arise. The states came to realize that having one national, federally funded census with binding results would be in everyone’s best interests. The expectation is that the transition to a centralized voter-registration process would be similar to that of the census, with the federal government acting as organizer and custodian of the master list.

It is not difficult to imagine a federal system for federal elections. Each state would be required to submit electronically to a federal election authority, such as the Federal Election Commission, which would create a national election database. The list would be closed for a fixed period before each federal election, for example 15 days before each primary or congressional election. All voter registrations would have to be reported electronically to the federal authorities, with a specific designation for first-time registrants and changes of address. A change of address would trigger removal of the earlier address, a mechanism that would be particularly useful if the voter were moving across state lines.

Once the national list was communicated back to the states, there would be a one-week period for individuals and political parties to check the lists for omissions. There would be a one week period in which to make corrections through state voter-registration officials. After that week, the list would be closed. All citizens on the list would be eligible to vote, and all citizens not on the list would be ineligible. No election-day challenges to voter eligibility as determined by the list would be permitted. While some voters might still mistakenly report to the wrong polling place, the voter rolls would be settled before election day, and eligibility challenges at the polls would be eliminated.

Two other features should be noted. First, the federal statute could criminalize attempts to vote by persons impersonating a registered voter. Second, the federal statute could criminalize attempts to impede a registered voter from voting. These measures would help deter voter fraud and voter harassment.

In addition, the federal statute could define the requirements for voter identification. These might take the form of any government-issued identification card or passport, or utility bills in the name of the voter. If a standard identity card is required, the underlying statute could provide the mechanism for the issuance of such cards at government expense to all citizens.

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