Oregon Reverses Voting Law Trend

Ken O’Brien

Last night Rachel Madow reported on a major break from a national trend. For more than a decade, voting rights advocates have on been on the defensive. They’ve resisted one effort after another to restrict access to the polls, efforts that got new life following the Florida election fiasco of 2000, when a large black turnout almost (or maybe did) put Al Gore over the top in the Sunshine State, and that reached full force following Barack Obama’s election in 2008. 

Between the 2010 and 2012 elections alone, governors signed into law 23 bills that imposed constraints on voting, including requiring photo ID at the polls and curtailing same-day registration and early voting. While there have been defensive victories here and there, the resistance has been futile in many states and not helped by the Supreme Court, which in 2008 ruled in favor of voter ID laws and in 2013gutted key elements of the Voting Rights Act.

But now, at least in one state, the voting rights camp is on the offensive, and it’s hard to overstate what a pivotal turn that represents in the nation’s long-running voting wars. Oregon’s new governor, Kate Brown, the former secretary of state who took over following the resignation of her fellow Democrat John Kitzhaber, has made headlines for being the nation’s first openly bisexual governor, but the bill she signed Monday is far more significant. The new law radically modernizes the voter registration process in the state, such that Oregonians will be automatically registered to vote based on information the Department of Motor Vehicles has in its electronic files (which crucially includes whether someone is a citizen or just a permanent resident and thus ineligible to vote). Under the “Motor Voter” law of 1993, Americans gained the ability to register to vote at DMVs and other government offices, but the burden was still on them to fill out paperwork and update registration statuses with name and address changes. The Oregon law puts the burden on the state, not the individual (who may still ask to be removed from the rolls if he or she prefers), and in so doing operates on the same logic as automatically enrolling workers in a 401(k) with the option to opt out, rather than waiting for them to sign up: The default approach gets more sign-ups

Other states have improved their registration processes so that information passes electronically from DMVs to voting registrars rather than being sent over in paper forms to be transcribed (or mistranscribed, as often is the case). But only Oregon is taking the default approach and looking through its existing records for those who are eligible but unregistered, which is expected to net at least 300,000 more people on the voting rolls right away. “Lots of people capture who comes in tomorrow—but they capture who’s in the database already,” says Myrna Pérez of New York University’s Brennan Center for Justice, which advocates for voting rights. “It strikes a good balance—the government should take responsibility for registration, take advantage of available and reliable lists, and use those lists to improve our democracy.”

If Oregon’s approach takes hold in other states—several have legislation already in the works—the impact would be considerable, given that there are an estimated 50 million Americans who are eligible to vote but unregistered and another 23 million who are estimated to have registrations that need updating with correct information. Equally as important, though, is that the state’s move represents a real shift in the debate. For years now, the voting rights side has been forced to fight on the terms of those seeking to limit access at the polls, parrying the (unsubstantiated) claims of widespread voter fraud that have been used to justify the wave of new voter ID laws. The Oregon law turns the tables: It implicitly asserts that voting is an inherent right of citizenship, not a privilege for which one must jump through hoops to obtain (see, for instance, Alabama’s application for a voter ID card, required by a law passed nearly a half-century after the Selma protests) and that the more people who are exercising that right, the better.

In so doing, the law clarifies what the voting wars have been about all along, even before Florida 2000 and the election of Barack Obama: two starkly different conceptions of the franchise. Those adhering to the notion of the United States as a “republic” have long preferred that the voting (and governing) be done by the most informed, propertied, and invested of citizens; those viewing the nation as a “democracy” have long favored mass participation by all who are eligible. Ed Kilgore, a liberal blogger and former Democratic aide, put it very well last year:

The idea of a limited franchise—on general principles, not as a response to “fraud” or any particular abuse of the ballot box—is a very old conservative preoccupation in this and in other “democracies.” Partly that’s because there is a powerful tendency on the right in most democratic republics to prefer more of a republic with fixed and limited public-sector policies and less of a democracy where popular majorities have greater control. And partly that’s because the privileges most conservatives would like to preserve for the stability and prosperity of society are favored by those who currently enjoy them: those in the best position to meet any available test for voting eligibility, and least likely to be discouraged by inconvenience.

The last time this contrast in philosophies was so clear was during the drawn-out battle over the Motor Voter law. The law’s proponents, led by then-Sen. Wendell Ford, a Kentucky Democrat, argued that the government should make it as easy as possible for people to register to vote and thereby help overcome the apathy and distraction that underlies low American voter turnout. The opponents, led by Ford’s fellow Kentucky Sen. Mitch McConnell, argued that there was such a thing as making it too easy to register—it would encourage voting by decidedly unpropertied types like (gasp) mothers signing up for welfare benefits or infant-nutrition supplements. “This bill wants to turn every agency, bureau, and office of state government into a vast voter registration machine. Motor voter registration, hunting permit voter registration, marriage license voter registration, welfare voter registration—even drug rehab voter registration,” McConnell said in 1991. Two years later, he said that the bill “discriminates against taxpayers in favor of welfare recipients.” At other points, he explicitly endorsed the “republican” ideal of low turnout being a sign of a well-ordered government: “It is a sign of the health of our democracy that people feel secure enough about the health of the country and its leaders that people don’t have to obsess about politics all the time,” he said. And this: “People vote because they care—and no voter registration requirement will stop them, even if it is slightly burdensome.”

Motor Voter finally passed, with President Bill Clinton’s signature, in May 1993. Since then, though, state procedures have failed to keep up with technology, and the rolls of Americans disconnected from the political process have only grown, while the voting rights debate has been taken over by talk of fraud and voter IDs. Oregon has taken a big step toward bringing it back to first principles.