Josh Douglas has posted this draft on SSRN (forthcoming, Wisconsin Law Review). Here is the abstract:

History and tradition are dominating the current Supreme Court, which has invoked history and tradition to curtail some rights, such as abortion, while using it to elevate other rights, such the right to bear arms. Might history and tradition also support expanded rights even if doing so will result in a ruling that seems contrary to the majority’s preferred ideological outcome? Current disputes over voter registration restrictions will pose that very question. Many states have recently implemented onerous rules on voter registration, especially targeting third-party voter registration organizations. As this Article shows, the Court should strike down these rules under a faithful interpretation of the history and tradition of voter registration.

The Article first discusses the ways in which some states have imposed restrictive registration rules and made it harder for organizations to help voters register. States have enacted citizenship requirements on who may register voters, tight delivery deadlines for completed registration forms, speech mandates for third-party organizations, compensation restrictions for individuals engaged in voter registration, and rules on what voters must present to register to vote.

The Article then turns to the history of voter registration, drawing upon primary sources such as archival newspaper records to show that there is a rich history of voter registration drives that date to the beginning of voter registration. There are three significant periods of expanded voter registration through third-party organizations, including during the women’s suffrage movement, the Civil Rights movement, and in the 1990s after Congress passed the National Voter Registration Act. Interested parties and organizations have engaged in voter registration activities for almost as long as there have been registration lists.

The Article then evaluates how courts should use this history and tradition. Specifically, because history and tradition support robust third-party voter registration activities, the Court should invalidate new voter registration restrictions as violating organizations’ and voters’ rights. If voter registration is considered a deeply rooted aspect of the election process, then so is the practice of third parties conducting voter registration drives and helping others register to vote.

History and tradition are now the primary focus of arguments at the Court. To win, litigants must explain why history and tradition support their contentions. On voter registration, history and tradition demonstrate that eligible voters could easily place their names on the voter list and that organizations could assist in those efforts without hindrance. The Court should invoke this history and tradition to strike down restrictions on voter registration.

Good catch from Pam Fessler.

Des Moines Register:

A federal judge has ruled that Iowa poll workers may continue challenging the ballots of more than 2,000 Iowans who are on a flawed list of possible noncitizens, denying a request to order counties to allow those named to vote normally.

Iowa Secretary of State Paul Pate, a Republican, instructed county auditors on Oct. 22 to challenge the ballots of 2,176 registered voters who at some point in the past had told the Iowa Department of Transportation they were not U.S. citizens.

Any voter that is challenged must submit a provisional ballot, which won’t be counted unless they can provide proof of their citizenship by Nov. 12.

A group of naturalized citizens and the League of United Latin American Citizens of Iowa sued, saying Pate’s instruction to county auditors had wrongly forced naturalized citizens — who are eligible to vote — to jump through extra hoops to cast their ballots, simply because they had gotten a driver’s license before they became a citizen.

U.S. District Judge Stephen Locher wrote in a decision Sunday that both sides seem to agree that some portion of the people on the list are not U.S. citizens.

“This portion appears to be relatively small — no more than 12% — but, still, the injunctive relief requested by plaintiffs effectively would force local election officials to permit those individuals to vote,” Locher wrote. “Whatever concerns plaintiffs might have about the nature and timing of Secretary Pate’s letter, it would not be appropriate for the court to respond by granting injunctive relief that effectively forces local election officials to allow ineligible voters to vote.”

Several county auditors have identified at least some of the people on Pate’s list as naturalized citizens.

Linn County Auditor Joel Miller said in an email Sunday night that his office has confirmed the citizenship of 134 of the 150 people on the list he was provided by Pate’s office.

“At most, we will challenge 16 persons on the list, and only if they early voted via absentee or show up to vote on Election Day,” he said….

The opinion is here.

Votebeat and the Texas Tribune:

There is no simple way to know how many people are disenfranchised because of this, but more than a dozen local election officials and volunteer deputy registrars shared examples, and multiple people told similar stories: They filled out the paper application form, mailed it, gave it to a volunteer deputy registrar, or even went to their county office to drop it off — and still weren’t successfully registered.

Votebeat’s investigation found the problems apparently share a root cause: a registration system that relies on paper forms. Texas is one of only eight states without universally available online voter registration. Most people in the state have to fill out a paper form, whether they are registering through an election office or while getting a new driver’s license or state ID at the Texas Department of Public Safety. Only people who already have a Texas driver’s license and are engaging in an online transaction with DPS, such as renewing their license or updating their address, can use a DPS online portal to register.

The Texas Secretary of State’s office told Votebeat that offering online registration to all voters would require legislative action. State lawmakers have for years resisted efforts to do so.

That means information from hundreds of thousands of applications processed each year has to be entered into county election systems by hand — creating plenty of opportunities for things to go wrong.

NPR:

Nadra Wilson of Lynchburg, Va., was concerned and confused when she received a letter in the mail from local election officials notifying her that her U.S. citizenship was in question.

The notice said she needed to affirm she was a U.S. citizen within 14 days or her voter registration would be canceled. It was first sent to an old address and then was forwarded. By the time Wilson received it in October, the deadline had passed.

But Wilson was puzzled by the letter. “I was born in Brooklyn, N.Y. — I’m a citizen,” Wilson said in an interview with NPR before showing her American passport as proof.

Wilson, who works in health care, moved to Virginia nine years ago and first registered to vote there before the 2016 election.

The U.S. Supreme Court could rule as early as Tuesday afternoon on an emergency request to block a lower court ruling that orders the state to restore to Virginia’s rolls Wilson and some 1,600 other registered voters. A voter removal program, the lower court found, purged them from the state’s registration list in violation of federal law. The state’s Republican governor, Glenn Youngkin, has said the program enforces a 2006 state law and removes noncitizens who are ineligible to vote. He issued an August executive order requiring county election officials to remove suspected noncitizens flagged by the state on a daily basis.

But as Wilson and other voters’ stories show, the program has also erroneously ensnared U.S. citizens who are eligible to vote….