FOLLOWING OREGON'S TRAIL: IMPLEMENTING AUTOMATIC VOTER REGISTRATION TO PROVIDE FOR IMPROVED JURY REPRESENTATION IN THE UNITED STATES.

• Author: Cascino, Julie A.

TABLE OF CONTENTS INTRODUCTION 2577 I. THE NEED FOR VOTER REGISTRATION REFORM 2581 A. Historical Background 2582 1. The U.S. Jury Tradition 2582 2. Voter Discrimination in the United States 2584 B. The Importance of Representative Juries 2588 C. Judicial Intervention in Jury Selection 2589 II. CONTEMPORARY ISSUES WITH STATE VOTER REGISTRATION 2591 A. Contemporary State Voter Laws 2592 B. Legal Challenges to State Voter Laws 2594 III. OREGON'S AUTOMATIC VOTER REGISTRATION MODEL: THE MOTOR VOTER ACT 2595 A. Oregon as an Electoral Reform Pioneer 2596 B. The Structure of Oregon's Automatic Voter Registration Statute 2597 C. Early Statistics and Commentary on the Oregon Statute 2598 1. Early Voter Registration Statistics 2598 2. Positive Commentary on Oregon's Model 2600 IV. APPLYING AN EXPANDED VERSION OF OREGON'S MODEL IN OTHER STATES 2601 A. The Need for an Expanded Version of the Oregon Model 2602 1. Conserving Resources 2604 2. Preventing Voter Fraud 2606 B. Using Registered Voters' Names for Jury Pool Lists 2608 1. Increasing Access to the Franchise 2608 2. Increasing Jury Representation 2609 V. COMMON CONCERNS WITH THE USE OF AUTOMATIC VOTER REGISTRATION 2610 A. Criticism of the Oregon Model 2610 B. Automatic Registration Effectiveness 2611 C. Peremptory Challenges 2612 D. Jury Service Avoidance 2613 E. Voter Privacy Concerns 2614 CONCLUSION 2615 INTRODUCTION

In 2012, economists Shamena Anwar, Patrick Bayer, and Randi Hjalmarsson cowrote a study that was "the first of its kind--ever," (1) a study examining the effect that all-white jury pools had on Florida trials over a ten-year period. (2) The study found that when Black persons were absent from Florida jury pools, Black defendants were convicted at an 81 percent rate while white defendants were convicted at only a 66 percent rate. (3) In contrast, when the jury pool included at least one potential Black juror, the conviction rates between Black defendants and white defendants were almost identical, at 71 percent for Black defendants and 73 percent for white defendants. (4) The study also found that adding Black potential jurors to the pool altered trial outcomes "even when [those] jurors [were] not ultimately seated on the jury." (5)

The results of this study suggest that the diversity of a potential pool of jurors plays a significant role in providing defendants--and especially defendants of color--with fair trials, perhaps even more so than attorneys' inability to use peremptory strikes to remove jurors of color. (6) Moreover, although there is no promise juries will be perfect microcosms of the local community, the U.S. Constitution guarantees criminal defendants at least "an impartial jury." (7)

Unfortunately, the likelihood that a specific locality's jury source pool includes a diverse array of individuals is low because states often use voter registration data as a major source of names for jury pools, (8) and the U.S. electoral system suffers from widespread voter disenfranchisement. (9) For example, in 2008, millions of Americans did not vote, either because they missed registration deadlines or did not know how to register in the first place. (10)

The voter turnout problems in the 2008 election were not anomalous compared to prior trends. In the past half-century, turnout in national elections has generally been low, especially when compared to voter participation in other democracies. (11) As part of this trend, younger people, people of lower socioeconomic status, and people of color have turned out to vote in lower numbers than other sectors of society, often due to strict state registration requirements that can make the registration process more difficult to complete. (12) For example, as recently as the 2014 midterm election year, persons under thirty years old constituted 34 percent of nonvoters; Hispanics, African Americans, and other racial and ethnic minorities constituted 43 percent of nonvoters; and persons with family incomes less than $30,000 per year constituted 46 percent of nonvoters. (11) Due to the low registration rates of these groups, voter rolls often do not accurately represent the proportion of eligible minority, low-income, or young voters in a specific community. (14) Accordingly, jury pools are less representative of that community as well. (15)

Notably, many states supplement jury source lists with names from other sources, including tax rolls and the names of licensed drivers. (16) Nevertheless, these sources often lack diversity as well, making it less likely that including those names will have a significant effect on jury pool representation. (17) And when the pool of potential jurors lacks diversity, a person's chance of securing an impartial jury is compromised. (18) In a country that prides itself on its democratic ideals, the chronic problem of underrepresentative juries threatens a crisis of injustice by preventing the justice system from living up to its constitutional mandate. (19)

Hope is not lost, however. The State of Oregon may have fashioned a partial solution to jury representation problems through the passage of the Oregon Motor Voter Act. (20) The 2015 law calls for the state to automatically register to vote those persons who apply for a driver's license or other qualifying document from the Department of Transportation. (21) Preliminary results suggest the law has been effective in its aim to promote the convenience, security, and simplicity of voter registration and to expand ballot access to all potential voters. (22) In the months before the November 2016 presidential election, Oregon automatically registered 272,702 individuals. (23) Insofar as Oregon jurisdictions draw jury pools from the lists of registered voters, (24) this surge in registered voters increases the likelihood that those pools will reflect the diversity present within local communities.

This Note will discuss how implementing automatic voter registration can increase registration numbers, and, by extension, jury diversity in other states. Part I will discuss the history of both the jury system and voter discrimination in the United States, and will argue that neither the federal government nor the judiciary's intervention in jury selection practices has ensured that juries are truly representative.

Noting that historical issues with voter discrimination have become contemporary problems as well, Part II will explain why voter registration reform is needed to increase the diversity of juries and to protect the constitutional rights of criminal defendants, even in states that supplement their jury source lists with data from other sources. Part III will then examine Oregon's Motor Voter statute, detail some history behind the law and early registration statistics following its passage, and discuss some commentary on its early effects.

Recognizing that many states already pull jurors from supplemental sources, Part IV will then argue that states should develop an expanded version of Oregon's program by automatically registering residents who interact with either state motor vehicle offices, state public assistance offices, or offices providing state-funded services to persons with disabilities. Part IV will further explain why implementing automatic registration systems will not only increase access to the franchise, but also will lower resource costs, increase voter security, and prevent voter fraud. Part IV will conclude by arguing that states should require their localities to add the names of automatically registered voters to jury source lists to ensure that automatic registration systems effectively increase jury source pool diversity.

Finally, Part V will describe some common concerns with the use of automatic voter registration, and will provide responses and potential remedies to address those concerns. Overall, this Note shows that in providing for increased jury diversity, expanding access to the vote, and preventing problems with fraud and voter security, automatic voter registration will help to ensure the U.S. justice system lives up to its democratic ideals, without threatening the safety or integrity of its people.

1. THE NEED FOR VOTER REGISTRATION REFORM

   To understand why implementing automatic voter registration is needed to improve the jury selection process, it is helpful to understand both why representative juries are so important in the United States and how voter discrimination affects the jury system. To provide some context behind the voter registration problem, this Part offers a brief historical background of the development of the U.S. jury system and points to the nation's history of voter discrimination, arguing that federal intervention in the electoral system has failed to resolve issues with discrimination. Then, this Part explains why representative juries are a cornerstone of democracy in the United States. Lastly, this Part asserts that judicial intervention in discriminatory jury selection processes has failed to ensure all parties face a truly diverse, impartial jury.

   1. Historical Background

      To provide some context regarding the use of the jury in U.S. society, this Section details the basic history of the U.S. jury and describes traditional state juror selection procedures, such as the use of voter registration rolls as juror source lists. Then, to show how voter registration reform can affect the jury process, this Section details the history of voter discrimination in the United States, as well as Congress's failed attempts to mitigate the effects of discrimination in the electoral process.

      1. The U.S. Jury Tradition

         U.S. courts began using juries as early as the establishment of the English colonies. (25) Following the English common law tradition, colonial governments provided for jury trials in their jurisdictions. (26) Then, after achieving independence in the Revolutionary War, the fledgling U.S. government maintained the English tradition, constitutionalizing the...