Freedom to Vote Act and Same-Day Registration?

NPR is reporting this morning that the newly unveiled electoral reform bill put together by Senate Democrats, including Manchin and Klobuchar, would “ensure every state offers same-day voter registration.” I did not see that particular provision mentioned in this morning’s reports by the Washington Post and CNN. (The New York Times report mentions “new automatic voter registration programs” but not specifically same-day registration. Like NPR, however, MSNBC is reporting that the bill specifically contains “same-day registration” along with “automatic voter registration” according to Klobuchar’s office.) I haven’t been able to find a publicly available text of the new bill, or an official summary; if anyone would send that to me, I’d greatly appreciate it.

Assuming the NPR report is accurate, a federal same-day registration mandate over the objection of Republican states is an example of the kind of provision that worries me for the reasons expressed in my post yesterday. To be clear, I’m personally a fan of same-day registration and, from all the evidence I’ve seen, it works well in those states that have it. But long before Trump’s “big lie” and the “electoral McCarthyism” that plagues the capacity to count ballots in a way acceptable to Republican candidates when they lose, same-day registration was a provision that Republicans resisted based on a belief (right or wrong) that it struck the balance between access and integrity too far in the direction of access at the expense of an undue risk of mischief at the polls. If Congress were to mandate that all states must use same-day registration, it will significantly worsen the risk that Republicans will simply repudiate results that they don’t like in 2022 and 2024 on the ground that those results cannot be trusted because of same-day registration imposed upon them over their objections. I can envision Republicans in Congress on January 6, 2025 making exactly this argument as the basis for objecting to an electoral victory by the Democratic presidential nominee in 2024.

As I noted yesterday, E.J. Dionne argues that Senate Democrats must pass their version of voting rights reform, even without any GOP votes if necessary, because otherwise it would leave “a nation half-democratic and half undemocratic.” But that claim cannot seriously be made with respect to same-day registration. Many states, indeed most states, do not have same-day registration. (NCSL provides a useful chart.) Among the states that lack this particular electoral reform are Massachusetts, Rhode Island, New York, Pennsylvania, New Jersey, Ohio, and Delaware. I don’t believe that E.J. Dionne considers these states to be among the part of the nation left “undemocratic” if Congress fails to impose same-day registration nationwide.

This brings me to the larger point. If Senate Democrats really believe they are pursuing electoral reform in order to save American democracy from the increasing risk of authoritarianism, they are going about it in the wrong way. They, along with House Democrats, should be sitting down with Rep. Liz Cheney and asking her to help them craft a bill that will contain the essential ingredients for protecting America’s representative democracy from an authoritarian takeover. Cheney has proven her commitment to the cause; she’s lost her leadership in the House GOP caucus, and altered the entire trajectory of her career, because of this commitment. But if you asked for her opinion, I don’t think she’d say that same-day registration was one of those essential provisions; leave that particular policy choice to the states, I bet she would say. There are different ways to run a democracy, all consistent with actually being a genuine democracy, and having or not having same-day registration is one of those policy options on which democracies can go either way. In a federalist system, it makes sense to let the states make that policy choice between acceptable alternatives.

After hammering out with Liz Cheney the list of essential elements of protecting electoral democracy that are missing from federal law, then it would be time to test whether filibuster reform is necessary. If Liz Cheney is on board, where are the Senate Republicans who profess to care about saving the Republic from an authoritarian subversion of democracy? If there aren’t enough of them, then it’s a truly “break the glass” moment and time to figure out a way to cross the finish line with fewer than 60 votes. But who knows, maybe Cheney can bring 10 Republican Senators along, so as to avoid the need for a filibuster fight? Have any Senate Democrats reached out to her in this way? Including same-day registration in the bill would not seem to be the most successful strategy along those lines.

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