Remember Representative Kraig Powell?

He made headlines last spring for his very public and deeply emotional change of position on H.B. 477 and his commitment to work for transparency in the future.  This year — at least according to the Utah legislature’s website — he’s poised to make good on that promise, having opened up a number of bill files dealing with legislative transparency:

But at least one of his initial efforts in this young legislative session deserves some more scrutiny.  H.B. 253, which Rep. Powell introduced in committee yesterday, would require county clerks to remove the names of voters from the county’s registration rolls in each of the following circumstances:

1. The voter dies and his or her name is listed on the annual report of deceased residents from the Department of Health’s Bureau of Vital Records;
2. A voter sends written confirmation to the county clerk that he or she no longer resides in the county;
3. The voter requests, in writing, that the county clerk remove his or her name from the county’s registration rolls;
4. The county clerk receives a notice that the voter has registered to vote in another state;
5. The county clerk receives a notice that the voter has been convicted of (1) a felony in any state or federal court, or (2) an election-related misdemeanor (e.g., fraudulent voter registration) and determines that the voter’s right to vote has not been restored by applicable law; and
6. After a voter has failed to respond to a written notice from the county clerk (sent to the address on his or her registration records), the voter fails to vote in the next 2 general elections.

Current law allows, but does not require, a county clerk to remove a voter’s name from the registration rolls for any of the first five reasons.  H.B. 253 would make it mandatory, which is in itself a significant change.  But the real meat of H.B. 253 is in the addition of the sixth basis for name removal.  And it seems poised to send a lot of flak Rep. Powell’s way.

Here’s how the sixth basis would operate.  H.B. 253 would require county clerks to send a notice to each person who fails to vote in two consecutive general elections, which are held once every two years.  So, for example, if I failed to vote in 2010 and 2012, the Davis County clerk’s office would be required, by law, to send me a notice informing me that my registration will be revoked if I do not respond to the notice or actually vote in one of the next two general elections.  Then, if I both (1) failed to respond to the notice, and (2) failed to vote in either of the subsequent two general elections (2014 and 2016), my registration would be automatically revoked.

Shortly after the legislative session closed yesterday, an article appeared in the Salt Lake Tribune in which an attorney for the ACLU was quoted as suggesting that H.B. 253 was illegal because it ran contrary to controlling federal law. Defenders of the bill responded, arguing that, not only is H.B. 253 consistent with federal law, but it was a good idea because: (1) the threat of being removed from the voter registration rolls will make people more likely to vote; (2) it makes voter fraud more difficult by removing the excess names from the state’s voter registration rolls; and (3) it will make Utah’s voting statistics more accurate, thus presumably making us look better to outsiders.

I wanted to take a couple minutes to respond to each of the arguments noted above and to offer a few of my own thoughts.

Federal Law

Although the Tribune’s article cites an attorney for the ACLU contending that H.B. 253 would violate the “National Voting Rights Act,” I believe she was actually referring to the National Voter Registration Act of 1993 (the “NVRA,” aka the “motor voter bill”).  While there is a “Voting Rights Act,” I don’t believe there is a “National Voting Rights Act” —  it all seems like understandable acronym confusion.

Contrary to the assertion of the ACLU’s attorney, my research suggests that applicable federal law (i.e., the NVRA) specifically allows for the removal of voters from the state’s registration rolls as contemplated by H.B. 253 (though I acknowledge my lack of expertise and the fact that it’s entirely possible I could be proven wrong).  Here’s the applicable section from the NVRA, codified at 42 U.S.C. 1973gg-6:

(b) Confirmation of voter registration

Any state program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll for elections for Federal office -

(1) shall by uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965 (42 U.S.C. 1973 et seq.); and

(2) shall not result in the removal of the name of any person from the official list of voter registered to vote in an election for Federal office by reason of the person’s failure to vote, except that nothing in this paragraph may be construed to a State from using the procedures described in subsections (c) and (d) to remove an individual from the official list of eligible voters if the individual -

(A) has not either notified the applicable registrar (in person or in writing) or responded during the period described in subparagraph (b) to the notice sent by the applicable registrar; and then

(B) has not voter or appeared to vote in 2 or more consecutive general elections for Federal office.

Based on this language, it appears to me that if H.B. 253 is nondiscriminatory (i.e. generally applicable), it is consistent with federal law.

Justifications — Encouragement, Fraud, and Our Image, Elevated

Rep. Powell suggested yesterday in committee that receipt of a notice threatening to revoke registration would actually prompt more people to vote.  Although it’s an interesting argument, he offered no evidence in support of his contention.  Furthermore, even assuming, arguendo, that his assertion is true, it strikes me that someone just voting once everyone 4 – 8 years to preserve their registration isn’t really the type of participation that we want to encourage.  And the idea that our elected officials believe that a legitimate way of getting people to vote is threatening to revoke their registration is, frankly, a bit concerning.

Representative Powell also contended that removing non-voters would make it more difficult for people to commit voter fraud.  This is certainly the case for people who have died  (who can already be removed under the current version of Utah’s law), but it’s hard to see how simply sending a notice to habitual non-voters would accomplish this objective.

Finally, the most ridiculous justification from Rep. Powell for H.B. 253 was that leaving the names of non-voters on the state’s rolls makes us look bad because it makes our percentage voting statistics seem lower than they actually are.  This may be true, but it’s ridiculous to suggest that burnishing our public image in this respect is worth the very real possibility that some of Utah’s previously unengaged voters will attempt to vote on election day only to find that their name has been removed from the voter registration rolls because they had not previously been civically engaged.  Furthermore, it seems that H.B. 253 would have just as much, if not more, potential for distorting Utah’s voting statistics.  How in the world do we get an accurate picture of Utah’s level of civic engagement by ignoring people who are eligible to vote but are, for whatever reason, not exercising the franchise?  The whole thing smacks of ostrich-style willful ignorance.  Regardless of whether eligible voters choose to participate in elections or not, they remain a part of the body politic.  As was noted by numerous others yesterday afternoon:  The right to vote includes the right not to vote.

One of the primary arguments of those critical with Utah’s caucus system is that it contributes to Utah’s alarmingly low levels of electoral participation.  There’s a part of me that wonders whether this bill is designed, at least in part, as an attempt to answer that critique by artificially inflating voter participation totals overnight, coincident with the GOP’s laudable push to get as many people out to caucus night as possible.

Some Closing Thoughts

It makes sense to occasionally review our voter registration rolls to ensure that they are accurate and up to date.  So let’s ensure that people who are clearly disqualified from voting in Utah are removed to discourage fraud and help us get an accurate idea of Utah’s level of civic engagement.  But it doesn’t do Utah or its voters any good to take away someone’s voter registration simply based on the fact that they haven’t voted.