by Pratt Wiley
The Automatic Voter Registration Act (“AVR Act”), St. 2018, c. 205, signed into law in 2018 by Governor Baker, promises to expand the number of enrolled voters able to participate in our democracy by removing some of the administrative burdens of registration. Effective January 1, 2020, AVR will replace the current “opt-in” voter registration system with an “opt-out” system through which the Registry of Motor Vehicles (“RMV”) and MassHealth will identify and add eligible citizens residing in Massachusetts to the voter rolls. Individuals will automatically be registered to vote when they apply for or renew their: (1) driver’s license, (2) state-sponsored health insurance, (3) Medicaid benefits, or (4) complete another qualifying transaction at a future-designated AVR agency. The AVR system will use citizenship information, already collected by AVR agencies to enroll voters. The AVR Act directs the Secretary of State to promulgate implementing regulations by July 31, 2019.
AVR expands on the landmark National Voter Registration Act of 1993 (popularly known as the “Motor Voter Act.”). The Motor Voter Act eased the voter registration and maintenance process by requiring states to provide citizens with the opportunity to register to vote when applying for a driver’s license or otherwise engaging with a state agency that provides public assistance. Agencies that already participate in the Motor Voter Registration will continue to do so even if they are not designated as AVR agencies.
How It Will Work
Individuals transacting business at AVR agencies will be asked to provide sworn or verified information of their (a) legal name, (b) age, (c) residence, (d) citizenship, and (e) an electronic signature. AVR agencies must inform individuals of voter eligibility requirements and specify that non-citizens are ineligible and must decline to register to vote. The AVR Act requires AVR agencies to inform applicants that, unless they opt-out, their transaction at the agency will operate as a registration and attestation of their eligibility to vote. Eligible residents who do not decline will automatically be registered to vote as of the date of the qualifying agency transaction. The AVR Act does not change the requirement that voters be registered at least 21 days prior to an election.
AVR agencies will electronically transmit the collected personal information and signatures to the Secretary of State, unless an address is designated as confidential pursuant to G.L. c. 9A, § 8, or any collected information is not internally consistent or otherwise reliable. G.L. c. 51, § 42G ½(e), as amended by the AVR Act. The Secretary in turn will transmit the received data to the board of registrars or election commission in the registrant’s home city or town. Id.
Individuals automatically registered by an AVR agency will have a second opportunity to decline registration (or to select a party affiliation) by responding within 21 days to the notification of registration mailed by their local voter registrars. Voters who do not respond within the 21 days will be deemed registered as of the date they completed their eligible transaction with the designated AVR agency. Additionally, to reduce inaccurate registrations, local registrars will use the Electronic Registration Information Center to notify and confirm registrars new registration addresses.
Protections Afforded by the AVR Act
The Secretary of State is directed by the AVR Act to promulgate regulations to protect the confidentiality of addresses and the reliability of citizenship information.
- Address Confidentiality
Victims of domestic violence, sexual assault, or stalking in particular are concerned that their name and address information will not remain confidential when provided to a government agency. Recognizing that public policy is not served if people refrain from registering to vote or, more critically, obtaining necessary driver licenses or health services, out of fear for their safety, states that have implemented AVR have taken great care to assure the public that AVR will not increase the risk that their contact information will be publicly shared.
In Massachusetts, current election regulations prohibit registrars and election commissioners from publishing on the voter rolls, the name and residence of voters who are protected by the Address Confidentiality Program (“ACP”) administered by the Secretary of State, protected by a court order, residents in protective shelters, or for whom a chief of police has submitted an affidavit attesting that the voter is entitled to have certain information withheld from the public under G.L. c. 265, § 24C. Under the ACP, domestic violence victims who have relocated are also provided with a substitute address to use in transactions with the RMV and other state entities. As inserted by the AVR Act, G.L. c. 51, § 65(e) requires the Secretary of State to adopt regulations addressing confidentiality program participants under the ACP who interact with the RMV, MassHealth, and other AVR agencies.
- Citizenship Questions
A common concern regarding AVR and other voter registration modernization is that ineligible residents will be unintentionally registered to vote. Massachusetts, like every other state, allows documented noncitizens to obtain driver’s licenses with proof of lawful residence. California, unlike Massachusetts, allows undocumented aliens to obtain a special driver’s license and implemented AVR in 2018. While California did experience some initial technical difficulties after implementing AVR, state officials reported that “no people in the country illegally — who are eligible to get a special driver’s license in California — were mistakenly registered to vote,” and the Brenner Center for Justice did not report any incidents of non-citizens voting in California.
G.L. c. 51, § 42G ½ (a)(1), as inserted by the AVR Act, allows only state agencies that collect “reliable citizenship information” to participate in the AVR program. Agencies are deemed to collect reliable citizenship information if they “(i) request, in a clear, understandable and consistently stated manner, that customers affirm their citizenship status; and, (ii) collect a signed affirmation of citizenship status or documentary proof of citizenship status such that records of citizens are segregable from non-citizens.” In Massachusetts, citizenship and immigration status is also verified when determining eligibility for Medicaid benefits and state-subsidized healthcare insurance. Voters registered under the AVR will not be liable for a false claim to citizenship unless they affirmatively assert such eligible citizenship after being notified that their transaction with the agency serves as an attestation of eligibility unless they decline to register and that noncitizens are not eligible to vote.
Impact of AVR
With the AVR Act, Massachusetts joins California, Georgia, Oregon, West Virginia, and eleven other states and the District of Columbia to enact AVR. The AVR policy represents a continued progression in Massachusetts towards the “modernization of the registration process through continued expansion of online voter registration and expanded state collaboration in improving the accuracy of voter lists.” According to the Brennan Center, which has published a comprehensive report measuring the impact of AVR across the nation, since first being adopted by Oregon in 2014, “AVR markedly increases the number of voters being registered — increases in the number of registrants ranging from 9 to 94 percent. These registration increases are found in big and small states, as well as states with different partisan makeups.” For example, Oregon registered more than 200,000 citizens in the first six months following implementation, a rate over 16 times greater than registered by the DMV under the previous system. Rhode Island and Connecticut, have implemented variations of AVR, and Rhode Island’s voter registration has increased 47% since its implementation. In California, more than 1.4 million voter registration files were transmitted from the DMV to state election officials in the first four months of implementation. In fact, an estimated 27 million eligible persons would be added to voter rolls across the country if every state adopted automatic voter registration.
President Obama reminded us that we cure the ills in our democracy with more democracy. Automatic voter registration promises to do that by removing outdated and unnecessary barriers to voter engagement. As with all reforms, we must ensure AVR’s implementation adheres to the spirit and intent of the law. But once fully implemented, thousands of our family members, friends, and neighbors in Massachusetts will finally be able to have their voices heard from town halls to the White House
Pratt Wiley is the President & CEO of the Partnership, Inc. He formerly served as the National Director of Voter Expansion for the Democratic National Committee, where he oversaw the Party’s voting rights and voter protection initiatives, from 2013 to 2017.