PRIVACY OR THE POLLS: PUBLIC VOTER REGISTRATION LAWS AS A MODERN FORM OF VOTE DENIAL.

• Author: Sauer, Audrey Paige

INTRODUCTION I. THE IMPORTANCE OF ELIMINATING BARRIERS TO VOTER REGISTRATION A. Historical Barriers to Voting B. Modern Voter Registration Barriers C. National Voter Registration Act of 1993 II. CURRENT STATE LAWS GOVERNING ACCESS TO VOTER REGISTRATION INFORMATION A. What Information Is a Public Record? B. Who Can Access Voter Information? C. How Voter Data Can Be Used D. Statutory Exemptions III. PUBLIC VOTER REGISTRATION LAWS AS A MODERN FORM OF VOTE DENIAL A. A Burden-Based Standard of Review B. Identifying the Burden: Privacy in the Digital Age 1. Voter Intimidation 2. Physical Safety Threats 3. Identity Theft 4. Democratic Harm 5. Societal Harm C. State Interests D. A Balancing Act: Applying the Standard of Review IV. THE DRIVER'S PRIVACY PROTECTION ACT AS A MODEL FOR REFORM CONCLUSION INTRODUCTION

On May 11, 2017, President Donald J. Trump signed an executive order establishing the Presidential Advisory Commission on Election Integrity (PACEI), with the mission to "study the registration and voting processes used in Federal elections." (1) Pursuant to this mission, Vice Chair of the Commission, Kansas Secretary of State Kris Kobach, sent out letters to state election officials soliciting all "publicly available voter roll data," including all registrants' full first and last names, middle names or initials, addresses, dates of birth, political party, last four digits of Social Security numbers if available, voter history from 2006 onward, information regarding any felony convictions, voter registration in another state, and military status. (2) The requests were met with fierce public backlash from both citizens (3) and state officials, (4) with as many as fourteen states refusing to comply with the Commission's request, (5) ultimately forcing the Commission to dissolve due to sheer lack of state compliance. (6)

Although many citizens may be glad that their information will not be disclosed to the Trump administration, the uproar over the PACEI request suggests that many citizens are unaware of the already public nature of their voter registration data. (7) PACEI did not require states to submit any information beyond that which is already publicly available. (8) Currently, "[a]ll 50 states and the District of Columbia provide access to voter information." (9) Just as citizens and representatives strongly opposed disclosing voter information to the federal government, many voters express similar opposition to forfeiting their privacy to the public. (10) Representatives and public officials are becoming increasingly aware of constituents' privacy concerns and the negative effect that public record laws have on voter registration. Connecticut State Senator Paul Doyle said: "My constituent told me that they were going to take themselves off the voter list and de-register because of their information being available online." (11) The Supervisor of Elections for Marion County, Florida, Wesley Wilcox, noted a similar response from Florida constituents: "As a result of th[e] unintended impact of the 'Public Records Law', some voters are turned off to voting and have even requested to be removed from the voter registration rolls and surrender their right to vote in exchange for additional protection of their privacy." (12) State legislatures have responded to such concerns; in 2016, there were at least thirteen bills proposed in eight states that dealt with the distribution and availability of voter information. (13)

There are legitimate and compelling reasons that eligible voters might be concerned about the public disclosure of their registration information. (14) Consequently, publicizing voter registration presents the risk that, when forced to choose between protecting their privacy and registering to vote, some voters choose not to register; (15) the unacceptable consequence being that eligible citizens are left unable to exercise their right to vote. This Note will argue that state disclosure of voter registration information as public record operates as a form of vote denial by conditioning voter registration on the public disclosure of a voter's registration information. This disclosure threatens to decrease the number of eligible citizens who register to vote and consequently prevent eligible citizens from exercising their constitutional right to vote. This Note will then propose that Congress model a reform for voter registration laws after the Driver's Privacy Protection Act.

1. THE IMPORTANCE OF ELIMINATING BARRIERS TO VOTER REGISTRATION

   The right to vote is well established as imperative to American democracy, (16) yet it is important to recognize the somewhat obvious fact that registering to vote is a crucial first step to citizens exercising their right to vote. (17) This Part will cover how barriers to voting are detrimental to the functioning of representative democracy and why, by extension, barriers to registration warrant attention and concern. This Part will first acknowledge the impact of historical barriers to voting and how modern barriers to voter registration continue to affect democracy. This Part will then address modern efforts to improve ease of voter registration, specifically the National Voter Registration Act of 1993.

   1. Historical Barriers to Voting

      American citizens have not always universally had, or been able to effectively exercise, a right to vote. (18) In drafting the U.S. Constitution, the Founding Fathers did not grant an affirmative right to vote to anyone. (19) Rather, the Constitution left suffrage decisions to the individual states. (20) For nearly one hundred years of U.S. history, most states granted only white, land-owning men over the age of twenty-one the right to vote. (21)

      Even as states began eliminating the requirement of property ownership, large segments of the population--including women, African Americans, and Native Americans--remained barred from voting. (22) In 1870, after the Civil War, Congress extended the right to vote to nonwhite men by passing the Fifteenth Amendment, which prohibited denying a citizen the right to vote on the basis of race. (23) In practice, however, states largely ignored and circumvented the Fifteenth Amendment for many years. (24)

      The spike in African American voter registration numbers that resulted from the passage of the Fifteenth Amendment triggered a shift from express vote denial to indirect forms of disenfranchisement. (25) In 1890 (during what would become known as the Era of Disenfranchisement), states began adopting laws that made it difficult for African Americans to vote. (26) These laws implemented discriminatory voting qualifications, such as literacy tests, poll taxes, and proof of good character. (27) African Americans also faced violence and intimidation tactics aimed at keeping them from the polls. (28)

      These indirect methods of disenfranchisement effectively kept African American voting levels extremely low. (29) In Louisiana, from 1896 to 1904, African American registration numbers decreased by 96 percent. (30) Similar drops in African American registration rates were seen across the southern states during the Era of Disenfranchisement: Alabama's numbers fell from 140,000 to 3742, South Carolina's numbers fell from 92,081 to 2823, and Mississippi's numbers fell from 52,705 to 3573. (31) Consequently, by 1965, even predominately African American cities such as Selma, Alabama, had voter rolls that were 99 percent white. (32) It was not until 1965, with the passage of the Voting Rights Act, that discriminatory voting practices such as poll taxes and literacy tests were officially banned by the federal government. (33)

   2. Modern Voter Registration Barriers

      Despite the elimination of legal barriers to voting, the right to vote is still hindered by new, more obscure barriers. (34) Voter ID laws, voter roll purges, political and racial gerrymandering, and felon disenfranchisement all threaten to suppress voters and change election outcomes. (35)

      The controversy surrounding voter ID laws in Wisconsin highlights how modern barriers to voter registration threaten to affect democracy. In 2016, Wisconsin implemented a strict voter ID law that left 300,000 voters (9 percent of Wisconsin's electorate) without an eligible form of ID. (36) As a result, Wisconsin's voter turnout in the 2016 presidential election was reduced by an estimated 200,000 votes. (37) Decreasing voter turnout by this amount can be politically decisive, considering 2016 presidential candidate Donald Trump won Wisconsin by a mere 22,748 votes. (38)

      Beyond affecting sheer voting numbers, barriers to voter registration can also affect voter diversity and equality in political representation. (39) Studies estimate that, after implementing stricter voter ID laws, Wisconsin's electorate was 6.1 percent more Republican and 5.7 percent less Democrat than the group of 200,000 "lost voters." (40) Wisconsin's electorate may have also become less racially diverse, with an estimated 3.7 percent more white voters and 3.8 percent fewer African American voters than the group of "lost voters." (41)

      Although studies are mixed as to whether voter ID laws have an impact on voter turnout and how much of an effect, (42) any election law that may negatively impact equal representation in elections warrants attention and concern.

   3. National Voter Registration Act of 1993

      In passing the National Voter Registration Act of 1993 (NVRA), supporters recognized barriers to registration as the most important factor contributing to low voter turnout rates. (43) The NVRA sought to bolster voter turnout by increasing the ease of voter registration, explicitly acknowledging that "unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for Federal office." (44)

      Recognizing that voter registration is a critical first step to exercising the right to vote remains as important today as it was in 1993. Statistics...