Michael Morse on Voter List Maintenance in BU Law Review with Doug Spencer Response

Michael Morse has written Democracy’s Bureaucracy: The Complicated Case of Voter List Maintenance (B.U. L. Rev.):

This Article calls attention to the development and derailment of a novel cross-governmental bureaucracy for voter registration. It focuses specifically on voter registration lists as the vulnerable backbone of election administration. In short, the constitutional allocation of election authority has left a mobile electorate scattered across fifty different state registration lists. The result is more than a tenth of the electorate likely registered in their former jurisdiction and more than a third not registered at all. The solution, in the vocabulary of election officials, has become “list maintenance”—or, identifying when voters, previously registered at one address, subsequently move or die, often by matching administrative data or coordinating across agencies.

Part I traces the rise of national, but not federal, efforts to coordinate voter registration lists across states. In particular, it offers the first comprehensive account of the Electronic Registration Information Center (ERIC), a non-profit corporation run by state chief election officials to facilitate list maintenance by pooling voter registration and other critical voter data, from state driver’s license records to the federal death file. But after a decade of growth ERIC has begun to unravel: nine Republican states have now quit the bipartisan effort. Part II argues that disjointed voter registration lists are an easily exploited democratic vulnerability, partly due to the unintended effects of federal privacy law. It explains how state voter registration lists often lack a unique national identifier, so efforts to simply compare state voter registration lists produce the appearance of fraud where none exists; how more reliable comparison requires supplementing registration lists with confidential administrative data, subordinating one form of legitimacy for another; and how private interest groups, engaging in what this Article terms “vigilante list maintenance,” increasingly use public, but necessarily incomplete, administrative records to further fan partisan narratives about fraud. Finally, Part III offers a series of policy solutions to both fortify list maintenance from attack and promote enfranchisement. It proposes trimming the scope of federal privacy laws to accommodate election administration; flipping the procedural and substantive framework for list maintenance; and expanding the government’s obligation to update, rather than cancel, registrations as voters move. Ultimately, this Article resists the familiar narrative that pits voter access against electoral integrity; a robust national, but not federal, bureaucracy for voter registration can promote both values.

Doug Spencer response, “Electoral Maintenance:” 

According to the U.S. Supreme Court, the right to vote is fundamental because it is preservative of all rights, and yet in many cases legal protections for the right to vote fall short of protections for the other rights that voting is meant to preserve. Redefining the right to vote cannot solve this problem alone. Election administration has at least as much consequence on the right to vote as any particular definition or legal theory. In Democracy’s Bureaucracy, Michael Morse draws our attention to one of the most important yet understudied issues of election administration: voter list maintenance. In addition to his descriptive account of the novel way states have cooperated to perform list maintenance, Morse’s analysis provides a window into three pathologies of America’s election administration more generally. First, the mechanics of elections directly implicate the fundamental right to vote, raising questions of how stringently these procedures should be evaluated by courts. Second, political interference in the administration of elections can flip representative government on its head by insulating elected officials from political accountability and making elections less secure. Finally, several challenges related to the administration of elections are rooted in our electoral system that narrowly links geography and political representation. Relaxing this link may foster a more effective, responsible, and inclusive system of government. 

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